State v. Nieto

Decision Date14 February 2000
Docket NumberNo. 97SC876.,97SC876.
PartiesThe STATE of Colorado, Department of Corrections; Marian Norman; and Mike Farrell, Petitioners, v. Arthur Moses NIETO, Respondent.
CourtColorado Supreme Court

Ken Salazar, Attorney General, Barbara McDonnell, Chief Deputy Attorney General, Michael E. McLachlan, Solicitor General, Garth C. Lucero, Deputy Attorney General, Timothy R. Arnold, Deputy Attorney General, Jane R. Christman, First Assistant Attorney General, Thomas C. Sullivan, Assistant Attorney General, Civil Litigation Section, Tort Litigation Unit, Denver, Colorado, Attorneys for Petitioners.

Ozer & Ozer, P.C., Robert C. Ozer, Jill C. Harris, Colorado Springs, Colorado, Attorneys for Respondent.

Hall & Evans LLC, Eugene R. Commander, Malcolm S. Mead, Denver, Colorado, Attorneys for Amici Curiae American Consulting Engineers Council of Colorado and Colorado Chapter of the American Institute of Architects.

Robert N. Spencer, Englewood, Colorado, Attorney for Amicus Curiae, Colorado Medical Society.

Treece, Alfrey, Musat & Bosworth, P.C., Michael L. Hutchinson, Denver, Colorado, Attorneys for Amicus Curiae Colorado Defense Lawyers Association.

Justice SCOTT delivered the Opinion of the Court.

Section 13-20-602, 5 C.R.S. (1999), requires a plaintiff to file a certificate of review prior to initiating a civil action for "damages... based upon the alleged professional negligence of ... a licensed professional." The certificate of review certifies that a plaintiff has consulted "a person who has expertise in the area of the alleged negligent conduct" and that the claims made in the complaint "do not lack substantial justification." § 13-20-602(1)(a), (3)(a)(I) & (II).

In Nieto v. State, 952 P.2d 834 (Colo.App.1997), the Colorado Court of Appeals held that plaintiff Arthur Moses Nieto could prosecute a civil action against the State of Colorado ("State") for damages based on the alleged nursing malpractice of one of its employees, even though Nieto failed to timely file a certificate of review. The court of appeals so held reasoning that the "state defendants," the State and the Department of Corrections (DOC), "are not licensed professionals." Id. at 838.

On our review here, we must decide whether a plaintiff who fails to meet the procedural prerequisite of timely filing a certificate of review can nonetheless proceed to litigate his claims of professional negligence under Colorado law. We hold that a plaintiff who fails to file a certificate of review may not pursue such a professional negligence claim. In our view, the Colorado General Assembly intended that section 13-20-602 create a procedural prerequisite requiring the filing of a certificate of review for any claims based on the malpractice of a licensed professional. Furthermore, we hold that dismissal is required in this case whether the plaintiff seeks damages against the "licensed professional named as a party" or seeks damages only against the employer of the licensed professional.

We must also decide whether the Colorado Governmental Immunity Act grants the State immunity from civil suits for damages arising out of the operation of a correctional facility, and whether the complaint filed by Nieto was properly filed to proceed against individual defendants under 42 U.S.C. § 1983 (1994). In answering these two issues, we hold that the State has no such immunity and that the course of proceedings confirms that Nieto properly sought damages for violations of his civil rights against the individual defendants in their personal capacities. Therefore, we hold that, in accordance with our precedent set forth in County of Adams v. Hibbard, 918 P.2d 212 (Colo.1996), the court of appeals correctly held that "the plaintiff sufficiently stated and pursued [42 U.S.C.] § 1983 claims against the individual defendants in their `personal' or `individual' capacities." Nieto, 952 P.2d at 843. This result is supported by a review of the course of proceedings, which was sufficient to establish that the plaintiff was pursuing, and each individual defendant was opposing, a § 1983 claim made against the state employee in the employee's individual or personal capacity. Under such circumstances, a motion to dismiss suggesting that plaintiff sued state employees or officials only in their official capacity must fail.

Accordingly, we reverse, in part, the judgment of the court of appeals to the extent that it permits a plaintiff to proceed with his claim against the State under a respondeat superior theory for the injury caused by the licensed professional. We do so because in our view, permitting such a plaintiff to ignore this clear prerequisite, which is designed to deter frivolous claims and therefore reduce the costs associated with frivolous actions borne by all citizens, is contrary to the sound public policy decision that led to the statute's adoption.

