Shelton v. Penrose-St. Francis Healthcare System

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] her 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] either 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. The filing of the certificate represents proof of such consultation and proof that counsel for plaintiff has received professional advice that the institution or maintenance of an action against the professional would not lack substantial justification under § 13-17-102(4), C.R.S.1997. We do not suggest that plaintiffs case here did, in fact, lack substantial justification. However, the mere fact that a plaintiff may, during the course of trial preparation, establish that the claim for relief alleged has sound professional opinion to support it, does not, at least by itself, furnish “good cause” to relieve such a plaintiff from the statutory obligation imposed by § 13-20-602. And, as we have noted, this record contains nothing from which it can be concluded that plaintiffs counsel consulted with an appropriate professional until some time after the hospital filed its motion to dismiss. Likewise, we reject plaintiffs assertion that her failure to file the statutory certificate was excused because her counsel entertained the good faith belief that res ipsa loquitur might be applicable to her claim of negligence. She argues that, because application of this doctrine would not require the presentation of expert testimony, § 13-20-602 was inapplicable to her claim. It has been emphasized that it is only in unusual circumstances that a medical malpractice claim can be proven without the presentation of expert medical opinion to establish the proper standard of care against which the professional’s conduct is to be measured. See Rosenberg v. Grady, 843 P.2d 25 (Colo.App.1992); Boigegrain v. Gilbert, 784 P.2d 849 (Colo.App.1989). Res ipsa loquitur applies to a malpractice claim only “when it is judicially determined that a particular unexplained occurrence creates a prima facie case of negligence without proof of specific misconduct.” If applicable, the proof of the circumstances necessary for application of this doctrine “takes the place of evidence of [specific] negligence.” On the other hand, the doctrine does not apply if the evidence establishes that a “specific act of negligence was the only likely cause of harm.” Kitto v. Gilbert, 39 Colo.App. 374, 380, 570 P.2d 544, 548 (1977) (emphasis supplied). In at least two instances, it has been suggested that res ipsa loquitur cannot be applied to a medical malpractice claim unless the circumstances are such that lay persons could conclude, without the aid of expert testimony, that the injury in question could not have occurred but for the negligence of one or more of the involved professionals. See Mudd v. Dorr, 40 Colo.App. 74, 574 P.2d 97 (1977) (eottonoid sponges used during sur [136] gery left in spine); Kitto v. Gilbert, supra (tube to anesthesia machine became disconnected during surgery). More recent opinions, however, have recognized that the doctrine may be applicable, if the other necessary conditions for its application are present, even though medical testimony is required to establish that the injury would not normally have occurred absent negligence of some sort. See Miller v. Van Newkirk, 628 P.2d 143, 146 (Colo.App.1980) (“Where, as here, it cannot be inferred that the injury normally does not occur without negligence, expert testimony on that issue is necessary before res ipsa loquitur can be applied.”); Holmes v. Gamble, 624 P.2d 905 (Colo.App.1980), aff'd, 655 P.2d 405 (Colo.1982). Hence, the mere fact that the doctrine may be applicable does not, at least in all cases, mean that § 13-20-602 is not applicable. See Bilawsky v. Faseehudin, 916 P.2d 586 (Colo.App.1995). Here, the trial court ultimately determined that res ipsa loquitur was inapplicable, refused to instruct upon the doctrine, and sent the case to the jury based on the expert testimony of specific negligent acts of the nurses. And, plaintiff does not assert that this determination was erroneous. Plaintiffs surgeon testified that it was his opinion that plaintiffs hip dislocation resulted from a break in her trochanter bone, although he refused to express an opinion as to when this occurred. However, given his testimony that plaintiffs bones were so brittle that the femur had previously cracked during surgery without negligence, no lay person could determine that the trochanter was broken as a result of negligence, without some expert testimony to support that determination. That evidence was supplied here by the surgeon’s description of the leg brace placed upon plaintiff and of its purpose and by the expert nurse’s testimony that plaintiff was lifted both improperly and without the brace. Hence, even if it were concluded that res ipsa loquitur might be applicable here, expert testimony was required to support the claim that injury would not have occurred but for some act of negligence. Clearly, therefore, § 13-20-602 applied to plaintiffs claim for medical malpractice. As we have emphasized, it is only in the most clear and palpable of cases that a claim for medical malpractice can be established without the use of expert testimony; the great majority of such cases will require such evidence. Martinez v. Badis, supra. Further, this state’s public policy, as expressed in § 13-20-602, is to require a prospective plaintiff to consult with an appropriate expert and to be assured that a claim for professional negligence, if asserted, will have a factual and rational basis. Given these considerations, we conclude that a plaintiff who commences and maintains litigation against a licensed professional without engaging in the type of consultation contemplated by the statute does so at his or her peril. If, as here, such a plaintiff induces the trial court to err in concluding that no certificate of review is required, any i-esulting judgment favorable to plaintiff may be subject to reversal. Any other conclusion would render the trial court’s determination of the issue well-nigh nonreviewable. Given our conclusion in this respect, we need not address plaintiffs cross-appeal. The judgment is reversed, and the cause is remanded to the trial court with directions to dismiss plaintiffs complaint in accordance with § 13-20-602(4). JONES, J., concurs. TAUBMAN, J., dissents.