United States District Court, D. Colorado
ORDER ON MOTION TO DISMISS
Y. WANG J UNITED STATES MAGISTRATE JUDGE.
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
court draws the following facts from the Complaint [#1],
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
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
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,
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].
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.
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
(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
(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. ...