 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Teiken v. Reynolds9/28/1995
In this consolidated appeal, plaintiffs, Karen Teiken, Grace Williamson, Linda White, and Brenda Hearing, appeal from the trial courts' judgments dismissing their deceptive trade practices claims against defendants Dr. Craig Reynolds, M.D., Cosmetic Surgery of Colorado, and Dr. Charles German, M.D. We affirm.
The plaintiffs filed separate actions asserting various claims arising from the manufacture and implantation of silicone filled breast prostheses. The claims against these defendants were dismissed for failure to file a certificate of review as required by § 13-20-602, C.R.S. (1994 Cum. Supp.).
Plaintiffs contend the trial courts erred in dismissing their deceptive trade practices claims brought under the Consumer Protection Act, § 6-1-101, et seq., C.R.S. (1992 Repl. Vol. 2). They assert that expert testimony is not needed to establish a claim under that statute and that, therefore, a certificate of review was not required to be filed in accordance with § 13-20-602. We disagree.
Section 13-20-602 requires plaintiff's counsel in an action against a licensed professional based upon negligence to file a certificate of review stating that he or she has consulted with an expert knowledgeable in the area of the alleged negligent conduct and that the expert has concluded the claim does not lack substantial justification. Failure to file such a certificate results in the dismissal of plaintiff's complaint. Espander v. Cramer, P.2d (Colo. App. No. 94CA0194, February 9, 1995).
The certificate of review is required only with respect to those claims which require the plaintiff to establish a prima facie case by means of expert testimony. However, the provisions of § 13-20-602 apply to all claims which require proof of professional negligence as a predicate to recovery, regardless of the formal designation of such claims. Martinez v. Badis, 842 P.2d 245 (Colo. 1992); Espander v. Cramer, supra.
Unless the subject matter of a medical malpractice action lies within the ambit of common knowledge or experience of ordinary persons, the plaintiff must establish by expert testimony the controlling standard of care ordinarily possessed and exercised by members of the same school of medicine practiced by the defendant, as well as defendant's failure to adhere to that standard. Without such expert testimony, the trier of fact would be left with no standard against which to evaluate the defendant's conduct. Melville v. Southward, 791 P.2d 383 (Colo. 1990); see also Boigegrain v. Gilbert, 784 P.2d 849 (Colo. App. 1989)(except in clear and palpable cases, expert testimony is necessary to establish the standards of acceptable professional conduct, deviation from which would constitute professional malpractice).
In Espander v. Cramer, supra, a division of this court held that a claim based upon a physician's misassessment of the risks involved in a medical procedure gives rise to a claim for professional negligence and, therefore, requires expert testimony. Although the claim in Espander was designated as one for battery, the court looked to the nature of the allegations to ascertain whether a certificate of review had to be filed.
Similarly, in Martinez v. Badis, supra, the supreme court recognized that the certificate of review requirement may apply even to claims against a professional based on alleged breach of fiduciary duty or contract. As the supreme court emphasized:
The statute applies to all claims against licensed professionals wherein expert testimony is
Page 1 2 Colorado Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|