Wednesday, July 14, 2010

Certificate of Review (Litigation Checklist)

This certificate of review checklist and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy
- C.R.S. Section 13-20-602 requires the filing of a certificate of review in every action for damages or indemnity against a licensed professional (e.g. medical/dental malpractice, legal malpractice, engineering malpractice, etc.) or acupuncturist, and in every action against a company or firm that employed such a licensed professional at the time of the alleged professional negligence (even if professional not personally named). This includes doctors, lawyers, engineers, real estate agents, etc., though the exact extent has not been rigorously tested in Colorado.

- Additionally, if you are the defendant and are designating a licensed professional as a non-party at fault, you must file a certificate of review. C.R.S. Section 13-21-111.5(3)(b).
- Certificate must be filed within 60 days after the service of the complaint, cross-claim, or counter-claim naming the licensed professional unless a longer period is necessary for good cause shown.
- Certificate of review shall include:
-- Statement that filing attorney has consulted a person who has expertise in the area of allegedly negligent conduct;
-- That the expert 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 C.R.S. Section 13-17-102(4).
-- A certificate of review against a physician must declare that the person consulted meets the requirements of C.R.S. Section 13-64-401.
-- In all other certificates of review, the certificate must declare 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.
- It is NOT necessary to identify the expert consulted, though the court may require the identity disclosed to it (but not opposing parties) for verification.
Thoughts & Best Practices:
- Bottom line--if a showing of professional negligence via expert testimony is a requirement of any claim or defense, a certificate of review must be filed.

- If in doubt as to whether to file a certificate of review it is probably best to file it, as failure to file where required will result in dismissal of your case. Where it would be prohibitively expensive or otherwise difficult to file a certificate of review where you are unsure of its necessity, you can file a motion for determination of whether such filing is required. See 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).
- Certificate of review not required in claims against a professional that does not relate to defendant’s professional activities. See Siepierski v. Catholic Health Initiative Mountain Region, 37 P.3d 537 (Colo. App. 2001).
Example Forms:
- Click Here for Example Certificate of Review (Locked)
- Click Here for Publicly Editable Certificate of Review (Please feel free to make improvements to this form, and comment below to describe what changes were made)
Jeff Vail is a business litigation attorney in Denver, Colorado.  Visit for more information.
This certificate of review checklist and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.

1 comment:

mara said...

What about medical malpractice?