Chapter 26 - § 26.3 • ELEMENTS DEFINED

• Jurisdiction: Colorado

§ 26.3 • ELEMENTS DEFINED

§ 26.3.1—Duty

Even though medical malpractice claims are "governed by tort principles,"⁵ the physician or other medical professional's "duty arises out of a contractual relationship when [that professional] undertakes to treat or otherwise provide medical care to another."⁶ If no explicit contract exists, Colorado law implies a contract.⁷ Specifically, the law implies a contract that the physician:

1) "possesses that reasonable degree of learning and skill which is ordinarily possessed by others of the profession";
2) ". . . will use reasonable and ordinary care and diligence in the exercise of his skill and the application of his knowledge to accomplish the purpose for which he is employed"; and
3) ". . . will use his best judgment in the application of his skill in deciding upon the nature of the injury and the best mode of treatment."⁸

In other words, the professional's duty arises out of his or her professional relationship with the patient: "If a physician undertakes to treat or otherwise provide medical care to another, the physician thereby expressly or impliedly contracts to exercise reasonable and ordinary care and diligence to fulfill that purpose."⁹

The contours of "reasonable and ordinary care and diligence," i.e., the standard of care, vary depending on whether the professional is a specialist. "A nonspecialist physician must act consistently with the standards required of the medical profession in the community where he or she practices."¹⁰ On the other hand, a specialist physician — one "who holds himself out as a specialist in a particular field of medicine" — must act consistently with reasonable physicians practicing in that specialty, regardless of locality.¹¹ Additionally, "[u]nless the subject matter of a medical malpractice action lies within the ambit of common knowledge or experience of ordinary persons, the plaintiff must establish the controlling standard of care . . . by expert opinion testimony."¹²

A physician or surgeon has a duty to exercise reasonable care in referring a patient to another physician or surgeon, but is not ordinarily responsible for any negligence on the part of the referred physician or surgeon unless principles of vicarious liability apply.¹³

It is important to note that a duty can arise even in the absence of a true physician-patient relationship.¹⁴ For example, in Greenberg v. Perkins,¹⁵ the plaintiff alleged that tests the defendant doctor ordered as part of an independent medical examination caused her injury.¹⁶ The district court granted summary judgment for the defendant doctor, reasoning that no duty of care existed without a physician-patient relationship.¹⁷ The court of appeals reversed, and the Colorado Supreme Court affirmed the reversal, because it concluded that even without a physician-patient relationship, "the doctor owed [the plaintiff] a duty to exercise due care, both in examining her personally and in directing that she undergo further testing as a part of defendant's examination regimen."¹⁸ The supreme court explained that a court must consider several factors when...