Settle v. Basinger

411 P.3d 717
CourtColorado Court of Appeals
DecidedFebruary 28, 2013
DocketNo. 11CA1342
StatusPublished
Cited by6 cases

This text of 411 P.3d 717 (Settle v. Basinger) 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
Settle v. Basinger, 411 P.3d 717 (Colo. Ct. App. 2013).

Opinion

Opinion by JUDGE CARPARELLI

*721¶ 1 Plaintiffs, William P. and Corinna Settle, appeal the judgment of the trial court in favor of Janet Basinger, M.D., and Rio Grande Citizens Foundation for Health Care, Inc. (Rio Grande Hospital). We affirm.

¶ 2 In this case, we conclude, among other things, that the captain of the ship doctrine does not render an emergency room physician vicariously liable for negligent acts committed in the emergency room by non-hospital employees.

I. Background

¶ 3 In August 2005, Mr. Settle sustained injuries when the ATV he was riding flipped and landed on him. He suffered fractured ribs, a collapsed lung, and a pneumothorax.1

¶ 4 Mr. Settle was transported by ambulance to the Rio Grande Hospital emergency room where Dr. Basinger was on duty. There, Dr. Basinger inserted a chest tube to remove air from his chest cavity. She then decided to transfer Mr. Settle to Swedish Medical Center in Denver (Swedish). Swedish arranged for Air Life, an organization independent from the hospitals, to transport him.

¶ 5 According to Dr. Basinger's notes, when the Air Life nurses arrived Mr. Settle was showing some improvement in lung inflation "but [there was] more surrounding blood in [his] chest cavity," and his "breathing was more labored so decided [sic] to sedate and intubate" him. Dr. Basinger inserted another chest tube to try to resolve the pneumothorax.

¶ 6 While Dr. Basinger was placing the chest tube, the Air Life nurses made two unsuccessful attempts to intubate Mr. Settle. Another physician also made an unsuccessful attempt at intubation. That physician and the Air Life nurses eventually inserted a "Combitube" to stabilize Mr. Settle and ensure he had adequate oxygen for the flight. Dr. Basinger then discharged Mr. Settle to the flight crew.

¶ 7 At Swedish, Dr. Warner discovered lacerations in Mr. Settle's posterior trachea and anterior and posterior esophagus, which she attributed to "traumatic intubation presumably from the Combivent tube." The lacerations required multiple surgeries to repair.

II. Procedural History

¶ 8 Plaintiffs filed suit against the physician who attempted to intubate Mr. Settle, Rio Grande Hospital, Air Life, Dr. Basinger, and two Air Life nurses. The complaint alleged that Mr. Settle sustained the tracheal and esophageal lacerations when the Air Life nurses and the physician tried to intubate him. Plaintiffs also alleged that Dr. Basinger "negligently failed to examine, diagnose, observe, treat, and administer the medical care given to Mr. Settle," and that her negligence was a cause of the tracheal and esophageal lacerations.

A. Dr. Basinger's Motion for Summary Judgment and Plaintiffs' Motion to Amend the Complaint

¶ 9 Dr. Basinger sought summary judgment, asserting that she had not attempted the intubation and, therefore, as a matter of law, could not be liable for the injuries to Mr. Settle's trachea and esophagus.

¶ 10 Before the trial court ruled on Dr. Basinger's motion for summary judgment, plaintiffs sought to amend their complaint to add a claim that Mr. Settle's injuries resulted from Dr. Basinger's negligent supervision of the Air Life nurses' intubation efforts.

¶ 11 Plaintiffs' motion also sought to add a claim that Dr. Basinger was "in charge and was vicariously liable under the respond[eat] superior doctrine." Plaintiffs alleged that Dr. Basinger "was the physician in charge of the care and treatment of William Settle"; that Dr. Basinger was "immediately in the area ... while the intubation was in progress"; that the flight nurses were under the supervision of Dr. Basinger while in the emergency room; and that Dr. Basinger was *722directly and vicariously negligent as the attending physician.

¶ 12 The trial court denied the motion to amend the complaint. It concluded that although Colorado has applied the captain of the ship doctrine to operating room negligence, the doctrine has not been extended beyond the operating room. The court also concluded that negligent supervision does not apply to the facts of this case. The court then granted Dr. Basinger's motion for partial summary judgment, concluding that Dr. Basinger could not be held vicariously liable for the negligent acts of the Air Life nurses.

B. Rio Grande's Summary Judgment Motion

¶ 13 Rio Grande Hospital also sought summary judgment. It argued that, under the corporate practice of medicine doctrine, it could not be liable for the act of an employee who was a licensed physician unless it knew the physician lacked sufficient skills. The trial court granted Rio Grande's motion with regard to plaintiffs' negligent credentialing claim.

C. Trials

¶ 14 The case then went to trial on plaintiffs' negligence claims against the six defendants, including the claim that Dr. Basinger negligently failed to examine, diagnose, observe, treat, and administer the medical care given to Mr. Settle, and that her negligence was a cause of Mr. Settle's tracheal and esophageal lacerations.

¶ 15 The first trial ended in a mistrial. Before the second trial, plaintiffs agreed to dismiss their claims against the Air Life nurses. Plaintiffs also settled with the physician who had attempted to intubate Mr. Settle, leaving Dr. Basinger and Rio Grande Hospital as the remaining defendants.

¶ 16 At the second trial, the jury found Dr. Basinger was negligent, but her negligence did not cause Mr. Settle's injuries.

¶ 17 Plaintiffs now appeal and contend the court erred when it:

• denied the motion to amend the complaint;
• granted Dr. Basinger's and Rio Grande Hospital's motions for summary judgment;
• limited cross-examination of Dr. Basinger and her expert witness, and excluded other impeachment evidence; and
• redacted portions of a witness's deposition, excluded evidence, and allowed defense counsel to vouch for the credibility of a defense witness.

¶ 18 We conclude that the trial court did not err.

III. Plaintiffs' Motion to Amend the Complaint

¶ 19 Plaintiffs contend that the trial court erred when it denied their motion to amend the complaint to add claims against Dr. Basinger for vicarious liability and negligent supervision of the Air Life nurses. We perceive no error.

A. Standard of Review

¶ 20 The decision to grant or deny a motion to amend a complaint is committed to the sound discretion of the trial court and will not be reversed on review without a showing of an abuse of discretion. Polk v. Denver District Court, 849 P.2d 23, 25 (Colo.1993) ; Sterenbuch v. Goss , 266 P.3d 428, 440 (Colo.App.2011). A trial court abuses its discretion when its decision is manifestly arbitrary, unreasonable, or unfair. People v. Stewart

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Bluebook (online)
411 P.3d 717, Counsel Stack Legal Research, https://law.counselstack.com/opinion/settle-v-basinger-coloctapp-2013.