Robbins: Suits against licensed professionals
A couple of years back, I had a suit against a medical doctor. At about the same time, I was defending one against a chiropractor. Recently, we initiated suit against a Realtor.
I know, it sounds like the set-up for a joke: an M.D., a chiropractor, and a Realtor walk into a lawsuit …
What, though, you may be asking yourself, do they have in common? What do aligning backs, marketing real estate, and — in this case — curing cancer, have a whit to do with one another?
In the first case — the one against the doc, the allegation was that he had failed to properly diagnose. In the second, the plaintiff alleged that when working on the plaintiff’s back, the chiropractic doc had caused a spinal injury. And the third revolved around an allegation of self-dealing. On the surface, they seem to be about as related as buttermilk to marmalade. Sure both are foodstuffs — or, in the specific case here, alleged wrongdoing. But other than that, say what?
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Below the surface, though, what they shared was that each defendant was a licensed professional. Before each one could hang their respective shingle, each had to be licensed by the state to ply their trade. In each case, here, the doc, the chiropractor and the Realtor were licensed before the great Rocky Mountain state of Colorado.
So far, you might say, “easy peasy,” or, instead, maybe, “yeah so what?”
Besides their licenses, licensed professionals are different. They are held to a higher professional standard than unlicensed folks and to perform their jobs professionally and competently, they must perform according to the expectations of their particular field. As such, the metric by which each is measured is one of reasonableness, but unlike unlicensed folks, rather than the standard of the “reasonable and prudent person,” the standard they are measured against is the “reasonable and prudent professional in like profession.” If fault is alleged, an oncologist’s conduct will be stood up against others in his or her field and specialty. Likewise for the chiropractic doc, the Realtor, and any other licensed specialist. Is what the licensed professional is alleged to have done, instead, within the norms of standard practice?
Because of the foregoing and the heightened duty of care incumbent upon them, it is presumed that a licensed professional must be judged (at least at first pass), by someone in the know. While one can file suit against a party who is unlicensed — a tinker, tailor, soldier, spy — before one may initiate a lawsuit against one who is licensed, a preliminary hurdle must be cleared.
In this state, welcome to C.R.S. §13-20-603 (the thing that looks like a pair of snakes in love, between the letters and the numbers, by the way, is lawyer hoity-toidyiness for “section”). For our discussion, the important bits of what that section provides is:
- 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 [such person] … 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. …
Section 3, in turn, provides:
(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… 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).
In other words, while one may file suit against an unlicensed individual in this state, if not exactly willy-nilly, to maintain a suit against a licensed professional for negligence, another person with “expertise in the area of the alleged negligence” (usually, a professional in the same field), after reviewing the facts, must provide the plaintiff’s counsel with a statement that the expert has concluded that pursuing a claim against the defendant is “not without merit.” In turn, the plaintiff’s attorney must file with the court that such review has taken place.
Why, you may be asking, should licensed professionals be treated differently than your average Joe? Why are they afforded this extra protection?
Perhaps it is in recognition that in areas of particular expertise, neither lawyers nor the courts can know everything and, in relying on the opinion of someone with similar expertise in the field, the courts will not become bogged down with wholly meritless claims.
Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices Of Counsel in the Vail Valley with the Law Firm of Caplan & Earnest, LLC. His practice areas include business and commercial transactions; real estate and development; family law, custody, and divorce; and civil litigation. He may be reached at 970-926-4461 or at Rrobbins@CELaw.com. His novels, “How to Raise a Shark (an apocryphal tale),” “The Stone Minder’s Daughter,” and “Why I Walk so Slow” are currently available at Barnes and Noble & Amazon.com. Coming soon, “He Said They Came From Mars.“