Frank "Kit" Hunter v. SCL Health-Front Range, Inc.

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
April 14, 2022

2022COA41

No. 20CA1776, Hunter v. SCL Health — Professional Liability —
Medical Malpractice — Actions Against Licensed Professionals
and Acupuncturists — Certificate of Review

A division of the court of appeals clarifies the certificate of

review requirements of section 13-20-602, C.R.S. 2021, in view of

the supreme court’s opinion in Redden v. SCI Colorado Funeral

Services, Inc., 38 P.3d 75 (Colo. 2001). The division also resolves a

legal issue of continuing public interest, discussing some of the

factors appellate courts may consider in deciding whether to

exercise their discretion to affirm on an alternative basis supported

by the record.
COLORADO COURT OF APPEALS 2022COA41

Court of Appeals No. 20CA1776
Jefferson County District Court No. 18CV31984
Honorable Laura A. Tighe, Judge

Frank “Kit” Hunter and Joan Hunter,

Plaintiffs-Appellants,

v.

SCL Health-Front Range, Inc., f/k/a Exempla, Inc., d/b/a Exempla Lutheran
Medical Center, and Taylor Scism, R.N.,

Defendants-Appellees.

JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division VII
Opinion by JUDGE BERGER
Brown and Johnson, JJ., concur

Announced April 14, 2022

Fischer & Fischer, P.C., Ronnie Fischer, Jennifer K. Fischer, Lisa C. Secor,
Denver, Colorado, for Plaintiffs-Appellants

Hall & Evans, L.L.C., Chad K. Gillam, Jared R. Ellis, Andrew C. Nickel, Denver,
Colorado, for Defendant-Appellee SCL Health-Front Range, Inc.

Sharuzi Law Group, Ltd., Jacqueline Sharuzi-Brown, Denver, Colorado, for
Defendant-Appellee Taylor Scism, R.N.
¶1 In this medical malpractice action, plaintiffs, Frank “Kit”

Hunter and Joan Hunter (collectively, plaintiffs), appeal the district

court’s judgment dismissing their case against Taylor Scism, R.N.,

and SCL Health-Front Range, Inc., f/k/a Exempla, Inc., d/b/a

Exempla Lutheran Medical Center (the hospital). Because the

district court misapplied the law pertaining to certificates of review,

we reverse.

Relevant Facts and Procedural History

¶2 Plaintiffs sued multiple parties — the hospital, a physician

group, Scism, four other nurses, and three doctors — alleging that

Mr. Hunter was injured by the negligent insertion of a catheter.

Sixty days after serving the complaint on the hospital, plaintiffs

filed a certificate of review and motion for extension of time to

submit a “final” certificate of review. The district court granted the

motion and extended the deadline to file a certificate of review to

April 8, 2019. Plaintiffs filed a certificate of review on April 8, 2019,

(addressing the claims against certain defendants), which all parties

agree was timely as to the hospital and Scism. The certificate of

review stated that plaintiffs had consulted a licensed physician.

1
¶3 Scism moved to dismiss under section 13-20-602(4), C.R.S.

2021, contending that plaintiffs failed to file a sufficient certificate

of review.1 More than ten months later, apparently after the parties

had disclosed at least some of their trial experts, the district court

granted Scism’s motion to dismiss. The district court concluded

that the certificate of review was insufficient because the consulting

expert was not a nurse and because the certificate of review did not

state that the consulting physician had a “firm grasp” on the

nursing standard of care.

¶4 The hospital then moved to dismiss under section

13-20-602(4), contending that plaintiffs failed to file a sufficient

certificate of review as to it. The district court granted the motion

“because Plaintiffs’ claims against [the hospital] are all based on the

nursing care provided and because the Court determined that the

Certificates of Review were insufficient as to the nursing care

1 Scism moved to dismiss prior to the deadline for submission of a
certificate of review as to him. Three of the defendant-nurses joined
Scism’s motion to dismiss. Before the district court ruled on
Scism’s motion, the parties stipulated to the dismissal of the
physician group, all three doctors, and two nurses, including one of
the nurses who joined Scism’s motion. Plaintiffs do not appeal the
judgment as to the two other nurses who joined Scism’s motion to
dismiss.

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provided, the Certificates of Review are similarly not sufficient as to

[the hospital].”

