Free Motion to Dismiss - District Court of Colorado - Colorado

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

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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 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., pursuant to Fed.R.Civ.P. 56 and C.R.S. § 13-20-602, submits her Motion to Dismiss for Failure to File Certificate of Review as follows: I. INTRODUCTION In this action, Plaintiff Oloyea Wallin alleges that Defendant Monique Martel committed medical malpractice which caused him damages. Specifically, Plaintiff claims Ms. Martel

prescribed the prescription medication Antabuse to him even though there was no medical reason

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for Plaintiff to take the drug. Plaintiff's medical malpractice claim is the only cause of action alleged against Ms. Martel. See Amended Prisoner Complaint, p.8, ¶ 7. Colorado Revised Statute § 13-20-602(1)(a) requires a plaintiff such as Mr. Wallin to file a Certificate of Review in every action based upon the alleged professional negligence of a licensed professional. The Certificate of Review must be filed within sixty (60) days of serving the Complaint. Failure to file the Certificate of Review within the 60 days requires the dismissal of the Complaint. C.R.S. §§ 13-20-602(1)(a) & (4) (2005). Plaintiff failed to file a Certificate of Review within the requisite sixty-day period. The Court must, therefore, dismiss Defendant Martel from this action. IV. ARGUMENT A Certificate of Review is required for any claim based on allegations of professional negligence that requires expert testimony to establish a prima facie case. Shelton v. Penrose/St. Francis Healthcare System, 984 P.2d 623, 626 (Colo. 1999). If the Plaintiff does not file a Certificate of Review, the Defendant has the option of moving the Court to dismiss the case. Id. at 626. The Certificate of Review statute applies to all claims against licensed professionals where expert testimony is required to establish the scope of the professional's duty or the failure of the professional to reasonably conduct herself in compliance with the responsibilities inherent in the assumption of the duty. Martinez v. Badis, 842 P.2d 245, 252 (Colo. 1992). The filing requirements of the statute are applicable to "every action for damages or indemnity based upon the professional negligence of a licensed professional." Id. at 251. To fulfill the requirements of C.R.S. § 13-20-602 (2001), Plaintiff must declare: (1) that he has consulted an expert; (2) that the expert both reviewed the relevant information and

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concluded that the claim does not lack substantial justification as defined elsewhere; and (3) that the person consulted is competent and qualified to opine as to the negligent conduct alleged. Redden v. Sci Colo. Funeral Servs., 38 P.3d 75, 82 (Colo. 2001). Plaintiff has not submitted a certificate of review certifying that he has consulted with an expert who determined that the Amended Prisoner Complaint does not lack substantial justification. Further, no certificate has been filed stating that the person consulted, if any, can demonstrate by competent evidence that, as a result of training, education, knowledge, and experience, the consultant is competent to express an opinion as to the negligent conduct alleged. Id.; C.R.S. § 13-20-206(3)(c). In actions where the subject matter of the professional's alleged negligence is beyond the realm of lay knowledge and experience, expert testimony is necessary to establish both the standard of care and the breach of that standard of care. See Kelton v. Ramsey, 961 P.2d 569, 571 (Colo. App. 1998)(except in the clearest cases, expert testimony is necessary to establish standards of acceptable professional conduct in legal malpractice cases); Tracz v. Charter Centennial Peaks Behavioral Health Systems, Inc., 9 P.3d 1168 (Colo. App. 2000)(expert testimony is necessary in most medical malpractice cases). It is well settled that, except in exceptional cases, expert testimony is necessary to establish "the standards of acceptable professional conduct . . . ." See Boigegrain v. Gilbert, 784 P.2d 849, 849 (Colo. App. 1989); see also Martinez, 842 P.2d at 250 (stating that a Certificate of Review is required "for any claim based on allegations of professional negligence"). Plaintiff's claim against Ms. Martel calls into question the acceptable standard of care of a licensed nurse practitioner. Plaintiff claims that Ms. Martel improperly prescribed medication and thereby violated the medical standard of care for nurse practitioners. This standard of care is

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beyond the realm of lay knowledge and experience and will require the testimony of an expert. Therefore, Plaintiff was required to comply with the provisions of C.R.S. § 13-20-602, which required the filing of a Certificate of Review within sixty days of service of the Complaint. Plaintiff failed to do to this. Plaintiff's Amended Prisoner Complaint was filed on January 5, 2005. [#225]. Defendant Martel accepted service of the Amended Prisoner Complaint on March 2, 2006. [#242]. Plaintiff was therefore required to file the Certificate of Review on or before May 1, 2006. Plaintiff did not meet this filing deadline. As such, pursuant to C.R.S. § 13-20-602(4), Plaintiff's failure to timely file a Certificate of Review "shall result in the dismissal of the complaint." See C.R.S. § 13-20-602(4). Plaintiff has had ample opportunity to file a Certificate of Review. Even as a pro se litigant, Plaintiff is charged with knowing the law. Moreover, Plaintiff has had notice of the requirement through documents filed in this case. Defendant Martel raised Plaintiff's failure to file a Certificate of Review as an affirmative defense in her Answer, which was filed on March 22, 2006. [#249, p. 2, ¶ 8]. In addition, Defendant Martel served requests for admissions to Plaintiff on May 8, 2006. In Request for Admission No. 12, Plaintiff was asked to admit that he did not file a certificate of review. [See Exhibit A-1, p. 12, ¶ 12 ]. Plaintiff failed to respond to Defendant Martel's written discovery within the time allowed by the Federal Rules of Civil Procedure. Furthermore, on March 1, 2006, co-Defendants filed a Motion for Summary

Judgment and supporting brief based, in part, on Plaintiff's failure to file a Certificate of Review. [#238 & 239, p. 17]. The Court should dismiss Plaintiff's claim against Ms. Martel since Plaintiff has not complied with Colorado statute.

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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

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 16th day of June, 2006, I electronically filed a true and exact copy of the above and foregoing DEFENDANT MARTEL'S 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 Rita Sinks

00223876

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