Yadon v. Southward

64 P.3d 909, 2002 Colo. App. LEXIS 1761, 2002 WL 31357291

Opinions

Opinion by

Justice KIRSHBAUM.

*

In this medical malpractice action, plaintiff, Kenneth E. Yadon, appeals the judgment dismissing his complaint against defendant, Stanton E. Southward, based on his failure to file a timely certificate of review. We affirm in part, reverse in part, and remand with directions.

Defendant performed surgery on one of plaintiffs toes. Alleging that his toe did not heal properly because of defendant’s negligent conduct, plaintiff, proceeding pro se, brought this action.

Defendant moved to dismiss the complaint based on plaintiffs failure to file a certificate of review pursuant to § 13-20-602, C.R.S. 2002. Defendant also filed an affidavit stating that the treatment afforded plaintiff satisfied the standard of care applicable to podiatrists.

Shortly thereafter, plaintiff filed a verified certificate of review accompanied by documents relating to a Podiatry Board disciplinary proceeding addressing defendant’s records of plaintiffs treatment. The certificate contained the statement that a physician contacted by plaintiff had concluded that plaintiffs claim “did not lack substantial justification within the meaning of section 13-17-201(4).”

Based on concerns about certain statements contained in documents filed by plaintiff, the court on June 11, 2001, ordered plaintiff to identify within ten days the physician he had consulted and obtain an affidavit from the physician verifying the contents of the certificate of review.

On June 21, 2002, plaintiff requested a sixty-day extension of time within which to comply with the trial court’s June 11 order, explaining that the physician had objected to signing an affidavit and arguing that, because the medical records previously submitted demonstrated defendant’s negligent conduct, an extension of time was warranted. Plaintiff also argued that the certificate of review requirement did not apply to nonattorney pro se litigants.

The trial court found that plaintiff had not established good cause for a late filing of the certificate of review and granted defendant’s motion to dismiss.

I.

Plaintiff contends that the trial court erred in determining that the certificate of review statute governs actions brought by nonattor-ney pro se litigants. We do not agree.

When construing a statute, courts must ascertain and give effect to the intent of the General Assembly and must refrain from rendering judgments that are inconsistent with that intent. Farmers Ins. Exch. v. Bill Boom Inc., 961 P.2d 465 (Colo.1998). To determine that intent, we look first to the plain language of the statute. If we can give effect to the ordinary meaning of words used by the legislature, then the statute should be construed as written. Askew v. Indus. Claim Appeals Office, 927 P.2d 1333 (Colo.1996).

We are further obligated to construe an entire statutory scheme in a manner that gives consistent, harmonious, and sensible effect to all its parts. Martinez v. Cont’l Enters., 730 P.2d 308 (Colo.1986). It is presumed that “[t]he entire statute is intended to be effective” and that “[a] just and reasonable result is intended.” Section 2-4-201(l)(b), (c), C.R.S.2002. Consequently, a reviewing court must follow the statutory construction that best effectuates the intent of the General Assembly and the purposes of the legislative scheme. See Martin v. Montezuma-Cortez Sch. Dist. RE-1, 841 P.2d 237 (Colo.1992).

In adopting the certificate of review provisions, the General Assembly declared its intent as follows: “[T]he certificate of review requirement should be utilized in civil actions for negligence brought against those professionals who are licensed by this state to practice a particular profession and regarding whom expert testimony would be necessary to establish a prima facie case.” Section 13-20-601, C.R.S.2002.

This broad language refers to civil actions generally; it is not limited to civil actions in which a plaintiff is represented by an attorney. Similar broad language is contained in § 13-20-602(l)(a), C.R.S.2002, which requires the filing of a certificate of review in “every action for damages or indemnity based upon the alleged professional negligence of ... a licensed professional.”

In State v. Nieto, 993 P.2d 493, 502 (Colo.2000), the supreme court emphasized in another context, that, based on its review of relevant legislative history, the certificate of review statute addresses “all civil actions for professional negligence.”

