Kelly v. Haralampopoulos ex rel. Haralampopoulos

2014 CO 46, 327 P.3d 255, 2014 WL 2709431, 2014 Colo. LEXIS 439
CourtSupreme Court of Colorado
DecidedJune 16, 2014
DocketSupreme Court Case No. 11SC889
StatusPublished
Cited by18 cases

This text of 2014 CO 46 (Kelly v. Haralampopoulos ex rel. Haralampopoulos) is published on Counsel Stack Legal Research, covering Supreme Court of Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kelly v. Haralampopoulos ex rel. Haralampopoulos, 2014 CO 46, 327 P.3d 255, 2014 WL 2709431, 2014 Colo. LEXIS 439 (Colo. 2014).

Opinions

JUSTICE EID

delivered the Opinion of the Court.

T1 Respondent Vasilios Haralampopoulos visited the emergency room with severe abdominal pain. After a CT sean revealed a large cystic mass in his liver, Petitioner Dr. Mauricio Waintrub examined Respondent, gave a differential diagnosis identifying four possible causes for his condition, and approved a fine-needle biopsy to determine the nature of the cyst. Petitioner Dr. Jason Kelly performed the procedure, during which Respondent suffered respiratory and cardiac arrest,. Normal resuscitation efforts were unsuccessful, and it took over 30 minutes to revive Respondent's heart,. Lack of oxygen to his brain left Respondent in a vegetative state.

12 Ten days later, Respondent's family and friends met with doctors to determine why Respondent went into arrest and had such a poor reaction to resuscitation efforts. After the meeting, Respondent's then-roommate and ex-girlfriend Gulsans Akyol Hurd approached Dr. Kelly and asked him whether Respondent's prior cocaine use could have contributed to his injuries. Dr. Kelly responded that cocaine could have contributed to Respondent's resistance to normal resuscitation efforts, but he was not a cardiologist so he did not know.

T3 Respondent brought a medical malpractice suit against seven individuals, including Petitioners Dr. Kelly and Dr. Wain-trub. Respondent filed a motion in limine seeking to exclude Hurd's statements to Dr. Kelly as inadmissible hearsay not covered by any hearsay exception. In particular, Respondent argued that the statements did not qualify under Colorado Rule of Evidence 808(4), which creates a hearsay exception for statements "made for purposes of medical diagnosis or treatment." Further, Respondent argued that because Hurd's statements were inadmissible, any additional testimony regarding cocaine use was inadmissible as irrelevant. The trial court denied the motion in limine, finding that Hurd's statements were made for purposes of diagnosis and treatment under Rule 808(4), and that their probative value was not substantially outweighed by the danger of unfair prejudice under Colorado Rule of Evidence 403.

14 The court of appeals reversed, finding that the trial court abused its discretion by admitting evidence of Respondent's cocaine use. Haralampopoulos ex rel. Haralampopoulos v. Kelly, 2011 WL 4908743 at *6, -- P.3d --, -- (Colo.App.2011). The court held that Hurd's statements to Dr. Kelly were not admissible under Rule 808(4) because of the Rule's "prospective" focus. Id. The court reasoned that because the statements were made after Respondent was in a vegetative state and treatment was no longer possible, they were not made for the purpose of diagnosis or treatment. Id. at "6-7, ---. The court of appeals further held that, even if the statements were admissible under Rule 803(4), the trial court abused its discretion in finding that their probative value was not substantially outweighed by the danger of unfair prejudice under Rule 408. Because Hurd's statements were inadmissible, the court of appeals reasoned, so was any lay or expert testimony on cocaine use. Id. at *9, --. Judge Webb dissented, concluding that Rule 808(4) did not contain a prospective limitation. Id. at *23, -- (Webb, J., dissenting).

I 5 We now reverse. The court of appeals erred in limiting the seope of Rule 808(4) to statements made for the purpose of prospective treatment. The Rule's plain language applies to "diagnosis or treatment," and while the term "treatment" has a prospective focus, the term "diagnosis" does not. Instead, diagnosis focuses on the cause of a patient's medical condition, and may or may not involve subsequent treatment. Here, Hurd's statements were made for the pur[259]*259pose of discovering the cause of Respondent's resistance to normal resuscitation efforts, and were thus admissible under Rule 808(4). We also conclude that the trial court did not abuse its discretion in finding that the statements' probative value was not substantially outweighed by the danger of unfair prejudice under Rule 408. Finally, we conclude that, given the admissibility of Hurd's statements, the trial court did not err in admitting additional lay and expert testimony regarding Respondent's prior cocaine use. Accordingly, we reverse the court of appeals' decision, and remand the case to the trial court to enter a judgment in Petitioners favor.

I.

16 On November 28, 2004, Respondent visited the emergency room complaining of severe abdominal pain. During his intake, Respondent denied any drug use. A CT sean of Respondent's liver revealed a large cystic mass. The on-call surgeon recommended a fine-needle aspiration biopsy. Dr. Waintrub, an internal medicine specialist, examined Respondent and issued a differential diagnosis identifying possible causes for Respondent's cyst: hydatid eyst, amoebiasis, abscess, or cancer. To determine the cause of Respondent's condition, Dr. Waintrub approved the aspiration. The next day, Dr. Kelly, an interventional radiologist, performed the aspiration. During the procedure, Respondent went into respiratory arrest, and then cardiac arrest. Respondent did not react to normal resuscitation efforts, and it took over 30 minutes to revive his heart. Lack of oxygen to his brain caused a brain injury, and Respondent is now in a vegetative state. Subsequent tests revealed that the cyst was a hydatid cyst.1 During the aspiration, toxic material from the eyst flowed out of the needle and caused respiratory and cardiac arrest.

T7 On December 3, 2004, Dr. Kelly and other doctors met with Respondent's sisters, his mother, an attorney, and his ex-girlfriend and then-roommate Gulsans Akyol Hurd ("Hurd") because they wanted to know what caused Respondent's injuries Before the meeting and outside the doctors' presence, Hurd asked the family whether Respondent's past cocaine use could have had anything to do with his failure to respond to resuscitation. No one mentioned Hurd's question or Respondent's past cocaine use at the meeting with the doctors.

18 About two weeks after the aspiration, Hurd approached Dr. Kelly privately and asked him whether cocaine use could have contributed to Respondent's injures. Hurd testified at trial that she asked Dr. Kelly this question because "we were all searching for answers ... I was asking these questions because nobody had answers for me, and so therefore I kept questioning and questioning hoping to find an answer." Hurd testified that she told Dr. Kelly,

[Respondent] used to do drugs in the past, he used to do a little cocaine, and, you know, could it have been in his system and could it have interacted with the anesthesia or could it have sent him into cardiac arrest or-you know, I was-I don't know if I was asking it right, but I was searching for some kind of answer or reason why this happened.

19 Dr. Kelly testified that in addition to asking whether Respondent's cocaine use could have contributed to his injuries, Hurd told him that

[Respondent] was a recreational cocaine user and that that had been an issue in their relationship, and that in the days around his first emergency room visit,[2] he had been using a significant amount of cocaine because of the pain; and he didn't feel that the physicians at the hospital after his first visit had given him enough pain medicine.

Dr. Kelly told Hurd that cocaine use could have contributed to the cardiac arrest, but he was not an expert on cocaine or cardiology, so he did not know. Dr.

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Cite This Page — Counsel Stack

Bluebook (online)
2014 CO 46, 327 P.3d 255, 2014 WL 2709431, 2014 Colo. LEXIS 439, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kelly-v-haralampopoulos-ex-rel-haralampopoulos-colo-2014.