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In Danko v. Conyers, No. 16CA1383, (2018 COA 14), the Colorado Court of Appeals took on this complicated question.

David J. Conyers, M.D., (“Conyers”) performed carpal tunnel surgery on Deborah Danko (“Danko”). According to Danko, Conyers negligently failed to detect an infection resulting from the surgery, which led to amputation of her forearm. Danko went to Conyers for carpal tunnel surgery, and Conyers thought everything was healing normally. Danko went for a second opinion, where a doctor tested her for infection, found one, and then began treatment for it. Danko sought help from an infectious disease specialist and then an orthopedist, who recommended amputation. In Conyers’ answer, he raised nonparty at fault. Conyers even obtained an extension for designating nonparties. Ultimately, he did not do so. Before trial, Danko moved to strike the nonparty at fault defense and to preclude evidence of other providers’ negligence or fault. The trial court granted the motion.

The Court found for Danko and awarded her damages. Conyers appealed. The trial court held that by failing to designate the other providers as nonparties at fault, Conyers lost the right to argue that these providers caused Danko’s injuries. The law says the negligence or fault of a nonparty may be considered if the defending party gives notice that a nonparty was wholly or partially at fault within ninety days following commencement of the action. Conyers declined to do so.

But the Colorado Supreme Court has held that a defendant may always attempt to interpose a complete defense that his acts or omissions were not the cause of the plaintiff’s injuries. In other words, a defense that the defendant did not cause the plaintiff’s injuries is not equivalent to the designation of a non-party because it does not result in apportionment of liability, but rather is a complete defense if successful. Conyers did not seek to apportion fault between him and the other providers. Instead, he sought to admit evidence that their care — not his — had caused Danko’s amputation.

The law also says, if the negligent actor is liable, he is also subject to liability for any additional bodily harm resulting from normal efforts of third persons in rendering aid which the other’s injury reasonably requires, irrespective of whether such acts are done in a proper or a negligent manner.

If the jury found Conyers negligent in failing to diagnose the infection, and that the infection required further medical treatment, usually he would be responsible for the negligent manner in which a later provider treated the infection. An exception exists, however, to the liability of initial physicians — they are not answerable for harm caused by misconduct which is extraordinary because it constitutes a superseding cause.

Conyers did not present any expert testimony that the amputation constituted extraordinary misconduct, much less gross negligence. Conyers had not presented any evidence sufficient to invoke the extraordinary misconduct exception.

If the jury found Conyers negligent, then it would have to decide whether the other providers’ alleged substandard care rose to the level of extraordinary misconduct. And herein lies the problem: what constitutes extraordinary misconduct is not so easily defined. Because Conyers declined to present evidence that remotely showed the amputation was extraordinary conduct, the Court did not abuse its discretion in rejecting his claim. Thus, the lower Court’s rulings are affirmed.

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