                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                      UNITED STATES COURT OF APPEALS October 31, 2013
                                                                Elisabeth A. Shumaker
                                   TENTH CIRCUIT                    Clerk of Court



 SHARON BETHEL, individually and
 as conservator and guardian of DAVID
 BETHEL, an incapacitated person,
                                                         No. 12-1417
          Plaintiff - Appellee,                (D.C. No. 1:05-CV-01336-RPM)
                                                          (D. Colo.)
 v.

 UNITED STATES OF AMERICA, by
 and through VETERANS
 ADMINISTRATIVE MEDICAL
 CENTER of Denver, Colorado,

          Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before KELLY, McKAY, and MATHESON, Circuit Judges.


      In this medical negligence case, the government appeals an order of the

district court apportioning fault to a non-party and ordering it to pay $10,710,700

in damages. Bethel v. United States, No. 05-cv-01336, 2012 WL 2919563 (D.

Colo. July 17, 2012). Our jurisdiction arises under 28 U.S.C. § 1291, and we

affirm.


      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
                                    Background

      The facts of this case are set out in detail in our first order and judgment in

this matter. Bethel v. United States, 456 Fed. App’x. 771 (10th Cir. 2012)

(unpublished) (“Bethel I”). We summarize them here.

      David Bethel suffered severe brain damage while under anesthesia at the

Denver Veterans Affairs Medical Center (“VAMC”) on September 10, 2003. Dr.

Robin Slover was the anesthesiologist in charge of Mr. Bethel’s care, and Dr.

Nicole McDermott, a first-year resident, assisted her. To prepare Mr. Bethel for

surgery, Dr. McDermott administered what she believed to be midazolam, a

sedative. The district court found that in fact the wrong medication—rocuronium,

a paralytic—was administered. Dr. Slover then left to attend another patient.

While she was gone, Mr. Bethel sat up on the operating bed, became agitated, and

tried to remove his oxygen mask. He appeared to have difficulty breathing. Dr.

McDermott and others restrained him, and the attending nurse summoned Dr.

Slover. When she returned, Dr. Slover initiated a rapid sequence induction and

administered anesthesia drugs, which required intubation to help Mr. Bethel

breathe.

      Dr. Slover and Dr. McDermott were not successful in their attempts at

intubation, and the attending nurse failed to detect a pulse. An emergency call

went out, and among the first to respond was Dr. Lyle Kirson, VAMC’s Chief

Anesthesiologist. Dr. Kirson moved to the head of the operating bed and used a

                                        -2-
two-handed jaw thrust to establish an airway. Other doctors intervened to

establish a surgical airway, and eventually Mr. Bethel’s vital signs showed

recovery. 1

      All parts of Mr. Bethel’s brain were damaged due to lack of oxygen during

this event. He is now unable to care for himself. Sharon Bethel, his wife, filed a

malpractice suit against the United States and several VAMC doctors under the

Federal Tort Claims Act (“FTCA”). See 28 U.S.C. § 1346(b)(1).

      On November 28, 2008, after a bench trial, the district court found the

United States liable for all damages sustained by Mr. Bethel. The court found

that “the treatment of David Bethel was below the standard of care for general

anesthesia . . . and that no one of the participants in his care has individual

responsibility for his brain injury.” Bethel v. United States, No. 05-cv-01336,

2008 WL 5111229, at *5 (D. Colo. Nov. 28, 2008). Specifically, the court found

that there was a medication error in administering rocuronium instead of

midazolam, but could not determine if the error was caused by Dr. Slover or Dr.

McDermott. The court found that Dr. Slover was negligent in proceeding with a

rapid induction sequence, but Dr. McDermott shared in that fault because she did

not recognize the symptoms of rocuronium or the significance of Mr. Bethel’s

difficulty breathing, and failed to communicate either to Dr. Slover. The court

      1
         Much of the episode was difficult for the district court to recreate due to
the lack of a clinical record. The machines ordinarily used to record patients’
vital signs during surgery were turned off.

                                         -3-
also faulted Drs. Slover and McDermott for not recognizing the severity of the

situation and calling for help sooner. Finally, the district court found that Dr.

Kirson should have used a laryngeal mask airway (“LMA”) instead of a two-

handed jaw thrust.

