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Jordan v. Bogner8/15/1991
Plaintiffs, Edna Jo and Michael Jordan, individually and on behalf of their minor son Joseph, appeal a judgment entered upon a jury verdict in favor of defendant, Phillip J. Bogner. Although defendant filed a notice of cross-appeal raising additional contentions of error, those contentions have neither been briefed nor argued, and the cross-appeal is deemed abandoned. We affirm the judgment.
Defendant, a board certified family practitioner, was the attending physician during Joseph's birth at St. Joseph Hospital in Del Norte, Colorado, on April 21, 1985. Complications developed during the mother's labor and delivery, and, as a result of oxygen deprivation, Joseph is disabled by cerebral palsy.
Plaintiffs sued the hospital and the defendant, asserting negligence and professional malpractice. The claims against the hospital were settled prior to trial, leaving only the professional negligence claims against defendant for resolution at trial.
The central issue presented at trial was whether defendant's delay and his ultimate decision to deliver Joseph vaginally, rather than by Caesarian section, constituted substandard professional care. The jury's verdict finding the defendant not negligent was accepted by the court, and plaintiffs' post-trial motions were subsequently denied.
I.
Plaintiffs first contend that the judgment must be reversed because the trial court erred in instructing the jury as to standards of care respectively applicable to both specialist and non-specialist physicians. We agree that the court should not have instructed the jury as to the non-specialist or locality standard, but conclude that such error does not warrant reversal.
A non-specialist physician, or other general practitioner of the healing arts, ordinarily must act consistently with the standards required of his profession in the community where he practices. Larson v. Lindahl, 167 Colo. 409, 450 P.2d 77 (1968); see CJI-Civ. 3d 15:2 (1989). However, a physician who holds himself or herself out as a specialist in a particular field of medicine or as having special skill and knowledge not common to others in his or her profession, or who in fact possesses such skill or knowledge, is required to conform to a standard commensurate with that which a reasonable physician practicing such specialty or possessing such special skills would meet. See Short v. Kinkade, 685 P.2d 210 (Colo. App. 1983); see CJI-Civ. 3d 15:4 (1989).
In a medical malpractice case, the applicable standard of care must be established by testimony from physicians who are knowledgeable concerning the standard of care and treatment commonly practiced by physicians engaged in the defendant's specialty. Greene v. Thomas, 662 P.2d 491 (Colo. App. 1982).
If the evidence is disputed or conflicting as to whether the defendant is in fact engaged in a specialty practice, the trial court must give both a "local standard" instruction patterned after CJI-Civ. 3d 15:2 (1989) and a "specialty standard" instruction patterned after CJI-Civ. 3d 15:4 (1989). Gambrell v. Ravin, 764 P.2d 362 (Colo. App. 1988), aff'd on other grounds, 788 P.2d 817 (Colo. 1990); Short v. Kinkade, supra.
Here, the evidence was undisputed that defendant was a board certified specialist in family practice, who held himself out as being engaged in and qualified to practice that nationally recognized specialty. In measuring defendant's conduct during Joseph's delivery, all of the expert witnesses testified as to the standard applicable to family practice specialists. Althou
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