These provisions are designed to avoid unnecessary time and costs in defending professional negligence claims and to weed out frivolous claims at an early stage of the judicial process. Shelton v. Penrose/St. Francis Healthcare Sys., 984 P.2d 623, 628 (Colo.1999). To conclude, as plaintiff contends, that civil actions alleging negligence by licensed professionals filed by nonattorney pro se plaintiffs are exempt from the requirement of filing a certificate of review would produce a result that is both anomalous and contrary to the broad intent clearly expressed by the General Assembly. Statutes are to be construed in a manner to further, not contravene, the clearly expressed legislative intent. State v. Nieto, supra.

Plaintiff relies on the provisions of § 13-20 — 602(l)(a) and (3)(a), C.R.S.2002, to support his argument.

Section 13 — 20—602(l)(a) provides in pertinent part as follows:

In every action for damages or indemnity based upon the alleged professional negligence of ... a licensed professional, the plaintiffs or complainant’s attorney shall file with the court a certificate of review for each ... licensed professional named as a party, as specified in subsection (3) of this section, within sixty days after the service of the complaint ... against such person unless the court determines that a longer period is necessary for good cause shown.

Section 13 — 20—602(3)(a) contains the following language:

A certificate of review shall be executed by the attorney for the plaintiff or complainant declaring:

(I) That the attorney has consulted a person who has expertise in the area of the alleged negligent conduct; and

(II) That the professional who has been consulted pursuant to subparagraph (I) of this paragraph (a) has reviewed the known facts, including such records, documents, and other materials which the professional has found to be relevant to the allegations of negligent conduct and, based on the review of such facts, has concluded that the filing of the claim, counterclaim, or cross claim does not lack substantial justification within the meaning of section 13-17-102(4).

While these provisions refer to conduct by attorneys, they must be considered in light of and in conjunction with the overall statutory scheme and the purpose thereof. See, e.g., Martin v. Montezuma-Cortez Sch. Dist. RE-1, supra. It is also noteworthy that pro se litigants must adhere to rules of procedure applicable to attorneys. Loomis v. Seely, 677 P.2d 400 (Colo.App.1983).

The provisions of § 13-20-602(l)(a) and (3)(a) relied upon by plaintiff describe procedures to be followed to implement the broad purposes of the statute. Adoption of plaintiffs proposed construction of the statute would require the conclusion that the General Assembly intended to authorize nonattorneys to file frivolous law suits against licensed professionals and to ignore procedures statutorily required of attorneys. Such unreasonable results are to be avoided. See § 2-4-201(l)(e).

In view of the broad intent and the purpose of the statutory scheme adopted by the General Assembly, we conclude that the requirements of the certificate of review statute are applicable to civil actions alleging negligence of licensed professionals filed by nonattorney pro se plaintiffs. We also note that, although questions respecting the applicability of the statute were not at issue therein, a division of this court has acknowledged that pro se litigants are subject to its requirements. See Rosenberg v. Grady, 843 P.2d 25 (Colo.App.1992).

Based on the foregoing, we conclude that the trial court did not err in requiring plaintiff, a nonattorney pro se litigant, to file a certificate of review.

II.

Plaintiff argues that the certificate of review statute is unconstitutionally vague because it does not clearly apply to actions brought by a nonattorney pro se litigant. Plaintiff did not raise this issue before the trial court. Therefore, it is not properly before us for review. See Colgan v. State, 623 P.2d 871, 874 (Colo.1981).

III.

Plaintiff also contends that the trial court erred in requiring him to obtain an affidavit from the physician he had consulted to prepare the certificate of review. We disagree.

Section 13 — 20—602(3)(b), C.R.S.2002, contains the following provision:

The court, in its discretion, may require the identity of the ... licensed professional who was consulted pursuant to subpara-graph (I) of paragraph (a) of this subsection (3) to be disclosed to the court and may verify the content of such certificate of review. The identity of the professional need not be identified to the opposing party or parties in the civil action.

Thus, § 13-20-602(3)(b) specifically permits the trial court to require disclosure of a professional’s identity and verification of the contents of the certificate of review. We therefore conclude that the trial court did not err in requiring plaintiff to comply with those requirements.

