Roberts v. McCormack

• Court: Colorado Court of Appeals
• Decided: January 20, 2022
• Docket: 20CA1583
• Status: Unknown

Opinion

20CA1583 Roberts v McCormack 01-20-2022

COLORADO COURT OF APPEALS

Court of Appeals No. 20CA1583

Boulder County District Court No. 19CV30657

Honorable Patrick Butler, Judge

Kelly Roberts,

Plaintiff-Appellant,

v.

Kristen McCormack, L.Ac,

Defendant-Appellee.

JUDGMENT AFFIRMED

Division VII

Opinion by JUDGE BERGER

Brown and Johnson, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced January 20, 2022

Winget, Spadafora & Schwartzberg, LLP, Derek C. Anderson, Boulder,

Colorado, for Plaintiff-Appellant

Hershey Decker Drake, Kari Hershey, Robert Bacaj, Lone Tree, Colorado, for

Defendant-Appellee

1

¶ 1 In this professional negligence action against an

acupuncturist, plaintiff, Kelly Roberts, appeals the district court’s

summary judgment in favor of defendant, Kristen McCormack,

L.Ac. Because the district court correctly held that the case could

not proceed without standard of care testimony from an expert

acupuncturist, we affirm.

I. Relevant Facts and Procedural History

¶ 2 After receiving acupuncture treatment from McCormack,

Roberts suffered a pneumothorax (also known as a collapsed lung).

Roberts then sued McCormack for professional negligence.

¶ 3 Roberts twice filed a certificate of review in which her counsel

certified that he had consulted with an acupuncturist who had

relevant expertise and that the claim did not lack substantial

justification. See § 13-20-602(3), C.R.S. 2021 (requiring plaintiffs

in professional negligence actions against regulated acupuncturists

to file a certificate of review). Despite these certificates of review,

Roberts never disclosed an acupuncture expert.

¶ 4 McCormack moved for summary judgment, arguing that

Roberts could not make a prima facie case of professional

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negligence without a standard of care expert. Roberts argued that

she did not need an expert:

Colorado law holds that expert testimony to

prove breach of the standard of care in a

medical malpractice case is not necessary

where the doctrine of res ipsa loquitor

applies. . . . No reasonable trier-of-fact could

possibly believe that a puncture of a bodily

organ during acupuncture complies with the

applicable standard of care. Moreover, no

reasonable trier-of-fact requires an expert to

explain that such a negligent act does not

comply with such standards of care.

¶ 5 The district court granted summary judgment, stating:

The issue for this motion comes down to

whether a pneumothorax caused by an

acupuncturist during treatment is res ipsa

evidence that Defendant was negligent in her

treatment of Plaintiff. The Court finds that it

is not.

The Court agrees with Plaintiff that if we take

all the evidence and all the inferences which

can be reasonably drawn from the evidence in

a light most favorable to Plaintiff that;

a. Plaintiff underwent acupuncture treatment

with Defendant;

b. Plaintiff’s lung was punctured during the

course of that treatment;

c. Plaintiff suffered some injuries, damage and

losses as a result of the punctured lung.

3

However, what the Court cannot find, and a

reasonable jury could not find, without the

assistance of expert testimony, is that the fact

that Plaintiff’s lung was punctured during

treatment was necessarily due to the

negligence of Defendant.

Unfortunate and bad outcomes occur

occasionally during medical treatment and

procedures. The fact that Plaintiff had a bad

outcome does not necessarily mean that it was

a result of Defendant’s negligence.

The Court cannot find that the determination

of whether Plaintiff’s pneumothorax was the

result of negligence or just an unfortunate

outcome from the procedure, even with

ordinary care being exercised, is within the

ambit of common knowledge or experience of

ordinary persons. Without specialized medical

or acupuncture training, a reasonable juror or

fact finder could not make such determination

as to whether the pneumothorax in this

instance was the result of the negligence of

Defendant or just an unfortunate outcome

from the procedure, even with the exercise of

due care by Defendant.

II. Analysis

¶ 6 Roberts’s only claim on appeal is that the district court erred

when it held that an acupuncturist standard of care expert was

required for her to make a prima facie case. We reject this

contention.

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A. Standard of Review and Preservation

¶ 7 The parties agree, as do we, that Roberts preserved this issue.

We review de novo a grant of summary judgment, which is

“appropriate only if there is no genuine issue of material fact and

the moving party is entitled to judgment as a matter of law.” P.W. v.

Child.’s Hosp. Colo., 2016 CO 6, ¶ 11.

B. Law and Analysis

¶ 8 Generally, to establish a prima facie case of medical

malpractice, a plaintiff must establish the standard of care through

expert testimony.

1

Melville v. Southward, 791 P.2d 383, 387 (Colo.

1990). However, there is an exception to that rule. If “the subject

matter of a medical malpractice action lies within the ambit of

common knowledge or experience of ordinary persons,” then expert

testimony is not required. Id.

¶ 9 The subject matter of this case does not lie within the ambit of

common knowledge. In support of her summary judgment motion,

McCormack presented a signed report from an acupuncturist,

1

Because this is a negligence action against a healthcare

professional, we, like both parties, assume that the law applicable

to medical malpractice actions involving physicians applies to this

action against an acupuncturist. See § 13-20-602(3), C.R.S. 2021.

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which opined as follows: (1) multiple factors can contribute to a

collapsed lung, which “can be spontaneous, meaning that it can

occur in the absence of any external causative event”; (2) a

collapsed lung is a “known risk inherent in acupuncture treatment”

that is “believed to be acupuncture’s most commonly reported

complication”; and (3) the risk of a collapsed lung is “usually

standard on acupuncture consent forms.”

¶ 10 Roberts did not dispute any of these propositions by legally

competent evidence. True, we must give Roberts all favorable

inferences that can be drawn from the record. See People in Interest

of S.N. v. S.N., 2014 CO 64, ¶ 16. But Roberts cannot avoid

summary judgment by “merely assert[ing] a legal conclusion

without evidence to support it.” Id. at ¶ 17 (citation omitted).

¶ 11 On this summary judgment record, the only possible

conclusion was that Roberts’s injury could have been caused by

multiple complex factors and that a collapsed lung is a known risk

of acupuncture. Therefore, the district court correctly concluded

that expert testimony was required to establish the applicable

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standard of care and to determine whether McCormack met or

breached that standard.

¶ 12 Roberts analogizes this case to medical malpractice cases in

which expert testimony was not necessary. These cases include

Mudd v. Dorr, 40 Colo. App. 74, 77, 574 P.2d 97, 100 (1977), in

which the court held that expert testimony was not required when a

surgeon left a sponge inside his patient’s body. Roberts also relies

on Farrah v. Patton, 99 Colo. 41, 44, 59 P.2d 76, 77 (1936), where a

patient was partially paralyzed during osteopathic treatment. These

cases, however, are not helpful to Roberts because the record shows

there are multiple potential causes (independent of negligence) of a

collapsed lung. Moreover, the known risks of a collapsed lung

occurring during acupuncture also distinguish this case from those

cited by Roberts.

¶ 13 Roberts also argues that under Colorado law, “negligence

actions do not require expert testimony when applying the doctrine

of res ipsa loquitur.” We reject this argument because “[w]here, as

here, it cannot be inferred that the injury normally does not occur

without negligence, expert testimony on that issue is necessary

7

before res ipsa loquitur can be applied.” Miller v. Van Newkirk, 628

P.2d 143, 146 (Colo. App. 1980).

III. Disposition

¶ 14 The judgment is affirmed.

JUDGE BROWN and JUDGE JOHNSON concur.