Estate of Kelroy Newman et al v. Board of County Commissioners of the County of Montezuma, Colorado et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Civil Action No. 22-cv-01763-PAB-KAS
ESTATE OF KELROY NEWMAN, by and through putative personal representative,
Bryanne Watts-Lucero, and
J.W., a minor child, by and through friend and mother, Elisa Wilson,
Plaintiffs,
v.
BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF MONTEZUMA,
COLORADO,
SHERIFF STEVEN NOWLIN, individually and in his official capacity,
ZACHARY SUMMERS, individually,
SOUTHWEST HEALTH SYSTEM, INC, d/b/a/ Southwest Memorial Hospital, and
RANDY GENE DAVIDSON, MD, individually,
Defendants.
ORDER
This matter comes before the Court on Defendant SWMH’s Motion for Summary
Judgment [Docket No. 104].1 The Court has jurisdiction pursuant to 28 U.S.C. § 1331.
I. BACKGROUND
This case concerns the death of Kelroy Newman on July 18, 2021 due to alcohol
withdrawal while Mr. Newman was in pretrial detention at the Montezuma County
1 On March 14, 2024, plaintiffs filed a Notice of Newly Disclosed Evidence in
Support of Plaintiffs’ Response to Defendant SWMH’s Motion for Summary Judgment
stating that evidence disclosed by defendant Southwest Health System, Inc. on March
8, 2024 provides additional support for Facts 3 and 5 asserted in plaintiffs’ response to
the motion for summary judgment. Docket No. 179 at 2. The Court did not rely on
these facts to reach its determination on the motion and will not consider the additional
evidence referenced by plaintiffs in the notice.
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Detention Center (“MCDC”) in Colorado. Docket No. 41 at 1-2, ¶¶ 1, 6. This action is
brought by Mr. Newman’s estate and his minor child, J.W., against the Board of County
Commissioners of the County of Montezuma, Colorado, Sheriff Steven Nowlin, Deputy
Zachary Summers, Randy Gene Davidson, M.D., and Southwest Medical System, Inc.,
doing business as Southwest Memorial Hospital (“the Hospital”).2 Id. at 4-6, ¶¶ 14-17,
20, 23, 26.
The Hospital’s summary judgment motion is directed at plaintiffs’ First Amended
Complaint, see Docket No. 104 at 1, which brought one claim against the Hospital,
namely, claim three, alleging negligence in operation of a hospital and medical
negligence causing wrongful death. Docket No. 41 at 39-41, ¶¶ 255-66. Plaintiffs have
amended their complaint twice since the filing of the summary judgment motion. Docket
Nos. 149, 154. Plaintiffs’ Third Amended Complaint (“the complaint”) asserts three
claims against the Hospital: claim four— deliberate indifference in violation of the
Fourteenth Amendment; claim six— medical negligence causing wrongful death; and
claim seven— failure to provide an appropriate medical screening examination and to
provide required stabilization care and treatment in violation of 42 U.S.C. § 1395dd.
Docket No. 154 at 51-54, 56-61, ¶¶ 312-27, 344-72. Claim six of the complaint does not
materially differ from claim three of the First Amended Complaint.3 Compare Docket
2 Defendant Andrew Daulton was dismissed from this action. Docket No. 142.
3 Claim six of the complaint differs from claim three of the First Amended
Complaint in that plaintiffs seek punitive damages against the Hospital. Compare
Docket No. 41 at 39-41, ¶¶ 255-66, with Docket No. 154 at 58, ¶ 355; see also Docket
No. 112 at 2 (seeking leave to amend the complaint for the purpose of adding a punitive
damages remedy). However, the Hospital does not seek summary judgment on the
issue of damages. Moreover, in the briefing regarding plaintiffs’ motion to amend the
complaint, no party argued that the proposed amendments to plaintiffs’ complaint would
impact the pending summary judgment motion, see Docket Nos. 112, 128, 134, and the
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No. 41 at 39-41, ¶¶ 255-66, with Docket No. 154 at 56-58, ¶¶ 344-55. Therefore, the
Court will construe the Hospital’s motion, which seeks summary judgment on claim
three of plaintiffs’ First Amended Complaint, see Docket No. 104 at 1, as seeking
summary judgment on claim six of the complaint.
