Hunter v. SCL Health-Front Range, Inc.

Decision Date14 April 2022
Docket NumberCourt of Appeals No. 20CA1776
Citation514 P.3d 322,2022 COA 41
Parties Frank "Kit" HUNTER and Joan Hunter, Plaintiffs-Appellants, v. SCL HEALTH-FRONT RANGE, INC., f/k/a Exempla, Inc., d/b/a Exempla Lutheran Medical Center, and Taylor Scism, R.N., Defendants-Appellees.
CourtColorado Court of Appeals

Fischer & Fischer, P.C., Ronnie Fischer, Jennifer K. Fischer, Lisa C. Secor, Denver, Colorado, for Plaintiffs-Appellants

Hall & Evans, L.L.C., Chad K. Gillam, Jared R. Ellis, Andrew C. Nickel, Denver, Colorado, for Defendant-Appellee SCL Health-Front Range, Inc.

Sharuzi Law Group, Ltd., Jacqueline Sharuzi-Brown, Denver, Colorado, for Defendant-Appellee Taylor Scism, R.N.

Opinion by JUDGE BERGER

¶ 1 In this medical malpractice action, plaintiffs, Frank "Kit" Hunter and Joan Hunter (collectively, plaintiffs), appeal the district court's judgment dismissing their case against Taylor Scism, R.N., and SCL Health-Front Range, Inc., f/k/a Exempla, Inc., d/b/a Exempla Lutheran Medical Center (the hospital). Because the district court misapplied the law pertaining to certificates of review, we reverse.

I. Relevant Facts and Procedural History

¶ 2 Plaintiffs sued multiple parties — the hospital, a physician group, Scism, four other nurses, and three doctors — alleging that Mr. Hunter was injured by the negligent insertion of a catheter. Sixty days after serving the complaint on the hospital, plaintiffs filed a certificate of review and motion for extension of time to submit a "final" certificate of review. The district court granted the motion and extended the deadline to file a certificate of review to April 8, 2019. Plaintiffs filed a certificate of review on April 8, 2019, (addressing the claims against certain defendants), which all parties agree was timely as to the hospital and Scism. The certificate of review stated that plaintiffs had consulted a licensed physician.

¶ 3 Scism moved to dismiss under section 13-20-602(4), C.R.S. 2021, contending that plaintiffs failed to file a sufficient certificate of review.1 More than ten months later, apparently after the parties had disclosed at least some of their trial experts, the district court granted Scism's motion to dismiss. The district court concluded that the certificate of review was insufficient because the consulting expert was not a nurse and because the certificate of review did not state that the consulting physician had a "firm grasp" on the nursing standard of care.

¶ 4 The hospital then moved to dismiss under section 13-20-602(4), contending that plaintiffs failed to file a sufficient certificate of review as to it. The district court granted the motion "because Plaintiffs’ claims against [the hospital] are all based on the nursing care provided and because the Court determined that the Certificates of Review were insufficient as to the nursing care provided, the Certificates of Review are similarly not sufficient as to [the hospital]."

¶ 5 Having dismissed all remaining defendants who had not been dismissed by stipulation, the district court entered final judgment against plaintiffs. Plaintiffs appeal the district court's judgment as to Scism and the hospital.

II. Applicable Law and Standard of Review

¶ 6 In every action for damages or indemnity based on the alleged professional negligence of a licensed professional, the plaintiff's attorney must file with the court "a certificate of review for each ... licensed professional named as a party." § 13-20-602(1)(a). The certificate of review must be filed "within sixty days after the service of the complaint ... unless the court determines that a longer period is necessary for good cause shown." § 13-20-602(1)(a). "The purpose of the certificate of review requirement is to demonstrate that the plaintiff has consulted with a person who has expertise in the area and that the expert consulted has concluded that the claim does not lack substantial justification." Baumgarten v. Coppage , 15 P.3d 304, 306 (Colo. App. 2000).

