Frank "Kit" Hunter v. SCL Health-Front Range, Inc. ( 2022 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
April 14, 2022
2022COA41
No. 20CA1776, Hunter v. SCL Health — Professional Liability —
Medical Malpractice — Actions Against Licensed Professionals
and Acupuncturists — Certificate of Review
A division of the court of appeals clarifies the certificate of
review requirements of section 13-20-602, C.R.S. 2021, in view of
the supreme court’s opinion in Redden v. SCI Colorado Funeral
Services, Inc., 38 P.3d 75 (Colo. 2001). The division also resolves a
legal issue of continuing public interest, discussing some of the
factors appellate courts may consider in deciding whether to
exercise their discretion to affirm on an alternative basis supported
by the record.
COLORADO COURT OF APPEALS 2022COA41
Court of Appeals No. 20CA1776
Jefferson County District Court No. 18CV31984
Honorable Laura A. Tighe, Judge
Frank “Kit” Hunter and Joan Hunter,
Plaintiffs-Appellants,
v.
SCL Health-Front Range, Inc., f/k/a Exempla, Inc., d/b/a Exempla Lutheran
Medical Center, and Taylor Scism, R.N.,
Defendants-Appellees.
JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division VII
Opinion by JUDGE BERGER
Brown and Johnson, JJ., concur
Announced April 14, 2022
Fischer & Fischer, P.C., Ronnie Fischer, Jennifer K. Fischer, Lisa C. Secor,
Denver, Colorado, for Plaintiffs-Appellants
Hall & Evans, L.L.C., Chad K. Gillam, Jared R. Ellis, Andrew C. Nickel, Denver,
Colorado, for Defendant-Appellee SCL Health-Front Range, Inc.
Sharuzi Law Group, Ltd., Jacqueline Sharuzi-Brown, Denver, Colorado, for
Defendant-Appellee Taylor Scism, R.N.
¶1 In this medical malpractice action, plaintiffs, Frank “Kit”
Hunter and Joan Hunter (collectively, plaintiffs), appeal the district
court’s judgment dismissing their case against Taylor Scism, R.N.,
and SCL Health-Front Range, Inc., f/k/a Exempla, Inc., d/b/a
Exempla Lutheran Medical Center (the hospital). Because the
district court misapplied the law pertaining to certificates of review,
we reverse.
Relevant Facts and Procedural History
¶2 Plaintiffs sued multiple parties — the hospital, a physician
group, Scism, four other nurses, and three doctors — alleging that
Mr. Hunter was injured by the negligent insertion of a catheter.
Sixty days after serving the complaint on the hospital, plaintiffs
filed a certificate of review and motion for extension of time to
submit a “final” certificate of review. The district court granted the
motion and extended the deadline to file a certificate of review to
April 8, 2019. Plaintiffs filed a certificate of review on April 8, 2019,
(addressing the claims against certain defendants), which all parties
agree was timely as to the hospital and Scism. The certificate of
review stated that plaintiffs had consulted a licensed physician.
1
¶3 Scism moved to dismiss under section 13-20-602(4), C.R.S.
2021, contending that plaintiffs failed to file a sufficient certificate
of review.1 More than ten months later, apparently after the parties
had disclosed at least some of their trial experts, the district court
granted Scism’s motion to dismiss. The district court concluded
that the certificate of review was insufficient because the consulting
expert was not a nurse and because the certificate of review did not
state that the consulting physician had a “firm grasp” on the
nursing standard of care.
¶4 The hospital then moved to dismiss under section
13-20-602(4), contending that plaintiffs failed to file a sufficient
certificate of review as to it. The district court granted the motion
“because Plaintiffs’ claims against [the hospital] are all based on the
nursing care provided and because the Court determined that the
Certificates of Review were insufficient as to the nursing care
1 Scism moved to dismiss prior to the deadline for submission of a
certificate of review as to him. Three of the defendant-nurses joined
Scism’s motion to dismiss. Before the district court ruled on
Scism’s motion, the parties stipulated to the dismissal of the
physician group, all three doctors, and two nurses, including one of
the nurses who joined Scism’s motion. Plaintiffs do not appeal the
judgment as to the two other nurses who joined Scism’s motion to
dismiss.
2
provided, the Certificates of Review are similarly not sufficient as to
[the hospital].”