II. FACTS4
On July 17, 2021, the Cortez Police Department arrested Mr. Newman and took
him to MCDC. Id. at 3, ¶ 1. Upon arrival, Mr. Newman underwent a blood alcohol test,
which revealed that he had a blood alcohol concentration (“BAC”) of 0.421. Id., ¶ 2. Mr.
Newman also had injuries to his head and face. Id., ¶ 3. Because of Mr. Newman’s
high BAC and facial injuries, he was taken to the Hospital to be medically cleared for
incarceration. Id., ¶ 4. Mr. Newman was first seen by Nurse Jennifer Gaddis, an
employee of the Hospital. 5 Docket No. 115 at 7-8, 10, ¶¶ 13, 21; see Docket No. 115-
parties have not indicated that the Hospital’s summary judgment motion has been
superseded because plaintiffs amended their complaint.
4 The following facts are undisputed unless otherwise noted.
5 Plaintiffs, in their response, include a “statement of additional material facts.”
Docket No. 115 at 4-13. The Court’s practice standards permit a party opposing
summary judgment to include in its response a statement of additional disputed or
undisputed facts. See Practice Standards (Civil Cases), Chief Judge Philip A. Brimmer,
§ III.F.3.b.v. Plaintiffs’ response does not state whether the additional material facts are
disputed or undisputed. However, the Hospital appears to treat plaintiffs’ additional
material facts as being allegedly undisputed because it denies Facts 9-12 and 17-20.
Docket No. 127 at 1-2, ¶¶ 9-12, 17-20. In replying to a party’s statement of additional
undisputed facts, the Court’s practice standards require a party, with respect to each
fact which the opposing party claims to be undisputed, to admit or deny that fact.
Practice Standards, § III.F.3.b.vi; see also Fed. R. Civ. P. 56(e)(2) (“If a party . . . fails to
properly address another party’s assertion of fact . . . , the court may . . . consider the
fact undisputed”). The Hospital responded to only nine of plaintiffs’ additional
undisputed facts. See Docket No. 127 at 1-2, ¶¶ 9-12, 17-20. The Hospital’s reply
states that “[r]esponding to 9 pages of ‘additional material facts’ in this 10-page limit
Reply is unnecessarily burdensome and would lead to additional motions practice (and
cost) to exceed page limits and respond.” Id. at 3. However, complying with the Court’s
practice standards is not “unnecessarily” burdensome; it is required. Moreover, the
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18 at 1. Nurse Gaddis failed to conduct a nursing assessment of Mr. Newman’s alcohol
intoxication or potential for withdrawal.6 Docket No. 115 at 11, ¶ 22. Nurse Gaddis
failed to inquire about Mr. Newman’s recent consumption of alcohol.7 Id. Nurse Gaddis
“charted” that Mr. Newman needed medical clearance for MCDC because of a facial
injury, which was incorrect.8 Id. No Hospital staff member asked about Mr. Newman’s
BAC, drinking habits, or withdrawal history, even though Mr. Newman smelled of
alcohol.9 Id., ¶ 24.
Mr. Newman was also seen by emergency room physician Dr. Davidson, a
Hospital employee. Docket No. 104 at 3, ¶¶ 5-6. Dr. Davidson performed a physical
examination and documented in his medical report that Mr. Newman “has no
complaints. Has bruising to his face and abrasions and states was jumped by 6 people
3 days ago. States he is fine.” Id., ¶¶ 8-9. Dr. Davidson’s report states that Mr.
Newman “appears stable for incarceration at this time.” Id., ¶ 11. Dr. Davidson testified
that he knew Mr. Newman was intoxicated and that the medical clearance exam was
requested to determine whether Mr. Newman was safe for incarceration. Id. at 4, ¶ 13.
Dr. Davidson signed the Sheriff’s Office “prisoner medical clearance report,” which
Hospital could have filed a motion to exceed the page limit for reply briefs, but chose not
to do so. Therefore, for those statements of additional undisputed facts that the
Hospital failed to admit or deny, the Court will deem those facts to be admitted.
Accordingly, because the Hospital neither admitted nor denied plaintiffs’ Facts 13 and
21, the Court deems them admitted.
6 The Hospital did not respond to this fact. For the reasons noted in footnote 5,
the Court deems this fact to be admitted.
