Danko v. Conyers
432 P.3d 958
Colo. Ct. App.2018Background
- Deborah Danko underwent carpal tunnel surgery by Dr. David Conyers; post-op infection (Mycobacterium fortuitum) was not biopsied or diagnosed while in Conyers’ care.
- Months later Danko was diagnosed with MBF infection; after antibiotic therapy began, orthopedic surgeon Dr. Lindeque amputated her forearm.
- Danko sued Conyers for medical negligence, alleging failure to diagnose/treat the infection caused the eventual amputation; Conyers pleaded, but did not ultimately designate, nonparty-at-fault providers.
- Conyers sought to admit expert testimony that later providers’ treatment (including the amputation) caused the loss and was a superseding, exonerating cause; trial court excluded that evidence and gave a nonpattern instruction limiting jury consideration of the necessity of amputation.
- Jury returned a $1.5 million verdict for Danko. On appeal Conyers challenged exclusion of evidence and jury instructions; Danko cross-appealed the trial court’s reduction/disallowance of certain costs (including jury consultant fees).
- The Court of Appeals affirmed the judgment, held the nonparty-at-fault statute did not bar a superseding-cause defense, upheld exclusion of the evidence under Restatement §457 and CRE 403 (discretionary) because Conyers failed to show the later care was "extraordinary," and reversed the costs ruling to allow recovery of jury consulting expenses.
Issues
| Issue | Plaintiff's Argument (Danko) | Defendant's Argument (Conyers) | Held |
|---|---|---|---|
| Did §13-21-111.5 bar admission of evidence that later providers caused the harm when they were not designated as nonparties at fault? | §13-21-111.5 requires designation of nonparties before their fault may be considered; non-designation should exclude such evidence. | Conyers argued he could present a complete defense that later providers were the sole cause (superseding cause), which is distinct from seeking apportionment under the statute. | Reversed trial court’s statutory rationale: §13-21-111.5 does not bar a defendant from offering evidence that a nonparty was the sole cause (superseding cause). |
| Could evidence that later treatment caused the harm be excluded under the Restatement original-tortfeasor rule (Restatement §457)? | Evidence of later providers’ negligence should be considered; amputation may have been extraordinary and therefore a superseding cause. | Restatement §457 generally makes the original tortfeasor liable for subsequent medical harm unless the intervening misconduct was "extraordinary" (superseding). | Court affirmed exclusion: Conners failed to show the later treatment was extraordinary; Restatement §457 application and trial court discretion supported exclusion. |
| Were the jury instructions regarding causation and not deciding necessity of amputation proper? | The jury should have been instructed to consider whether the amputation was an intervening cause under Restatement §457. | The instruction appropriately reflected the law given exclusion of evidence and the principle that original tortfeasor is liable for subsequent ordinary treatment-related harm. | Instructions were proper; no reversible error. |
| Are jury consulting fees recoverable as "actual costs" under the settlement-offer statute (§13-17-202) when plaintiff beat her offer? | Such costs are actual litigation expenses tied to encouraging settlements and should be recoverable when reasonable. | Trial court disallowed them as unnecessary; argued such fees are not recoverable under precedent treating them as overhead. | Reversed as to jury consulting costs: Colorado’s statute is illustrative, and policy favors awarding such reasonable costs after a rejected statutory offer; award increased by $7,944.14. |
Key Cases Cited
- Redden v. SCI Colo. Funeral Servs., Inc., 38 P.3d 75 (Colo. 2001) (recognizes defendant may assert a complete defense that plaintiff’s injuries were not caused by defendant, and endorses Restatement §457 approach to subsequent medical harm)
- Thompson v. Colorado & Eastern Railroad Co., 852 P.2d 1328 (Colo. App. 1993) (discusses requirements for designating nonparties at fault under Colorado statute)
- Daly v. United States, 946 F.2d 1467 (9th Cir. 1991) (applies Restatement §457 and explains liability of first physician for subsequent treatment directed to mitigating original harm)
- Cramer v. Slater, 204 P.3d 508 (Idaho 2009) (finding Restatement §457 makes original physician generally liable for foreseeable negligent subsequent medical treatment)
- Weems v. Hy-Vee Food Stores, Inc., 526 N.W.2d 571 (Iowa Ct. App. 1994) (medical treatment that produces a known risk, even if rare, is not necessarily extraordinary; superseding-cause instruction rejected where treatment was foreseeable)