13-20-602. Actions against licensed professionals and acupuncturists - certificate of review required.

(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 title 12, 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.

Source: L. 87: Entire part added, p. 549, § 1, effective July 1. L. 89: (1), (3)(a)(II), and (4) amended and (3)(c) added, p. 750, § 1, effective April 12. L. 95: (1), (2), and (3)(b) amended, p. 485, § 6, effective January 1, 1996. L. 98: (1) amended, p. 487, § 1, effective February 1, 1999.

Law reviews. For article, "Colorado's Certificate of Review Statute: Considerations in Professional Negligence Cases", see 33 Colo. Law. 11 (February 2004).

Certificate of review requirement is applicable to medical malpractice claims brought under the Federal Tort Claims Act. Hill v. U.S., 751 F. Supp. 909 (D. Colo. 1990).

Certificate of review requirement is applicable to claims brought under the Consumer Protection Act. Teiken v. Reynolds, 904 P.2d 1387 (Colo. App. 1995).

Certificate of review requirement is applicable in federal diversity cases. Trierweiler v. Croxton & Trench Holding Corp., 90 F.3d 1523 (10th Cir. 1996) (decided under former law).

Certificate of review requirement is applicable to professional negligence claims brought against the United States under the Federal Tort Claims Act. Kikumura v. Osagie, 461 F.3d 1269 (10th Cir. 2006).

No exemption for pro se litigants. Although some provisions of this section refer to conduct by attorneys, the underlying policy applies equally to a person who is not represented by an attorney. Yadon v. Southward, 64 P.3d 909 (Colo. App. 2002).

The provision in this section that a plaintiff file a certificate of review is not a jurisdictional requirement. Rather, the court has discretion to determine if a certificate of review is required. Miller v. Rowtech, LLC, 3 P.3d 492 (Colo. App. 2000).

Certificate of review requirement applies to claims based on the negligence of licensed professionals. Legislative purpose and legislative history of this section establish that plaintiff was required to file a certificate of review in order to hold state liable for malpractice of employees that are licensed professionals. State v. Nieto, 993 P.2d 493 (Colo. 2000); Hamilton v. Thompson, 23 P.3d 114 (Colo. 2001).

Certificate of review requirement is independent of the requirement to file initial disclosures under C.R.C.P. 26(a). Williams v. Boyle, 72 P.3d 392 (Colo. App. 2003).

Single certificate of review was permissible for two defendants. Claims against law firm defendant depended entirely on the alleged negligence of the lawyer defendant, and an expert qualified to evaluate the claims against one defendant would also be qualified to evaluate the claims against the other defendant. RMB Servs., Inc. v. Truhlar, 151 P.3d 673 (Colo. App. 2006).

Dismissal of a case is authorized under either subsection (1) or (2), but the court must determine whether expert testimony is required to establish a prima facie case of negligence before ordering dismissal. Badis v. Martinez, 819 P.2d 551 (Colo. App. 1991), aff'd in part and rev'd in part on other grounds, 842 P.2d 245 (Colo. 1992).

Failure to file a certificate of review stating that the plaintiff has consulted with a person with expertise in the area of the alleged negligent conduct and that an expert has concluded the claim does not lack substantial justification results in dismissal of plaintiff's complaint. Kelton v. Ramsey, 961 P.2d 569 (Colo. App. 1998).

Dismissal of complaint proper where plaintiff failed to file certificate of review in compliance with statute after having been granted an extended time for compliance. Rosenberg v. Grady, 843 P.2d 25 (Colo. App. 1992).

Certificate of review is deficient as a matter of law when it alleges only causation and not all of the elements of negligence sufficient to establish legal responsibility. A party must allege the basis for believing the non-party legally liable to the extent that the non-party's acts or omissions would satisfy all of the elements of a negligence claim. Redden v. SCI Colo. Funeral Servs., Inc., 38 P.3d 75 (Colo. 2001).

Although this section provides a defense, the defense is waived if not timely asserted since the certificate is not a jurisdictional requirement. Miller v. Rowtech, LLC, 3 P.3d 492 (Colo. App. 2000).

Denial of plaintiff's motion to compel discovery until plaintiff complied with order to file certificate of review held proper. Rosenberg v. Grady, 843 P.2d 25 (Colo. App. 1992).

Plaintiff may file a motion for an order determining the necessity of a certificate under this section and requesting an extended time frame in which to file such certificate, if necessary. Badis v. Martinez, 819 P.2d 551 (Colo. App. 1991), aff'd in part and rev'd in part on other grounds, 842 P.2d 245 (Colo. 1992).

