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Bowman v. Songer11/25/1991
We granted certiorari to review Songer v. Bowman, 804 P.2d 261 (Colo. App. 1990). The issues before us are: 1) whether there is a time limitation under C.R.C.P. 59 for filing a motion to reconsider the trial court's order granting a new trial and 2) whether the court of appeals erred by creating a claim for a doctor's failure to warn of the risks involved in using a certain medicine. For the reasons stated below, we affirm the court of appeals' decision. First, C.R.C.P. 59 does not apply to a motion to reconsider an order granting new trial because such an order is not a final order. Second, no new claim for relief was created by the court of appeals. It simply upheld the admission of evidence of a physician's failure to warn a patient of substantial risks of a medicine because it was relevant to the standard of care under a negligence claim.
I.
In 1983, Donald F. Songer, Jr. sought treatment from Dr. William J. Bowman, a licensed physician specializing in the field of dermatology, for a chronic skin condition. Bowman prescribed the medication Oxsoralen to be applied by Songer at home. This drug is activated by exposure to ultraviolet light, either natural or artificial. As a result of Songer's application of the medicine and exposure to direct sunlight, Songer claims that he suffered second and third degree burns to his feet and legs and aggravation of his underlying dermatitis. Songer claims that these injuries and damages resulted from Bowman's negligence.
The evidence is in dispute as to the length of time which Bowman prescribed Songer to remain in the sun. The prescription itself and the medical label reflect that Bowman's instructions for use were as follows:
Apply one hour prior to exposure. Start exposure at 1/2 hour noonday sun, twice weekly.
At trial, the manufacturer's warning, as set forth in the package insert and the Physicians' Desk Reference, was admitted as evidence of the dangerous characteristics of Oxsoralen and the standard of care in using the drug to treat patients. The relevant warning on Oxsoralen reads as follows:
Caution: Methoxsalen lotion is a potent drug capable of producing severe burns if improperly used. It should be applied only by a physician under controlled conditions for light exposure and subsequent light shielding. This preparation should never be dispensed to a patient. (Emphasis in original.)
The parties disagree as to whether, at the time he prescribed the medicine, Bowman warned Songer of the high risk of burning due to overexposure. Neither the label nor the prescription contained any warnings concerning the potential danger of severe burning. Bowman claims that Songer remained in the sun for one hour, contrary to his directions. Songer claims that he remained in the sun for one-half hour. Within 24 hours after the exposure, Songer suffered severe burns. Eventually, the aggravated condition prevented Songer from wearing shoes for extended periods of time and resulted in his termination from his employment in November, 1984.
Songer filed this medical malpractice action against Bowman alleging that Bowman negligently prescribed the ointment. The case was tried to a jury, which returned a verdict on May 17, 1988 in favor of Songer for $150,000, but found that Songer was 25% negligent. Accordingly, the court entered judgment on the verdict in the amount of $112,500 on that same day.
The trial court granted Bowman's timely motion for a new trial on August 23, 1988. On September 30, 1988, Songer filed a motion for reconsideration of the motion granting a new trial. Bowman objected both on the
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