2014 COA 134
Colo. Ct. App.2014Background
- Mary Catherine Gasteazoro presented to a hospital ED with headache, nausea, dizziness, neck pain and elevated blood pressure; Dr. Overholt (emergency medicine) diagnosed a cervical sprain and discharged her; no CT/MRI was ordered. Nurse Scolardi processed the discharge; Nurse Yerger triaged her initially. Ten days later she suffered a hemorrhagic stroke from a ruptured cerebral aneurysm.
- Plaintiff sued for medical negligence, alleging: (1) Yerger mis-triaged; (2) Dr. Overholt failed to recognize signs of impending CVA and did not order imaging/tests; (3) Scolardi violated hospital discharge policy and failed to challenge the discharge order.
- At trial the court gave (a) a standard-of-care instruction for nurses and hospitals and (b) a modified CJI professional-judgment instruction that inserted "nurse" alongside "physician": "An exercise of judgment that results in an unsuccessful outcome does not, by itself, mean that a physician or nurse was negligent."
- Plaintiff objected to including nurses in the exercise-of-judgment instruction and later objected to portions of testimony by the defense neurosurgery expert as exceeding a prior stipulation and as opining on an ED physician’s standard of care.
- The trial court overruled the objections; the jury returned a verdict for defendants. On appeal the Colorado Court of Appeals affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a pattern "exercise-of-judgment" jury instruction for physicians can be extended to nurses | Nurses do not exercise independent diagnostic judgment; CJI-Civ. 15:4 applies to physicians only and cannot be modified to include nurses | CJI and Notes on Use contemplate applicability to other health-care practitioners; trial courts may modify CJI when facts warrant | Court affirmed trial court discretion to include nurses in the instruction under these facts; not an abuse of discretion |
| Whether giving the exercise-of-judgment instruction alongside a standard-of-care instruction creates jury confusion | Such combination risks excusing negligence by misdirecting jury and was not argued below | CJI when given with elemental negligence/standard-of-care instruction correctly frames liability for judgment that departs from objective standard | Court rejected confusion claim (argument raised late) and relied on precedent that the instructions can be read together |
| Whether defense neurosurgeon’s testimony violated a stipulation not to elicit opinions on ED standard of care | Dr. Shogan’s testimony functioned as a back-door opinion on ED physician standard and breached counsel’s representations | Testimony stayed within neurosurgical expertise: probability of ‘‘sentinel bleed’’ based on history/exam; pre-trial renunciations did not encompass the testimony elicited | Court held trial court did not abuse discretion; testimony was within Dr. Shogan’s specialty and did not breach a binding stipulation |
| Whether a neurosurgeon may opine on diagnostic likelihood relevant to ED care absent ED specialty | Such opinions improperly substitute for an emergency-medicine standard-of-care expert | A specialist may testify about diagnostic significance of signs/symptoms within his specialty if familiar with the condition and literature | Court permitted the testimony: Dr. Shogan’s familiarity with sentinel bleeds and his analysis made the testimony admissible |
Key Cases Cited
- Day v. Johnson, 255 P.3d 1064 (Colo. 2011) (upholding physician-focused exercise-of-judgment instruction and explaining how it fits with standard-of-care instructions)
- Schuessler v. Wolter, 310 P.3d 151 (Colo. App. 2012) (reiterating that the mere occurrence of an injury does not alone establish negligence)
- Kibler v. State, 718 P.2d 531 (Colo. 1986) (describing standard for medical professionals in licensing context)
- Gerard v. Sacred Heart Med. Ctr., 937 P.2d 1104 (Wash. App. 1997) (approving professional-judgment instruction for nursing decisions that involve independent nursing judgment)
- Parodi v. Washoe Med. Ctr., Inc., 892 P.2d 588 (Nev. 1995) (disapproving certain nurse-focused error-of-judgment instructions and discussing limits on such wording)