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Shelton v. Penrose/St. Francis Healthcare System6/28/1999
Certiorari to the Colorado Court of Appeals
EN BANC
JUSTICE SCOTT and JUSTICE BENDER do not participate.
We granted certiorari to review a decision of the court of appeals reversing a trial court determination that a certificate of review was not required in this action against a hospital. The court of appeals also reversed the subsequent determinations of the trial court that the plaintiff had shown good cause for not having timely filed a certificate of review and that the plaintiff had submitted expert reports that satisfied the purposes of the statute. The court of appeals reasoned that a plaintiff who fails to secure a certificate of review is subject to reversal if the plaintiff induces the trial court to err in concluding that no certificate is required. See Shelton v. Penrose-St. Francis Healthcare System, 968 P.2d 132, 136 (Colo. App. 1998).
We hold that the trial court determination that the plaintiff could establish a prima facie case without the use of expert testimony, and therefore need not submit a certificate of review, is not an abuse of discretion because the position of the plaintiff had arguable merit. We also hold that it was improper for the trial court to accept Shelton's expert reports in place of a certificate of review, but that such acceptance had no impact on the defendant. We will not disturb the verdict based on Shelton's failure to file under these circumstances. Accordingly, we reverse the judgment of the court of appeals.
I.
In 1982, petitioner Gretchen Shelton fractured her hip and had replacement surgery. In 1988, she fractured her femur near her hip prostheses, which resulted in the frequent and spontaneous dislocation of her hip prostheses. On April 22, 1992, Shelton had another hip replacement surgery at the Penrose-St. Francis Healthcare System (Penrose). Shelton's femur fractured during the second surgery. Post operation, Shelton was fitted with a brace to prevent a posterior dislocation of her hip.
Six days after surgery, Shelton was transferred to the rehabilitation floor of the hospital. During physical therapy, Shelton's brace was removed by hospital employees and was not replaced. When the physical therapy session was completed, Shelton returned to her room where she fell asleep in a chair. While she was asleep, two nurses proceeded to move her from the chair to her bed. They failed to wake Shelton or to replace her brace. As a result, Shelton experienced extreme pain and suffered another dislocation of her hip.
In October of 1993, Shelton brought a complaint against Penrose under a theory of respondeat superior, alleging that the nurses improperly lifted her from her chair, and that this action caused her to suffer pain and to dislocate her hip. Penrose moved to dismiss the complaint in May of 1994, contending that section 13-20-602(4), 6A C.R.S. (1992 Supp.), required dismissal of Shelton's claim because she failed to file a certificate of review verifying that an expert had reviewed the claim and found it meritorious. Shelton responded to the motion in June of that year, asserting that the statute was inapplicable to her claim. Shelton maintained that expert testimony was unnecessary to establish her prima facie case because her claim was based on the theory of res ipsa loquitur. She also asserted that her injury was so obvious and non-technical that lay jurors could find negligence without hearing expert testimony. Furthermore, Shelton submitted curricula vitae from two registered nurses demonstrating their status as experts and their opinions that the conduct and manner in which Penrose employees transferred the plaintiff fell below the standard of care and re
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