Background
Bryan McCluskey underwent two lumbar-spine operations performed by Dr. Michael Janssen and assisted by Dr. Christina Ottomeyer and physician assistant Rachel Cengia in May 2020. He experienced right-foot weakness and pain after surgery. Months later, another surgeon obtained a CT scan, concluded that a surgical screw was malpositioned and possibly contacting an S1 nerve root, and performed revision surgery.
McCluskey sued the physicians for medical negligence, alleging they did not timely obtain imaging, diagnose the misplaced screw, or reposition it. He also asserted corporate-negligence claims against North Suburban Medical Center based on its staff’s alleged failure to report his worsening symptoms and escalate care. The district court granted partial summary judgment to the hospital, and a jury found for the physicians. The court then denied McCluskey’s request for a new trial.
The Court’s Holding
The Colorado Court of Appeals affirmed. Although defense counsel likely violated a case-management order by meeting ex parte with treating surgeon Dr. Timothy Kuklo without the required notice, McCluskey did not show that the meeting affected or likely affected the verdict. Dr. Kuklo’s trial testimony was substantially consistent with his earlier deposition and medical records, and the record did not show that the meeting or compensation influenced his testimony.
The court also upheld the denial of a new trial based on closing argument. The trial court sustained McCluskey’s objection to counsel’s question about why McCluskey would not tell a provider the truth, and McCluskey sought no further relief. Other unobjected-to closing-argument challenges were waived. Separately, summary judgment for the hospital was proper because McCluskey offered no admissible, specific evidence that any failure by hospital staff to report symptoms caused his injuries or would have led the physicians to order a CT scan in time to prevent or limit them.
Key Takeaways
- A violation of a pretrial notice requirement warrants a new trial only when it affected or likely affected the outcome.
- A party whose objection to closing argument is sustained must request further relief to preserve a claim of error.
- To defeat summary judgment in a negligence case, a plaintiff must present admissible evidence connecting the alleged breach to the injury.
Why It Matters
The decision underscores that procedural misconduct alone does not establish reversible prejudice. Litigants seeking post-trial relief must demonstrate a concrete effect on the fairness or result of the trial.
It also illustrates the causation showing required for corporate-negligence claims against hospitals: evidence of a staff duty or possible lapse is insufficient without proof that the lapse probably made a difference to the patient’s injury.