Chapter 10 - § 10.7 GENERAL CAUSATION ISSUES

• Jurisdiction: Colorado

§ 10.7 GENERAL CAUSATION ISSUES

§ 10.7.1 Remote Causation

Kildahl v. Tagge, 942 P.2d 1283 (Colo. App. 1996), was a wrongful death action based upon the alleged negligence of the defendant physicians in failing to remove dead tissue from the decedent's colon during an operation to repair a hernia and release portions of the colon that had become trapped within the hernia sac. In 1988 the decedent had received treatment in the emergency room for pain related to a hernia. Upon discharge, she had been instructed to see a surgeon if her pain did not improve within two or three days. The decedent never returned to see a surgeon. Four years later, the decedent began to experience pain and again went to the emergency room. The defendants performed surgery and determined that a portion of her colon had been trapped within the hernia sac. The surgeon in charge of the operation thought that a part of the colon had been denied an adequate blood supply while it was trapped, but he decided that it had not been significantly injured and he did not remove it. Shortly after the operation, the decedent's condition deteriorated and she died. It was later found that a portion of the colon tissue had died and become gangrenous.

At trial, the defendants asserted that the decedent was comparatively negligent for not consulting a competent physician back in 1988. They asserted that if the decedent had done so, the physician would have recommended surgery and the defect would have been corrected without complications. The defendants requested a jury instruction on comparative negligence, which the trial court gave. The jury then returned a verdict against the plaintiffs, finding that the decedent was 51 percent at fault for causing her own injuries. The court of appeals reversed, holding that the actions of the decedent in 1988 were too remote to be considered a cause of her death.

The defendants argued that based upon Songer v. Bowman, 804 P.2d 261 (Colo. App. 1990), aff'd, 820 P.2d 1110 (Colo. 1991), and Blackman v. Rifkin, 759 P.2d 54 (Colo. App. 1988), the jury was properly instructed on comparative negligence. The court of appeals disagreed. It found that Songer was not applicable because there was no evidence that the decedent had failed to follow the instructions of the defendant physicians. The court of appeals also concluded that Blackman was distinguishable. In Blackman, the plaintiff, who was intoxicated, suffered permanent brain damage after regurgitating and inhaling...