Shelton v. Penrose/St. Francis Healthcare, 98SC383.

• Citation: 984 P.2d 623
• Decision Date: 28 June 1999
• Docket Number: No. 98SC383.,98SC383.
• Parties: Gretchen May SHELTON and Carroll Shelton, Petitioners, v. PENROSE/ST. FRANCIS HEALTHCARE SYSTEM, a Colorado corporation, Respondent.
• Court: Supreme Court of Colorado

984 P.2d 623

Gretchen May SHELTON and Carroll Shelton, Petitioners, v. PENROSE/ST. FRANCIS HEALTHCARE SYSTEM, a Colorado corporation, Respondent.

No. 98SC383.

Supreme Court of Colorado, En Banc.

June 28, 1999.

Joe Orell, Colorado Springs, Colorado, Lloyd C. Kordick, Colorado Springs, Colorado, Attorneys for Petitioners.

Long & Jaudon, P.C., David H. Yun, Michael T. McConnell, Christine A. Craigmile, Denver, Colorado, Attorneys for Respondent.

Justice MARTINEZ delivered the Opinion of the Court.

We granted certiorari to review a decision of the court of appeals reversing a trial court determination that a certificate of review was not required in this action against a hospital. The court of appeals also reversed the subsequent determinations of the trial court that the plaintiff had shown good cause for not having timely filed a certificate of review and that the plaintiff had submitted expert reports that satisfied the purposes of the statute. The court of appeals reasoned that a plaintiff who fails to secure a certificate of review is subject to reversal if the plaintiff induces the trial court to err in concluding that no certificate is required. See Shelton v. Penrose-St. Francis Healthcare System, 968 P.2d 132, 136 (Colo.App.1998)

.

We hold that the trial court determination that the plaintiff could establish a prima facie case without the use of expert testimony, and therefore need not submit a certificate of review, is not an abuse of discretion because the position of the plaintiff had arguable merit. We also hold that it was improper for the trial court to accept Shelton's expert reports in place of a certificate of review, but that such acceptance had no impact on the defendant. We will not disturb the verdict based on Shelton's failure to file under these circumstances. Accordingly, we reverse the judgment of the court of appeals.

I.

In 1982, petitioner Gretchen Shelton fractured her hip and had replacement surgery. In 1988, she fractured her femur near her hip prostheses, which resulted in the frequent and spontaneous dislocation of her hip prostheses. On April 22, 1992, Shelton had another hip replacement surgery at the Penrose-St. Francis Healthcare System (Penrose). Shelton's femur fractured during the second surgery. Post operation, Shelton was fitted with a brace to prevent a posterior dislocation of her hip.

Six days after surgery, Shelton was transferred to the rehabilitation floor of the hospital. During physical therapy, Shelton's brace was removed by hospital employees and was not replaced. When the physical therapy session was completed, Shelton returned to her room where she fell asleep in a chair. While she was asleep, two nurses proceeded to move her from the chair to her bed. They failed to wake Shelton or to replace her brace. As a result, Shelton experienced extreme pain and suffered another dislocation of her hip.

In October of 1993, Shelton brought a complaint against Penrose under a theory of respondeat superior¹, alleging that the nurses improperly lifted her from her chair, and that this action caused her to suffer pain and to dislocate her hip. Penrose moved to dismiss the complaint in May of 1994, contending that section 13-20-602(4), 6A C.R.S. (1992 Supp.), required dismissal of Shelton's claim because she failed to file a certificate of review verifying that an expert had reviewed the claim and found it meritorious. Shelton responded to the motion in June of that year, asserting that the statute was inapplicable to her claim. Shelton maintained that expert testimony was unnecessary to establish her prima facie case because her claim was based on the theory of res ipsaloquitur.² She also asserted that her injury was so obvious and non-technical that lay jurors could find negligence without hearing expert testimony. Furthermore, Shelton submitted curricula vitae from two registered nurses demonstrating their status as experts and their opinions that the conduct and manner in which Penrose employees transferred the plaintiff fell below the standard of care and resulted in the injury sustained by the plaintiff.

