Surgical Complication Resulting from an Otherwise Successful Surgery Found to Warrant “Unsuccessful Outcome” Jury Instruction

A man injured his back at work. An MRI revealed degenerative damage to his spine. The neurosurgeon diagnosed the man with multiple degenerative disc changes and found a hernia of at least one disc. The neurosurgeon suggested either drug treatment or surgery. The man chose surgery, and following the surgery, the man experienced neurological symptoms not present prior to the surgery.


The man sued the neurosurgeon for medical malpractice alleging that the surgeon negligently injured his spinal cord. The man sued the workers’ compensation insurer for breach of the insurance contract for wrongful denial of benefits. At trial, the man argued that the only way he could have been injured was if the neurosurgeon was negligent in performing the procedure. The neurosurgeon argued that the postoperative neurological symptoms were a common risk of the procedure even when performed with reasonable care. The neurosurgeon proposed the following jury instruction, “As to Plaintiff's negligence claim, a physician does not guarantee or promise a successful outcome by simply treating or agreeing to treat a patient. An unsuccessful outcome does not, by itself, mean that a physician was negligent.” The trial court rejected this instruction because the purpose of the surgery was to correct the cervical disk hernia, which it did successfully. The jury found in favor of the man and awarded damages against the neurosurgeon in the amount of $650,000 in economic damages and $325,000 in noneconomic damages, and against the insurer in the amount of $50,000 in economic damages and $325,000 in noneconomic damages.


The neurosurgeon and the insurer appealed and the man cross-appealed. The neurosurgeon argued that the court erred in rejecting the jury instruction.


The court of appeals reversed the judgment against the neurosurgeon holding that the court erred in rejecting the jury instruction. The court reasoned that a surgical complication resulting from an otherwise successful surgery still warranted the use of the “unsuccessful outcome” instruction. The accepted instruction that, “[The neurosurgeon] denies he was negligent in performing the surgery and that he caused any damages to Plaintiff,” did not sufficiently state the neurosurgeon’s theory of the case because no where did the instructions explain that the neurosurgeon could not be held liable for a bad outcome without more.


The court of appeals affirmed the judgment against the workers’ compensation insurer in part, reversed as to the apportionment of costs, assessment of prejudgment interest on economic damages, and denial of their subrogation right, and remanded for a new trial against the neurosurgeon and further proceedings as to the insurer.


See: Schuessler v. Wolter, 2012 WL 1881002 (Colo.App., May 24, 2012) (not designated for publication).