7 The Hospital did not respond to this fact. For the reasons noted in footnote 5,
the Court deems this fact to be admitted.
8 The Hospital did not respond to this fact. For the reasons noted in footnote 5,
the Court deems this fact to be admitted.
9 The Hospital did not respond to this fact. For the reasons noted in footnote 5,
the Court deems this fact to be admitted.
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stated, “I have examined the prisoner and find him acceptable for admission to the jail. I
have no specific suggestions regarding the care of the prisoner for the condition for
which I have examined him.” Id., ¶ 14. Dr. Davidson did not document the BAC
recorded at MCDC, 0.421, and did not order a blood alcohol test or other laboratory
tests. Id. at 3-4, ¶¶ 2, 15-16. Dr. Davidson testified that, if anyone had told him that Mr.
Newman’s BAC was 0.421, it would not have changed his medical decision-making.10
Id. at 5, ¶ 18. Dr. Davidson also testified that, if he had known or suspected that Mr.
Newman was a chronic alcoholic or addicted to alcohol, it would not have changed his
medical decision making.11 Id., ¶ 19. Even if Dr. Davidson had known that Mr.
10 Plaintiffs “deny that Dr. Davidson can credibly testify that information he didn’t
know would not have changed his medical decision-making in clearing a patient for
intoxication,” but “[a]dmit Dr. Davidson so testified.” Docket No. 115 at 3, ¶ 18.
Plaintiffs do not cite any authority for their objection. While courts do not resolve
credibility issues in deciding summary judgment motions, see Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986), the basis for plaintiffs’ objection to this fact may
be that Dr. Davidson is simply predicting what he would have done if presented with
such information and for that reason his testimony is inadmissible speculation. See
Fed. R. Civ. P. 56(c)(2) (“A party may object that the material cited to support or dispute
a fact cannot be presented in a form that would be admissible in evidence.”). However,
even assuming that plaintiffs object on this basis, the objection is not valid. Dr.
Davidson testified that he would not have changed his decision to discharge Mr.
Newman if he had known Mr. Newman’s BAC was 0.421 because the BAC “is a number
that is not relevant to making that decision. It’s more how [the patient] presents.”
Docket No. 104-3 at 3, 92:19-21. Dr. Davidson also testified that he does not consider
any specific BAC dangerous and that “you can’t draw a direct correlation between [BAC]
and whether somebody’s going to go into withdrawal.” Docket No. 115-1 at 7, 10, 64:5-
6, 82:20-22. Therefore, the Court finds that Dr. Davidson’s testimony that he would not
have changed his decision to discharge Mr. Newman if he had known that Mr.
Newman’s BAC was 0.421 is not inadmissible speculation. The Court deems this fact
to be admitted.
11 Plaintiffs “deny that Dr. Davidson can credibly testify that information he didn’t
know would not have changed his medical decision-making in clearing a patient for
intoxication,” but “[a]dmit that Dr. Davidson so testified.” Docket No. 115 at 3-4, ¶ 19.
Plaintiffs do not cite any authority for their objection. However, even assuming, as
above, that plaintiffs object on the basis that Dr. Davidson is simply predicting what he
would have done if presented with such information and for that reason his testimony is
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Newman had been seen one month earlier for a medical clearance for intoxication, this
would not have changed his decision.12 Id., ¶ 20. Mr. Newman was discharged from
the Hospital with a “Prisoner Medical Clearance Report” that had not been completed
and did not include the reason he had been sent to the hospital.13 Docket No. 115 at
12, ¶ 27. Mr. Newman was also discharged with instructions to return to the emergency
inadmissible speculation, the objection is not valid. Although Dr. Davidson testified that
he does “consider whether [the patient is] a chronic drinker,” Docket No. 115-1 at 4,
45:18-19, Dr. Davidson stated that “there is no direct correlation” between a person’s
dependence on or addition to alcohol and the likelihood that the person will experience
withdrawal. Docket No. 104-3 at 3, 93:3. Moreover, Dr. Davidson testified that the only
circumstance in which he had stopped a medical clearance for potential withdrawal was
when the patient was already exhibiting symptoms of withdrawal, Docket No. 115-1 at
10, 83:19-23, and testified that Mr. Newman did not display any signs of alcohol
withdrawal or any other emergent condition when Dr. Davidson examined him. Docket
No. 104-3 at 4, 94:4-6, 96:2-3; see also Docket No. 115-1 at 5, 48:15-19 (testifying that
if a patient is showing signs of alcohol withdrawal Dr. Davidson would treat the patient,
but he would not treat a patient leaving from the emergency department “just because
[he thinks] in the possibility of the future” the patient might go into withdrawal).
