Opinion
Civil Action 21-cv-01197-RM-KLM
11-30-2021
MILTON MCMINN, Plaintiff, v. CAREMERIDIAN, LLC, Defendant.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Kristen L. Mix, United States Magistrate Judge.
This matter is before the Court on Defendant's Motion to Dismiss for Failure to File a Certificate of Review [#24] (the “Motion”). The Motion [#24] was referred to this Court for recommendation. [#18, #25]. The Court has reviewed the Motion [#24], the Response [#26], the Reply [#28], the entire file, and the applicable law, and is sufficiently advised in the premises. For the reasons set forth below, the Court respectfully RECOMMENDS that the Motion [#24] be GRANTED IN PART and DENIED IN PART, and that Plaintiff be directed to file an amended complaint.
“[#24]” is an example of the convention the Court uses to identify the docket number assigned to a specific paper by the Court's case management and electronic case filing system (CM/ECF). This convention is used throughout this Recommendation.
I. Background
Plaintiff Milton McMinn (“Plaintiff”) is a Colorado resident whose son, Chase McMinn, required specialized, rehabilitative neurological treatment after a catastrophic brain injury from a shooting on September 5, 2017, that rendered him severely disabled. Compl. [#3] ¶¶ 1, 9. Defendant CareMeridian, LLC (“Defendant”), a medical rehabilitation facility, has its primary place of business in Littleton. Id. ¶¶ 2.
After Chase McMinn was discharged from the hospital on February 5, 2018, Plaintiff transferred his son to Defendant's Littleton facility on the alleged representation, from both on-site representatives and Defendant's website, that Defendant “specialized in providing brain injury rehabilitation, ” and that it had “physician experts” and “expert consulting physicians” in “neurorehabilitation and brain injury rehabilitation.” Compl. [#3], ¶¶ 14, 15. Several weeks after his son's transfer to Defendant's facility, Plaintiff avers that he “learned that Defendant did not have any physicians with expertise in neurology, neurorehabilitation, traumatic brain injuries, or brain injury rehabilitation on its Littleton staff, ” and “suspected . . . that Defendant did not have consulting physicians with expertise in these areas readily available at its Littleton facility.” Id. ¶ 16. Instead, Plaintiff avers that his son's care was overseen by Michael McMillian, M.D., whom Plaintiff believes was the only doctor on staff, and Dr. McMillian's area of medical practice was family medicine, not neurology, neurorehabilitation, traumatic brain injuries, or brain injury rehabilitation. Id. ¶¶ 16.
Plaintiff alleges that Defendant violated the Colorado Consumer Protection Act (“CCPA”), Colo. Rev. Stat. § 6-1-101, et seq. by, among other things, falsely representing the services that it could provide at its Littleton facility. Compl. [#3] at ¶ 21. In addition, Plaintiff asserts a fraud claim based on Defendant's alleged promises, representations, and concealments that were intended to cause Plaintiff to make the decision to place his son in Defendant's care. Id. ¶¶ 26-30. Plaintiff seeks compensatory damages and treble damages under the CCPA. Id. at 5.
In the Motion [#24], Defendant seeks to dismiss the case for failure to file a certificate of review by an expert within sixty days of service of the complaint as required by Colo. Rev. Stat. § 13-20-602. Id. at 1-2. Defendant asserts that the core of the case is whether Plaintiff's son received proper neurorehabilitative care from Defendant, and not a violation of the CCPA or a concealment of facts. Id. Thus, while Plaintiff does not allege claims of medical negligence, Defendant asserts that Plaintiff's claims nevertheless require evaluation of the care, treatment, and services that his son received while at Defendant's facility. Id. at 3. According to the Motion [#24], proof of these claims will require an expert in the field of neurorehabilitation and brain injury to assess the care provided and determine whether it was appropriate for Chase McMinn's neurorehabilitation needs. Id. at 3.
In the Response [#26], Plaintiff asserts that this is not a malpractice case against a medical professional or employer thereof alleging that the care his son received was substandard, which would require a certificate of review. Response [#26] at 2-3. Rather, this is a case under the CCPA based on misrepresentations and fraud by a rehabilitation facility in its marketing materials and through other communications about the services and professionals available at Defendant's facility. Id. Plaintiff notes that this distinction is important, as the claims do not require expert testimony to prove them and thus do not require a certificate of review. Id. at 2-4. Plaintiff asserts that this is further illustrated by the fact that he is bringing the action on behalf of himself for damages for money paid out of his pocket, and not on behalf of his son as his conservator related to his medical condition or care. Id. at 2. Additionally, Plaintiff notes that the misrepresentations he alleges were not made by any medical provider, but were made by Defendant prior to Chase McMinn's transfer to Defendant's facility. Id. at 4.
