Free Reply to Response to Motion - District Court of Colorado - Colorado

Case 1:03-cv-02319-WDM-MJW

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Filed 07/27/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 03-cv-02319-WDM-MJW OLOYEA D. WALLIN, Plaintiff, vs. CMI, CHARLES ABBOTT, KIM DEMPEWOLF, RYAN BRADLEY, MARYE DEMING, MONIQUE M. MARTEL, SANDRA CANNON-GRANT, AND JASON COLLIDGE Defendants.

DEFENDANT MARTEL'S REPLY IN SUPPORT OF MOTION TO DISMISS FOR FAILURE TO FILE CERTIFICATE OF REVIEW ______________________________________________________________________________ Defendant, MONIQUE M. MARTEL, by her attorneys, JENNIFER M. PALMER and BILLY-GEORGE HERTZKE of the firm SENTER GOLDFARB & RICE, L.L.C., submits this Reply in Support of Motion to Dismiss for Failure to File Certificate of Review. REPLY ARGUMENT Plaintiff has asserted medical malpractice as his only claim for relief against Defendant Monique Martel. See Amended Prisoner Complaint at p. 8, ¶ 7. Specifically, Plaintiff claims Ms. Martel, a licensed nurse practitioner with prescriptive authority, fell below the applicable standard of care by prescribing Antabuse to Mr. Wallin. Id. In order for Plaintiff to establish a

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prima facie case of malpractice, it is incumbent upon him to prove by expert testimony that Ms. Martel, by some act or omission, departed from the standard of care required of her as a licensed nurse practitioner. Caro v. Bumpus, 491 P.2d 606, 606 (Colo. App. 1971); see, also, Anstine v. Alexander, 128 P.3d 249, 259 (Colo. App. 2005)(expert testimony generally required to establish prima facia case for legal malpractice). Plaintiff argues that no certificate of review is required because violation of the standard of care is "obvious." Plaintiff's Response, p. 2. As stated in the case Plaintiff cites, Baumgarten v. Coppage, 15 P.3d 304, 307 (Colo. App. 2000), expert testimony is required when the subject matter is not within common knowledge. The portion of Baumgarten on which Plaintiff relies is not applicable here. Baumgarten held that those claims based solely on Defendant's actual knowledge did not require expert testimony. Id. At the same time, Baumgarten held that those claims based on violation of other standards did require expert testimony. Here, whether a particular prescription is appropriate for a particular patient is a classic question requiring medical expertise. Colo. Rev. Stat. § 13-20-602(1) requires a plaintiff to file a certificate of review within sixty days of the service of the complaint for any claim based on allegations of professional negligence that requires expert testimony to establish a prima facie case. Martinez v. Badis, 842 P.2d 245, 250 (Colo. 1992). Failure to file a certificate of review, when one is required, "must result in the dismissal" of the claims against a licensed professional. Baumgarten, 15 P.3d at 306. There is no question that Plaintiff has not filed a certificate of review. Under the holdings of Caro and Anstine, Plaintiff was required to file a certificate of review within 60 days of service of the Amended Prisoner Complaint because his prima facia case against Ms. Martel for

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medical malpractice can only be made through expert testimony concerning the standard of care. Because Plaintiff failed to comply with the mandatory requirements of the statute, the Court must dismiss his claim against Mr. Martel. The statute provides Ms. Martel with the option of making a demand for compliance or filing a motion seeking dismissal of the complaint. See C.R.S. 13-20-602(4); Miller v. Rowtech, LLC, 3 P.3d 492, 494 (Colo. App. 2000). Plaintiff incorrectly argues that Ms. Martel must first demand compliance before seeking dismissal. See Response at p. 2. The plain language of the statute and the many cases that have interpreted § 602 undeniably support the position that a defendant has the option to either demand compliance or seek dismissal. In other words, a demand is not a prerequisite to filing a motion to dismiss based on the failure to file a certificate of review. Even assuming for the moment that Plaintiff is correct and a demand should have first been made before filing a motion to dismiss, Plaintiff's argument fails. The statute does not specify how the demand should be made. Arguably, Defendant Martel made a demand for compliance in her Answer to Plaintiff's Amended Prisoner Complaint. On March 22, 2006, Ms. Martel affirmatively pled failure to file a certificate review as a defense. See Defendant Martel's Answer [#249] at p. 3, ¶ 8. In addition, on May 8, 2006, Defendant Martel asked Plaintiff to "identify the name, address, and telephone number of any person(s) you have consulted for the purpose of complying with C.R.S. § 13-20-602." [See Exhibit B, Defendant Martel's Written Discovery to Plaintiff, at p. 8, ¶ 22]. Ms. Martel has, in a sense, been making demands for a certificate of review since becoming a party to this action.

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Moreover, the purpose behind a demand would be to give Plaintiff notice that the defense believed a certificate of review was required in a particular case. In addition to the above described notices from Ms. Martel, Co-Defendants filed a Motion for Summary Judgment on March 1, 2006 based, in part, on the failure to file a certificate of review. Plaintiff has been on notice for nearly five months that a certificate of review is needed. This matter has been pending for almost three years. Plaintiff has had ample opportunity to secure a certificate of review. It is apparent that Plaintiff will not file a certificate of review or endorse any experts. In fact, the deadline for both parties to endorse experts was June 30, 2006. 1 Plaintiff did not endorse any experts before the deadline passed. Based on Plaintiff's complete failure to file a certificate of review, the Court must dismiss Plaintiff's claim against Ms. Martel. WHEREFORE, Defendant Monique Martel respectfully requests that the Court dismiss her from this action pursuant to C.R.S. § 13-20-602. Respectfully submitted,

By s/ Jennifer M. Palmer Jennifer M. Palmer By s/ Billy-George Hertzke Billy-George Hertzke SENTER GOLDFARB & RICE, L.L.C. 1700 Broadway, Suite 1700 Denver, Colorado 80290 Telephone: (303) 320-0509 Facsimile: (303) 320-0210 E-mail: [email protected] [email protected] Attorneys for Defendant Martel

Plaintiff has filed a motion for extension of time to file a certificate of review, which Ms. Martel opposes. Plaintiff stated in his motion that he planned to petition for funding for an expert. No such petition has been received.

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 27th day of July, 2006, I electronically filed a true and exact copy of the above and foregoing DEFENDANT MARTEL'S REPLY IN SUPPORT OF MOTION TO DISMISS FOR FAILURE TO FILE CERTIFICATE OF REVIEW with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following email addresses: Steven J. Wienczkowski ­ [email protected] Daniel M. Hubbard ­ [email protected] Scott S. Nixon ­ [email protected] PRYOR JOHNSON CARNEY KARR & NIXON, P.C. Attorneys for Defendants CMI, Abbott, Dempewolf, Bradley, Deming, Coolidge, and CannonGrant Via U.S. Mail Oloyea D. Wallin AVCF, Prisoner #111389 P.O. Box 1000 Crowley, CO 81034 Plaintiff, Pro Se

/s Billy-George Hertzke

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