Williams v. Boyle
| Decision Date | 02 January 2003 |
| Docket Number | No. 02CA0037.,02CA0037. |
| Citation | 72 P.3d 392 |
| Parties | Susan P. WILLIAMS, Plaintiff-Appellant, v. Dennis BOYLE, M.D., Defendant-Appellee. |
| Court | Colorado Court of Appeals |
Certiorari Denied June 30, 2003.1
Susan P. Williams, Pro Se.
McConnell, Siderius, Fleischner, Christine A. Craigmile, Troy R. Rackham, Denver, Colorado, for Defendant-Appellee.
Opinion by Judge DAVIDSON.
In this medical malpractice action, plaintiff, Susan P. Williams, appeals from the trial court's dismissal of her complaint against defendant, Dennis Boyle, M.D., for failure to file a certificate of review. We affirm.
Plaintiff, proceeding pro se, filed a complaint against defendant, asserting claims for medical malpractice, breach of confidential relationship and nondisclosure, fraudulent concealment and fraud, and defamation.
In her complaint, plaintiff alleged that defendant prescribed medications that caused an adverse reaction leading to kidney damage. She alleged that defendant failed to review her past medical records, which she claims documented her known allergies, and that he failed to inform her of this risk. Plaintiff also alleged that, after taking the medication, she informed defendant of the allergic reactions, but he denied the reactions occurred in an attempt to conceal his own negligence and then discharged her from his practice. Plaintiff alleged that defendant wrote in her medical records that she was experiencing a mental health disorder, that he knew the diagnosis was false, and that he then gave these records to other medical care providers.
Defendant filed an answer denying the claims, and both parties submitted initial disclosures, which were each contested by the other party as inadequate.
Defendant then filed a motion to dismiss for failure to file a certificate of review. Plaintiff requested additional time to respond, arguing that defendant had not provided all of his initial disclosures and that those disclosures were necessary for plaintiff to respond to the motion. The court ordered defendant to supplement his disclosures and gave plaintiff additional time to respond.
After plaintiff did not respond to the motion to dismiss in the time allowed by the court, and after the parties briefed the issue of whether a certificate of review was required, the court dismissed all of plaintiff's claims for failure to file a certificate of review.
Plaintiff contends that she was not required to file a certificate of review because defendant had not fully complied with the initial disclosure requirements of C.R.C.P. 26(a). Defendant argues that the requirement that a plaintiff file a certificate of review is independent of the requirement of initial disclosures. We agree with defendant.
First, we find no support for plaintiff's contention in the plain language of the statute, the timing of the certificate of review, or the policy behind the certificate of review requirement.
Although the certificate of review statute states that the professional consulted must give his opinion after reviewing the "known facts," the statute does not mention a defendant's disclosure requirements. See § 13-20-602, C.R.S.2002.
Further, the initial disclosures are not necessarily due before the certificate of review. Section 13-20-602 requires that the certificate of review be filed within sixty days of the service of the complaint, and C.R.C.P. 26(a)(1) requires that initial disclosures be filed within thirty days after the case is at issue. A case becomes at issue when all pleadings permitted by C.R.C.P. 7 have been filed. See C.R.C.P. 16(b). An in-state defendant generally has twenty days after service of the complaint to file an answer. If an answer with no counterclaim is filed within that time period, the initial disclosures would potentially be due no more than fifty days after the filing of the complaint. However, disclosures would not be due before the certificate of review if the at-issue date is extended by, for instance, a defendant seeking an extension of time within which to answer or filing counterclaims, cross-claims, third-party claims, or a motion to dismiss; or the plaintiff filing a reply to a counterclaim or an affirmative defense. See C.R.C.P. 12(a). Such filings do not alter the deadline for a certificate of review. See § 13-20-602.
Furthermore, to conclude that full disclosures must precede a certificate of review would contravene the purpose of the certificate of review requirement, which is to prevent the filing of frivolous professional malpractice actions, to avoid unnecessary time and costs in defending professional negligence claims, and to reduce the resulting costs to society through increased insurance premiums attributable to the expenses associated with such claims. See State v. Nieto, 993 P.2d 493 (Colo.2000)
.