Therefore, the Court finds that Dr. Davidson’s testimony that he would not have
changed his decision to discharge Mr. Newman if he had known that Mr. Newman was
a chronic alcoholic or addicted to alcohol is not inadmissible speculation. The Court
deems this fact to be admitted.
12 Plaintiffs “deny that Dr. Davidson can credibly testify that information he didn’t
know would not have changed his medical decision-making in clearing a patient for
intoxication,” but “[a]dmit that Dr. Davidson so testified.” Docket No. 115 at 4, ¶ 20.
Once again, plaintiffs do not cite any authority for their objection. However, even
assuming, as above, that plaintiffs object on the basis that Dr. Davidson is simply
predicting what he would have done if presented with such information and for that
reason his testimony is inadmissible speculation, the objection is not valid. As stated
above, Dr. Davidson testified that, although he considers a patient’s history of alcohol
use, he would treat a patient for alcohol withdrawal only if the patient was showing
symptoms of withdrawal when Dr. Davidson examined him and that Mr. Newman was
not exhibiting symptoms of withdrawal when Dr. Davidson examined him. For this
reason, the Court finds that Dr. Davidson’s testimony that he would not have changed
his decision to discharge Mr. Newman if he had known that Mr. Newman had been seen
one month earlier for a medical clearance for intoxication is not inadmissible
speculation. Accordingly, the Court deems this fact to be admitted.
13 The Hospital did not respond to this fact. For the reasons noted in footnote 5,
the Court deems this fact to be admitted.
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department “as needed.”14 Id. The Prisoner Medical Clearance Report did not contain
specific instructions for monitoring Mr. Newman.15 Id.
After receiving medical clearance, Mr. Newman was transferred from the Hospital
to MCDC and was placed in a holding cell. Docket No. 104 at 5, ¶ 23. The next
morning, Mr. Newman experienced symptoms of acute alcohol withdrawal.16 Docket
No. 115 at 12, ¶ 28. Mr. Newman told Deputy Summers that his head hurt and that he
wanted to see a doctor.17 Id., ¶ 29. Deputy Summers and another deputy decided to
take Mr. Newman to the hospital later that day because there was no immediate
urgency as the hospital had medically cleared him the night before and said that he was
safe to be in jail.18 Id. at 13, ¶ 29. Mr. Newman died hours later from complications
from alcohol withdrawal.19 Id., ¶ 30.
III. LEGAL STANDARD
Summary judgment is warranted under Federal Rule of Civil Procedure 56 when
the “movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986). A disputed fact is “material” if,
14 The Hospital did not respond to this fact. For the reasons noted in footnote 5,
the Court deems this fact to be admitted.
15 The Hospital did not respond to this fact. For the reasons noted in footnote 5,
the Court deems this fact to be admitted.
16 The Hospital did not respond to this fact. For the reasons noted in footnote 5,
the Court deems this fact to be admitted.
17 The Hospital did not respond to this fact. For the reasons noted in footnote 5,
the Court deems this fact to be admitted.
18 The Hospital did not respond to this fact. For the reasons noted in footnote 4,
the Court deems this fact admitted.
19 The Hospital did not respond to this fact. For the reasons noted in footnote 4,
the Court deems this fact admitted.
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under the relevant substantive law, it is essential to proper disposition of the claim.
Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). Only disputes
over material facts can create a genuine issue for trial and preclude summary judgment.
Faustin v. City & Cnty. of Denver, 423 F.3d 1192, 1198 (10th Cir. 2005). An issue is
“genuine” if the evidence is such that it might lead a reasonable jury to return a verdict
for the nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir. 1997).
Where “the moving party does not bear the ultimate burden of persuasion at trial,
it may satisfy its burden at the summary judgment stage by identifying a lack of
evidence for the nonmovant on an essential element of the nonmovant’s claim.”