¶5 Having dismissed all remaining defendants who had not been

dismissed by stipulation, the district court entered final judgment

against plaintiffs. Plaintiffs appeal the district court’s judgment as

to Scism and the hospital.

Applicable Law and Standard of Review

¶6 In every action for damages or indemnity based on the alleged

professional negligence of a licensed professional, the plaintiff’s

attorney must file with the court “a certificate of review for each . . .

licensed professional named as a party.” § 13-20-602(1)(a). The

certificate of review must be filed “within sixty days after the service

of the complaint . . . unless the court determines that a longer

period is necessary for good cause shown.” § 13-20-602(1)(a). “The

purpose of the certificate of review requirement is to demonstrate

that the plaintiff has consulted with a person who has expertise in

the area and that the expert consulted has concluded that the claim

does not lack substantial justification.” Baumgarten v. Coppage, 15

P.3d 304, 306 (Colo. App. 2000).

3
¶7 To satisfy the requirements of section 13-20-602(3)(a), the

certificate of review must include the following declarations:

(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 pursuant to subparagraph (I) of
this paragraph (a) 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).2

¶8 In an action against a licensed professional other than a

physician, such as a nurse, the certificate of review must declare

“that the person consulted 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.” § 13-20-602(3)(c).3

2 The certificate of review statute does not require a plaintiff to
submit evidence to support these declarations, but the declarations
are subject to the attorney’s duties under C.R.C.P. 11(a).
3 As noted, when the district court ruled on Scism’s and the

hospital’s motions to dismiss, no physician defendants remained.

4
¶9 Whether a certificate of review meets the requirements of

section 13-20-602 is a matter of trial court discretion. Redden v.

SCI Colo. Funeral Servs., Inc., 38 P.3d 75, 83 (Colo. 2001). A court

abuses its discretion if its decision is manifestly arbitrary,

unreasonable, or unfair, or if it misapplies the law. Wesley v.

Newland, 2021 COA 142, ¶ 11.

Analysis

¶ 10 The April 8, 2019, certificate of review stated that plaintiffs’

attorney had “consulted a person who has expertise in the area of

the alleged negligent conduct,” satisfying section 13-20-602(3)(a)(I).

¶ 11 The certificate of review further stated that the “person[] who

was consulted has reviewed the facts in the case, and based on the

review of such facts, the person who was consulted has concluded

that the filing of the medical malpractice claim does not lack

substantial justification.” This declaration satisfies section

13-20-602(3)(a)(II).

¶ 12 Regarding the requirement that the person consulted can

demonstrate by competent evidence that, as a result of training,

education, knowledge, and experience, the consultant is competent

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to express an opinion as to the negligent conduct alleged, the

certificate of review further stated that

[t]he person who was consulted is a licensed
physician who is substantially familiar with
the applicable standards of care and practice
as they relate to the act or omission
constituting the alleged medical malpractice as
of the date of the malpractice, and the person
consulted 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.

The person consulted has sufficient expertise
in the area of inserting catheters, and in
teaching others to insert catheters; the
common problems seen by actions and
omissions of nurses and supervising
physicians who have not had specialized
training in the subject; the necessary protocols
to be used when an initial insertion is not
successful, avoiding multiple tries; and calling
in a specialist sooner than later when
problems arise and/or are indicated; the
indications and symptoms that the patient
presented with, and how those show a problem
related to cancer treatment or otherwise,
which should alert the medical care providers
at all levels that a collaboration is required to
assess the patient’s condition and ensure that
he received appropriate care, and that a
specialist was sufficiently notified that there
was a problem before it became an emergency;
and, that the facts of this case show that the
patient was harmed by the Defendants’ actions
and omissions below the standard of care

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under the circumstances, each contributing to
the resulting harm.

¶ 13 In granting Scism’s motion to dismiss, the district court relied

on Redden. The certificate of review in Redden “was a mere

one-paragraph statement that precisely mirrored section 13-20-

602(3)(a)(I)-(II), [C.R.S. 2021]. It failed to declare the competency of

the expert consulted, as required by paragraph 602(3)(c).” 38 P.3d

at 82. As explicitly authorized by section 13-20-602(3)(b), the trial

court in Redden exercised its discretion to verify the content of the

certificate of review. Id.

