Brochner v. Western Insurance Co.

Dr. Ruben Brochner (defendant) enjoyed full operating privileges at Boulder Community Hospital beginning in 1964. Brochner performed craniotomies, which were brain surgeries involving the removal of diseased tissue. In 1965, after tissue samples from many of Brochner’s surgeries were found to be normal, rather than diseased, the hospital told Brochner that he should obtain outside pathology consultations prior to operating. The hospital made this recommendation again in 1966. In March 1968, the hospital received a report that 50 percent of tissue samples from Brochner’s craniotomies were completely normal. In November 1968, Esther Cortez was injured by a craniotomy performed by Brochner. Cortez sued both Brochner and the hospital for negligence, alleging that the hospital knew of Brochner’s incompetence but continued to allow him to perform surgeries. Cortez settled with the hospital for $150,000 and Brochner for an undisclosed amount. The hospital and its subrogee, Western Insurance Company (Western) (plaintiffs), sued Brochner. The plaintiffs alleged that Brochner’s negligence was the primary cause of Cortez’s injuries, while the hospital’s negligence was only the secondary cause of her injuries. The trial court found that Brochner was the primary cause of Cortez’s injuries, and under common-law principles of indemnity and joint-and-several liability, Brochner could consequently be held responsible for all Cortez’s damages. The trial court awarded the plaintiffs the full $150,000 that the hospital had paid in damages to Cortez, plus attorney’s fees. Brochner appealed, and the court of appeals affirmed. Brochner appealed the appellate court’s ruling.