In the Reply [#27], Defendant asserts that Plaintiff's arguments fail for two reasons. First, Defendant argues that Plaintiff's few nonconclusory allegations expressly allege the care provided was, in Plaintiff's view, inadequate. Reply [#27] at 2 (citing Compl. [#3] ¶ 17). Second, it is argued that Plaintiff's argument ignores the fundamental nature of medical services. Unlike ordinary commercial goods or services, medical services must be evaluated and assessed as to the patient's particular needs, and a comprehensive care scheme established. Id. Plaintiff thus could not simply demand the services he wanted his son to receive; instead, the services had to be based on what Chase McMinn needed from a medical perspective. Id. Further, the fact that Chase McMinn did not receive every rehabilitative intervention and service listed among the broad list of healthcare services on Defendant's website, as often as Plaintiff would have liked, does not mean Defendant misrepresented its services. Id. at 3. According to Defendant, Plaintiff must show that the services Defendant provided to Chase McMinn were inadequate for Chase's individual medical needs. Id. at 3, 5.
II. Analysis
A party who asserts a professional negligence claim against a licensed professional is required to file a certificate of review. Colo. Rev. Stat. § 13-20-602(1)(a). That statute states:
In every action for damages or indemnity based upon the alleged professional negligence of . . . a licensed professional, the plaintiff's or complainant's attorney shall file with the court a certificate of review for each . . . licensed professional named as a party . . . within sixty days after the
service of the complaint ... against such person unless the court determines that a longer period is necessary for good cause shown.Id. Because § 13-30-602 does not set forth a jurisdictional requirement, “courts have discretion to determine if a certificate of review is necessary.” Fogle v. Elliott, No. 11-cv- 03253-CMA-MEH, 2012 WL 5363800, at *9 (D. Colo. Sept. 18, 2012) (citations omitted).
Courts require a certificate of review when expert testimony is needed to establish a prima facie case of professional negligence. Fogle, 2012 WL 5363800, at *9; see also Badis v. Martinez, 819 P.2d 551, 554 (Colo.App. 1991), rev'd on other grounds, 842 P.2d 245, 249 (Colo. 1992) (en banc). This process ensures that the defendant does not expend “unnecessary time and costs in defending professional negligence claims” by “weed[ing] out frivolous claims at an early stage of the judicial process.” Yadon v. Southward, 64 P.3d 909, 912 (Colo.App. 2002) (citation omitted). A certificate is normally required for a medical malpractice claim based on negligence because that claim requires expert testimony to supply lay jurors with requisite knowledge and ensure the case is not beyond their grasp. Shelton v. Penrose/St. Francis Healthcare Sys., 984 P.2d 623, 627 (Colo. 1999); Teiken v. Reynolds, 904 P.2d 1387, 1389 (Colo. App.1995). Thus, in determining whether a certificate of review is required, the Court must determine whether the case is based on the negligence of a licensed professional, regardless of how the claims are labeled, and whether expert testimony is needed to establish the claims. See Teiken, 904 P.2d at 1389; Martinez, 819 P.2d at 554. If the answer to either of these two questions is “no, ” a certificate is not deemed necessary. Id.
In the present case, it is a close call whether a certificate of review is required. On the one hand, the Court acknowledges Plaintiff's position that this is not a professional negligence/malpractice case. Instead, Plaintiff asserts claims under the CCPA and for fraud. Plaintiff avers that these claims are based on alleged misrepresentations by Defendant that induced him to admit his son to Defendant's facility prior to his son's actual transfer to that facility. The Court agrees with Plaintiff that to the extent his claims are based on misrepresentations as to the type of physicians or services that were available at Defendant's facility, i.e., representations that doctors who specialized in neurology, neurorehabilitation, traumatic brain injuries, or brain injury rehabilitation were on staff or readily available when they were not, these claims are not based on professional negligence and do not require proof of professional negligence as a predicate to recovery. Further, such claims would not require expert testimony. Either the facility had such physicians on staff or available in consulting positions or it did not. This does not implicate the applicable standard of care relevant to physicians and the care they provide. See Williams v. Boyle, 72 P.3d 392, (Colo.App. 2003); see also Baumgarten v. Coppage, 15 P.3d 304 (Colo.App. 2000) (holding that a certificate of review was not required as to claims against licensed real estate brokers, including a deceptive trade practices claim, because the “plaintiffs need only prove that defendants had actual knowledge of adverse material facts pertaining to the physical condition of the residence and that they failed to disclose such facts to plaintiffs[, ]” and expert testimony was not required as to these issues). Accordingly, the Motion should be denied as to such claims.
