Liscio v. Pinson6/19/2003
JUDGMENT AND ORDER AFFIRMED
Marquez and Roy, JJ., concur
In this medical malpractice action, plaintiffs, Janell L. and Robert Liscio, appeal the judgment entered upon a jury verdict in favor of defendants, Ronald C. Pinson, M.D., David P. Fisher, M.D, and Rocky Mountain Orthopedic Associates, P.C. Plaintiffs also appeal an order imposing sanctions for abuse of deposition procedures. We affirm.
Defendants are orthopedic surgeons who, on October 31, 1997, performed surgery to reconstruct a torn anterior cruciate ligament (ACL) in Janell Liscio's left knee. Following surgery, the screw holding the ACL graft in place detached, requiring defendants to perform a "revision" knee surgery on November 28, 1997.
Within a month of the second surgery, Janell Liscio met with defendant Dr. Pinson on four separate occasions, complaining of pain in her leg. Dr. Pinson referred Mrs. Liscio to other specialists, and one eventually determined she suffered an injury to the sartorial, or main, branch of her saphenous nerve and had a condition known as reflex sympathetic dystrophy.
On November 24, 1999, plaintiffs filed this action, alleging that defendants negligently performed the second surgery, causing damage to Mrs. Liscio's saphenous nerve. Mrs. Liscio's husband, Robert, asserted a claim for loss of consortium. In their answers, defendants denied that they negligently caused any injury or loss of consortium.
In May 2001, plaintiffs filed a motion to amend their complaint to add two additional claims of negligence relating to the first surgery. Upon defendants' objection, the trial court summarily denied plaintiffs' motion.
A prominent issue at trial was whether Mrs. Liscio suffered an injury to the infrapatellar, as opposed to the sartorial, branch of the saphenous nerve. Experts on both sides opined that the infrapatellar branch of the nerve is routinely (and thus, not negligently) sacrificed by doctors during this type of surgery.
After an eleven-day trial, the jury found that defendants had not been negligent.
I. Motion to Amend Complaint
Plaintiffs contend that the trial court erred in denying their motion to amend the complaint. We disagree.
Under C.R.C.P. 15(a), parties may amend their pleadings only by leave of court after responsive pleadings have been filed; however, "leave shall be freely given when justice so requires." C.R.C.P. 15(a) reflects a liberal policy of allowing amendment, and trial courts are encouraged to look favorably on requests to amend pleadings. Super Valu Stores, Inc. v. Dist. Court, 906 P.2d 72, 77 (Colo. 1995).
A trial court may deny leave to amend on grounds of undue delay, bad faith, dilatory motive, repeated failure to cure deficiencies in the pleadings via prior amendments, undue prejudice to the opposing party, and futility of amendment. Benton v. Adams, 56 P.3d 81, 86 (Colo. 2002); Sandoval v. Archdiocese of Denver, 8 P.3d 598, 605 (Colo. App. 2000).
Here, we are unable to determine the precise basis of the trial court's ruling. Nonetheless, we conclude that plaintiffs' motion was properly denied on grounds of futility of amendment. See Davis v. Paulino, 21 P.3d 870, 873 (Colo. App. 2001)("if a proposed amendment to the complaint would be futile, reversal is not required").
"An amendment is futile, if, for example, 'it merely restates the same facts as the original complaint in different terms, reasserts a claim on which the court previously ruled, fails to state a legal theory, or could not withstand a motion to dismiss.'" Benton v. Adams, supra, 56 P.3d at 86-87 (quoting 3 J.W. Moore, et al., Moore
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