Colorado's Certificate of Review Statute: Considerations in Professional Negligence Cases

• Jurisdiction: Colorado,United States
• Citation: Vol. 33 No. 2 Pg. 11
• Pages: 11
• Publication year: 2004

33 Colo.Law. 11 Colorado Lawyer 2004.

2004, February, Pg. 11. Colorado's Certificate of Review Statute: Considerations in Professional Negligence Cases

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Vol. 33, No. 2, Pg. 11

The Colorado Lawyer
February 2004
Vol. 33, No. 2 [Page 11]

Features

Colorado's Certificate of Review Statute: Considerations in Professional Negligence Cases
by James W. Owens, Jr., Serge L. Herscovici, Troy R. Rackham

James W. Owens, Jr., Serge L. Herscovici Troy R. Rackham

This month's article was written by James W. Owens, Jr Denver, formerly with The Herscovici Law Firm, P.C., and currently with Silver & DeBoskey, A Professional Corporation - (303) 399-3000, owensj@s-d.com; Serge L Herscovici, Denver, The Herscovici Law Firm, P.C. - (303) 662-9930, serge@denverlawyer.org; and Troy R. Rackham Denver, an associate with McConnell Siderius Fleischner Houghtaling & Craigmile, LLC - (303) 480-0400, trackham@msfhc.com.

CRS § 13-20-602 requires that a certificate of review be filed in certain actions based on the alleged negligence of a licensed professional. This article discusses relevant considerations when doubt exists about whether a certificate of review is required.

CRS § 13-20-602 (also referred to as the "statute") broadly requires that a certificate of review be filed in all actions that are based on the alleged negligence of a licensed professional. The certificate must demonstrate that: (1) the claimant has consulted a person who has expertise in the area of the alleged negligent conduct; and (2) the expert has concluded that the claim does not lack substantial justification.1 Compliance with the statute is simple and fairly perfunctory. However, noncompliance can have severe consequences, because the statute mandates dismissal of the party's complaint in the event of noncompliance.

Pursuant to CRS § 13-20-601, the filing of a certificate of review is required only when expert testimony becomes necessary to establish a prima facie case against the professional. As articulated recently by the Colorado Court of Appeals, the purpose of the certificate is to

prevent the filing of frivolous professional malpractice actions, to avoid unnecessary time and costs in defending professional negligence claims, and to reduce the resulting costs to society through increased insurance premiums attributable to the expenses associated with such claims.2

This article discusses the interaction of the statute with rules of law governing presentation of expert testimony, which will help determine whether certain claims require a certificate of review. The article examines against whom a certificate of review must be filed. Specifically, although the statute requires a party to file a certificate of review for a claim against a "licensed professional,"3 it does not define that term. This article explores possible interpretations of who is and who is not a licensed professional.

Additionally, this article addresses the risks and potential consequences of either filing or failing to file a certificate of review. Finally, the article explores malpractice risks presented by the statute and examines ways both plaintiff and defense attorneys can avoid potential malpractice claims and other risks attendant with the statute.

OVERVIEW OF
CRS § 13-20-602

CRS § 13-20-602 requires that a certificate of review be filed within sixty days of service of any complaint, counterclaim, or cross claim that is based on the alleged negligence of a licensed professional or state-regulated acupuncturist.4 This article collectively refers to these individuals as "licensed professionals."

