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Espander v. Cramer2/9/1995
Plaintiff, Connie Espander, appeals the judgment dismissing her claim against defendant, Lester Cramer, M.D., P.C., for failing to comply with a court order directing her to file a certificate of review pursuant to § 13-20-602, C.R.S. (1994 Cum. Supp.). We affirm.
Plaintiff's complaint alleged that she first consulted Cramer for the purpose of obtaining treatment for numbness in her right little finger and pain in her right wrist. The complaint further alleged that she signed a consent form preceding surgery. The form stated in part:
I have been further informed of the special problems that may follow my operation . . . .
These problem areas are as follows:
The wrist could lose 20% of its strength and motion, but should be pain free. Defendant did not inform plaintiff he would insert pins into her wrist.
Subsequently, Cramer performed surgery on plaintiff and placed pins in her wrist. Following the surgery, plaintiff lost approximately 80% of the range of motion in her wrist.
Initially, the complaint named a hospital as a co-defendant and alleged three separate claims: (1) medical malpractice against defendant, (2) medical malpractice against the hospital, and (3) assault and battery and false imprisonment against defendant and the hospital. A later request to amend the complaint was denied and that denial is not contested on appeal. The trial court dismissed the first claim without prejudice pursuant to a request by plaintiff and dismissed the hospital co- defendant with prejudice pursuant to a stipulation by the parties.
The trial court ruled that the remaining claim was premised on two separate theories of recovery: one for battery for inserting pins into plaintiff's wrist without any prior disclosure, for which a certificate of review pursuant to § 13-20-602 was not necessary, and the other for lack of informed consent "based in part upon [Cramer's] representation of only a possible 20 percent decrease in the range of motion . . . where an 80 percent decrease in range is claimed . . . ." This characterization of plaintiff's claim is also not contested on appeal.
With regard to the lack of informed consent claim, the trial court concluded that, in order to recover, plaintiff would have to show that defendant negligently failed to obtain informed consent. Therefore, since plaintiff needed expert testimony to establish a prima facie case, the trial court ruled that the lack of informed consent claim did require a § 13-20-602 certificate of review. The court granted plaintiff 60 additional days to obtain the certificate of review and advised her that failure to file the certificate would result in dismissal of the claim with prejudice.
Upon defendant's motion, the trial court granted summary judgment dismissing the battery claim on the grounds that plaintiff filed the claim more than two years after it accrued. Plaintiff does not appeal the dismissal of this claim.
Plaintiff failed to file a certificate of review with respect to the lack of informed consent claim. Upon defendant's motion to dismiss, the trial court dismissed plaintiff's remaining claim.
I.
Plaintiff asserts that a lack of full disclosure or a misleading disclosure of risks attendant to surgery vitiates the consent given and allows a claim of battery. We disagree.
The law in Colorado distinguishes between an action based on no consent (battery) and one based on lack of informed consent. Blades v. DaFoe, 666 P.2d 1126 (Colo. App. 1983), rev'd on other grounds, 704 P.2d 317
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