County District Court No. 14CV30542 Honorable Norma A.
Leventhal & Puga, P.C., Jim Leventhal, Erin C. Genullis,
S. Paige Singleton, Benjamin I. Sachs, Denver, Colorado, for
Plaintiff-Appellee and Cross-Appellant
& Avery LLP, David H. Yun, Denver, Colorado, for
Defendant-Appellant and Cross-Appellee
1 In a medical negligence case, should the initial provider
be allowed to present evidence that a later provider's
negligence caused the injury for which the patient seeks to
recover damages from the initial provider? Does the answer
depend on whether the initial provider attempts to apportion
fault or seeks complete exoneration because, even if he or
she was negligent, the later provider's negligence was a
superseding cause of the patient's injury?
2 David J. Conyers, M.D., who performed carpal tunnel surgery
on Deborah Danko, appeals the judgment entered on a jury
verdict in favor of Ms. Danko. According to Ms. Danko, Dr.
Conyers negligently failed to detect an infection resulting
from the surgery, which led to amputation of her forearm. Dr.
Conyers challenges rulings before and during trial excluding
his expert testimony that amputation of Ms. Danko's
forearm by another physician, four months after she had been
discharged from Dr. Conyers' care, was unnecessary. Dr.
Conyers raised the other physician's treatment not as a
basis to apportion fault, but as a superseding cause that
relieved him of any liability. He also challenges jury
instructions related to this issue.
3 Ms. Danko concedes preservation. She cross-appeals the
trial court's refusal to award some costs that she
4 We conclude that because Dr. Conyers did not present
evidence that the amputation was extraordinary, the trial
court acted within its discretion in excluding evidence of
the other provider's negligence. Rejecting Dr.
Conyers' other contentions, we affirm the judgment. We
reverse the cost award in part.
Background and Procedural History
5 Dr. Conyers, a hand surgeon, performed carpal tunnel
release surgery on Ms. Danko's right wrist on May 3,
2012. During post-operative care, he did not order a biopsy
to detect possible infection. In October 2012, he released
her from further care, believing that the wound was healing
normally and was not infected.
6 A month later, Ms. Danko sought a second opinion from Dr.
Frank Scott. Dr. Scott performed a minor procedure on Ms.
Danko's wrist. Three weeks later, Dr. Scott was notified
that cultures taken during the procedure had grown out
acid-fast bacilli. Ms. Danko was diagnosed with a
mycobacterium fortuitum (MBF) infection.
7 On January 16, 2013, Ms. Danko saw Dr. Carla Savelli, an
infectious disease specialist. Dr. Savelli recommended
long-term dual therapy involving a regimen of several
antibiotics and periodic surgical debridement of infected
tissue. Ms. Danko began taking antibiotics.
8 Two weeks later, Ms. Danko consulted Dr. Bennie Lindeque,
an orthopedic surgeon. Dr. Lindeque recommended amputation of
Ms. Danko's forearm "due to the severity and level
of tendon and nerve involvement." He performed the
amputation on February 11.
9 Ms. Danko sued Dr. Conyers, alleging that because he had
failed to diagnose her MBF infection, he was responsible for
the amputation. Her retained experts opined that had Dr.
Conyers ordered a biopsy in July or August, the MBF infection
would have been detected, dual therapy could have begun, and
amputation would not have been required.
10 Among other affirmative defenses in Dr. Conyers'
answer, he raised nonparty at fault under section
13-21-111.5, C.R.S. 2017. Dr. Conyers obtained an extension
for designating nonparties. Ultimately, he did not do so.
11 Before trial, Ms. Danko moved to strike the nonparty at
fault defense and to preclude evidence of other
providers' negligence or fault. The trial court granted
the motion. After citing Restatement (Second) of Torts
section 457 (Am. Law Inst. 1965) (hereinafter Restatement),
CRE 401, 402, and 403, the court explained:
In this Court's opinion, it would result in confusion to
jurors were Dr. Conyers to be permitted to muddle the waters
by calling into question the service rendered by subsequent
doctors, where under [section 457 of] the Restatement of
Torts, if the jury finds he was negligent, legally he would
be the sole cause of Ms. Danko's losses.
12 During trial, the court adhered to this ruling. Still, the
court allowed Dr. Conyers to present evidence as to the
standard treatment of antibiotics and debridement for MBF
infections, that Ms. Danko could have been treated this way
even after she left Dr. Conyers' care, that she was
improving under Dr. Savelli's treatment, that
post-amputation photographs of the dissected limb showed
healthy nerves and tendons, and that Dr. Conyers' care
did not cause the amputation.
13 In depositions and at trial, both Dr. Conyers and his
principal expert acknowledged that failing to diagnose and
treat an MBF infection earlier makes further medical
treatment foreseeable. They conceded that an undiagnosed and
untreated MBF infection can lead to amputation of the
14 After Dr. Conyers rested, Ms. Danko moved for a directed
verdict on causation and requested a nonpattern instruction
on the original tortfeasor rule embodied in Restatement
section 457. The trial court denied the motion. Over defense
objection, the court gave the following nonpattern
The plaintiff, Deborah Danko, is entitled to recover damages
to the full extent of injuries and losses suffered as a
result of the negligence, if any, of the defendant, Dr.
Conyers, even if the injuries and losses she suffered may
have been greater due to the course of medical care and
treatment she received thereafter.
gave a standard instruction on causation.
15 The court rejected Dr. Conyers' tendered instructions
on intervening cause. It also rejected a tendered instruction
that Dr. Conyers would be liable for any additional bodily
harm (e.g., amputation caused by subsequent health care
providers), "provided that you also find that the
additional bodily harm resulted from the normal efforts of
health care providers in rendering aid which the
plaintiff's injury reasonably required, irrespective of
whether such acts were done in a proper or negligent
16 The jury found Dr. Conyers liable and awarded damages of
II. The Trial Court Erred by Relying on Section 13-21-111.5
to Exclude Evidence That Other Providers Caused Ms.
