Jordan v. Bogner

829 P.2d 414, 15 Brief Times Rptr. 1109, 1991 Colo. App. LEXIS 251, 1991 WL 155905
CourtColorado Court of Appeals
DecidedAugust 15, 1991
DocketNo. 89CA0860
StatusPublished
Cited by1 cases

This text of 829 P.2d 414 (Jordan v. Bogner) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jordan v. Bogner, 829 P.2d 414, 15 Brief Times Rptr. 1109, 1991 Colo. App. LEXIS 251, 1991 WL 155905 (Colo. Ct. App. 1991).

Opinion

Opinion by

Judge HUME.

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 nonspecialist 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.Sd 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).

[417]*417If 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.Sd 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. Although there was significant disagreement among the experts as to whether defendant’s conduct deviated from the standard, there was no dispute concerning whether defendant was engaged in a nationally recognized specialty practice that required him to possess and use special skill and knowledge commensurate with standards of that specialty.

Over plaintiffs’ objections, the trial court gave two instructions that defined professional negligence according to the locality rule applicable to non-specialist physicians. The trial court reasoned that those instructions were necessary because, on this occasion, defendant was engaged in performing services commonly performed by obstetric specialists and the jury had heard testimony from expert witnesses engaged in those fields of specialization. We conclude that those facts do not support the giving of the non-specialist locality instructions.

Although the trial court properly admitted testimony from experts who specialized in obstetrics and neonatology as well as from family practice specialists, all of those experts were determined to be familiar with national standards applicable to specialists in the field of family practice as related to professional care during delivery of babies. See Connelly v. Kortz, 689 P.2d 728 (Colo.App.1984).

In defining the applicable standard and in applying that standard to defendant’s performance of the professional service in question, each of those experts used the standard for family practitioners rather than that applicable to other specialties. None of the expert witnesses testified concerning a local standard that differed from the national standard for family practice specialists. Thus, there was no reason for the court to instruct on any standard other than that applicable to defendant’s specialty, because no evidence of standards applicable to other specialties or of locally differing standards was before the jury.

We also disagree with the trial court’s alternative rationale in support of the locality instruction; that the limited availability of personnel, equipment, and support staff at the Del Norte hospital warranted instructions as to the locality standard.

While it is true that a physician’s ability to conform to the applicable standard of care may be affected by circumstances existing at the time and place of his performance, the existence of such circumstances does not alter the requirement that the physician conform to the professional standards of his specialty. Rather, a specialist’s performance is measured by what a reasonable physician practicing that specialty would or would not do under the same or similar circumstances. See CJI-Civ.3d 15:5 (1989).

Thus, evidence concerning the availability of staff and support services at St. Joseph Hospital at the time in question was relevant to the issue of whether defendant’s performance conformed to the standards of his specialty under such circumstances. However, the presentation of such evidence did not warrant the giving of an instruction as to the standard of care applicable to a non-specialist physician. Such attendant circumstances are addressed by other language in the pattern jury instructions recommended for both specialist and non-specialist malpractice cases. See CJI-Civ.3d 15:2 and 15:4 (1989).

[418]

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Related

Jordan v. Bogner
844 P.2d 664 (Supreme Court of Colorado, 1993)

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Bluebook (online)
829 P.2d 414, 15 Brief Times Rptr. 1109, 1991 Colo. App. LEXIS 251, 1991 WL 155905, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jordan-v-bogner-coloctapp-1991.