Bausman v. Interstate Brands Corp., 252 F.3d 1111, 1115 (10th Cir. 2001) (quotations
omitted). “Once the moving party meets this burden, the burden shifts to the nonmoving
party to demonstrate a genuine issue for trial on a material matter.” Concrete Works of
Colo., Inc. v. City & Cnty. of Denver, 36 F.3d 1513, 1518 (10th Cir. 1994). The
nonmoving party may not rest solely on the allegations in the pleadings, but instead
must designate “specific facts showing that there is a genuine issue for trial.” Celotex
Corp., 477 U.S. at 324 (quotations omitted). “To avoid summary judgment, the
nonmovant must establish, at a minimum, an inference of the presence of each element
essential to the case.” Bausman, 252 F.3d at 1115. When reviewing a motion for
summary judgment, a court must view the evidence in the light most favorable to the
non-moving party. Id.
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IV. ANALYSIS
Under Colorado law,20 to “establish a claim for negligence by medical personnel,
a plaintiff must allege the same elements as for any other negligence claim, i.e., that the
defendant owed a legal duty to the plaintiff, that the defendant breached that duty, and
that the breach of duty caused the harm that resulted in the alleged damages.” Carbajal
v. St. Anthony Cent. Hosp., No. 12-cv-02257-REB-KLM, 2015 WL 3765895, at *9 (D.
Colo. Apr. 7, 2015) (citing Settle v. Basinger, 411 P.3d 717, 726 (Colo. App. 2013)),
recommendation adopted, 2015 WL 3896902 (D. Colo. Jun. 23, 2015). A hospital may
be sued for medical negligence based on a theory of vicarious liability for the acts of its
employees, see Kellner v. Schultz, 937 F. Supp. 2d 1319, 1326-27 (D. Colo. 2013)
(applying Colorado law), or a theory of direct liability for its own acts. See Fahrenbruch
by and Through Darin Baehr of Pinnacle Bank v. Peetz, No. 19-cv-02266-RBJ, 2021
WL 2550533, at *4-5 (D. Colo. Jun. 22, 2021) (applying Colorado law). The Hospital
argues that it is entitled to summary judgment on plaintiffs’ negligence claim because
plaintiffs cannot establish vicarious liability based on the actions of Dr. Davidson or
Nurse Gaddis and cannot establish direct liability based on the Hospital’s training
policies and discharge protocols. Docket No. 104 at 7-8; Docket No. 127 at 3-8.
A. Liability for Acts of Dr. Davidson
The Hospital argues that the corporate practice of medicine doctrine shields it
from liability for Dr. Davidson’s medical decisions. Docket No. 104 at 8-11. Plaintiffs do
20 The parties appear to agree that Colorado law applies to the negligence claim
in this case. The Court will operate under the same premise. See Grynberg v. Total
S.A., 538 F.3d 1336, 1346 (10th Cir. 2008) (“Because the parties’ arguments assume
that Colorado law applies, we will proceed under the same assumption.”).
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not appear to challenge this argument. See Docket No. 115 at 13. “The corporate
practice of medicine doctrine is a common law principle that recognizes it is impossible
for a fictional entity, a corporation, to perform medical actions or be licensed to practice
medicine.” Estate of Harper ex rel. Al-Hamim v. Denver Health and Hosp. Auth., 140
P.3d 273, 275 (Colo. App. 2006) (citation and quotations omitted). Colorado courts
have held that, based on this doctrine, hospitals and other corporations may not be held
vicariously liable for the negligent acts of their physician employees. Id.; see also
Kellner, 937 F. Supp. 2d at 1326; Blanco, Sr. v. HCA-Healthone, LLC, No. 19-cv-00928-
PAB-SKC, 2020 WL 5760452, at *4 (D. Colo. Sep. 28, 2020) (applying Colorado law).
Based on the corporate practice of medicine doctrine, the Hospital cannot be held
vicariously liable for medical negligence committed by Dr. Davidson. The Court will
therefore grant summary judgment in favor of the Hospital on plaintiffs’ medical
negligence claim against the Hospital insofar as the claim is based on the acts of Dr.
Davidson.
B. Liability for Acts of Nurse Gaddis
“One of the prima facie elements a plaintiff must satisfy in a negligence case is
that the breach of the standard of care was a proximate cause of the alleged injuries.”
