United States District Court, D. Colorado
KARL A. ROBINSON, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
OPINION AND ORDER ADOPTING RECOMMENDATION AND GRANTING MOTION TO DISMISS
MARCIA S. KRIEGER, Chief District Judge.
THIS MATTER comes before the Court on the Magistrate Judge's Recommendation (#26) to grant the Motion to Dismiss (#16) filed by the Government. The Plaintiff, Karl Robinson, filed an Objection (#27) to the Recommendation.
I. ISSUES PRESENTED
Mr. Robinson is a prisoner in the custody of the Federal Bureau of Prisons ("BOP") at the Federal Correctional Institution in Englewood, Colorado ("EFCI"). In his Complaint (#1), Mr. Robinson alleges that BOP medical staff were negligent in violation of the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-2680.
In its Motion to Dismiss (#16), the Government asserts that the Court does not have subject matter jurisdiction over Mr. Robinson's claims because the Complaint was not timely filed. Alternatively, the Government asserts that Mr. Robinson's claims should be dismissed because he failed to file a certificate of review pursuant to C.R.S. § 13-20-602(1)(a).
Mr. Robinson's pro se  Complaint (#1) alleges the following facts. In July 2008, while Mr. Robinson was in the custody of the BOP in Bennettsville, South Carolina, he was admitted to the hospital because of a severe allergic reaction. The hospital concluded that a severe allergic reaction "to either Bactrim or penicillin" caused injury to Mr. Robinson's liver. Mr. Robinson was not informed that he might possibly be allergic to Bactrim, but the hospital's report was placed in his BOP medical records. The BOP's electronic medical records for Mr. Robinson, however, were updated only with a notation that he had an allergy to penicillin, not Bactrim.
On August 22, 2011, Mr. Robinson came to the medical clinic at EFCI because of an infection. Although at first a nurse refused to see him because he did not have an appointment, he eventually met with a mid-level medical provider who prescribed antibiotics, including Bactrim.
Over the next several days, Mr. Robinson repeatedly came to the clinic reporting that he was "feeling awful." He presented the following specific symptoms during his various visits to the clinic: a temperature of 102.9, "blood-shot eyes, a swollen face, rashes on both arms, and  vomiting." Each time he was ordered to return to the housing unit.
On August 27, 2011, Mr. Robinson could no longer walk without assistance and "was in extreme pain." That night he was taken to a hospital in Englewood. The treating physician "diagnosed him with having a severe allergic reaction to the medication he was prescribed, " most likely Bactrim, which results in "acute liver injury."
On September 2, 2011, the hospital released Mr. Robinson. His physician ordered daily lab work for Mr. Robinson for the next three days and stated that he should see a doctor at EFCI within one day of his release from the hospital. The physician also prescribed eight medications.
Upon his arrival at EFCI, the medical staff did not follow the physician's recommendations. Mr. Robinson met with a mid-level medical provider who provided Mr. Robinson with two medications, which may or may not have been among those prescribed by the hospital physician. In addition, the medical staff did not perform any lab work on Mr. Robinson until September 8, 2011. Although the medical staff informed Mr. Robinson on September 14, 2011 that some of his lab results were ...