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State v. Nieto2/14/2000
EN BANC
Section 13-20-602, 5 C.R.S. (1999), requires a plaintiff to file a certificate of review prior to initiating a civil action for "damages . . . based upon the alleged professional negligence of . . . a licensed professional." The certificate of review certifies that a plaintiff has consulted "a person who has expertise in the area of the alleged negligent conduct" and that the claims made in the complaint "do not lack substantial justification." § 13-20-602(1)(a), (3)(a)(I) & (II).
In Nieto v. State, 952 P.2d 834 (Colo. App. 1997), the Colorado Court of Appeals held that plaintiff Arthur Moses Nieto could prosecute a civil action against the State of Colorado ("State") for damages based on the alleged nursing malpractice of one of its employees, even though Nieto failed to timely file a certificate of review. The court of appeals so held reasoning that the "state defendants," the State and the Department of Corrections (DOC), "are not licensed professionals." Id. at 838.
On our review here, we must decide whether a plaintiff who fails to meet the procedural prerequisite of timely filing a certificate of review can nonetheless proceed to litigate his claims of professional negligence under Colorado law. We hold that a plaintiff who fails to file a certificate of review may not pursue such a professional negligence claim. In our view, the Colorado General Assembly intended that section 13-20-602 create a procedural prerequisite requiring the filing of a certificate of review for any claims based on the malpractice of a licensed professional. Furthermore, we hold that dismissal is required in this case whether the plaintiff seeks damages against the "licensed professional named as a party" or seeks damages only against the employer of the licensed professional.
We must also decide whether the Colorado Governmental Immunity Act grants the State immunity from civil suits for damages arising out of the operation of a correctional facility, and whether the complaint filed by Nieto was properly filed to proceed against individual defendants under 42 U.S.C. § 1983 (1994). In answering these two issues, we hold that the State has no such immunity and that the course of proceedings confirms that Nieto properly sought damages for violations of his civil rights against the individual defendants in their personal capacities. Therefore, we hold that, in accordance with our precedent set forth in County of Adams v. Hibbard, 918 P.2d 212 (Colo. 1996), the court of appeals correctly held that "the plaintiff sufficiently stated and pursued [42 U.S.C.] § 1983 claims against the individual defendants in their 'personal' or 'individual' capacities." Nieto, 952 P.2d at 843. This result is supported by a review of the course of proceedings, which was sufficient to establish that the plaintiff was pursuing, and each individual defendant was opposing, a § 1983 claim made against the state employee in the employee's individual or personal capacity. Under such circumstances, a motion to dismiss suggesting that plaintiff sued state employees or officials only in their official capacity must fail.
Accordingly, we reverse, in part, the judgment of the court of appeals to the extent that it permits a plaintiff to proceed with his claim against the State under a respondeat superior theory for the injury caused by the licensed professional. We do so because in our view, permitting such a plaintiff to ignore this clear prerequisite, which is designed to deter frivolous claims and therefore reduce the costs associated with frivolous actions borne by all citizens, is contrary to the sound public policy decision that led to the statute's adoption.
We note,
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