The language of the statute is broad enough to include every claim that requires proof of professional negligence as a predicate to recovery, whatever the formal designation of the claim might be. Martinez v. Badis, 842 P.2d 245 (Colo. 1992); Espander v. Cramer, 903 P.2d 1171 (Colo. App. 1995); Baumgarten v. Coppage, 15 P.3d 304 (Colo. App. 2000).

A certificate of review is required for a claim of negligent misrepresentation when the allegations reflect an underlying theory of professional negligence. RMB Servs., Inc. v. Truhlar, 151 P.3d 673 (Colo. App. 2006).

Doctrine of res ipsa loquitur cannot be used to avoid the requirements of this section, at least when there is no evidence or inference that the defendant had any control over the instrumentality causing the injury. Bilawsky v. Faseehudin, 916 P.2d 586 (Colo. App. 1995).

The statute applies to all claims against licensed professionals wherein expert testimony is required to establish the scope of the professional's duty or the failure of the professional to reasonably conduct himself or herself in compliance with the responsibilities inherent in the assumption of the duty. Martinez v. Badis, 842 P.2d 245 (Colo. 1992); Tracz v. Centennial Peaks, 9 P.3d 1168 (Colo. App. 2000); Ehrlich Feedlot, Inc. v. Oldenburg, 140 P.3d 265 (Colo. App. 2006).

A plaintiff claiming breach of fiduciary duty arising from the attorney-client relationship must establish the applicable standard of care and the defendant's failure to adhere to that standard through expert testimony. Therefore, a certificate of review is required to support a claim of breach of fiduciary duty against an attorney. Ehrlich Feedlot, Inc. v. Oldenburg, 140 P.3d 265 (Colo. App. 2006).

However, no certificate of review was required where expert testimony would not be necessary to establish claims that licensed real estate brokers failed to disclose hidden damage to a home's foundation walls of which they had actual knowledge. Baumgarten v. Coppage, 15 P.3d 304 (Colo. App. 2000).

No certificate of review was required to establish standard of care regarding an attorney's failure to file a case within the applicable statute of limitation or to show that a particular attorney was representing a client at a specified time. Giron v. Koktavy, 124 P.3d 821 (Colo. App. 2005).

Unless the court requests supplemental information, the plaintiff is not required to describe the expert's qualifications. RMB Servs., Inc. v. Truhlar, 151 P.3d 673 (Colo. App. 2006).

Plaintiff is not required to present expert testimony if allegations against professionals do not involve claims related to their professional activities. Claims against hospital employees for assault, false imprisonment, etc. are the types of claims where the subject matter is within the common knowledge and experience of an ordinary person. Siepierski v. Catholic Health Initiative Mountain Region, 37 P.3d 537 (Colo. App. 2001).

The fact that some consideration of the reasonableness of a principal's actions may be necessary in order to define the contours of an agent's apparent authority and/or whether the estoppel doctrine should come into play does not make an imputed liability claim an "action for damages or indemnity based upon . . . alleged professional negligence", within the meaning of this section. Stat-Tech Liquidating Trust v. Fenster, 981 F. Supp. 1325 (D. Colo. 1997).

"Good cause" construed. Lacking a specific statutory definition of "good cause" for which the 60-day time limit set forth in this section may be extended, the trial court acted properly in relying upon decisional law interpreting that phrase in the context of default judgment cases. Hane by and through Jabalera v. Tubman, 899 P.2d 332 (Colo. App. 1995); Williams v. Boyle, 72 P.3d 392 (Colo. App. 2003).

Good cause shown where: (1) Physician who initially provided a certificate of review later declined to verify it; (2) plaintiff made a timely request for an extension of time; and (3) no prejudice would have resulted. Yadon v. Southward, 64 P.3d 909 (Colo. App. 2002).

To determine whether good cause exists, the court must consider whether: (1) The neglect causing the late filing was excusable; (2) the moving party has alleged a meritorious claim or defense; and (3) permitting the late filing would be consistent with equitable considerations, including any prejudice to the nonmoving party. RMB Servs., Inc. v. Truhlar, 151 P.3d 673 (Colo. App. 2006).

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. Shelton v. Penrose/St. Francis Healthcare Sys., 984 P.2d 623 (Colo. 1999).

Trial court should not accept plaintiff's expert reports in lieu of a certificate of review, but court will not disturb verdict where such acceptance had no impact on the defendant. Shelton v. Penrose/St. Francis Healthcare Sys., 984 P.2d 623 (Colo. 1999).

Where the "statement of review" was prepared and offered in the course of, and directly related to, a judicial proceeding, the preparer of the statement is entitled to immunity from civil liability. The doctrine of absolute immunity was applicable to the "statement of review" prepared by defendant. Merrick v. Burns, Wall, Smith & Mueller, P.C., 43 P.3d 712 (Colo. App. 2001).