2012 COA 218
Colo. Ct. App.2012Background
- This is a medical malpractice suit arising from the death of Harner's husband after an angio-gram performed by Chapman, a cardiologist.
- Harner alleged Chapman negligently punctured the aorta, causing internal bleeding and death.
- Chapman denied negligence and any perforation or causation.
- During trial, Harner raised evidentiary concerns (missing cine, flawed procedure log, destroyed/autopsy tissue, misfiled x-rays, and subpar autopsy photos).
- Harner stipulated to several points of no misconduct by Chapman or his team and introduced related evidence; a res ipsa loquitur instruction was requested but initially refused.
- The court ultimately instructed that res ipsa loquitur created a presumption rather than shifting the burden, and the jury found Chapman not negligent; Harner moved for new trial; on appeal the court reversed and remanded for a new trial with proper res ipsa loquitur burden-shifting.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Res ipsa burden-shifting burden-shift | Harner argues res ipsa loquitur shifts burden to Chapman. | Chapman argues CRE 301 controls, Weiss supersedes or limits the burden. | Burden-shifting required; error reversible; remand for new trial. |
| Cumulative evidentiary irregularities | Harner claims cumulative prejudice from irregularities. | Chapman contends stipulations and evidence mitigated prejudice. | Not reversible; issues remanded only for res ipsa instruction on remand. |
Key Cases Cited
- Weiss v. Axler, 137 Colo. 544 (Colo.1958) (presumption of negligence shifts burden to defendant to prove no negligence)
- Stone's Farm Supply, Inc. v. Deacon, 805 P.2d 1109 (Colo.1991) (res ipsa loquitur requires defendant to prove he was not negligent)
- Kendrick v. Pippin, 252 P.3d 1052 (Colo.2011) (elements and application of res ipsa loquitur reiterated)
- Montgomery Elevator Co. v. Gordon, 619 P.2d 66 (Colo.1980) (discussion of CRE 301 and burden-shifting context; potential tension with Weiss)
- Hartford Fire Insurance Co. v. Public Service Co., 676 P.2d 25 (Colo.App.1988) (instructional guidance related to res ipsa loquitur under prior rule)
- Ochoa v. Vered, 212 P.3d 968 (Colo.App.2009) (mentions tension between CRE 301 and Weiss; urges supreme court resolution)