¶ 14 The supreme court held that the trial court erred by finding

the certificate of review insufficient because the consulted experts

were not of the same profession or specialty as the defendant

licensed professional. Id. at 82-83. “Nowhere does the statute

require the consulted expert to be of precisely the same profession

or specialty as the licensed professional against whom the charge is

leveled.” Id. at 82. The supreme court also explained that the

statutory language

“competent to express an opinion as to the
negligent conduct alleged[]” precludes the use
of an expert with only general knowledge in the
field; rather, a proper expert has a firm grasp

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on the appropriate standards, techniques and
practices within the profession or specialty
about which he or she is opining.

Id. (emphasis added).

¶ 15 Based on this language from Redden, the district court held

the certificate of review insufficient because it did “not state that

Plaintiff consulted a registered nurse, nor . . . that the consulting

physician has a firm grasp on the appropriate standard of care for

nurses, as it relates to the techniques and procedures involved in

inserting urological devices like catheters.”

¶ 16 True, the certificate of review does not expressly state that

plaintiffs’ attorney consulted a nurse or that the consulted expert

had a “firm grasp” on the appropriate standard of care for nurses.

But Redden held that the certificate of review statute does not

require the consulted expert to be of precisely the same profession

or specialty as the defendant licensed professional. Id. Moreover,

Redden does not require a certificate of review to state that the

consulting expert has a “firm grasp” on the appropriate standards.

Id. Indeed, the district court’s reading of Redden as imposing a

requirement to state that the expert is either a nurse or has a firm

8
grasp on the applicable standards essentially rewrites section 13-

20-602 by including additional requirements.

¶ 17 The certificate of review requirement and the procedures

governing certificates of review are entirely statutory. A court’s

proper function is to apply statutes as written. People v. Weeks,

2021 CO 75, ¶¶ 25-27 (“When the language of a statute is clear and

unambiguous, we give effect to its plain and ordinary meaning ‘and

look no further.’” (quoting Cowen v. People, 2018 CO 40, ¶ 12)).

Neither party asserts that section 13-20-602 is ambiguous, and we

agree.

¶ 18 In recent years, Colorado courts have emphasized that the

judiciary may not rewrite a statute to reach a “better” result. See

Weeks, ¶ 45 (applying the criminal restitution statute as written

and refusing to construe it to avoid restitution forfeitures); Prairie

Mountain Publ’g Co., LLP v. Regents of Univ. of Colo., 2021 COA 26,

¶ 17 (applying the words of the statute as written and declining to

interpret the statute in a manner more protective of principles of

open government).

¶ 19 Viewed in this light, we do not read the supreme court’s

opinion in Redden as imposing on a party filing a certificate of

9
review any obligations in addition to those prescribed in section

13-20-602.

¶ 20 Indeed, the facts in Redden are distinguishable from those in

this case for two reasons: (1) plaintiffs’ certificate of review declared

the competency of the expert as required by section 13-20-602(3)(c);

and (2) the district court did not exercise its discretion to require

additional information from plaintiffs under section 13-20-

602(3)(b).4 Under these circumstances, plaintiffs cannot be faulted

for failing to further describe the expert’s qualifications. See RMB

Servs., Inc. v. Truhlar, 151 P.3d 673, 675 (Colo. App. 2006).

¶ 21 The district court misapplied the law by imposing on plaintiffs

obligations in addition to those prescribed in section 13-20-602.

Accordingly, the court abused its discretion, and the judgment

must be reversed.

4 Plaintiffs argue that, even if the April 8, 2019, certificate of review
is insufficient, other documents satisfy the statutory requirements.
In light of our conclusion that the April 8, 2019, certificate of review
is sufficient under section 13-20-602, C.R.S. 2021, we do not
decide whether the district court could have or should have
considered any of the other documents before dismissing the case.

10
We Decline to Exercise Our Discretion to Affirm on an
Alternative Basis

¶ 22 Scism and the hospital alternatively argue that we should

affirm the judgment because plaintiffs failed to file “a certificate of

review for each . . . licensed professional named as a party.” § 13-

20-602(1)(a), (b) (emphasis added).

