But Colorado courts have long held that Colo. Rev. Stat. § 13-20-602 requires a plaintiff to file a certificate of review only "for any claim based on allegations of professional negligence that requires expert testimony to establish a prima facie case." Martinez v. Badis, 842 P.2d 245, 250 (Colo. 1992) (emphasis added); accord Shelton, 984 P.2d at 626; Giron v. Koktavy, 124 P.3d 821, 825 (Colo. App. 2005). Thus, "[i]f a plaintiff determines that expert testimony is not required, no certificate need be filed."
Courts have discretion to determine whether a certificate of review is necessary. Keller v. U.S. Dep' t of Veteran Affairs, No. 08-cv-00761-WYD-KLM, 2008 WL 5330644, at *4 (D. Colo. Dec. 19, 2008) (citing Giron v. Koktavy, 124 P.3d 821, 825 (Colo.App. 2005)). “[A] certificate of review is necessary only for those claims of professional negligence which require expert testimony to establish a prima facie case.” Giron, 124 P.3d at 825.
Courts have discretion to determine whether a certificate of review is necessary. Keller v. U.S. Dep' t of Veteran Affairs, No. 08-cv-00761-WYD-KLM, 2008 WL 5330644, at *4 (D. Colo. Dec. 19, 2008) (citing Giron v. Koktavy, 124 P.3d 821, 825 (Colo.App. 2005)). “[A] certificate of review is necessary only for those claims of professional negligence which require expert testimony to establish a prima facie case.” Giron, 124 P.3d at 825.
See, e.g., Bebo Constr. Co. v. Mattox & O'Brien, P.C., 990 P.2d 78, 83 (Colo.1999); Bristol Co., LP v. Osman, 190 P.3d 752, 755 (Colo.App.2007); Giron v. Koktavy, 124 P.3d 821, 824 (Colo.App.2005); Brown, 45 P.3d at 751. This is often referred to as proof of the “case within a case.”
The purpose of a certificate of review is to "verif[y] that the plaintiff has consulted with an expert in the relevant area who has concluded that the plaintiff's claim does not lack substantial justification." Giron v. Koktavy, 124 P.3d 821, 825 (Colo. App. 2005) (citing Williams v. Boyle, 72 P.3d 392 (Colo. App. 2003)). However, a certificate is not required in every case that involves an allegation of professional negligence.
Accordingly, the Court is unable to conclude, at this stage of the litigation, that plaintiff's failure to comply with the certificate of review requirement mandates the dismissal of his medical malpractice claim. SeeKitto v. Gilbert , 39 Colo.App. 374, 570 P.2d 544, 552 (1977) (stating that the "inference of negligence" arising from disconnection of tube connecting patient to anesthesiology machine "did not require expert analysis"); cf.Giron v. Koktavy , 124 P.3d 821, 825 (Colo. App. 2005) (holding that certificate of review was not required in legal malpractice action to "establish the standard of care regarding [attorney's] failure to file a case within the applicable statute of limitations"). Defendant acknowledged in his motion that the sixty day deadline for filing a certificate of review, See Colo. Rev. Stat. § 13-20-602(1)(a), had not yet passed.
Further, the Tenth Circuit has instructed that the certificate of review requirement applies "only if (1) the plaintiff brings a claim of alleged professional negligence against a licensed professional, and (2) expert testimony is necessary to substantiate the claim." Sherman v. Klenke, 653 F. App'x 580, 595 (10th Cir. 2016) (emphasis in the original) (citing C.R.S. § 13-20-602); see also Keller v. U.S. Dept. of Veteran Affairs, No. 08-cv-00761-WYD-KLM, 2008 WL 5330644, at *4 (D. Colo. Dec. 19, 2008) (citing Giron v. Koktavy, 124 P.3d 821, 825 (Colo. App. 2005) ("A certificate of review is necessary only for those claims of professional negligence which require expert testimony to establish a prima facie case.")). Because C.R.S. § 13-30-602 does not set forth a jurisdictional requirement, "courts have discretion to determine if a certificate of review is necessary."
Second, Plaintiff suggests that this Court can exercise its discretion and not apply the certificate requirement in his case. Plaintiff is correct that Colorado law does provide for a discretionary exception to application of this requirement, but he fails to note that this exception applies only "in clear and palpable cases," Giron v. Koktavy, 124 P.3d 821, 825 (Colo. Ct. App. 2005). Plaintiff fails to argue—and this Court declines to find—that his allegation about improper treatment for a complicated pathology such as HPV could fit within this exception.
Moreover, in any circumstance, the Court retains discretion to determine whether a certificate of review is necessary. See Giron v. Koktavy, 124 P.3d 821, 825 (Colo.Ct.App. 2005) (citing Shelton, 984 P.2d at 626-28); Miller v. Rowtech, LLC, 3 P.3d 492, 494 (Colo.Ct.App. 2000) (holding that section 13-20-602 is not jurisdictional; rather, "[t]he court has discretion to determine if a certificate of review is required"). This discretion is implicated in the present circumstances.
When the acts or omissions of counsel permit a statute of limitations to run on an otherwise viable claim, a plaintiff is not without remedy: he may sue his attorney for malpractice. See Giron v. Koktavy, 124 P.3d 821, 824 (Colo.Ct.App. 2005). Plaintiff in the instant case is free to pursue such a course of conduct.