¶5 Having dismissed all remaining defendants who had not been
dismissed by stipulation, the district court entered final judgment
against plaintiffs. Plaintiffs appeal the district court’s judgment as
to Scism and the hospital.
Applicable Law and Standard of Review
¶6 In every action for damages or indemnity based on the alleged
professional negligence of a licensed professional, the plaintiff’s
attorney must file with the court “a certificate of review for each . . .
licensed professional named as a party.” § 13-20-602(1)(a). The
certificate of review must be filed “within sixty days after the service
of the complaint . . . unless the court determines that a longer
period is necessary for good cause shown.” § 13-20-602(1)(a). “The
purpose of the certificate of review requirement is to demonstrate
that the plaintiff has consulted with a person who has expertise in
the area and that the expert consulted has concluded that the claim
does not lack substantial justification.” Baumgarten v. Coppage, 15
P.3d 304, 306 (Colo. App. 2000).
3
¶7 To satisfy the requirements of section 13-20-602(3)(a), the
certificate of review must include the following declarations:
(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).2
¶8 In an action against a licensed professional other than a
physician, such as a nurse, the certificate of review must declare
“that the person consulted can demonstrate by competent evidence
that, as a result of training, education, knowledge, and experience,
the consultant is competent to express an opinion as to the
negligent conduct alleged.” § 13-20-602(3)(c).3
2 The certificate of review statute does not require a plaintiff to
submit evidence to support these declarations, but the declarations
are subject to the attorney’s duties under C.R.C.P. 11(a).
3 As noted, when the district court ruled on Scism’s and the
hospital’s motions to dismiss, no physician defendants remained.
4
¶9 Whether a certificate of review meets the requirements of
section 13-20-602 is a matter of trial court discretion. Redden v.
SCI Colo. Funeral Servs., Inc., 38 P.3d 75, 83 (Colo. 2001). A court
abuses its discretion if its decision is manifestly arbitrary,
unreasonable, or unfair, or if it misapplies the law. Wesley v.
Newland, 2021 COA 142, ¶ 11.
Analysis
¶ 10 The April 8, 2019, certificate of review stated that plaintiffs’
attorney had “consulted a person who has expertise in the area of
the alleged negligent conduct,” satisfying section 13-20-602(3)(a)(I).
¶ 11 The certificate of review further stated that the “person[] who
was consulted has reviewed the facts in the case, and based on the
review of such facts, the person who was consulted has concluded
that the filing of the medical malpractice claim does not lack
substantial justification.” This declaration satisfies section
13-20-602(3)(a)(II).
¶ 12 Regarding the requirement that the person consulted can
demonstrate by competent evidence that, as a result of training,
education, knowledge, and experience, the consultant is competent
5
to express an opinion as to the negligent conduct alleged, the
certificate of review further stated that
[t]he person who was consulted is a licensed
physician who is substantially familiar with
the applicable standards of care and practice
as they relate to the act or omission
constituting the alleged medical malpractice as
of the date of the malpractice, and the person
consulted can demonstrate by competent
evidence that, as a result of training,
education, knowledge, and experience, the
consultant is competent to express an opinion
as to the negligent conduct alleged.
The person consulted has sufficient expertise
in the area of inserting catheters, and in
teaching others to insert catheters; the
common problems seen by actions and
omissions of nurses and supervising
physicians who have not had specialized
training in the subject; the necessary protocols
to be used when an initial insertion is not
successful, avoiding multiple tries; and calling
in a specialist sooner than later when
problems arise and/or are indicated; the
indications and symptoms that the patient
presented with, and how those show a problem
related to cancer treatment or otherwise,
which should alert the medical care providers
at all levels that a collaboration is required to
assess the patient’s condition and ensure that
he received appropriate care, and that a
specialist was sufficiently notified that there
was a problem before it became an emergency;
and, that the facts of this case show that the
patient was harmed by the Defendants’ actions
and omissions below the standard of care
6
under the circumstances, each contributing to
the resulting harm.
¶ 13 In granting Scism’s motion to dismiss, the district court relied
on Redden. The certificate of review in Redden “was a mere
one-paragraph statement that precisely mirrored section 13-20-
602(3)(a)(I)-(II), [C.R.S. 2021]. It failed to declare the competency of
the expert consulted, as required by paragraph 602(3)(c).” 38 P.3d
at 82. As explicitly authorized by section 13-20-602(3)(b), the trial
court in Redden exercised its discretion to verify the content of the
certificate of review. Id.
