Shelton v. Penrose-St. Francis Healthcare System

968 P.2d 132, 1998 Colo. J. C.A.R. 1874, 1998 Colo. App. LEXIS 75, 1998 WL 176766
CourtColorado Court of Appeals
DecidedApril 16, 1998
DocketNo. 96CA1074
StatusPublished
Cited by1 cases

This text of 968 P.2d 132 (Shelton v. Penrose-St. Francis Healthcare System) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Shelton v. Penrose-St. Francis Healthcare System, 968 P.2d 132, 1998 Colo. J. C.A.R. 1874, 1998 Colo. App. LEXIS 75, 1998 WL 176766 (Colo. Ct. App. 1998).

Opinions

Opinion by

Judge CRISWELL.

Defendant, Penrose-St. Francis Healthcare System (hospital), appeals from a judgment entered on a jury verdict finding that licensed nurses on its staff negligently caused injury to plaintiff Gretchen May Shelton. The hospital asserts that the trial court erred in refusing to dismiss plaintiffs complaint for her failure to file a certificate of review, as required by § 13-20-602, C.R.S. 1997. We agree and reverse.

In 1982, plaintiff underwent a total hip replacement surgery following a fracture to her left hip. In 1988, she fell and fractured the left femur around the hip prosthesis. This caused the hip prosthesis to become loose and unstable; it often dislocated spontaneously.

In 1992, a second hip replacement surgery was performed in the hospital. Her treating surgeon testified as an expert witness for her that, during surgery, he discovered that her bones had become extremely soft. He testified that, although he exercised reasonable care during this surgery, he fractured plaintiffs femur. Likewise, during yet a third hip replacenrent surgery performed about a week later, her femur was again fractured without negligence on anyone’s part. This surgeon testified that, altogether, plaintiff had sustained some six fractures to her femur over the course of about five years.

At trial, this physieian also testified that, after the first surgery in 1992, he had fitted [134]*134her with a brace designed to prevent a posterior dislocation and that, after this surgery, but before she had left the hospital, he discovered that she had suffered such a dislocation. According to the hospital, this testimony was inconsistent with x-rays taken shortly after the discovery of this dislocation, as well as with this surgeon’s pre-trial deposition testimony that it was an anterior dislocation, which the brace was not designed to prevent, rather than a posterior dislocation, that plaintiff sustained after this surgery.

Nevertheless, it is undisputed that, during the course of post-surgery physical therapy, the brace had been removed and had not been replaced. Thereafter, plaintiff sat in a chair near her bed and, later still, was lifted by nurses from this chair to her bed without replacement of the leg brace.

Plaintiffs complaint was based upon the hypothesis, and the expert professional evidence presented would support the inference, that the nurses improperly lifted plaintiff without her brace and that this action resulted in her hip dislocation.

Plaintiffs complaint was filed in October 1993, and her single claim of negligence was based upon this alleged improper lifting. She did not name the nurses as defendants, but sought recovery of damages solely against the hospital, based upon respondeat superior.

Section 13-20-602(1), C.R.S.1997, provides that, in “every action ... based upon the alleged negligence ... of a licensed professional,” the plaintiff or her attorney must, within 60 days after service of a copy of the complaint, file a “certificate of review.” That certificate must declare that plaintiffs “attorney has consulted a person who has expertise in the area of the alleged negligent conduct” and that that person has reviewed the pertinent documents and, based upon such review, has concluded “that the filing of the claim ... does not lack substantial justification.” Section 13-20-602(3)(a), C.R.S.1997.

The identity of such person need not be disclosed to the adverse party, but the court may require the disclosure of that person’s identity to it so that it may “verify the content” of the certificate. Section 13-20-602(3)(a), C.R.S.1997.

According to § 13-20-602(4), C.R.S.1997:

The failure to file a certificate of review in accordance with [§ 13-20-602(1) ] shall result in the dismissal of the complaint.... (emphasis added)

This statute applies in those instances in which “expert testimony would be necessary to establish a prima facie case.” Section 13-20-601, C.R.S.1997. See Martinez v. Badis, 842 P.2d 245 (Colo.1992). Whether it applies to a claim against a hospital, based upon respondeat superior, is open to question. See Nieto v. State, 952 P.2d 834 (Colo.App.1997) (cert. granted March 23, 1998). However, because the parties both in the trial court and here have assumed that it applies to these circumstances, we will also assume that it is applicable.

When plaintiff filed her complaint in October 1993, she did not accompany it with the required certificate, nor did she did file one within the required 60 days. In May 1994, therefore, more than seven months after the complaint was filed, the hospital moved to dismiss her complaint pursuant to § 13-20-602(4).

When plaintiff responded to this motion in June, she asserted that the statute was inapplicable because she was relying upon the doctrine of res ipsa loquitur and that she would need no expert testimony to establish a prima facie case. In addition, before the trial court ruled upon the hospital’s motion to dismiss in December 1994, plaintiff provided copies of written reports from registered nurses both of whom asserted that they had examined the facts and were of the opinion that plaintiffs injuries resulted from the nurses improperly lifting plaintiff without her brace.

Significantly, however, one of these reports is dated June 1994, some eight months after plaintiffs complaint was filed and after the hospital’s motion to dismiss was filed, and the other was prepared in December 1994. Further, neither in these reports nor elsewhere in the record is there any representation made that counsel for plaintiff consulted with [135]*135either of these experts before plaintiffs complaint was filed or within 60 days thereafter.

Nevertheless, the trial court denied the hospital’s motion, concluding that, because plaintiff might be able to rely upon res ipsa loquitur, she might be able to establish a prima facie case without the need for expert testimony. In addition, because plaintiffs counsel entertained the good faith belief that expert testimony might not be necessary and because he had provided the experts’ reports to the hospital, the court relieved plaintiff of the necessity of filing such a certificate in this case.

The hospital argues, however, that the record fails to support either of the trial court’s conclusions. We agree.

First, we reject plaintiffs argument that providing a copy of an expert’s report to the hospital in June 1994 was the “functional equivalent” of the filing of a certificate under the statute.

Section 13-20-602 is not a discovery statute. On the contrary, that statute, by its express terms, makes clear that a plaintiff need not provide even the identity of the consultant to the adverse party. Further, other provisions govern the disclosure of the identity and the substance of any opinion of an expert who is to be called at trial. See C.R.C.P. 16 and 26. Such disclosures would be necessary even if § 13-20-602 did not exist.

Rather, the purpose of the statute is to require consultation by a plaintiff or her counsel with an expert in the appropriate field before or shortly after a complaint is filed against a licensed professional.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Shelton v. Penrose/St. Francis Healthcare System
984 P.2d 623 (Supreme Court of Colorado, 1999)

Cite This Page — Counsel Stack

Bluebook (online)
968 P.2d 132, 1998 Colo. J. C.A.R. 1874, 1998 Colo. App. LEXIS 75, 1998 WL 176766, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shelton-v-penrose-st-francis-healthcare-system-coloctapp-1998.