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Koch v. Sadler3/24/1988
e does not affect the movant's burden in this regard. See Ginter v. Palmer & Co., 196 Colo. 203, 585 P.2d 583 (1978).
Nor do we find merit in the defendants' contention that the instructions to the jury regarding the informed consent issue made harmless the dismissal of the battery action. As the plaintiff points out, he was forced to try this lawsuit on the theory of lack of informed consent, which did not really fit the facts of the case, rather than on the failure to obtain consent for the operation actually performed, and instructions that he tendered on the latter theory were refused by the court.
Because the issues may arise on retrial, we address three other assertions of error. The first of these is that the trial court erred in instructing the jury as to the reliance that one physician can place on the diagnosis of another. The instruction given contained language making it applicable "when one physician employs another . . . ." Here, there was no evidence that the defendants had been employed by the referring physician, or had even been recommended by that physician by name. Thus, the instruction should be tailored to fit the evidence on retrial. Similarly, the trial court erred in preventing the plaintiff from testifying verbally about his out of pocket costs and damages. Finally, the court erred in admitting the entire hospital record without culling that record for inadmissible or technically confusing contents where there was no testimony relating to and explaining such items.
On cross-appeal, defendants assert that because there was a three-year delay in service after the suit was filed, the court erred in not granting their motion to dismiss for failure to prosecute diligently. This contention has been decided adversely to the defendants in Nelson v. Blacker, 701 P.2d 135 (Colo. App. 1985).
The judgment is reversed and the cause is remanded for a new trial.
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