¶ 14 The supreme court held that the trial court erred by finding
the certificate of review insufficient because the consulted experts
were not of the same profession or specialty as the defendant
licensed professional. Id. at 82-83. “Nowhere does the statute
require the consulted expert to be of precisely the same profession
or specialty as the licensed professional against whom the charge is
leveled.” Id. at 82. The supreme court also explained that the
statutory language
“competent to express an opinion as to the
negligent conduct alleged[]” precludes the use
of an expert with only general knowledge in the
field; rather, a proper expert has a firm grasp
7
on the appropriate standards, techniques and
practices within the profession or specialty
about which he or she is opining.
Id. (emphasis added).
¶ 15 Based on this language from Redden, the district court held
the certificate of review insufficient because it did “not state that
Plaintiff consulted a registered nurse, nor . . . that the consulting
physician has a firm grasp on the appropriate standard of care for
nurses, as it relates to the techniques and procedures involved in
inserting urological devices like catheters.”
¶ 16 True, the certificate of review does not expressly state that
plaintiffs’ attorney consulted a nurse or that the consulted expert
had a “firm grasp” on the appropriate standard of care for nurses.
But Redden held that the certificate of review statute does not
require the consulted expert to be of precisely the same profession
or specialty as the defendant licensed professional. Id. Moreover,
Redden does not require a certificate of review to state that the
consulting expert has a “firm grasp” on the appropriate standards.
Id. Indeed, the district court’s reading of Redden as imposing a
requirement to state that the expert is either a nurse or has a firm
8
grasp on the applicable standards essentially rewrites section 13-
20-602 by including additional requirements.
¶ 17 The certificate of review requirement and the procedures
governing certificates of review are entirely statutory. A court’s
proper function is to apply statutes as written. People v. Weeks,
2021 CO 75, ¶¶ 25-27 (“When the language of a statute is clear and
unambiguous, we give effect to its plain and ordinary meaning ‘and
look no further.’” (quoting Cowen v. People, 2018 CO 40, ¶ 12)).
Neither party asserts that section 13-20-602 is ambiguous, and we
agree.
¶ 18 In recent years, Colorado courts have emphasized that the
judiciary may not rewrite a statute to reach a “better” result. See
Weeks, ¶ 45 (applying the criminal restitution statute as written
and refusing to construe it to avoid restitution forfeitures); Prairie
Mountain Publ’g Co., LLP v. Regents of Univ. of Colo., 2021 COA 26,
¶ 17 (applying the words of the statute as written and declining to
interpret the statute in a manner more protective of principles of
open government).
¶ 19 Viewed in this light, we do not read the supreme court’s
opinion in Redden as imposing on a party filing a certificate of
9
review any obligations in addition to those prescribed in section
13-20-602.
¶ 20 Indeed, the facts in Redden are distinguishable from those in
this case for two reasons: (1) plaintiffs’ certificate of review declared
the competency of the expert as required by section 13-20-602(3)(c);
and (2) the district court did not exercise its discretion to require
additional information from plaintiffs under section 13-20-
602(3)(b).4 Under these circumstances, plaintiffs cannot be faulted
for failing to further describe the expert’s qualifications. See RMB
Servs., Inc. v. Truhlar, 151 P.3d 673, 675 (Colo. App. 2006).
¶ 21 The district court misapplied the law by imposing on plaintiffs
obligations in addition to those prescribed in section 13-20-602.
Accordingly, the court abused its discretion, and the judgment
must be reversed.
4 Plaintiffs argue that, even if the April 8, 2019, certificate of review
is insufficient, other documents satisfy the statutory requirements.
In light of our conclusion that the April 8, 2019, certificate of review
is sufficient under section 13-20-602, C.R.S. 2021, we do not
decide whether the district court could have or should have
considered any of the other documents before dismissing the case.
10
We Decline to Exercise Our Discretion to Affirm on an
Alternative Basis
¶ 22 Scism and the hospital alternatively argue that we should
affirm the judgment because plaintiffs failed to file “a certificate of
review for each . . . licensed professional named as a party.” § 13-
20-602(1)(a), (b) (emphasis added).