The trial court denied the hospital's motion to dismiss. The court found that Shelton could prove her prima facie case without expert testimony, that she established good cause for a late filing, and that she had endorsed an expert witness to testify that the care provided was below the standard of care.³ Penrose subsequently filed a second identical motion to dismiss after the case was reassigned to another trial judge. The motion was denied. At trial, Shelton presented expert testimony. Penrose raised the motion to dismiss a third time at the close of evidence in a motion for directed verdict. The third motion was also based on the plaintiff's failure to file a certificate of review. The trial court again denied the motion. The trial court ultimately decided not to submit a res ipsa loquitur instruction to the jury. The jury returned a verdict of $176,018.00 for Shelton.

The court of appeals reversed the trial court because Shelton had failed to meet the requirements of section 13-20-602 by failing to submit a certificate. See Shelton, 968 P.2d at 136

. The court reasoned that by incorrectly anticipating that she would not rely upon expert testimony, Shelton induced the trial court to err in holding that no certificate was required. See id.

II.

In order to determine whether the trial court committed reversible error, we look to the statute and recent case law. Section 13-20-602 provides that:

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

§ 13-20—602(1), 6A C.R.S. (1987)(1992 Supp.).

Subsection 602(1) requires a plaintiff to file a certificate of review within sixty days of the service of the complaint for any claim based on allegations of professional negligence that require expert testimony to establish a prima face case. See Martinez v. Badis, 842 P.2d 245, 250 (Colo.1992)

. If a plaintiff determines that expert testimony is not required, no certificate need be filed. See id. at 251. If a plaintiff determines that expert testimony is required but that timely filing is not possible, the plaintiff must request an order extending the filing period for good cause. See id. In the event that neither a certificate nor a motion to extend the filing period is filed within the sixty day period, a defendant has two options: move, pursuant to subsection 602(4), to dismiss the case; or move, pursuant to subsection 602(2), to require the plaintiff to file a certificate. In either context, the plaintiff may demonstrate that no expert testimony is required. See Martinez, 842 P.2d at 251.

A.

Shelton claimed, and the trial court initially agreed, that she was excused from submitting a certificate because she could establish a prima facie case without expert testimony. In Martinez we determined that a certificate of review is necessary only with respect to those claims of professional negligence which require the plaintiff to establish a prima facie case by means of expert testimony. See Martinez, 842 P.2d at 249

.⁴ Therefore, if a plaintiff determines that expert testimony is not required, no certificate need be filed. See id. If the trial court agrees that expert testimony may not be necessary and permits the claim to proceed without a certificate, the plaintiff should be able to rely upon the decision of the trial court. Otherwise, a plaintiff would need to file a certificate, despite the relief afforded by the trial court, in order to protect herself against dismissal of her action upon appellate review. Therefore, the decision of the trial court that a claim may proceed without the filing of a certificate of review will not be disturbed upon appellate review unless the plaintiff's theory was without arguable merit. If the reasons proffered by the plaintiff for not filing a certificate of review have arguable merit, the trial court acts within its discretion when it does not require a certificate.

It is only in unusual circumstances that a medical malpractice claim can be proven without the presentation of expert medical opinion to establish the proper standard of care against which the professional's conduct is to be measured. However, some claims of professional negligence do not require expert testimony. See Gorab v. Zook, 943 P.2d 423, 427 (Colo.1997)

.

Shelton argued that proof of her prima facie case did not require expert testimony because her claim was premised upon a theory of res ipsa loquitur. In order for a case to be submitted to a jury on a theory of res ipsa loquitur, circumstantial evidence must be such that it is more likely than not that the event was caused by negligence. See Holmes v. Gamble, 655 P.2d 405, 408 (Colo.1982)

. Here, to maintain a theory of res ipsa loquitur, the circumstantial evidence that Shelton provided must have been such that it was more likely that the fracture was caused by the negligence of the nurses than that it was not.

At the time Penrose filed its Motion to Dismiss, the trial court had the depositions of Shelton, her daughter and the doctor who performed her surgery describing Shelton's state prior to the transfer and immediately afterwards. Furthermore, there was no evidence available to suggest that Shelton experienced the fracture between the time of the surgery and the time she was transferred from the chair to the bed. Nor was there any evidence that the fracture occurred between the time of the transfer and the time the fracture was discovered. The trial court's determination that Shelton could potentially...