      The court ultimately ruled that while “[t]he evidence is insufficient to

apportion the injury to any one time or event,” id. at *6, Mr. Bethel suffered harm

as a result of negligent treatment by those responsible for his care. The court held

the United States liable for each doctor’s negligence. The court found that

Plaintiff proved $12,971,500 in damages, but reduced the award to $10,710,700,

the amount requested in Plaintiff’s administrative claim. Bethel v. United States,

No. 05-CV-01336-RPM, 2009 WL 690301, at *4 (D. Colo. Mar. 13, 2009); see

28 U.S.C. § 2675(b).

      On appeal, we reversed and remanded. The panel found that since Dr.

Slover was not a federal employee, the United States was not liable for her

actions. The panel instructed the district court to “apportion fault (if any)

between Slover and the federal government employees (Kirson and McDermott)”

pursuant to Colo. Rev. Stat. § 13-21-111.5. Bethel I, 456 F. App’x at 783-84.

      On remand, the district court adopted its November 2008 Findings and

Conclusions and apportioned 17% of Mr. Bethel’s injuries to Dr. Slover. It

acknowledged this would produce the same result it reached before

appeal—$10,710,700 awarded against the United States—and that it considered

                                         -4-
this a just result. Bethel, 2012 WL 2919563, at *4. The court placed the burden

of proof on the government to show Dr. Slover’s negligence by a preponderance

of the evidence. Id. at *2. Finally, the court stated that it was not required to

apportion fault to all the participants in Mr. Bethel’s care, but only had to decide

Dr. Slover’s share. Id. The government timely appealed.



                                     Discussion

        On appeal, the government argues that the district court erred: (1) by

failing to apportion fault to each individual doctor; (2) by rejecting additional

evidence on remand; (3) by improperly shifting the burden of proof to it on

negligence; (4) by arbitrarily and inaccurately apportioning fault; and (5) by

rejecting the government’s “captain of the ship” argument. We address each in

turn.

A. Individual Fault Determinations

        The government argues that the district court’s failure to apportion fault

individually to Drs. McDermott and Kirson was both an error of law and a failure

to abide by our mandate. We review a district court’s application of state law de

novo, Pub. Serv. Co. of Okla. v. Burlington N. R. Co., 53 F.3d 1090, 1096 (10th

Cir. 1995), and its compliance with our mandate for abuse of discretion, see

Procter & Gamble Co. v. Haugen, 317 F.3d 1121, 1125 (10th Cir. 2003).




                                          -5-
      Under Colorado law, 2 Colo. Rev. Stat. § 13-21-111.5(1) establishes pro rata

liability for defendants in tort cases and provides:


             In an action brought as a result of a death or an injury to
             person or property, no defendant shall be liable for an
             amount greater than that represented by the degree or
             percentage of the negligence or fault attributable to such
             defendant.

Id. Section 13-21-111.5(2) provides that “the court shall make special findings

determining the percentage of negligence or fault attributable to each of the

parties and any persons not parties to the action of whom notice has been given.”

Id.

      The district court apportioned 17% fault to Dr. Slover, and did not

apportion fault individually to Drs. McDermott and Kirson. It considered Dr.

Slover a designated non-party and noted that Drs. McDermott and Kirson were

not the only employees participating in Mr. Bethel’s care: six other employees

also did. We see no error in this. The Colorado statute requires the court to find

the percentage of fault attributable to each party and any designated non-parties.

Id. The only defendant in this case is the United States, and the only designated

non-party is Dr. Slover. In remanding this case, we expressly noted that fault was


      2
        The government is liable for its employees’ torts under the FTCA where
the government, if it were a private person, “would be liable to the claimant in
accordance with the law of the place where the act or omission occurred.” 28
U.S.C. § 1346(b)(1). Our inquiry into these doctors’ negligence is thus governed
by Colorado law.

                                         -6-
required to be apportioned because the federal government could not be held

liable for Dr. Slover’s negligence. Bethel, 456 F. App’x at 783. In view of our

stated purpose in remanding, the district court did not abuse its discretion in

apportioning fault to achieve the purpose of our mandate.

      In its November 2008 order, the district court found the United States liable

for 100% of Mr. Bethel’s injuries. In the order at issue here, it adopted those

findings and reduced the government’s liability by the amount attributable to Dr.

Slover. Thus, the district court held the government liable for the remainder,

83%. Since the United States is liable for the negligence of both Dr. McDermott

and Dr. Kirson, their relative fault does not change the ultimate result. Thus, the

court was not in error in failing to apportion fault between them.