However, Plaintiff also included allegations in the Complaint [#3] that could plausibly be construed to complain about the quality of care that Plaintiff's son received. Thus, Plaintiff alleges that Defendant violated the CCPA by “[r]epresenting that its services were of a particular standard, quality or grade, when it knew or should have known its services were of another. . . .” Compl. [#3] at 4 ¶ 21(b). Contrary to Plaintiff's Response [#26], determination of the truth or falsity of Defendant's representations regarding the quality and standard of care provided to Plaintiff's son requires expert testimony. See, e.g., Teiken, 904 P.2d at 1399 (expert testimony was required to establish “the truth or falsity of defendant's alleged representations” that breast implants were medically safe and suitable). Further, a determination as to whether Defendant's facility had the expertise and resources for treating traumatic brain injuries as was allegedly represented to Plaintiff (Complaint [#3] ¶¶ 13-18) is not something within the lay knowledge of jurors, and would also require expert testimony. See Williams, 72 P.3d at 397; see also Jones v. F.C.I. Beckley Med. Staff. Emples., 2013 U.S. Dist. LEXIS 148146 (S.D.W.Va. Oct. 15, 2013) (“Although the nature of a hit and run is within the understanding of a lay juror, the resulting injury, neurological or nerve damage, and whether the treatment medical staff provided fell below the applicable standard of care, requires expert testimony.”).
Finally, Plaintiff appears to complain as to the quality of care provided by a neurologist “brought in to ‘consult[, ]”' who Plaintiff alleges “did not do any assessment or evaluation or provide any treatment” to Plaintiff's son in his first visit, and in the second visit, “was more concerned with Chase McMinn's ingrown toenails than with Chase's neurological condition.” Id. at 3 ¶ 17. These allegations require expert testimony as to the neurologist's duty of care and whether that duty was breached. See Williams, 72 P.3d at 397. Accordingly, the Motion should be granted as to any part of the claims based on these allegations, as a certificate of review was required to be filed within 60 days of filing of the Complaint.
Finally, the Court notes that the claims in the Complaint [#3] incorporate both the allegations that require dismissal based on failure to file a certificate of review as well as allegations that do not require dismissal. Further, Defendant has asserted, although not as an express basis for dismissal in the Motion [#24], that Plaintiff's fraud claims are not pled with particularity. See Reply [#27] at 3. Accordingly, the Court recommends that Plaintiff be directed to file an Amended Complaint that (1) restates only the allegations that do not require a certificate of review; and (2) pleads the statements or representations made by Defendant that are allegedly false and explains how or why Plaintiff believes those statements are false.
III. Conclusion
For the reasons stated above, IT IS HEREBY RECOMMENDED that the Motion [#24] be GRANTED IN PART AND DENIED IN PART, as set forth above.
IT IS FURTHER RECOMMENDED that Plaintiff be ordered to file an Amended Complaint as set forth in this Order.
IT IS HEREBY ORDERED that, pursuant to Fed.R.Civ.P. 72, the parties shall have fourteen (14) days after service of this Recommendation to serve and file any written objections in order to obtain reconsideration by the District Judge to whom this case is assigned. A party's failure to serve and file specific, written objections waives de novo review of the Recommendation by the District Judge, Fed.R.Civ.P. 72(b); Thomas v. Arn, 474 U.S. 140, 147-48 (1985), and also waives appellate review of both factual and legal questions. Makin v. Colo. Dep't of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996). A party's objections to this Recommendation must be both timely and specific to preserve an issue for de novo review by the District Court or for appellate review. United States v. One Parcel of Real Prop., 73 F.3d 1057, 1060 (10th Cir. 1996).