¶ 23 Scism quoted section 13-20-602(1)(a) in his motion to dismiss,

but neither he nor the hospital argued that the district court should

dismiss plaintiffs’ claims because plaintiffs failed to file a certificate

of review for each licensed professional named as a party.5

¶ 24 Nevertheless, Scism and the hospital urge us to affirm the

district court’s judgment on the alternative basis that “[a] trial

court’s decision may be defended on the trial court’s express

rationale, or on any ground supported by the record, even if that

5 At oral argument, Scism and the hospital argued that plaintiffs
were on notice of the statutory requirement to file a certificate of
review for each licensed professional because a different defendant
raised this argument in the district court. Nevertheless, Scism and
the hospital did not seek dismissal on this basis. And the district
court did not rely on this basis in granting the hospital’s and
Scism’s motions to dismiss.

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ground was not articulated or considered by the trial court.”6

People v. Cousins, 181 P.3d 365, 370 (Colo. App. 2007). “[W]e may

affirm the trial court’s ruling based on any grounds that are

supported by the record.” Rush Creek Sols., Inc. v. Ute Mountain Ute

Tribe, 107 P.3d 402, 406 (Colo. App. 2004) (emphasis added). But,

for three reasons, we decline to exercise our discretion to do so.

¶ 25 First, we begin by recognizing the “general rule favoring

resolution of disputes on their merits.” Truhlar, 151 P.3d at 676;

accord Craig v. Rider, 651 P.2d 397, 402-03 (Colo. 1982).

¶ 26 Second, while this lawsuit initially included ten different

defendants, only two are parties to this appeal — Scism and his

employer, the hospital. In Truhlar, the plaintiffs filed a single

certificate of review that purported to apply to both defendants — a

lawyer and his law firm. 151 P.3d at 676. The division concluded

6 Declining to consider other documents filed by plaintiffs to
determine whether the certificate of review was sufficient as to the
hospital, the district court said, “Plain and simple, a timely
Certificate of Review for each named party that is licensed is
required by statute, and, thus, expert disclosures cannot act as
substitute for a Certificate of Review.” We do not read the district
court’s order to mean that the lack of a separate certificate of review
specific to the hospital was an alternative basis to grant the
hospital’s motion to dismiss.

12
that the single certificate satisfied the requirements of section

13-20-602 “[b]ecause plaintiffs’ claims against the law firm

depend[ed] entirely on the alleged negligence of the individual

lawyer, and because an expert qualified to evaluate the claims

against one defendant would also be qualified to evaluate the claims

against the other . . . .” Id.

¶ 27 Similarly, here, plaintiffs’ claims against the hospital depend

almost entirely on the alleged negligence of Scism (as the district

court recognized in its order granting the hospital’s motion to

dismiss). As in Truhlar, an expert qualified to evaluate the claims

against the nurse arguably would be qualified to evaluate the

claims against the hospital.

¶ 28 Third, by the time the court ruled on the dismissal motions,

the defendants had all of the information required by the certificate

of review statute (and probably a lot more).

¶ 29 The supreme court in Shelton v. Penrose/St. Francis

Healthcare System, disapproved the trial court’s “acceptance” of

expert reports in lieu of a certificate of review but declined to

reverse on that basis. 984 P.2d 623, 629 (Colo. 1999). The court

first explained that the purpose of the certificate of review statute is

13
to aid “in avoiding unnecessary time and costs in defending

professional negligence claims, weeding out frivolous claims and

putting a defendant on notice of the development of the theory of

the case.” Id. at 628 (citing Martinez v. Badis, 842 P.2d 245, 250

(Colo. 1992)). Then the court reasoned that the expert reports

contained all the information to which the defendant was entitled

under the certificate of review statute and that “[i]f the trial court

had properly required the late filing of a certificate, no additional

information would have been provided to [the defendant], due to the

timing of such a late filing relative to the progress of the case.” Id.

¶ 30 We decline to exercise our discretion to affirm the judgment on

a ground not relied on by the district court because, as in Shelton,

the April 8, 2019, certificate of review gave Scism and the hospital

all the information to which they were entitled under the certificate

of review statute. Moreover, the district court did not grant Scism’s

or the hospital’s motions to dismiss until the case was set for trial

and the plaintiffs had filed at least some expert disclosures, which

arguably met even the district court’s erroneously imposed

additions to section 13-20-602.

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Disposition

¶ 31 The judgment of dismissal in favor of Scism and the hospital is

reversed, and the case is remanded for further proceedings

consistent with this opinion.

JUDGE BROWN and JUDGE JOHNSON concur.

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