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Evans v. Colorado Permanente Medical Group2/23/1995
In this medical malpractice action, defendants, Colorado Permanente Medical Group, P.C., David M. Guidot, M.D., Joan Bodak, and Bonnie Rickie, appeal the judgment entered upon a jury verdict awarding damages for the wrongful death of Michael D. Evans. Plaintiffs, Susan M. Evans as an individual and as next friend of Keith A. Evans, Melinda N. Evans, and Rebecca D. Evans, and as representative of the estate of Michael D. Evans, cross- appeal the trial court's dismissal of their claims against then- defendant Kaiser Foundation Health Plan of Colorado (Kaiser) and the court's reduction of the award of damages. We modify the judgment, and as modified, affirm.
Plaintiffs brought this action alleging that defendants, and certain employees of Colorado Permanente Medical Group, P.C., were negligent in failing to diagnose Michael D. Evans' rare bacterial infection when he was seen at the Kaiser Urgent Care Clinic. Evans later died because of this infection. Plaintiffs also asserted that Kaiser, a health maintenance organization (HMO) that provided insurance coverage and other services to Evans, breached its duty of care and contractual obligation to provide "health care services" to Evans.
The trial court granted Kaiser's pretrial motion for summary judgment, finding that plaintiffs' allegations failed to state cognizable claims against Kaiser under Freedman v. Kaiser Foundation Health Plan, 849 P.2d 811 (Colo. App. 1992) and the Colorado Health Maintenance Organization Act, ยง 10-16-421(3), C.R.S. (1994 Repl. Vol. 4A).
Plaintiffs' complaint further sought punitive damages. During trial, after the presentation of plaintiffs' case, the court directed a verdict for the defendants on this claim.
The remaining claims were submitted to the jury, which awarded the plaintiffs in excess of $2 million in damages. In a post-trial hearing, the trial court reduced the award for past and future non-economic losses to $250,000, reduced the award for past medical expenses that had been paid by Kaiser under its contract, and made other adjustments. This appeal followed.
I.
Defendants first assert that the trial court erred in denying their motion to stay the court proceedings and compel arbitration. We disagree.
Evans was covered for health care services with Kaiser by virtue of the contract between Kaiser, his employer, and himself. The terms of Kaiser's group contract with Evans' employer included a clause requiring arbitration of all disputes between the member and Kaiser, its employees, and contracting physicians. This clause provided:
Any claim arising from an alleged violation of a duty incident to this agreement, irrespective of the basis for the duty or the legal theories upon which the claim is asserted, shall be submitted to binding arbitration if the claim is asserted: (1) By a Member, or a member's heir or personal representative, or by a person claiming that a duty to him or her arises from a Member's relationship with Health Plan, Hospitals or Medical Group incident to this agreement . . . (2) For any reason, including, but not limited to, death, mental disturbance, bodily injury or economic loss arising from the rendition or failure to render services or the provision or failure to provide benefits under the Agreement . . . (3) For monetary damages . . . (4) Against one or more of the following . . . (a) Health Plan, (b) Hospitals, (c) Medical Group, (d) Any Physician, or (e) Any employee or agent of the foregoing.
In addition, Evans' application for enrollment to the Kaiser Plan provided that any claims for money damages would be submitted to binding arbitration.
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