Quintana v. United States, No. 06-cv-01342-REB-CBS, 2008 WL 731115, at *7 (D.
Colo. Mar. 17, 2008) (applying Colorado law). The Hospital argues that the “medical
clearance examination performed by Dr. Davidson is what gives rise to Plaintiffs’
medical causation theory-not the nursing care,” and therefore plaintiffs lack prima facie
evidence that the nursing care was a proximate cause of Mr. Newman’s death. Docket
No. 104 at 16.
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Plaintiffs claim that the standard of care required Nurse Gaddis to confirm the
condition that triggered the need for Mr. Newman’s medical clearance, take a social
history, and document Mr. Newman’s acute intoxication. Docket No. 115 at 14.
Plaintiffs argue that Nurse Gaddis breached this standard of care because she
“incorrectly charted” that Mr. Newman was brought in for medical clearance due to his
facial injury rather than his 0.421 BAC, failed to inquire or record anything about Mr.
Newman’s recent consumption of alcohol, and failed to take a social history. Id.
Plaintiffs claim that Dr. Davidson’s medical decision making is “necessarily informed by
the nurse gathering (or failing to gather) necessary information.” Id. at 15. Therefore,
according to plaintiffs, “Nurse Gaddis’s failure to perform a reasonable nursing
assessment and collect crucial information about Mr. Newman’s present medical
condition and social history contributed to the decision to discharge him to the Jail
without any follow-up care instructions, and was a proximate cause of his death.” Id. at
15-16. In other words, plaintiffs argue that Nurse Gaddis’ failure to gather information
about Mr. Newman’s medical history and condition and to communicate that to Dr.
Davidson is a but-for cause of Mr. Newman’s death because, had Dr. Davidson known
that information, Dr. Davidson would not have discharged Mr. Newman.
The Hospital responds that there is no evidence that Nurse Gaddis’ failure to
document Mr. Newman’s BAC and alcohol history, “if corrected, would have changed
Dr. Davidson’s decision to medically discharge Mr. Newman. To the contrary, he
testified that even if he knew the actual number (.421) of the [BAC] or if he knew Mr.
Newman’s alcohol history that this would not have changed his decision to discharge
Mr. Newman to the jail.” Docket No. 104 at 15. Plaintiffs, however, maintain that the
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Hospital “cannot get out based solely on Dr. Davidson’s self-serving testimony that
having additional information about Mr. Newman would not have made a difference or
changed his decision-making.” Docket No. 115 at 15.
However, as the Court noted earlier, see supra notes 10-12, Dr. Davidson’s
testimony is not “self-serving.” Rather than being based on speculation about what he
would have done had he known the information about Mr. Newman, he testified that
such information was not relevant to the medical examinations that he conducted of
persons similar to Mr. Newman and was not relevant to his examination of Mr. Newman.
See Docket No. 104-3 at 3, 92:19-21, 93:3; Docket No. 115-1 at 4, 5, 7, 10, 45:18-19,
48:15-19, 64:5-6, 82:20-22, 83:19-23. As a result, Dr. Davidson testified that, even if he
had known of Mr. Newman’s BAC or known the other facts that plaintiffs rely upon, it
would not have changed his decision to discharge Mr. Newman. Docket No. 104 at 5,
¶¶ 18-20. Plaintiffs fail to create a genuine issue of material fact about these issues. As
a result, plaintiffs have failed to show that any breach of the standard of care by Nurse
Gaddis was a proximate cause of plaintiffs’ injuries. Quintana, 2008 WL 731115, at *7.
The Court will therefore grant summary judgment to the Hospital on this aspect of
plaintiffs’ negligence claim.
C. The Hospital’s Training and Discharge Protocols
Plaintiffs claim that, in addition to being vicariously liable for the acts of Nurse
Gaddis, the Hospital is “directly liable for its own negligent training, policies and
protocols.” Id. at 13. Plaintiffs claim that the Hospital has a duty to “establish[ ]
appropriate procedures and protocol for its employees to properly treat patients” and to
“establish[ ] appropriate procedures and protocols for the medical clearance of inmates
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and systems for communicating with the jail to which patients are being discharged.” Id.
at 16. Plaintiffs argue that the Hospital was directly negligent, as opposed to vicariously
negligent, because it “fail[ed] to train its staff about medical clearances for incarceration
and discharging patients to jail” and “took no steps to develop discharge protocols for
incarcerated patients that took into consideration the lack of any medical monitoring at
the jail.” Id. at 16-17. The Hospital responds that it is entitled to summary judgment on
plaintiffs’ negligence claim insofar as it is premised on direct negligence by the Hospital
because plaintiffs “fail[ ] to cite to any legal duty that gives rise to a claim against the
hospital” and lack required expert witness testimony.21 Docket No. 127 at 3, 7.