B. Additional Evidence

      The government next argues that the district court erred by refusing to

allow it to submit additional evidence of Dr. Slover’s fault on remand. We

review a district court’s decision whether to reopen a case for additional evidence

for abuse of discretion. See Zenith Radio Corp. v. Hazeltine Research, Inc., 401

U.S. 321, 331 (1971); Smith v. Rogers Galvanizing Co., 148 F.3d 1196, 1197-98

(10th Cir. 1998). The district court’s decision to reopen should be guided by the

timing of the motion, the nature of the evidence offered, and the potential

prejudice resulting from grant or denial. Smith, 148 F.3d at 1198.

      After reviewing the record, we find the district court did not abuse its

                                         -7-
discretion in declining to accept additional evidence. The court gave reasoned

explanations why the evidence proffered by the government would be

inadmissible, cumulative, or unhelpful. See Bethel, 2012 WL 2919563, at *2-3.

The government complains that it was restricted in presenting evidence of Dr.

Slover’s fault at trial, but concedes that there is “ample evidence” of Dr. Slover’s

fault in the record. Aplt. Br. at 22-23. The district court found it had sufficient

evidence before it to apportion fault, and was within its discretion in doing so.

C. Burden Shifting

      The government argues that the district court improperly placed the burden

on it to prove Dr. Slover’s negligence. Allocation of the burden of proof is a

question of law, which we review de novo. See United States v. Smith, 133 F.3d

737, 746 (10th Cir. 1997).

      In Colorado, a medical malpractice plaintiff bears the burden of proving

negligence by a preponderance of the evidence. See Day v. Johnson, 255 P.3d

1064, 1063-64, 1072 n.7 (Colo. 2011). Once a plaintiff establishes a prima facie

case, the burden shifts to the defendant to rebut it. See Lockwood v. Travelers

Ins. Co., 498 P.2d 947, 950 (Colo. 1972). Colorado’s pro rata liability statute

provides an affirmative defense by allowing defendants to show a non-party’s

fault. See Colo. Rev. Stat. § 13-21-111.5. The defendant bears the burden of

proving its affirmative defense. See Barton v. Adams Rental, Inc., 938 P.2d 532,

536 (Colo. 1997); Loughridge v. Chiles Power Supply Co., Inc., 431 F.3d 1268,

                                         -8-
1278 (10th Cir. 2005).

       The government contends that the district court skipped the first step in the

burden shifting scheme—Plaintiff’s prima facie case—and proceeded directly to

its affirmative defense. Aplt. Br. at 25. We disagree. The government is

incorrect in its assertion that the district court “failed to find that plaintiff carried

her burden.” Id. at 27. The court found negligence by a preponderance of the

evidence against the doctors who cared for Mr. Bethel in its November 2008

order. Bethel, 2008 WL 5111229, at *5. Specifically, the court found a

medication error (though it could not determine who committed it), a treatment

error (which Drs. Slover and McDermott were both responsible for), a failure to

recognize signs of bradycardia and to seek help, and a failure to use a laryngeal

mask airway. Id. at *5-6. It attributed each error in some capacity to Drs. Slover,

McDermott, and Kirson, and concluded that this negligent treatment caused Mr.

Bethel’s injuries. Id. at *6. The court rejected then, as it did on remand, the

government’s contention that all fault was attributable to Dr. Slover. Bethel,

2008 WL 5111229, at *5; Bethel, 2012 WL 2919563, at *1. Thus, the court

adopted its prior findings in the order at issue here. Bethel, 2012 WL 2919563, at

*3.

       Our remand instructed the district court to apportion liability between Dr.

Slover and the federal government employees (Drs. Kirson and McDermott),

recognizing they had already been found negligent; it did not require the court to

                                           -9-
retry the issue of liability, or require Plaintiff to reprove her prima facie case.

Accordingly, the court was correct in placing the burden on the government to

prove Dr. Slover’s negligence.

D. Adequacy of the Apportionment

       The government challenges the district court’s finding that Dr. Slover was

responsible for 17% of Mr. Bethel’s injuries on two grounds: first, that the figure

is arbitrary, and second, that it is too small.

