Professional Liability and Superseding Cause – 2018 Colorado Court of Appeals Case Danko v. Conyers

A recent Colorado Court of Appeals case, Danko v. Conyers, 2018COA14 addressed a superseding cause in a medical malpractice case.  The case has some interesting aspects that may relate to legal malpractice and professional liability defense.  In a Colorado legal malpractice case it is common for a lawyer defendant to designate successor counsel as a “non-party at fault” under a Colorado statute (C.R.S. § 13-21-111.5) permitting a defendant to do so.   The jury is then allowed to apportion some of the fault to the non-party successor counsel (who occasionally even testifies against the defendant lawyer at trial).  Although it is common to assert a superseding cause as an affirmative defense, it is rare to actually pursue it.  However, what if the defendant does not designate successor counsel as a non-party at fault but instead pursues the superseding cause defense?

In Danko, the plaintiff was treated by the defendant physician for carpel tunnel surgery.  Later, a  second physician amputated her forearm, allegedly because of the first physician’s negligent treatment.  The Court of Appeals upheld a trial court ruling finding that the defendant failed to present evidence that the amputation was extraordinary.  Specifically, the Court of Appeals held: “An exception exists, however, to the liability of initial physicians — they are ‘not answerable for harm caused by misconduct which is extraordinary . . . .’ Restatement § 457 [of the Restatement of Torts] cmt d.”  See attached slip opinion, ¶ 31.  The Court of Appeals found, among other things, that even though the defendant presented evidence that the amputation was unnecessary, the defendant failed to present evidence of extraordinary misconduct, much less gross negligence.  See ¶¶ 38-40.

In contrast to these standards, a designation of a non-party at fault only has to include a prima facie showing of negligence or fault by the nonparty.  See, e.g., Anstine v. Alexander, 128 P.3d 249 (Colo. App. 2005), rev’d on other grounds, 152 P.3d 497 (Colo. 2007).  Accordingly, it would appear that the “extraordinary misconduct” standard for a superseding cause in Colorado is a higher and more difficult burden than the “prima facie” standard for a non-party at fault.

For more information, contact:

Michael R. McCormick | Attorney | 303-779-2721