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
2
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.
4
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.
5
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
6
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.
