Day v. Johnson
255 P.3d 1064
| Colo. | 2011Background
- Day underwent thyroid surgery by Dr. Johnson with subsequent complications including internal bleeding, a second surgery, ventilator dependency, and later vocal cord paralysis allegedly caused by the surgery.
- Plaintiff alleged improper diagnosis, inappropriate treatment, and negligent surgical technique.
- Trial court instructed with CJI-Civ. 15:4 including the “exercise of judgment” clause; Days objected to that third sentence, but the court gave the full instruction.
- Jury returned a verdict of no negligence for Johnson.
- Court of Appeals affirmed; the Supreme Court granted review to assess whether CJI-Civ. 15:4’s last sentence accurately states Colorado law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the third sentence of CJI-Civ. 15:4 accurately states the law | Days argued the language injects subjectivity and misstates standard of care | Johnson argued only the last sentence is at issue and is accurate | Yes, the third sentence accurately states the law |
| Preservation of error regarding the instruction | Days preserved the third sentence objection only | Johnson contends appellate review limited to those objections | Preserved issue limited to the last sentence of 15:4; other portions waived |
| Nature of medical malpractice standard in Colorado | A bad outcome alone shows negligence | Standard is objective; outcome alone not enough | Medical malpractice requires breach of the objective standard of care, not mere bad outcome |
| Effect of the 'by itself' limitation in the instruction | Instruction could immunize bad judgment | 'By itself' preserves requirement of showing breach of standard of care | 'By itself' does not create liability immunity; jury must still apply elemental/standard of care |
Key Cases Cited
- Greenberg v. Perkins, 845 P.2d 580 (Colo.1998) (established objective standard of care for medical malpractice)
- Melville v. Southward, 791 P.2d 383 (Colo.1990) (a poor outcome alone is not proof of negligence)
- Bonnet v. Foote, 47 Colo. 282, 107 P. 252 (Colo.1910) (requirement to prove breach of ordinary care for negligence)
- Brown v. Hughes, 94 Colo. 295, 30 P.2d 259 (Colo.1934) (lamentable result not prima facie evidence of negligence)
- McGraw v. Kerr, 23 Colo.App. 163, 128 P. 870 (Colo.App.1912) (necessity to show negligence causation beyond merely an injury)