The certificate of review must be executed by the attorney for the plaintiff or complainant. It must declare that: (1) the attorney has consulted with a professional who has expertise in the area of the alleged negligent conduct; and (2) the professional has reviewed the relevant information and documents and concluded that the claim does not lack substantial justification within the meaning of CRS § 13-17-102(4).5 That section defines a lack of substantial justification as "substantially frivolous, substantially groundless, or substantially vexatious."6

The cases that have construed the certificate of review statute make it clear that the statute applies even to a claim that has not been formally denominated as a "professional negligence claim." Instead, the statute applies broadly to any claim against a licensed professional that requires expert testimony to establish a prima facie case, regardless of the formal designation of such a claim.7 Thus, Colorado courts have held that a certificate of review is required for actions against licensed professionals involving claims based on:

Ineffective assistance of counsel8

The Colorado Consumer Protection Act9

Representation of a client in a transaction with a former client10

Alleged breach of a confidential or fiduciary relationship11 or a breach of fiduciary duty12

Fraud,13 fraudulent misrepresentation,14 or fraudulent concealment15

Defamation16

Incomplete disclosure or misassessment of a risk by a physician17

Breach of contract.18

A recent amendment to the statute clarifies that even if the individual licensed professional is not named as a party to the action, a certificate must be filed if the action is based on his or her alleged negligence.19 The most obvious application of the amendment is to vicarious liability claims against employers of licensed professionals.20 In addition, the amendment probably applies to direct claims against a partner in a general partnership seeking to impose joint and several liability on a partner for the wrongful acts of another partner.21

The statute states, "[T]he plaintiff's or complainant's attorney shall file with the court a certificate of review."22 (Emphasis added.) Accordingly, some pro se parties have argued that the statute does not apply to them. However, cases that have addressed this issue have held that the requirements of the statute apply to pro se parties.23 Similarly, cases filed in small claims or county court also must include certificates of review when expert testimony is necessary to present a prima facie case of professional negligence.24

Claims Against Nonparty Licensed Health Care
Professionals

The certificate of review requirement also applies when a defendant in a professional negligence case alleges that a professional nonparty, who is a licensed health care professional, is at fault pursuant to CRS § 13-21-111.5.25 In this context, it is not enough that the professional who is consulted for the certificate of review states that the nonparty may have had a causal relationship to the injury. The reviewing professional also must conclude that the nonparty was at fault. In other words, the nonparty owed the plaintiff a duty; it breached that duty when compared to the standard of care appropriate to the profession; and the breach of duty caused the plaintiff's alleged injury.26

The statute does not explicitly require a certificate of review if a defendant designates as a nonparty a "licensed professional" who is not a "health care professional."27 Nevertheless, in Redden v. SCI Colorado Funeral Services,28 the Colorado Supreme Court's decision contains dicta that may be construed to expand the requirement that a defendant file a certificate of review for a professional designated as a nonparty beyond the express "health care professional" limitation.29

In Redden, the Court noted in dicta that it believes that a "professional" may be designated as a nonparty only "if a professional will so opine" about the standard of care and the defendant professional's breach thereof.30 Further, by citing the certificate of review statute in support of the Court's conclusion that the statute dictated the claim should be dismissed, the Court apparently assumed that the "interrelationship" of the certificate of review statute and CRS § 13-21-111.5(3)(b) requires a certificate of review for any designation of a professional as a nonparty.31 Thus, whether the statute requires a defendant to file a certificate of review when designating a non-health care professional as a nonparty remains to be formally decided by the courts.

Mandatory Dismissal
For Failure to File

If a party fails to file a certificate of review when it is required to do so, the complaint, counterclaim, or cross claim is subject to dismissal.32 This rule also applies when a party is granted additional time to file a certificate and fails to do so.33 However, only those claims that require expert testimony to present a prima facie case are subject to dismissal; other claims may be retained.34

WHEN EXPERT TESTIMONY IS NECESSARY

As discussed above, a certificate of review must be filed only if expert testimony is necessary to establish a prima facie case against the licensed professional. Whether expert testimony is necessary and admissible in a professional negligence case is governed by the same rules as other types of cases. Because there may be instances when an attorney may decide as a matter of strategy to forego submitting a certificate of review, a discussion of the law surrounding expert testimony follows.

Expert Testimony Assisting Trier of Fact

The necessity and admissibility of expert testimony is governed generally by Colorado Rules of Evidence ("C.R.E.") 702, which provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or...