We note, however, that negligence claims against the employer of an individual who is not a licensed professional and who has allegedly committed negligent acts are not covered by section 13-20-602 and therefore do not require the filing of a such a certificate. Because the State has no immunity for injuries resulting from the operation of a correctional facility, § 24-10-106(1)(b), 7 C.R.S. (1999), we conclude that the State may be held liable for the injury that Nieto suffered as a result of the negligent conduct of unlicensed employees under its control, applying the doctrine of respondeat superior.

I. Certiorari Review

Our order granting certiorari raised three issues. First, "whether the court of appeals erred in holding that Nieto was not required to file a certificate of review in accordance with section 13-20-602, 5 C.R.S. (1999), in order to proceed with his professional negligence claims against the State defendants." Second, "whether the court of appeals erred in ruling that the State defendants were not immune from liability under section 24-10-106(2) and (3), 7 C.R.S. (1999)." Third, "whether the court of appeals erroneously ruled that the trial court improperly dismissed the claims against the individual defendants brought under 42 U.S.C. § 1983."

Nieto's complaint before the trial court named as defendants the State, the DOC,1 and individual defendants Marian Norman (Norman), and Mike Farrell (Farrell).2 In his complaint before the trial court, Nieto alleged that the defendants' conduct caused severe pain and resulted in a disabling medical condition by which he became "permanently hemiparietic, and mentally impaired."

In Count One of his complaint, Nieto claimed that the conduct of defendants Norman, a registered nurse, and Farrell, a prison guard, constituted "deliberate indifference [with respect to Nieto's] serious medical needs" resulting in a "deprivation of ... life-sustaining medical attention, all in violation of his civil rights and giving rise to a claim under § 1983." Under this count, Nieto asked for damages "in an amount to be determined at trial, plus exemplary damages." (Emphasis added.) In Count Two, Nieto alleged that defendant Norman committed nursing malpractice in her evaluation and treatment of Nieto. Under that count, again he sought damages "in an amount to be determined at trial." In the third count of his complaint, Nieto alleged that all defendants were liable for the negligent conduct of the individual defendants.

II. Facts and Procedural History
A. Underlying Facts

On September 29, 1991, Nieto, an inmate in the custody of the DOC, sought treatment at the prison medical clinic for cold and flu symptoms. The nurse on duty treated him for a cold based on the symptoms and returned him to his cell.

On October 2, 1991, Nieto returned to the clinic and was seen by defendant Norman, a registered nurse and the clinic's medical coordinator. Norman examined Nieto and continued the cold and flu protocol.

Nieto returned to the clinic later in the week with a puffy eye and continued worsening symptoms. Upon seeing him, Norman ordered Nieto to leave and indicated that if he returned to the clinic, he would be disciplined. On October 6, 1991, Nieto again returned to the clinic and reported to the nurse on duty that he was experiencing night fevers and right-sided headaches. Nieto told the nurse that he believed he was having a stroke. The nurse on duty called a physician's assistant to describe Nieto's "lack of symptoms." The physician's assistant prescribed an antibiotic and a decongestant for a sinus infection, and instructed the nurse to recheck Nieto the following day and make an appointment for him to visit the physician's assistant on October 9, 1991. However, Nieto did not return for either appointment.

Nieto's condition deteriorated substantially between October 6 and October 9. On the evening of October 6, Nieto's cellmate noticed that Nieto's eye was almost swollen shut, and notified defendant Farrell, a prison guard, of his condition. Farrell responded that Nieto should put hot compresses on his eye. Nieto returned to Farrell requesting help at least two more times. Nonetheless, Farrell refused to assist him. During the next three days, Nieto was dizzy and weak to the point of being bedridden.

On October 9, Nieto was found unconscious in his cell, incontinent, with his right eye bulging from its socket and discharging green pus. Nieto was taken to the Delta County Memorial Hospital and was diagnosed with a severe sinus infection. Due to the severity of the infection, Nieto was transferred to St. Mary's Hospital where it was determined that the sinus infection had spread to his right eye, the base of his brain, and the right frontal lobe of his brain.

During the next two months, Nieto underwent three brain surgeries, two sinus surgeries, and one eye surgery. Nieto suffered a stroke as a result of the infection. Today, Nieto is permanently paralyzed on the left side of his body.

B. Procedural History

During October 1993, Nieto initiated this...

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