Hooper v. Yampa Valley Medical Center

          ORDER ON MOTION TO DISMISS

          NINA Y. WANG J UNITED STATES MAGISTRATE JUDGE.

         This matter comes before the court on Defendants Yampa Valley Medical Center (“YVMC”) and Dr. Laila Powers's (“Dr. Powers”) (collectively, “Defendants”) Motion to Dismiss for Failure to File a Certificate of Review (“Motion to Dismiss” or “Motion”), filed November 29, 2018. See [#23]. The court considers the Motion pursuant to 28 U.S.C. § 636(c) and the Order of Reference for all purposes dated October 26, 2018, [#15]. The court concludes that oral argument would not materially assist in the resolution of this matter. Accordingly, upon review of the Motion, related briefing, the court's docket, and the applicable case law, the court GRANTS IN PART and DENIES IN PART the Motion to Dismiss for the reasons stated herein.

         BACKGROUND

         The court draws the following facts from the Complaint [#1], ^[1] the operative pleading in this matter, and presumes they are true for purposes of the instant motion. On or about February 8, 2016, Plaintiff Dennis Hooper (“Plaintiff” or “Mr. Hooper”), a citizen of Oregon, presented to the emergency room of YVMC in Steamboat Springs, Colorado, complaining of a “severely swollen upper right leg.” See [#1 at 5]. Mr. Hooper alleges that Dr. Powers was the attending emergency room physician, and that Dr. Powers “ordered blood tests and an ultrasound to determine the cause of the swelling, but no x-rays were done.” [Id.]. According to Mr. Hooper, Dr. Powers diagnosed the swelling as Deep Vein Thrombosis, and released Plaintiff that same day. See [id.].

         Several days later, Plaintiff returned home to Portland, Oregon. See [id.]. Because the swelling in Plaintiff's leg persisted, he sought additional medical treatment in the emergency room at the Portland, Oregon Veteran's Administration hospital. See [id.]. Physicians at the Veteran's Administration hospital took x-rays of Plaintiff's right leg and determined that Mr. Hooper's “right femur had a shear fracture above the knee.” [Id.]. Mr. Hooper underwent surgery for the installation of “a stabilization rod and hardware” on or about February 15, 2016. See [id.]. Mr. Hooper underwent two additional surgeries “to partially remove some of the hardware[, ]” and subsequent tests determined that there was no Deep Vein Thrombosis present. See [id.].

         Plaintiff then initiated the instant action by filing his pro se Complaint in this District pursuant to 28 U.S.C. § 1332 on July 23, 2018. See [#1]. The Complaint appears to assert one claim for medical malpractice against Defendants. See generally [id.]. The Honorable Gordon P. Gallagher granted Plaintiff leave to proceed in forma pauperis, see [#4], and had this matter drawn to the undersigned on August 27, 2018, see [#6].

         Following service by the United States Marshals Service, Defendants filed their Answer on October 1, 2018. See [#12]. The Parties then appeared before the court for a Status Conference, at which the court set a pre-trial discovery schedule, including a deadline of November 7, 2018 for Plaintiff to file a certificate of review applicable to his medical malpractice claim. See [#16]. On November 9, 2018, the Clerk of the Court docketed Plaintiff's Certificate of Review, signed and dated November 2, 2018, wherein Mr. Hooper certifies that he “consulted two orthopedic surgeons who have expertise in the relevant area of medicine pertaining to [his] complaint”; that the two orthopedic surgeons reviewed all materials relevant to Plaintiff's allegations of negligence; and that the two orthopedic surgeons “meet the requirements of C.R.S. § 13-20-602.” [#18].

         Defendants filed the instant Motion to Dismiss on November 29, 2018, arguing that the Certificate of Review fails to certify that Plaintiff consulted with experts qualified to opine on the applicable standard of care and that those experts concluded Mr. Hooper's claim “does not lack substantial justification.” See [#23]. Plaintiff has responded [#25] and Defendants replied [#26]; thus, the Motion is ripe for resolution.

         LEGAL STANDARD

         Pursuant to Colorado statute, a plaintiff in “every action for damages . . . based upon the alleged professional negligence of . . . a licensed professional” must file within 60 days of service of the complaint “a certificate of review for each . . . licensed professional named as a party . . . .” Colo. Rev. Stat. § 13-20-602. Relevant here, the certificate of review must contain a declaration that:

(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 . . . 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).

(c) In an action alleging professional negligence of a physician, the certificate of review shall declare that the person consulted meets the requirements of section 13-64-401 . . . .

Id. §§ 602(3)(a)(I)-(II), 602(3)(c); see also Id. § 13-64-401 (articulating the qualifications for expert witnesses in medical malpractice cases). This requirement applies to all plaintiffs, even those proceeding pro se. See Hill v. SmithKline Beecham Corp., 393 F.3d 1111, 1118 (10th Cir. 2004) (citing Yadon v. Southward, 64 P.3d 909, 912 (Colo.App. 2002)), if the claims of professional negligence “require the plaintiff to establish a prima facie case by means of expert testimony[, ]” Martinez v. Badis, 842 P.2d 245, 249 (Colo. 1992). Failure to file a certificate of review necessitates the dismissal of the claim. See Colo. Tr. ...