¶ 23 Scism quoted section 13-20-602(1)(a) in his motion to dismiss,
but neither he nor the hospital argued that the district court should
dismiss plaintiffs’ claims because plaintiffs failed to file a certificate
of review for each licensed professional named as a party.5
¶ 24 Nevertheless, Scism and the hospital urge us to affirm the
district court’s judgment on the alternative basis that “[a] trial
court’s decision may be defended on the trial court’s express
rationale, or on any ground supported by the record, even if that
5 At oral argument, Scism and the hospital argued that plaintiffs
were on notice of the statutory requirement to file a certificate of
review for each licensed professional because a different defendant
raised this argument in the district court. Nevertheless, Scism and
the hospital did not seek dismissal on this basis. And the district
court did not rely on this basis in granting the hospital’s and
Scism’s motions to dismiss.
11
ground was not articulated or considered by the trial court.”6
People v. Cousins, 181 P.3d 365, 370 (Colo. App. 2007). “[W]e may
affirm the trial court’s ruling based on any grounds that are
supported by the record.” Rush Creek Sols., Inc. v. Ute Mountain Ute
Tribe, 107 P.3d 402, 406 (Colo. App. 2004) (emphasis added). But,
for three reasons, we decline to exercise our discretion to do so.
¶ 25 First, we begin by recognizing the “general rule favoring
resolution of disputes on their merits.” Truhlar, 151 P.3d at 676;
accord Craig v. Rider, 651 P.2d 397, 402-03 (Colo. 1982).
¶ 26 Second, while this lawsuit initially included ten different
defendants, only two are parties to this appeal — Scism and his
employer, the hospital. In Truhlar, the plaintiffs filed a single
certificate of review that purported to apply to both defendants — a
lawyer and his law firm. 151 P.3d at 676. The division concluded
6 Declining to consider other documents filed by plaintiffs to
determine whether the certificate of review was sufficient as to the
hospital, the district court said, “Plain and simple, a timely
Certificate of Review for each named party that is licensed is
required by statute, and, thus, expert disclosures cannot act as
substitute for a Certificate of Review.” We do not read the district
court’s order to mean that the lack of a separate certificate of review
specific to the hospital was an alternative basis to grant the
hospital’s motion to dismiss.
12
that the single certificate satisfied the requirements of section
13-20-602 “[b]ecause plaintiffs’ claims against the law firm
depend[ed] entirely on the alleged negligence of the individual
lawyer, and because an expert qualified to evaluate the claims
against one defendant would also be qualified to evaluate the claims
against the other . . . .” Id.¶ 27 Similarly, here, plaintiffs’ claims against the hospital depend
almost entirely on the alleged negligence of Scism (as the district
court recognized in its order granting the hospital’s motion to
dismiss). As in Truhlar, an expert qualified to evaluate the claims
against the nurse arguably would be qualified to evaluate the
claims against the hospital.
¶ 28 Third, by the time the court ruled on the dismissal motions,
the defendants had all of the information required by the certificate
of review statute (and probably a lot more).
¶ 29 The supreme court in Shelton v. Penrose/St. Francis
Healthcare System, disapproved the trial court’s “acceptance” of
expert reports in lieu of a certificate of review but declined to
reverse on that basis. 984 P.2d 623, 629 (Colo. 1999). The court
first explained that the purpose of the certificate of review statute is
13
to aid “in avoiding unnecessary time and costs in defending
professional negligence claims, weeding out frivolous claims and
putting a defendant on notice of the development of the theory of
the case.” Id. at 628 (citing Martinez v. Badis, 842 P.2d 245, 250
(Colo. 1992)). Then the court reasoned that the expert reports
contained all the information to which the defendant was entitled
under the certificate of review statute and that “[i]f the trial court
had properly required the late filing of a certificate, no additional
information would have been provided to [the defendant], due to the
timing of such a late filing relative to the progress of the case.” Id.¶ 30 We decline to exercise our discretion to affirm the judgment on
a ground not relied on by the district court because, as in Shelton,
the April 8, 2019, certificate of review gave Scism and the hospital
all the information to which they were entitled under the certificate
of review statute. Moreover, the district court did not grant Scism’s
or the hospital’s motions to dismiss until the case was set for trial
and the plaintiffs had filed at least some expert disclosures, which
arguably met even the district court’s erroneously imposed
additions to section 13-20-602.
14
Disposition
¶ 31 The judgment of dismissal in favor of Scism and the hospital is
reversed, and the case is remanded for further proceedings
consistent with this opinion.
JUDGE BROWN and JUDGE JOHNSON concur.
15