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Kildahl v. Tagge12/27/1996
This is a wrongful death action based upon alleged medical malpractice in the treatment of plaintiffs' mother by defendants, Gordon Tagge, M.D., Merlin Otteman, M.D., and Thomas G. Chiavetta, M.D. Plaintiffs, Cherie, Susan, Donald, Anthony, and Daniel Kildahl, appeal from the judgment entered upon a jury verdict in favor of defendants. We reverse and remand for a new trial.
In 1988, the decedent was treated in a hospital emergency room because of pain associated with an umbilical hernia. When she was discharged, her treating physician instructed her to see a surgeon "in 2-3 days if not improved or for future care." The evidence presented at trial indicated that decedent never underwent surgery for the hernia.
Four years later, decedent suffered significant pain and returned to the emergency room for treatment of the hernia. Surgery performed by defendant Tagge revealed that a portion of her colon had become trapped within the hernia sac, a condition denominated "incarceration."
Defendant Tagge released the incarcerated portions of the colon and repaired the hernia. Although defendant Tagge noted that part of the colon showed signs of having been denied an adequate blood supply during the incarceration, he concluded that no significant injury to this section had occurred and did not remove it.
After decedent's postoperative condition began to deteriorate, another surgery revealed that the portions of her colon that were denied blood had died and become gangrenous. Although the dead tissue was eventually removed, the condition caused decedent's death.
At trial, plaintiffs presented evidence that defendants were negligent in failing to remove the colon tissue during the initial surgery. However, defendants claimed that, if decedent had consulted a competent physician following her release from the emergency room in 1988, that physician would have recommended surgery. Defendants also presented evidence that, if surgery had been conducted on the hernia in 1988, the incarceration and the resulting complications encountered in 1992 would have been avoided. On this basis, the jury was instructed concerning comparative negligence.
The jury returned a verdict finding all defendants negligent. However, based on the comparative negligence defense, it attributed 51% of the negligence that caused decedent's death to decedent, thus precluding plaintiffs from the recovery of any damages.
I
Over plaintiffs' objection, the trial court instructed the jury that:
A patient is negligent when the patient fails to do an act which a reasonably careful person would do . . . under the same or similar circumstances to protect him or herself from bodily injury or death. The jury was further instructed that plaintiffs would not be permitted to recover if decedent's negligence exceeded the combined negligence of defendants.
Plaintiffs contend that the trial court erred in instructing the jury relative to comparative negligence. Relying on cases such as Spence v. Aspen Skiing Co., 820 F. Supp. 542 (D. Colo. 1993); Jensen v. Archbishop Bergan Mercy Hospital, 236 Neb. 1, 459 N.W.2d 178 (1990); and Matthews v. Williford, 318 So. 2d 480 (Fla. Dist. Ct. App. 1975), plaintiffs argue that the defense of comparative negligence is not available when a patient's conduct provides only the occasion for medical treatment and the malpractice by health care professionals is the cause of the injury .
Relying upon Songer v. Bowman, 804 P.2d 261 (Colo. App. 1990), aff'd, 820 P.2d 1110 (Colo. 1991) and Blackman v. Rifkin, 759 P.2d 54 (Colo. App. 1988), d
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