¶ 7 To satisfy the requirements of section 13-20-602(3)(a), the certificate of review must include the following declarations:

(I) That the attorney has consulted a person who has expertise in the area of the alleged negligent conduct; and
(II) That the professional who has been consulted pursuant to subparagraph (I) of this paragraph (a) has reviewed the known facts, including such records, documents, and other materials which the professional has found to be relevant to the allegations of negligent conduct and, based on the review of such facts, has concluded that the filing of the claim, counterclaim, or cross claim does not lack substantial justification within the meaning of section 13-17-102(4).2

¶ 8 In an action against a licensed professional other than a physician, such as a nurse, the certificate of review must declare "that the person consulted can demonstrate by competent evidence that, as a result of training, education, knowledge, and experience, the consultant is competent to express an opinion as to the negligent conduct alleged." § 13-20-602(3)(c).3

¶ 9 Whether a certificate of review meets the requirements of section 13-20-602 is a matter of trial court discretion. Redden v. SCI Colo. Funeral Servs., Inc. , 38 P.3d 75, 83 (Colo. 2001). A court abuses its discretion if its decision is manifestly arbitrary, unreasonable, or unfair, or if it misapplies the law. Wesley v. Newland , 2021 COA 142, ¶ 11, 505 P.3d 318.

III. Analysis

¶ 10 The April 8, 2019, certificate of review stated that plaintiffs’ attorney had "consulted a person who has expertise in the area of the alleged negligent conduct," satisfying section 13-20-602(3)(a)(I).

¶ 11 The certificate of review further stated that the "person[ ] who was consulted has reviewed the facts in the case, and based on the review of such facts, the person who was consulted has concluded that the filing of the medical malpractice claim does not lack substantial justification." This declaration satisfies section 13-20-602(3)(a)(II).

¶ 12 Regarding the requirement that the person consulted can demonstrate by competent evidence that, as a result of training, education, knowledge, and experience, the consultant is competent to express an opinion as to the negligent conduct alleged, the certificate of review further stated that

[t]he person who was consulted is a licensed physician who is substantially familiar with the applicable standards of care and practice as they relate to the act or omission constituting the alleged medical malpractice as of the date of the malpractice, and the person consulted can demonstrate by competent evidence that, as a result of training, education, knowledge, and experience, the consultant is competent to express an opinion as to the negligent conduct alleged.
The person consulted has sufficient expertise in the area of inserting catheters, and in teaching others to insert catheters; the common problems seen by actions and omissions of nurses and supervising physicians who have not had specialized training in the subject; the necessary protocols to be used when an initial insertion is not successful, avoiding multiple tries; and calling in a specialist sooner than later when problems arise and/or are indicated; the indications and symptoms that the patient presented with, and how those show a problem related to cancer

treatment or otherwise, which should alert the medical care providers at all levels that a collaboration is required to assess the patient's condition and ensure that he received appropriate care, and that a specialist was sufficiently notified that there was a problem before it became an emergency; and, that the facts of this case show that the patient was harmed by the Defendants’ actions and omissions below the standard of care under the circumstances, each contributing to the resulting harm.

¶ 13 In granting Scism's motion to dismiss, the district court relied on Redden . The certificate of review in Redden "was a mere one-paragraph statement that precisely mirrored section 13-20-602(3)(a)(I)-(II), [C.R.S. 2021 ]. It failed to declare the competency of the expert consulted, as required by paragraph 602(3)(c)." 38 P.3d at 82. As explicitly authorized by section 13-20-602(3)(b), the trial court in Redden exercised its discretion to verify the content of the certificate of review. Id.

¶ 14 The supreme court held that the trial court erred by finding the certificate of review insufficient because the consulted experts were not of the same profession or specialty as the defendant licensed professional. Id. at 82-83. "Nowhere does the statute require the consulted expert to be of precisely the same profession or specialty as the licensed professional against whom the charge is leveled." Id. at 82. The supreme court also explained that the statutory language

"competent to express an opinion as to the negligent conduct alleged[ ]" precludes the use of an expert with only general knowledge in the field; rather, a proper expert has a firm grasp on the appropriate standards, techniques and practices within the profession or specialty about which he or she is opining.

Id. (emphasis added).

¶ 15 Based on this language from Redden , the district court held the certificate of review insufficient because it did "not state that Plaintiff consulted a registered nurse, nor ... that the consulting physician has a firm grasp on the appropriate standard of care for nurses, as it relates to the techniques and procedures involved in inserting urological devices like catheters."

¶ 16 True, the certificate of review does not expressly state that plaintiffs’ attorney consulted a nurse or that the consulted expert had a "firm grasp" on the appropriate standard of care for nurses. But Redden held that the certificate of review statute does not require the consulted expert to be of precisely the same profession or specialty as the defendant licensed professional. Id. Moreover, Redden does not require a certificate of review to st...

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