       On appeal from a bench trial, we review the district court’s findings of fact

for clear error. Keys Youth Servs., Inc. v. City of Olathe, 248 F.3d 1267, 1274

(10th Cir. 2001). Under Colorado law, negligence, causation, and allocation of

fault are questions of fact. See City of Aurora v. Loveless, 639 P.2d 1061, 1063

(Colo. 1981); Naiman v. Warren A. Flickinger & Assocs., Ltd., 605 P.2d 63, 64

(Colo. 1979). Thus we review the district court’s allocation of fault to Dr. Slover

for clear error.

       The district court reviewed its prior findings and found that the matter

came down to “how much of this injury was caused by Dr. Slover's decision to

proceed with rapid sequence intubation.” Bethel, 2012 WL 2919563,

at *4. We have reviewed the district court’s findings on remand and conclude

that they are certainly permissible views of the evidence.

       The government contends that the district court arbitrarily reached the 17%

figure by “reverse engineering” the result in its original order. Aplt. Br. at 28.

                                          - 10 -
After detailing its findings, the court stated, “If the fault of the non-party is not

greater than 17%, the amount of [recovery] would be . . . as it was in the order of

March 13, 2009.” Bethel, 2012 WL 2919563, at *4. It concluded that would be a

just outcome. Id. This statement must be considered in conjunction with the

court’s factual findings on remand, and those findings support its conclusion.

The court’s view that $10,710,700 fairly represents the damages attributable to

the government actors is not clear error.

      We also conclude that 17% is not so low an apportionment to constitute

clear error. The district court found each of Drs. Slover, McDermott, and Kirson

negligent in their treatment of Mr. Bethel, and the record supports its factual

findings, which cannot be clearly erroneous. Anderson v. City of Bessemer, 470

U.S. 564, 573-74 (1985). Thus, we do not disturb the district court’s

apportionment of fault.

E. Captain of the Ship Defense

      Finally, the government argues that the district court erred in rejecting its

“captain of the ship” defense. In Colorado, the captain of the ship doctrine

“imposes vicarious liability on a surgeon for the negligence of hospital employees

under his control and supervision during surgery.” O’Connell v. Biomet, Inc.,

250 P.3d 1278, 1283 (Colo. App. 2010). The government contends that Dr.

Slover is responsible for the actions of Drs. McDermott and Kirson under the

doctrine.

                                          - 11 -
      In Bethel I, we directed the district court to consider the captain of the ship

defense for the first time on remand. 456 F. App’x at 782. The district court held

that the doctrine is inapplicable to anesthesiologists under Colorado law, and, if it

were, it would only apply to the events that occurred before Dr. Kirson took

control. Bethel, 2012 WL 2919563, at *1 n.1.

      We find application of the doctrine unwarranted by the underlying facts

found by the district court in this case; Dr. Slover did not exercise sufficient

supervision or control of Mr. Bethel’s care to hold her vicariously liable for the

acts of all involved. The key determination in applying the captain of the ship

doctrine in Colorado is whether the doctor in question assumed supervision and

direction of the operating room before the negligent acts occurred. Berg v.

United States, 806 F.2d 978, 983 (10th Cir. 1986) (citing Young v. Carpenter, 694

P.2d 861, 863 (Colo. App. 1984)). The district court found that Dr. McDermott

gathered the anesthesia medication, interviewed Mr. Bethel, prepared a pre-

anesthesia report, and evaluated Mr. Bethel’s airway access before Dr. Slover

joined her. Bethel, 2008 WL 5111229, at *1-2. Shortly after Dr. McDermott

administered the medication, Dr. Slover left the operating room. Id. at *2. Mr.

Bethel sat up in his bed and Dr. McDermott and others restrained him while Dr.

Slover was absent. Id. When Dr. Slover returned, she and Dr. McDermott

attempted to intubate Mr. Bethel under emergency conditions. Id. On the record

before us, there is no indication that Dr. Slover assumed control of the operating

                                        - 12 -
room in any meaningful way.

      Dr. Slover is not responsible for Dr. McDermott’s acts merely by the fact

of her status as anesthesiologist of record and Dr. McDermott’s status as resident.

The doctrine applies only to acts that occur after a doctor assumes control of the

operating room. Berg, 806 F.2d at 983. Dr. Slover was not present during most

of the events precipitating the emergency, and did not exercise sufficient control

during it. We do not disturb the district court’s factual finding that Dr. Kirson

eventually took control of the operating room, and we do not reach the question

of whether the captain of the ship doctrine can apply to an anesthesiologist as a

matter of Colorado law.

       AFFIRMED.


                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




                                        - 13 -
