CCL joined co-counsel Levanthal Puga Braley in filing a petition for a writ of certiorari in the Colorado Supreme Court to restore the jury's verdict in Smith v. Surgery Center, a medical malpractice case.

     The case began when Robbin Smith sought treatment for lower back pain in anticipation of standing for a long time at her son's upcoming wedding. Instead, because the doctor improperly used a drug that had a black-box warning against epidural use, Robbin suffered paralysis in her lower body and ended up having to watch the ceremony by video.

      The doctor settled his liability, but the case continued against the ambulatory surgical center where the treatment took place. The center's formulary supplied the drug, Kenalog, despite knowing of its planned use, the warning against that use, and which was confirmed four times by center nurses who were part of the surgery. While the center claimed it could not control its use by the doctor, it subsequently passed a rule that gave it that control. In addition, the center violated a host of state and federal regulations designed to assure patient safety at centers like the defendant, which the jury found to constitute negligence per se. Finally, by interposing its own "informed consent" form that failed to inform Robbin of the warning against Kenalog's use for her procedure, the jury found a violation of standards of care. The jury awarded damages of $14.9 million to Robbin and her husband, which the trial court reduced to $7 million under the state non-economic damage cap while also rejecting a constitutional challenge to the cap.

     Both parties appealed to the state court of appeals, with the Surgery Center appealing its liability and the Smiths appealing rejection of their constitutional challenge. The Court of Appeals, however, took away the judgment, finding that the Surgery Center cannot be held responsible for the injury due to Colorado's prohibition on the corporate practice of medicine, that the regulations violated were more oriented toward licensure than safety, and that the center could not be liable for failing to provide informed consent, even if assuming that duty, because it was not its responsibility. As a result, the constitutional issue was not addressed.

     The petition filed today asks the Colorado Supreme Court to review those determinations.