Ochoa v. Vered

Citations: 212 P.3d 963; 2009 Colo. App. LEXIS 577; 2009 WL 1012947Docket: 06CA2134

Court: Colorado Court of Appeals; April 16, 2009; Colorado; State Appellate Court

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Gloria Ochoa filed a medical negligence lawsuit against Dr. Eldad Vered after a surgical sponge was left in her abdomen following an emergency caesarean section he performed. Despite the operating room nurses reporting a correct count of sponges, a subsequent surgery was required to remove the retained sponge. Ochoa settled her claims against the nurses and Parkview Medical Center before trial, leading Dr. Vered to designate the nurses as nonparties at fault.

The jury was instructed on the 'captain of the ship' and res ipsa loquitur doctrines, which allow for vicarious liability of a surgeon for the negligence of subordinate staff. The jury found Dr. Vered 90% at fault and the nurses 10%, awarding Ochoa $1,003,964.23 in damages. Following Dr. Vered's motion for a new trial, the court reduced the future medical expenses and capped the damages under the Health Care Availability Act, resulting in a final judgment of $425,739.90.

Dr. Vered appealed, arguing against the jury instruction on vicarious liability via the captain of the ship doctrine. The court upheld the instruction, emphasizing that the surgeon is liable for the negligence of hospital employees under their supervision during surgery, as established in prior case law. The court stated that vicarious liability arises from the surgeon's control over the operating room, affirming that the jury instructions correctly reflected the law governing medical negligence cases.

In Fishman v. Kotts, the Colorado Court of Appeals addressed the trial court's jury instruction related to the control of operating room staff by the surgeon, Dr. Eldad Vered. The court confirmed that jury instructions are reviewed for abuse of discretion and should generally align with Colorado Jury Instructions and prevailing law. The trial court instructed that Dr. Vered was responsible for the actions of the operating room staff, which he did not contest in terms of his role as the surgeon or his authority to direct nurses during the procedure. However, Dr. Vered claimed he could not control the sponge counting process due to a protocol indicating that nurses were responsible for this task. The court found this argument unconvincing, emphasizing that without evidence to negate his control, the protocol did not undermine the presumption of his authority as the surgeon.

The court distinguished this case from Berg v. United States, where the physician's liability was not established due to the lack of training of the technologists, noting that Dr. Vered did not claim a similar lack of training. The court upheld the "captain of the ship" doctrine, which assigns liability to the surgeon for the actions of the operating team, rejecting Dr. Vered's reliance on out-of-state cases that have criticized this doctrine. It concluded that the jury instruction was appropriate and accurately reflected the law, reaffirming the validity of the doctrine in this context and asserting adherence to the Colorado Supreme Court's established positions.

Dr. Vered contended that the application of the captain of the ship doctrine, which assigns vicarious liability to a supervising physician, should not extend to him due to a settlement agreement releasing the nurses involved. However, the court determined that the settlement explicitly dismissed claims against Parkview Medical Center but did not release Dr. Vered from liability. The court referenced Colorado Jury Instruction-Civil 15:1, which provides guidance on vicarious liability, affirming that the trial court correctly instructed the jury based on the captain of the ship doctrine as modeled after CJI-Civ. 4th 8:2. 

Dr. Vered cited Arnold v. Colorado State Hospital to support his position, arguing that the release of an employee typically releases the employer from liability. In contrast, Ochoa relied on Colorado Compensation Insurance Authority v. Jones, which distinguished Arnold and upheld that a plaintiff could reserve claims against an employer even after settling with an employee. The court opted to follow Jones, emphasizing that the dismissal of claims against the employee in the settlement did not preclude Ochoa's claims against Dr. Vered, as those claims were not included in the release. This position aligns with the principle that a release must explicitly cover an employer to absolve them of liability.

The division noted a distinction from the Arnold case because the jury had cleared the employee, but it did not consider the voluntary dismissal of the sexual abuse claim. In the Dworak case, the Colorado Supreme Court ruled that plaintiffs who sign a covenant not to sue an employee can still pursue a respondeat superior claim against the employer, even without an explicit reservation of that right. This aligns with similar rulings in other jurisdictions. The Arnold division did not reference Dworak. The status of the settlement in Jones as either a release or a covenant not to sue was unclear; however, no significant difference exists for preserving a respondeat superior claim under Colorado law. Ochoa explicitly reserved claims against the employer, and the settlement language indicating intent to maintain those claims should be upheld. Dr. Vered argued that the prevailing view holds that releasing an agent prevents vicarious liability claims against the principal, citing various out-of-state cases. Nonetheless, contrary wording in Dworak prevents adherence to this view. Thus, Ochoa's release of the nurses does not bar Dr. Vered's vicarious liability for their negligence. Regarding the res ipsa loquitur instruction, Dr. Vered contended that the evidence did not support an inference of his negligence in leaving a sponge in Ochoa's abdomen. However, the criteria for such an instruction were met, as Ochoa was not a contributing factor, and Dr. Vered did not claim that the evidence regarding the sponge's presence was equally reachable by Ochoa. He contested whether the sponge could have been left solely due to his negligence and whether he had exclusive control over the sponge counting process.

