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Certificates of Review for Professional Negligence Actions in Colorado
Under Colorado law, a plaintiff who brings an action against a licensed professional for negligence must file a certificate of review within 60 days of serving the complaint indicating that she has consulted with an expert in the alleged negligent field and that the lawsuit is not substantially without merit. Examples of typical negligence actions brought against licensed professionals include medical malpractice actions, actions against dentists, and actions asserting some sort of negligent engineering. The certificate of review is designed to ensure that frivolous lawsuits aren’t filed against licensed professionals since actions alleging misconduct against professionals can have serious legal repercussions.
In particular, the statute governing certificates of review, Colorado Revised Statute (“C.R.S.”) § 13-20-602, provides that:
(1)(a) In every action for damages or indemnity based upon the alleged professional negligence of an acupuncturist regulated pursuant to article 29.5 of title12, C.R.S., or a licensed professional, the plaintiff’s or complainant’s attorney shall file with the court a certificate of review for each acupuncturist or licensed professional named as a party, as specified in subsection (3) of this section, within sixty days after the service of the complaint, counterclaim, or cross claim against such person unless the court determines that a longer period is necessary for good cause shown.
(b) A certificate of review shall be filed with respect to every action described in paragraph (a) of this subsection (1) against a company or firm that employed a person specified in such paragraph (a) at the time of the alleged negligence, even if such person is not named as a party in such action.
(2) In the event of failure to file a certificate of review in accordance with this section and if the acupuncturist or licensed professional defending the claim believes that an expert is necessary to prove the claim of professional negligence, the defense may move the court for an order requiring filing of such a certificate. The court shall give priority to deciding such a motion, and in no event shall the court allow the case to be set for trial without a decision on such motion.
(3) (a) A certificate of review shall be executed by the attorney for the plaintiff or complainant declaring:
(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).
(b) The court, in its discretion, may require the identity of the acupuncturist or licensed professional who was consulted pursuant to subparagraph (I) of paragraph (a) of this subsection (3) to be disclosed to the court and may verify the content of such certificate of review. The identity of the professional need not be identified to the opposing party or parties in the civil action.
(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 ; or in any action against any other professional, 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.
(4) The failure to file a certificate of review in accordance with this section shall result in the dismissal of the complaint, counterclaim, or cross claim.
(5) These provisions shall not affect the rights and obligations under section 13-17-102.
Importantly, a certificate of review is not necessary in all professional negligence actions, just those where expert testimony will be required to establish the standard of care in the professional field at issue in the action. Other negligence claims that involve negligence per se – for example, where an individual has violated a statute governing the professional’s conduct – do not require a certificate of review. Under those circumstances, because conduct that is negligent per se is facially apparent, no expert testimony is necessary to establish the standard of care that was breached and, thus, no certificate of review will be necessary either. See Martinez v. Badis, 842 P.2d 245 (Colo. 1992). Notably, while some case may not require a plaintiff to file a certificate of review, a vast majority of professional negligence cases will require expert testimony to establish the standard of care and, therefore, will require a certificate of review.
Procedural Intricacies of Certificates of Review
While C.R.S. § 13-20-602 clearly indicates that a certificate of review should be filed within 60 days after the complaint is served, the statute is somewhat unclear on what specifically happens if a certificate of review is not filed within the appropriate time frame. Specifically, the statute indicates that where no certificate has been filed within the time frame, the defense may move for an order indicating that a certificate of review needs to be filed or to dismiss the action. C.R.S. § 13-20-602(2).
Where a defendant has filed a motion addressing the failure of the plaintiff to file a certificate of review the plaintiff may respond by arguing that a certificate of review is unnecessary because expert testimony is not needed to establish negligence in the case. Id. If the court does find that a certificate of review is necessary, the court may grant an extension for the plaintiff to file one where good cause is shown for the extension. If, however, the plaintiff is unable to show good cause for the delay and a certificate of review has not been filed, the court will dismiss the action. See C.R.S. § 13-20-602(4).
Importantly, where no certificate of review has been filed, it is the defendant’s responsibility to raise the issue and file a motion for dismissal or for determination of whether a certificate is necessary. Where the defendant fails to do so, the court will not dismiss the action on its own even if a certificate of review is never filed in the case. Miller v. Rowtech, 3 P.3d 492 (2000).
Additionally, a plaintiff may seek a determination of whether a certificate of review is necessary on their own without waiting for a defendant to do so. In particular, a plaintiff may file a motion during the 60 day time frame requesting the court to determine whether a certificate of review is necessary. See Martinez v. Badis, 842 P.2d 245 (Colo. 1992). Plaintiffs may also request an extension of time to file the certificate based on good cause where the court determines one is necessary.
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