We also reject plaintiffs contention that the trial court should have entered a case management order providing him with subpoena power so that he could compel the physician to verify the contents of the certificate of review. We note, however, that C.R.C.P. 45 sets forth the circumstances under which, and to whom, a subpoena may be issued. Accordingly, any failure of the court to enter a case management order did not affect plaintiffs ability to have the physician verify the contents of the certificate of review.

IV.

We next address plaintiffs contention that the trial court erred in finding that he failed to establish good cause for the late filing of a certificate of review. We conclude that the trial court abused its discretion by not granting plaintiff additional time to file the certificate of review.

Section 13-20-602(l)(a) requires the filing of a certificate of review within sixty days of the service of the complaint. See Martinez v. Badis, 842 P.2d 245 (Colo.1992). If a timely filing is not possible, the plaintiff must request an order extending the filing period for good cause. Shelton v. Penrose/St. Francis Healthcare Sys., supra.

The determination of whether “good cause” exists for the late filing of a certificate of review is committed to the sound discretion of the trial court. Hane v. Tubman, 899 P.2d 332 (Colo.App.1995). In making this determination, the trial court should consider: (1) whether the neglect causing the late filing was excusable; (2) whether the moving party had alleged a meritorious defense or claim; and (3) whether permitting the late filing would be consistent with equitable considerations, including any prejudice to the nonmoving party. Hane v. Tubman, supra. The trial court may deny the motion for failure to satisfy any one of the three criteria. Buckmiller v. Safeway Stores, Inc., 727 P.2d 1112 (Colo.1986); Dunton v. Whitewater West Recreation, Ltd., 942 P.2d 1348 (Colo.App.1997). However, the trial court must consider all three criteria because evidence relating to one factor might shed light on another. Buckmiller v. Safeway Stores, Inc., supra; Hane v. Tubman, supra.

Here, as previously noted, on June 11, 2001, the trial court requested verification of plaintiffs certificate of review. Plaintiff timely requested an additional sixty days within which to file a certificate of review because the physician initially consulted indicated reluctance to participate further. However, the initial physician subsequently verified the accuracy of his medical records respecting his own treatment of plaintiff, which records contained the physician’s observations respecting the inadequacy of defendant’s conduct. Plaintiff could not have anticipated that the physician he initially consulted would later refuse to verify the certificate of review. Furthermore, there is no indication in the record that defendant would have been prejudiced by the delay in filing the certificate of review.

Based on the foregoing, we conclude that plaintiff established good cause for the late filing of his certificate of review. Accordingly, we conclude that the trial court abused its discretion in denying plaintiffs request for an extension of time within which to file a verified certificate of review and in dismissing the complaint for that reason.

V.

We reject plaintiffs contention that he stated claims for lack of informed consent and battery for which a certificate of review is not required.

Plaintiffs complaint alleged only that defendant committed certain negligent acts; lack of informed consent and battery were not mentioned. Plaintiff did not seek to amend his complaint to add such theories. Under these circumstances, we conclude that the trial court properly found that plaintiffs claims were based in negligence.

Although not all claims of professional negligence require expert testimony, see Gorab v. Zook, 943 P.2d 423 (Colo.1997), plaintiffs claims here were based on defendant’s failure to perform surgery properly. Expert testimony would be necessary to establish these claims. See Shelton v. Penrose/St. Francis Healthcare Sys., supra. We, therefore, conclude that the trial court did not err in requiring plaintiff to file a certificate of review with regard to the claims stated in his complaint.

The judgment is affirmed as to the trial court’s determination that plaintiffs claims are claims of negligence, that the certificate of review statute is applicable to those claims, and that plaintiff is required to obtain an affidavit from the professional consulted. The judgment is reversed as to the court’s refusal to grant plaintiff an extension of time, and the case is remanded to the trial court with directions to permit plaintiff to obtain a certificate of review within a reasonable time and to conduct such further proceedings as may be necessary.

Judge STERNBERG * concurs. Judge TAUBMAN dissents.

Sitting by assignment of the Chief Justice under provisions of Colo. Const, art. VI, § 5(3), and § 24-51-1105, C.R.S.2002.