Nieto v. State

• Decision Date: 02 October 1997
• Citation: 952 P.2d 834
• Docket Number: 96CA0982
• Parties: 97 CJ C.A.R. 2124 Arthur M. NIETO, Plaintiff-Appellee and Cross-Appellant, v. STATE of Colorado and Department of Corrections, Defendants-Appellants and Cross-Appellees, and Marian Norman and Mike Farrow, Defendants and Cross-Appellees. . II
• Court: Colorado Court of Appeals

Page 834

952 P.2d 834

97 CJ C.A.R. 2124

Arthur M. NIETO, Plaintiff-Appellee and Cross-Appellant, v.STATE of Colorado and Department of CorrectionsDefendants-Appellants and Cross-Appellees and Marian Norman and Mike Farrow, Defendants and Cross-Appellees.

No. 96CA0982.

Colorado Court of Appeals Div. II.

Oct. 2, 1997.

Rehearing Denied Oct. 10, 1997.

Certiorari Granted March 23, 1998.

Ozer and Ozer, P.C., Robert C. Ozer, Jill C. Harris, Denver, for Plaintiff-Appellee and Cross-Appellant.

Gale A. Norton, Attorney General, Stephen K. ErkenBrack, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, Thomas C. Sullivan, Assistant Attorney General, Denver, for Defendants-Appellants and Cross-Appellees; and for Defendants and Cross-Appellees.

Opinion by Judge BRIGGS.

Plaintiff, Arthur Nieto, filed this civil action seeking damages for personal injuries allegedly caused by inadequate medical care provided to him while he was in prison.Defendants, State of Colorado and Department of Corrections(the statedefendants), appeal the judgment entered on a jury verdict in favor of plaintiff and against them based on the negligence of their employees, including defendantsMarian Norman, a prison nurse, and Mike Farrow, a prison guard (the individual defendants).Plaintiff cross-appeals the trial court's dismissal of his claims under 42 U.S.C. § 1983(1994) against the individual defendants and of his claim of negligence against defendant Farrow, as well as the court's reduction of the jury's award against the statedefendants to $150,000.We affirm the judgment against the statedefendants in the amount of $150,000.We reverse the dismissal of the § 1983 claims against the individual defendants and remand for further proceedings.

The essential facts in the sequence of events leading to plaintiff's injuries are undisputed.While an inmate at a Colorado correctional facility, plaintiff sought treatment at the facility's medical clinic.He was given cold and flu medication by a nurse employed by the statedefendants.Three days later, with the pain continuing and increasing, he returned to the clinic.

On this visit, plaintiff was seen by defendant Norman, another nurse employed by the statedefendants as the medical coordinator of the facility.She instructed plaintiff to continue use of the medication already given him.

Several days later, plaintiff appeared at the clinic with continuing pain and a swollen right eye.Defendant Norman instructed plaintiff to leave the clinic and indicated that, if he returned again, he would be disciplined.

Plaintiff nevertheless returned to the clinic a few days later because of worsening symptoms.He conveyed to the nurse on duty his belief that he was having a stroke.After briefly examining plaintiff, the nurse provided plaintiff with an antibiotic and a decongestant, directed him to continue use of the medication previously given him, and ordered him to return to the clinic the following day.

Plaintiff did not return the next day, but that evening he sought assistance from defendant Farrow, a prison guard.Farrow advised plaintiff to return to bed and apply hot compresses to his eye.Plaintiff unsuccessfully sought help from defendant Farrow at least twice more in the next three days.

Plaintiff was then found in his cell, unconscious and incontinent, his right eye bulging from its socket.He was taken to a hospital emergency room, where a doctor immediately diagnosed a severe sinus infection.Because of the complexity and severity of his condition, plaintiff was transferred to another hospital in a different location for treatment.

Further examination revealed that the sinus infection had spread to his right eye and to the base and frontal lobe of his brain.In the following months, plaintiff underwent an eye surgery, two sinus surgeries, and three brain surgeries.During this time he suffered a stroke and is permanently paralyzed on his left side.

Plaintiff filed suit against the state and individual defendants.The complaint asserted a professional malpractice claim against defendant Norman; a negligence claim against defendant Farrow; a claim based on respondeat superior against the statedefendants; and § 1983 claims against the individual defendants.After the court dismissed all claims against the individual defendants, the case proceeded to trial against the statedefendants based on the failure of their employees to provide plaintiff with adequate medical care.The jury found plaintiff had suffered damages in the amount of $1,800,000.It assigned 80% of the fault to the statedefendants and 20% to plaintiff, resulting in a judgment of $1,440,000.Acting pursuant to § 24-10-114(1)(a), C.R.S.1997, the court reduced the jury award to $150,000 and entered judgment in that amount.