Plaintiffs cite Pediatric Neurosurgery, P.C. v. Russell, 44 P.3d 1063, 1067 (Colo.
2002), for the proposition that a hospital has “the duty of establishing appropriate
procedures and protocol for its employees to properly treat patients.” Docket No. 115 at
16. However, Russell is distinguishable because the plaintiffs there alleged negligence
based on vicarious, not direct, liability.22 Russell, 44 P.3d at 1066. Plaintiffs cite no
other source of law indicating the existence of this duty. Similarly, plaintiffs cite no legal
support for their argument that the Hospital had the duty to “establish[ ] appropriate
21 The Hospital also argues that plaintiffs’ claim fails because “hospitals are
legally prohibited from dictating medical care.” Docket No. 127 at 4. Because the Court
finds that plaintiffs have failed to raise a genuine dispute of fact as to whether the
Hospital had a duty to establish procedures and protocol for its employees to properly
treat patients, establish procedures and protocols for the medical clearance of inmates,
or establish systems for communicating with the jail to which patients are discharged,
and as to whether the Hospital breached those duties, the Court will not address this
argument.
22 Moreover, Russell was legislatively overruled. See Harper, 140 P.3d at 276
(“In 2003 the General Assembly legislatively overruled Russell . . . to reinstate the
corporate practice of medicine doctrine to the extend Russell had created an exception
to it.”).
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procedures and protocols for the medical clearance of inmates and systems for
communicating with the jail to which patients are being discharged.” Docket No. 115 at
16. Thus, plaintiffs have failed to raise a disputed issue of material fact as to the first
element of their negligence claim: that the Hospital owed a legal duty to plaintiffs. See
Carbajal, 2015 WL 3765895, at *9; see also Methodist Hosp. v. German, 369 S.W. 3d
333, 350 (Tex. App. 2011) (dismissing plaintiff’s negligence claim against hospital
based on the failure to train nurses because plaintiff failed to produce evidence of the
hospital’s duty to train).
Moreover, even if plaintiffs had established that the Hospital had the alleged legal
duties, plaintiffs have failed to cite expert testimony concerning the applicable standard
of care. Expert testimony is required to establish the standard of care where the
standard of care is not within the common knowledge of the ordinary juror. See
Fahrenbruch, 2021 WL 2550533, at *7 (requiring expert testimony to establish standard
of care for plaintiff’s claim that hospital was directly liable for negligent maintenance of
anesthesia devices). However, plaintiffs have cited no expert testimony concerning the
standard of care for training staff about medical clearances for incarceration or
developing discharge protocols and systems for communicating with the jail.
Accordingly, plaintiffs have not raised a genuine issue of disputed fact as to whether the
Hospital breached a duty of care by not training its staff about medical clearances for
incarceration and discharging patients to jail and by not taking steps to develop
discharge protocols for incarcerated patients that consider the lack of medical
monitoring at the jail. Therefore, the Court will grant summary judgment on plaintiffs’
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medical negligence claim against the Hospital insofar as it is based on the Hospital’s
failure to adopt policies and procedures.
Plaintiffs do not argue that there is any other basis for their claim for medical
negligence against the Hospital. Therefore, the Court will grant summary judgment on
this claim.
V. CONCLUSION
Therefore, it is
ORDERED that Defendant SWMH’s Motion for Summary Judgment [Docket No.
104] is GRANTED. It is further
ORDERED that plaintiffs’ sixth cause of action against the Hospital is
DISMISSED with prejudice.
DATED March 27, 2024.
BY THE COURT:
___________________________
PHILIP A. BRIMMER
Chief United States District Judge
Case No. 1:22-cv-01763-PAB-KAS Document 181 filed 03/27/24 USDC Colorado
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