No Medical Comparative Negligence Defense for Acts Before Treatment: D. Colo.

While physicians sued for medical malpractice under Colorado law can attempt to reduce their liabilities by arguing that the acts of patient-plaintiffs after seeking treatment contributed to or caused their own maladies, a physician cannot use such a comparative negligence defense for acts of their patients before they sought treatment, the US Federal District Court of Colorado has ruled.

In Panczner v. Fraser, (D. Colo., Mar 11, 2019, dismissed Oct. 30, 2019, 1:17-cv-01037), Bruce Panczner and friends rented snowmobiles from an outfitter near Aspen, planning on a trip to a backcountry hut. They repeatedly got their snowmobiles stuck in deep snow. Digging them out, Panczner's boots filled with snow.

Eventually, Panczner and his friends gave up. Panczner attempted to call authorities on a satellite phone, but it kept dropping his calls. They waited to be rescued in a snow cave.

Local authorities dispatched a search and rescue team the next morning, and Panczner was transported immediately to Aspen Valley Hospital where he was diagnosed with severe frostbite to this toes and feet. An emergency room physician began a “rapid rewarming” procedure using hot water. Panczner was admitted to the hospital under the care of Dr. Lesley Fraser, a general surgeon.

The next morning, Panczner asked Dr. Fraser about “tissue plasminogen activator” (tPA) treatment, which Panczner had read about in the hospital through an Internet search about frostbite. Panczner also told Dr. Fraser that the burn center at the University of Colorado Hospital in Denver knew how to administer tPA for frostbite injuries.

Fraser responded that their was no treatment in Denver that was not available in Aspen. Later, Fraser contacted the burn center and learned for the first time about tPA. He arranged for Panczner to be transported by a Flight-for-Life helicopter to the burn center, but by that time it was too late. Doctors amputated all of Panczner's toes and parts of both forefeet.

Panczner sued Fraser for medical malpractice, claiming that, had he been administered tPA promptly, “he would have needed no or fewer amputations.” He retained Dr. Ken Zafren, an emergency medicine physician, highly experienced in frostbite treatment, as his expert witness.

Dr. Zafren's opinion was, essentially, that while it was not Dr. Fraser's fault for not knowing about the tPA treatment, the standard of care required Fraser to determine if there was something more he should know about frostbite treatment, as Dr. Zafren stated:

As for any condition, a physician, regardless of specialty, who treats a patient for frostbite, must either be an expert in the evaluation and treatment of frostbite by education, training, experience and knowledge of the current literature or must consult with an expert in the management of frostbite. The questions to be answered by the consultation include the choice of appropriate treatment and whether care of the patient should be transferred to the physician being consulted or to another physician.

Dr. Fraser retained two physician experts, Dr. Scott McIntosh, an emergency medicine specialist, and Dr. Brad Nichol, a general surgeon. Dr. McIntosh's report expressed the opinion that, while physicians practicing in an academic hospital are often aware of tPA for frostbite, he would not expect those in rural Colorado hospitals to be aware of the therapy. Dr. Nichol's expert report also made claims about the regional distribution of knowledge about tPA.

Dr. Fraser also argued that Panczner's “negligence caused him to suffer severe, deep and extensive frostbite” and that “there was no treatment that would have avoided all tissue loss …. [Panczner] caused the exact injury for which he now seeks damages.”

Dr. Fraser moved to exclude Dr. Zafren because he was an emergency medicine physician, not a general surgeon like Dr. Fraser, and he heedlessargued, Colorado statute specifically requires that a standard of care expert be in same medical specialty.

Panczner rejected that interpretation of the statute, arguing that under the statute the requirement is that the standards of care and practice must be the same.

The district court found no need to resolve the dispute over the meaning of the statute because Dr. Zafren did not argue that the general surgery standard of care required the use of tPA to treat frostbite, but rather that any physician had a duty to become aware of the treatment, as Dr. Zafren said during his deposition:

[I]f a person is not taking care of a problem daily and keeping up with the literature, I believe that they have to assume that there's something new or may be something new, and they have to go to a source, either an expert or Dr. Google to find — find out what's — what's the current thinking and also to review the specifics about the condition and the therapies.

Based on that distinction, the district court denied Dr. Fraser's motion to exclude Dr. Zafren.

Panczner moved to exclude Dr. Fraser's comparative negligence defense, to which the court agreed, noting that “how he contracted frostbite is irrelevant to whether Fraser treated him properly.”

Panczner also moved to exclude Fraser's experts' opinions on the standards of care in rural areas, arguing that “the Colorado Supreme Court has established that the applicable standard of care must be judged at a national level, not a regional or local level.”

In response, Dr. Fraser agreed that “specialists have a national standard of care,” but argued that his conduct should not be compared with “super-specialists” but with “reasonable practitioners in his own specialty” who would not know about tPA for frostbite.

The court found, however, that Dr. Fraser's attempt to “reframe” the local standard opinion did not address Panczner's argument, namely that Fraser failed to consult another expert, or even Google for treatments as his patient had done.

Given that Dr. Fraser failed to address the argument in Panczner's motion, the court allowed it, precluding Fraser's experts “from suggesting that general surgeons practicing in Aspen, or more generally in rural/mountain communities, are subject to a lower or different standard of care than general surgeons practicing in larger metropolitan areas.”

After ruling on the various motions, the court reopened discovery so that Fraser could obtain a rebuttal to Dr. Zafren's standard-of-care opinion.

On October 30th, the district court dismissed the case before going to trial, with each party agreeing to their own legal fees and court costs.

Blaming patients for the injuries they sustain before treatment, however  heedless they were, may not be the best malpractice defense.