Sharp v. Kaiser Foundation Health Plan

Citation: 710 P.2d 1153Docket: 83CA1469

Court: Colorado Court of Appeals; December 9, 1985; Colorado; State Appellate Court

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In the medical malpractice case of Gail V. Sharp and Stephen A. Sharp v. Kaiser Foundation Health Plan of Colorado and others, the Colorado Court of Appeals addressed an appeal against a summary judgment favoring the defendants. The plaintiffs claimed that the defendants, including Dr. Paul D. Speidel, negligently misdiagnosed Mrs. Sharp, who had known coronary risks, as having stable rather than unstable angina. They presented expert testimony indicating that with appropriate treatment, Mrs. Sharp's risk of experiencing a heart attack would have been significantly reduced. The expert stated that while some patients with unstable angina face a risk of heart attack even with treatment, the likelihood of a heart attack increases substantially without it.

The trial court granted summary judgment, ruling that the plaintiffs' expert failed to establish with reasonable medical probability that the defendants' negligence was the proximate cause of Mrs. Sharp's heart attack, thus not proving that "but for" the alleged negligence, the heart attack would not have occurred. The plaintiffs contended that the proper standard should be whether the defendants' negligence was a substantial factor in causing the harm, arguing that expert testimony indicated the defendants increased the risk of the heart attack or diminished the chance of recovery. The appellate court reversed the summary judgment and remanded the case for trial on the merits.

Mrs. Sharp's risk of a heart attack was significantly increased due to the defendant's actions, which are considered a substantial factor in causing her harm. Legal precedent indicates that a defendant's conduct must be significant enough to be regarded as a cause of the harm, as established in cases like Ekberg v. Greene and Moore v. Standard Paint. Glass Co. The determination of negligence and proximate cause is typically a question for the jury unless the facts are undisputed. 

On remand to the trial court, a key issue will be whether plaintiffs can recover damages based on the defendants' negligence increasing the risk of Mrs. Sharp's heart attack or for the loss of a chance that the heart attack could have been avoided. The defendants contend that the expert testimony fails to meet the standard of proving causation and argue against recognizing a cause of action for increased risk of harm in Colorado. 

The applicable legal standards cite the Restatement (Second) Torts, which holds that a party who undertakes to render services must do so with reasonable care to avoid increasing the risk of harm. The court's previous adoption of these principles in cases like DeCaire v. Public Service Co. reinforces this duty. Moreover, it is noted that when a defendant's negligence eliminates a person's chance of survival, they cannot rely on speculation about what might have occurred. The burden shifts to the jury to determine if the defendant's negligence substantially increased the risk of harm once evidence is presented that this risk was significant. This is supported by case law such as City of Longmont v. Swearingen and Hamil v. Bashline.

Defendants argue for a rule established in Cooper v. Sisters of Charity of Cincinnati, Inc. that a plaintiff fails to establish a prima facie case if evidence does not show a greater than 50% chance of avoiding harm without the defendant's negligence. This rule is criticized for being arbitrary and failing to deter negligent conduct when the chances of survival are below 50%. Citing Aasheim v. Humberger and Thompson v. Sun City Community Hospital, it is argued that if the plaintiff's evidence indicates that the defendant's negligence increased the risk of harm or reduced the chance of avoiding further harm, the jury should determine if the negligence was a factual cause of the loss. In Mrs. Sharp's case, despite her less than 50% chance of a heart attack, expert testimony indicating a 20-25% increased risk due to the defendants' negligence is deemed sufficient for jury consideration. The court concludes that the increased risk falls within the defendants' duty of care, allowing the jury to factor this into the assessment of Mrs. Sharp's injuries and damages. Consequently, the summary judgment is reversed, and the case is remanded for trial on the merits, with Justices Sternberg and Metzger concurring.