The certificate requirement thus forces a plaintiff to obtain additional professional confirmation that the complaint is not frivolous early in the case, before the defendant begins to incur expenses in providing discovery, compiling privilege logs, and the like.
Second, we disagree with plaintiff that defendant's allegedly inadequate disclosures constituted "good cause" for an extension under the statute and that the court thereby abused its discretion by dismissing the claims.
The court may extend the time for filing a certificate of review beyond the sixty day period for "good cause." See § 13-20-602(1)(a), C.R.S.2002.
Whether good cause has been shown is a matter within the sound discretion of the trial court. Hane v. Tubman, 899 P.2d 332 (Colo.App.1995). The court must consider whether the neglect that resulted in the failure to file was excusable, whether the defendant had alleged a meritorious defense or claim, and whether relief from the challenged order would be consistent with the equitable considerations, such as whether any prejudice would accrue to the defendant if the order were set aside. Hane v. Tubman, supra.
Here, the trial court did not abuse its discretion. Plaintiff was given additional time to file a certificate of review or otherwise respond to the motion to dismiss, and she failed to do so within the time allotted.
Moreover, plaintiff argued that she was unable to determine whether she needed a certificate of review because defendant did not complete his initial disclosures and that no physician would give her a certificate without seeing defendant's records. However, with record support, the trial court ruled that plaintiff had all the necessary documents.
In addition, defendant had alleged a meritorious defense and would have been prejudiced because a trial date was set and discovery was scheduled to begin. See Rosenberg v. Grady, 843 P.2d 25 (Colo.App.1992)
(court did not abuse its discretion in deferring ruling on motion to compel until plaintiff filed certificate of review).
Third, we disagree with plaintiff that after the trial court determined a certificate of review was required, it erroneously dismissed her claims without giving her an opportunity to file one. Plaintiff did not respond to defendant's motion to dismiss in the additional time allotted, and when she finally responded, she failed to demonstrate that no expert testimony was required or that the court, in its discretion, should have found good cause for her failure to file. See Martinez v. Badis, 842 P.2d 245 (Colo.1992)
.
Plaintiff next contends that the court erred in dismissing her claims because each did not require a certificate of review. We disagree.
A certificate of review states that the plaintiff has consulted with an expert in the area who has concluded that the claim does not lack substantial justification. See § 13-20-602. The requirement applies to any claim against a licensed professional that is based upon allegations of professional negligence and that requires expert testimony to establish a prima facie case, regardless of the formal designation of such claim. See Martinez v. Badis, supra; Baumgarten v. Coppage, 15 P.3d 304 (Colo.App.2000)
; Teiken v. Reynolds, 904 P.2d 1387 (Colo.App.1995). The statute should be broadly read and applied to all cases based upon the alleged professional negligence of a licensed professional. See State v. Nieto, supra.
Plaintiff's medical negligence claim alleges that defendant owed a duty of care to plaintiff, which he breached by not giving appropriate diagnosis, treatment, and followup of plaintiff's health problems. This claim of professional negligence required expert testimony and, consequently, a certificate of review.
Expert testimony is required to establish a prima facie case of professional negligence in the great majority of cases. When a plaintiff's claim requires a showing that the licensed professional breached a duty of care and that duty of care cannot be understood by a lay person without expert testimony, the claim requires a certificate of review. See Martinez v. Badis, supra; Armbruster v. Edgar, 731 P.2d 757 (Colo.App.1986)
(expert testimony necessary to show precise scope of physicians' standard of care).
Here, to prove medical negligence, plaintiff would have to show, through expert testimony, the nature of defendant's duty of care with regard to diagnosis and followup treatment, as well as how defendant breached that duty of care. Therefore, a certificate of review was required. See Armbruster v. Edgar, supra.
Moreover, we disagree with plaintiff that a certificate of review was not required because her negligence claim was premised on the doctrine of res ipsa loquitur.
In some instances, a claim relying on the doctrine of res ipsa loquitur will not require a certificate of review because the facts create a presumption of negligence and, therefore, expert testimony is not necessary. See Shelton v. Penrose/St. Francis Healthcare System, 984 P.2d 623 (Colo.1999)
.
To the extent defendant contends that plaintiff was required to plead res...
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