In Mudd v. Dorr, the Colorado Court of Appeals established that the presence of a foreign object, like a sponge, left in a patient during surgery creates a prima facie case of negligence under the doctrine of res ipsa loquitur. The court emphasized that juries should be instructed that if a surgeon closes an incision without removing a sponge, negligence is established as a matter of law. The ruling aligns with previous annotations indicating that leaving a foreign object in a patient constitutes negligence. Despite expert testimony suggesting that leaving the sponge did not indicate negligence, the court maintained that Dr. Vered had exclusive control over the sponge during the surgery, similar to the "captain of the ship" doctrine. The court also clarified that the res ipsa loquitur instruction did not improperly shift the burden of proof to Dr. Vered, as this doctrine allows the defendant to prove non-negligence rather than shifting the burden to them. Lastly, the court found that the trial court erred in calculating prejudgment interest based on total damages rather than the final judgment amount, which should reflect the statutory cap on noneconomic damages, as clarified in Goodwin II.

The case is remanded for recalculation of postfiling, prejudgment interest as directed by Goodwin II. Ochoa's cross-appeal regarding the trial court's omission of prefiling interest in the postfiling interest calculation is rejected. The court emphasizes that statutory interpretation is a legal issue reviewed de novo, aiming to reflect the General Assembly's intent by examining statutory language. Section 13-21-101 mandates simple interest on judgments from the action's accrual date until the day before filing, which is then added to the judgment for calculating compound interest from filing until judgment. Under the Health Care Availability Act (HCAA), prejudgment interest is included in the caps on damages, which Ochoa acknowledges. Despite seeking a calculation method that includes prefiling interest to increase postfiling interest, her approach is dismissed. The court clarifies that while postfiling interest is uncapped, Ochoa's reliance on Francis is misplaced as it doesn't pertain to HCAA cases. Goodwin II articulates that additional interest beyond the final judgment contradicts the compensatory aim of section 13-21-101. Section 13-64-302(2) specifies that "prejudgment interest" refers only to the accrual period before filing, thus not allowing prejudgment interest on prefiling interest exceeding the damage cap. Consequently, the trial court's exclusion of prefiling interest from the prejudgment interest calculation is affirmed. Additionally, the trial court's ten percent reduction of Dr. Vered's liability based on jury-apportioned fault to the nurses is agreed to be erroneous.

Dr. Vered sought to introduce the affirmative defense of set-off related to the Parkview settlement before trial, but the court denied this motion, and Dr. Vered did not appeal the decision. Despite the denial, the court allowed the jury to apportion fault between Dr. Vered and the nurses, indicating that such apportionment could be relevant if the appellate court ruled against the captain of the ship instruction. Following the trial, the court acknowledged that its denial of the motion to amend was not clearly articulated in the written order but reaffirmed that the amendment was denied. The court then reduced the damages against Dr. Vered by ten percent, emphasizing that the jury's findings should be weighed despite the vicarious liability instructions.

In terms of legal principles, the document clarifies that a party's liability based on respondeat superior does not classify them as a joint tortfeasor and that there is no fault apportionment in cases of vicarious liability. Consequently, Dr. Vered's argument for a set-off based on joint tortfeasor principles was deemed incorrect. The text further discusses the issue of double recovery, stating that Dr. Vered's claim that Ochoa would receive unfair compensation through the settlement was not supported. Citing McCall v. Roper, the court confirmed that while a nonsettling defendant remains fully liable, they may receive a credit for any settlement amount, but this situation did not apply to Dr. Vered, who could not be treated as a joint debtor with the nurses.

The trial court's decision to reduce damages based on the nurses' fault is inconsistent with its denial of Dr. Vered's motion to amend his answer for a setoff. The court did not reverse this ruling despite the reduction in damages, emphasizing that a setoff must be pled as an affirmative defense or it is waived, according to C.R.C.P. 8(c). Dr. Vered did not invoke section 13-21-111.5, C.R.S. 2008, regarding pro rata liability, leaving the court to refrain from expressing an opinion on its applicability in this context. The court concluded that it erred in reducing Dr. Vered's liability by ten percent due to the jury's allocation of fault to the nurses.

Regarding Ochoa's future medical expenses, the trial court found the jury's award of $250,000 excessive and unsupported, reducing it to $75,000. The appellate review of remittitur is based on whether the trial court abused its discretion, as the jury's damage awards can only be overturned if they are grossly excessive or inadequate. Expert testimony estimated therapy and medication costs totaling approximately $18,885, suggesting that the original award was not supported by the evidence. Ochoa's expert did not assert that future treatment was probable, and even with additional treatment cycles, $75,000 was deemed sufficient. The appellate court reversed the ten percent reduction of Dr. Vered's liability and remanded for recalculation of postfiling interest, upholding all other aspects of the trial court's judgment. Judges CASEBOLT and STERNBERG concurred.