In re P.W. v. Children's Hospital Colorado, 364 P.3d 891

K.W., a 16-year-old with recent suicidal behavior (ingested pills, wrist laceration, prior inpatient psychiatric stay), was admitted to Children’s Hospital in June 2013 and placed on "high suicide precautions" in the inpatient psychiatric unit.
Hospital policy required constant visual observation (1:1 sitter), 15‑minute checks, and 30‑second communications while in bathroom.
While under the Hospital’s custody and on precautions, K.W. was allowed bathroom access; he used his scrub pants to hang himself and suffered catastrophic anoxic brain injury.
P.W., K.W.’s father and conservator, sued for malpractice; Hospital asserted comparative negligence and assumption of risk defenses and sought pre‑incident mental‑health records.
Trial court granted plaintiff summary judgment, dismissing Hospital’s comparative‑negligence and assumption‑of‑risk defenses, and barred discovery of pre‑incident records; Hospital sought C.A.R. 21 review.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Hospital may assert comparative negligence for patient’s in‑custody suicide	Patient (P.W.): Hospital assumed duty to prevent self‑harm so patient cannot be faulted	Hospital: §13‑21‑111 requires apportionment; patient may be comparatively negligent	Held: No — Hospital assumed a duty to prevent precisely this harm; patient could not be negligent as a matter of law
Whether assumption of risk bars recovery	P.W.: Assumption of risk folds into comparative negligence and is unavailable where duty assumed	Hospital: Patient voluntarily acted; assumption of risk applies	Held: Assumption of risk unavailable for same reasons as comparative negligence
Whether patient’s mental capacity can make comparative negligence applicable	P.W.: Capacity is irrelevant where hospital’s assumed duty subsumes patient’s duty	Hospital: Capacity‑based standard should allow comparative fault if patient could act rationally	Held: Capacity analysis is irrelevant here because the hospital’s undertaking defined and subsumed the duty to prevent self‑harm
Whether trial court abused discretion by denying Hospital access to pre‑incident mental‑health records	P.W.: Denial appropriate given waiver and hospital’s own records	Hospital: Records relevant to defenses; exclusion was error	Held: Court declined to decide on merits of discovery ruling because dismissal of comparative‑negligence defense made the issue unnecessary to resolve

Jefferson Cty. Sch. Dist. R‑1 v. Justus, 725 P.2d 767 (Colo. 1986) (adopts Restatement §323; voluntary undertaking can create an assumed duty)
Tomfohr v. Mayo Foundation, 450 N.W.2d 121 (Minn. 1990) (inpatient suicide: comparative negligence inapplicable where hospital’s duty arises from patient’s suicidal condition)
Cowan v. Doering, 545 A.2d 159 (N.J. 1988) (capacity‑based negligence standard does not apply where hospital’s duty subsumes patient’s inability to protect self)
McNamara v. Honeyman, 546 N.E.2d 139 (Mass. 1989) (refuses comparative negligence for suicidally active inpatient because duty included preventing self‑destructive acts)
Hesse v. McClintic, 176 P.3d 759 (Colo. 2008) (existence and scope of legal duty is question of law)
HealthONE v. Rodriguez ex rel. Rodriguez, 50 P.3d 879 (Colo. 2002) (summary judgment standard and factual view for nonmoving party)