On appeal, the statedefendants contend the trial court erred in not dismissing the claim against them because: 1) plaintiff failed to file a timely certificate of review in accordance with § 13-20-602, C.R.S.1997; 2) they are immune from liability pursuant to § 24-10-106, C.R.S.1997, of the Governmental Immunity Act; and 3) they cannot be held liable under the doctrine of respondeat superior for negligence that essentially constituted the practice of medicine.On cross-appeal, plaintiff contends the trial court erred: 1) in concluding he had sued the individual defendants in their official, rather than individual, capacities and had thus failed to state a § 1983 claim against them for damages; 2) in applying the one-year statute of limitations set forth in § 13-80-103(1)(c), C.R.S.1997, to the claims against defendant Farrow; and 3) in reducing the judgment against the statedefendants to $150,000 pursuant to § 24-10-114(1)(a), rather than entering the judgment in the amount awarded and limiting recovery to $150,000.We address each contention in turn.

I.

The statedefendants first contend that, while the trial court properly dismissed the claim for professional negligence against defendant Norman based on plaintiff's failure to file a certificate of review in accordance with § 13-20-602, it erred in not dismissing the claim against them on the same basis.We disagree.

Section 13-20-602 provides in relevant part as follows:

(1) In every action for damages or indemnity based upon the alleged professional negligence of ... a licensed professional, the plaintiff's ... attorney shall file with the court a certificate of review for each ... licensed professional named as a party, as specified in subsection 3 of this section, within sixty days after the service of the complaint, counterclaim, or cross claim against such person unless the court determines that a longer period is necessary for good cause shown ....

(4) The failure to file a certificate of review in accordance with this section shall result in the dismissal of the complaint, counterclaim, or cross claim.(emphasis added)

When interpreting statuteswe look first to the words and phrases used, which must be read in context and accorded their plain and ordinary meaning.SeePeople v. Valencia, 906 P.2d 115(Colo.1995);American Respiratory Care Services v. Manager of Revenue, 835 P.2d 623(Colo.App.1992).When that meaning is unambiguous and the result neither absurd nor unjust, resort to legislative history or other means to determine intent is not only unnecessary, it is inappropriate.SeeAckerman v. Power Equipment Co., 881 P.2d 451(Colo.App.1994);Frank v. Charnes, 43 Colo.App. 217, 600 P.2d 124(1979);see alsoDove Valley Business Park Associates v. Board of County Commissioners, 923 P.2d 242, 248(Colo.App.1995), aff'd, 945 P.2d 395(Colo.1997)("It is for this court to enforce the statutes as written.If this does not correspond to the General Assembly's intent, it is for that body, not this court, to rewrite it."); see generally H. Hart & A. Sacks, The Legal Process: Basic Problems in the Making & Application of Law, (W. Eskridge & Frickey eds., 1994).

Section § 13-20-602 requires that a certificate of review be filed in an action based on professional negligence only "for each licensed professional named as a party," within sixty days of service "against such party."The statedefendants are not licensed professionals.Hence, the plain language of the statute did not require that plaintiff file a certificate of review in his suit solely against the statedefendants.

This result is neither absurd nor unjust.A licensed professional can be uniquely affected when named as a defendant in a malpractice case that leads to a settlement or adverse judgment.For example, dentists, doctors, and optometrists all may be subject to discipline if they fail to report to their respective governing boards the entry of a malpractice judgment against them or the settlement of a malpractice claim.And, if reported, the underlying facts can then lead to discipline.See§§ 12-35-118(1)(j),12-35-118(1)(p), and§ 12-35-118(1)(q), C.R.S.1997(dentists);§§ 12-36-117(1)(y) and 12-36-117(1)(p), C.R.S.1997(doctors);and§§ 12-40-118(1)(k),12-40-118(1)(r), and§ 12-40-118(1)(s), C.R.S.1997(optometrists);see also42 U.S.C.A. §§ 11131 & 11151 (1995)(requiring that payments made in settlement or satisfaction of a judgment in a medical malpractice action or claim be reported to the National Practitioner Data Bank, with the information available if a physician seeks a license in a different state).

In contrast, a judgment or settlement against only the employer of a licensed professional does not require the licensed professional to file a report with a state governing board or with the National Practitioner Data Bank.As a result, the licensed professional is less likely to have the matter receive unwanted publicity, to be subject to any further disciplinary action, or to confront any questions or difficulties when applying for a license in another state.

In sum, requiring a certificate of review only for suits against...