17 The trial court held that "[b]y failing to designate
the [other] providers as nonparties at fault, Dr. Conyers
lost the right to argue that these providers caused Ms.
Danko's injuries." It explained that "[t]his
ruling serves to exclude at trial any expert testimony
concerning the standard of care related to the [other]
18 The court based this part of its ruling on section
13-21-111.5(3)(b), which provides that the "[n]egligence
or fault of a nonparty may be considered . . . if the
defending party gives notice that a nonparty was wholly or
partially at fault within ninety days following commencement
of the action . . . ." According to Ms. Danko, we must
affirm the trial court's exclusion of evidence related to
other providers' negligence or fault under this statute.
Standard of Review
19 Questions of law concerning the application and
construction of statutes are subject to de novo review.
City & Cty. of Denver Sch. Dist. No. 1 v. Denver
Classroom Teachers Ass'n, 2017 CO 30, ¶ 32.
20 Ms. Danko asserts that "Colorado law forbids the
admission of evidence of a non-party's fault where that
non-party was not properly designated." She relies on
cases such as Thompson v. Colorado & Eastern Railroad
Co., 852 P.2d 1328, 1330 (Colo.App. 1993), where the
division held that "a court may not allow the finder of
fact to consider the negligence or fault of a nonparty unless
such issue has properly been raised by the defendant in a
pleading which complies with the requirements of [section]
21 But the supreme court has held that "a defendant may
always attempt to interpose a complete defense that his acts
or omissions were not the cause of the plaintiff's
injuries." Redden v. SCI Colo. Funeral Servs.,
Inc., 38 P.3d 75, 81 (Colo. 2001). In other words,
"[a] defense that the defendant did not cause the
plaintiff's injuries is not equivalent to the designation
of a non-party because it cannot result in apportionment of
liability, but rather is a complete defense if
successful." Id. (citing Staley v.
Bridgestone/Firestone, Inc., 106 F.3d 1504, 1512 (10th
Cir. 1997)); see Staley, 106 F.3d at 1512
("[Defendant] can only be held liable if its conduct was
a contributing cause of the injury. It surely must be allowed
to defend itself by showing someone else's action or
inaction was the sole cause of the injury. That is different
from apportionment between two parties both of whose fault
contributed to the injury.").
22 Dr. Conyers did not seek to apportion fault between him
and the other providers. Instead, he sought to admit evidence
that their care - not his - had caused Ms. Danko's
amputation. Under Redden, such evidence is
admissible even if a nonparty at fault has not been
designated under section 13-21-111.5. Thus, this portion of
the trial court's rationale was incorrect.
23 Still, the trial court did not base its evidentiary ruling
solely on section 13-21-111.5. See URS Grp., Inc. v.
Tetra Tech FW, Inc., 181 P.3d 380, 387 (Colo.App. 2008)
("[W]e must next consider whether the judgment may
nevertheless be affirmed on one of the alternative grounds .
. . ."); cf. Foxley v. Foxley, 939 P.2d 455,
458-59 (Colo.App. 1996) (appellant must challenge all of the
trial court's alternative bases for dismissal). So, we
turn to whether excluding evidence related to the negligence
or fault of other providers was proper under Restatement
section 457, sometimes called the original tortfeasor rule.
The Trial Court Did Not Abuse Its Discretion by Relying on
Restatement Section 457 to Exclude Evidence of Other
24 The trial court found the following under CRE 401 and CRE
Even if Dr. Conyers can establish that [the] other . . .
providers were negligent - an assumption made only for
purposes of considering [Dr. Conyers' position] - the
Restatement of Torts [section 457] would hold any injuries
flowing from this subsequent care as being causally related
to the care provided by Dr. Conyers. Accordingly, the
necessity of [the] decision to amputate the arm is irrelevant
if it resulted from any negligence on the part of Dr. Conyers
to not diagnose the infection.
Standard of Review
25 Dr. Conyers urges us to review this ruling de novo. He
argues that the trial court misinterpreted Restatement
section 457 by disregarding an exception to initial physician
liability and thus applied an incorrect legal standard, which
raises a question of law. See Bd. of Cty. Comm'rs v.
DPG Farms, LLC, 2017 COA 83, ¶ 34 ("Whether
the court misapplied the law in making evidentiary rulings is
reviewed de novo."). And if the court applied an
incorrect legal standard, Dr. Conyers continues, the court
abused its discretion. Id. ("An abuse of
discretion occurs where the trial court's ruling . . .
was based on a misunderstanding or misapplication of the
26 But this argument must be juxtaposed against a trial
court's broad discretion to admit or exclude evidence.
See Mullins v. Med. Lien Mgmt., Inc., 2013 COA 134,
¶ 35. Thus, while we review the court's application
of Restatement section 457 de novo, unless it misunderstood
this section, the decision to exclude the evidence remains
within the court's discretion.
27 Colorado has adopted the approach set forth in Restatement
section 457, which provides:
If the negligent actor is liable for another's bodily
injury, he is also subject to liability for any additional
bodily harm resulting from normal efforts of third persons in
rendering aid which the other's injury reasonably
requires, irrespective of whether such acts are done in a
proper or a negligent manner.
(Emphasis added.) See Redden, 38 P.3d at 81 n.2
("We recognize that Colorado case law does not absolve
tortfeasors of liability when the plaintiff's injuries
result from medical treatment reasonably sought and directly
related to the actions of the ...