Appellate Court Affirms Colorado Medical Malpractice Defense Verdict

162017_132140396847214_292624_nIn an unpublished opinion filed on December 24, 2014, the Colorado Court of Appeals upheld a Colorado medical malpractice defense verdict, finding that any error in the jury instructions regarding comparative negligence and mitigation of damages that were given by the trial judge was harmless error because the Colorado medical malpractice jury had determined that neither the defendant physician nor the defendant physician assistant were negligent in the care of the plaintiff.

The plaintiff, who was employed as an oiler for heavy equipment at a gas pipeline construction site at the time of the alleged medical negligence, had gone to a local urgent care clinic in 2009 with complaints of painful swelling in her foot.

The defendant physician assistant at the urgent care clinic diagnosed the woman as having gout and discharged her with medications for gout and pain. When her symptoms worsened over the course of three days, the woman returned to the urgent care clinic, this time being diagnosed with life-threatening necrotizing fasciitis (flesh-eating bacteria), which required a series of amputations of her leg that ultimately ended just below the knee. After her amputations, the woman had to quit her job because she could no longer do the work.

The unpublished opinion by the three-member panel of the appellate court reportedly stated, “We need not decide whether the instructions were erroneously given because we conclude that any such error was harmless. Because the jury found that Hoyt [the defendant physician assistant] was not negligent and was not a cause of Ismay’s claimed injuries, any error in giving the instructions regarding comparative negligence and mitigation of damages were harmless.”

The 58-year-old defendant physician, who had practiced medicine for thirty years, died on April 11, 2014. He reportedly had been jailed earlier this year on suspicion of attempted first-degree murder, menacing with a deadly weapon, and illegal discharge of a firearm arising out of an incident involving his wife while the defendant physician, who had been drinking, was arguing with his wife concerning finances. His wife reportedly told the authorities that her husband had threatened to commit suicide.


Sheril Ismay v. Kimberly Hoyt, PA-C and Kent Black, M.D., Court of Appeals No. 13CA0117.

What Is Necrotizing Fasciitis?

According to a recent medical article, necrotizing fasciitis (“NF”) is a rare, life-threatening soft-tissue infection that is a medical and surgical emergency. The incidence of NF has been increasing in the last few years. NF is characterized by a rapidly spreading, progressive necrosis of the deep fascia and subcutaneous tissue. Necrotizing fasciitis is often underestimated because of the lack of specific clinical findings in the initial stages of the disease. Imaging is very useful to confirm the diagnosis and to assess the extent of the disorder, the potential surgical planning, and the detection of underlying etiologies. The presence of gas within the necrotized fasciae is characteristic of NF, but may be lacking. The main finding is thickening of the deep fasciae due to fluid accumulation and reactive hyperemia, best seen on magnetic resonance imaging.

If you suffered serious injury as a result of medical negligence, including but not limited to the misdiagnosis of necrotizing fasciitis, in Colorado or in another U.S. state, you should promptly consult with a Colorado medical malpractice attorney or a medical malpractice attorney in your state who may investigate your malpractice claim for you and represent you in a medical malpractice case, if appropriate.

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This entry was posted on Wednesday, December 31st, 2014 at 6:03 am. Both comments and pings are currently closed.


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