United States District Court, D. Colorado
ORDER DENYING DEFENDANTS’ MOTIONS TO DISMISS
RAYMOND P. MOORE UNITED STATES DISTRICT JUDGE
This matter is before the court on the defendants’ separate Motions to Dismiss plaintiffs’ Complaint (ECF No. 1), pursuant to Fed R.Civ.P. 12(b)(1). (ECF No. 22; 33). Defendants Jeffrey Womble M.D. (Dr. Womble) and The Memorial Hospital of Craig Foundation, Inc., (Memorial Hospital), each move to dismiss, arguing that plaintiffs (the Adams) failed to comply with the notice provisions of the Colorado Governmental Immunity Act (CGIA), C.R.S. § 24-10-109(3). Id.
The Adams’ Complaint alleges: (1) that Dr. Womble, an employee of Memorial Hospital, in negligently performing Julie Adams’ laparoscopic sigmoid resection surgery, failing to recognize or reasonably respond to injuries that surgery caused and failing to provide reasonable medical care and treatment, caused damages to both plaintiffs and (2) that Memorial Hospital in negligently failing to properly evaluate and treat Julie Adams; in failing to appropriately monitor her medical condition and failing to properly and accurately report her medical condition to Dr. Womble, fell below the applicable standard of care and caused damages to both plaintiffs. (ECF No.1).
11. LEGAL STANDARD
A. Motion to Dismiss under Fed.R.Civ.P. 12(b)(1):
Motions to dismiss are, as a general rule, either facial or factual attacks. Holt v. United States, 46 F.3d 1000, 1002-03 (10th Cir. 1995). A facial attack challenging the sufficiency of the complaint requires the court to accept the allegations of the complaint as true and assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted. Yoder v. Honeywell, Inc., 104 F.3d 1215, 1224 (10th Cir. 1997)(internal citations omitted), cert. denied, 522 U.S. 812, (1997). In a factual attack such as the timeliness of the CGIA notice in this case, the moving party goes beyond the complaint to challenge the facts upon which subject matter jurisdiction is based. Holt 46 F.3d at 1002. Under a factual attack the court must look beyond the complaint and has wide discretion to allow affidavits, other documents and even testimonial evidence to resolve the disputed jurisdictional facts without the motion being converted into a Fed.R.Civ.P. 56 motion for summary judgment. Id.; Wheeler v. Hurdman, 825 F.2d 257, 259 n.5 (10th Cir. 1987) cert denied 484 U.S. 986 (1987).
B. Colorado Governmental Immunity Act:
Notice provisions of the CGIA apply when federal courts hear Colorado tort claims under supplemental jurisdiction. Aspen Orthopaedics & Sports Medicine v. Aspen Valley Hospital District, 353 F.3d 832, 838-39 (10th Cir. 2003). The CGIA raises a jurisdictional bar if notice is not given within the applicable time period. C.R.S. §24-10-109. Thus at the time relevant to the instant action, a person claiming an injury by a public entity was required to mail written notice to the governmental entity within 180 days after the discovery of the injury, regardless of whether the person knew all of the elements of the claim. Id. Colorado courts have consistently held that complying with the notice of claim is a jurisdictional prerequisite to suit and is not subject to equitable defenses such as waiver, tolling or estoppel. Aspen Ortho, 353 F.3d at 839-40 (citing Gallagher v. Board of Trustees for U of N Colo., 54 P.2d 386, 391 (Colo 2002)).
The following undisputed facts gleaned from the parties’ pleadings, address the relevant facts pertaining to the disputed CGIA notice rather than the underlying facts of the case.
It is undisputed that:
(1) Memorial Hospital is a government entity in that it is owned and operated by Moffat County;
(2) this case involves allegations of medical negligence by both Dr. Womble and Memorial Hospital which occurred ...