Adams et al v. Womble et al

Filing 53

ORDER denying 22 Motion to Dismiss; denying 33 Motion to Dismiss, by Judge Raymond P. Moore on 01/05/2016.(cthom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore

Civil Action No. 14-cv-01431–RM-BNB
JULIE ADAMS and MICHAEL ADAMS
Plaintiffs,
v.
JEFFREY WOMBLE M.D.; and THE MEMORIAL HOSPITAL of CRAIG
FOUNDATION, INC., a Colorado corporation,
Defendants.
ORDER DENYING DEFENDANTS’ MOTIONS TO DISMISS

_____________________________________________________________________________________

I.

INTRODUCTION

This matter is before the court on the defendants’ separate Motions to Dismiss plaintiffs’
Complaint (ECF No. 1), pursuant to Fed R.Civ.P. 12(b)(1). (ECF No. 22; 33). Defendants
Jeffrey Womble M.D. (Dr. Womble) and The Memorial Hospital of Craig Foundation, Inc.,
(Memorial Hospital), each move to dismiss, arguing that plaintiffs (the Adams) failed to comply
with the notice provisions of the Colorado Governmental Immunity Act (CGIA), C.R.S. § 24-10109(3). Id.
The Adams’ Complaint alleges: (1) that Dr. Womble, an employee of Memorial Hospital,
in negligently performing Julie Adams’ laparoscopic sigmoid resection surgery, failing to
recognize or reasonably respond to injuries that surgery caused and failing to provide reasonable
medical care and treatment, caused damages to both plaintiffs and (2) that Memorial Hospital in
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negligently failing to properly evaluate and treat Julie Adams; in failing to appropriately monitor
her medical condition and failing to properly and accurately report her medical condition to Dr.
Womble, fell below the applicable standard of care and caused damages to both plaintiffs. (ECF
No.1).
11.
A.

LEGAL STANDARD

Motion to Dismiss under Fed.R.Civ.P. 12(b)(1):

Motions to dismiss are, as a general rule, either facial or factual attacks. Holt v. United
States, 46 F.3d 1000, 1002-03 (10th Cir. 1995). A facial attack challenging the sufficiency of the
complaint requires the court to accept the allegations of the complaint as true and assess whether
the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be
granted. Yoder v. Honeywell, Inc., 104 F.3d 1215, 1224 (10th Cir. 1997)(internal citations
omitted), cert. denied, 522 U.S. 812, (1997). In a factual attack such as the timeliness of the
CGIA notice in this case, the moving party goes beyond the complaint to challenge the facts
upon which subject matter jurisdiction is based. Holt 46 F.3d at 1002. Under a factual attack the
court must look beyond the complaint and has wide discretion to allow affidavits, other
documents and even testimonial evidence to resolve the disputed jurisdictional facts without the
motion being converted into a Fed.R.Civ.P. 56 motion for summary judgment. Id.; Wheeler v.
Hurdman, 825 F.2d 257, 259 n.5 (10th Cir. 1987) cert denied 484 U.S. 986 (1987).
B.

Colorado Governmental Immunity Act:

Notice provisions of the CGIA apply when federal courts hear Colorado tort claims under
supplemental jurisdiction. Aspen Orthopaedics & Sports Medicine v. Aspen Valley Hospital
District, 353 F.3d 832, 838-39 (10th Cir. 2003). The CGIA raises a jurisdictional bar if notice is
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not given within the applicable time period. C.R.S. §24-10-109. Thus at the time relevant to the
instant action, a person claiming an injury by a public entity was required to mail written notice
to the governmental entity within 180 days after the discovery of the injury, regardless of
whether the person knew all of the elements of the claim. Id. Colorado courts have consistently
held that complying with the notice of claim is a jurisdictional prerequisite to suit and is not
subject to equitable defenses such as waiver, tolling or estoppel. Aspen Ortho, 353 F.3d at 83940 (citing Gallagher v. Board of Trustees for U of N Colo., 54 P.2d 386, 391 (Colo 2002)).
III.

DISCUSSION

The following undisputed facts gleaned from the parties’ pleadings, address the relevant
facts pertaining to the disputed CGIA notice rather than the underlying facts of the case.
It is undisputed that:
(1) Memorial Hospital is a government entity in that it is owned and operated by Moffat
County;
(2) this case involves allegations of medical negligence by both Dr. Womble and
Memorial Hospital which occurred on or about June 19, 20121;
(3) Dr. Womble is and was at all relevant times, an employee of Memorial Hospital, a
government entity;
(4) CGIA requires notice to governmental public bodies within 1802 days after the date of
discovery of the injury (C.R.S. § 24-10-109);

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Thus plaintiffs’ notice was required to be given by December 19, 2012.
This 180-day notice period changed to 182 days as of July 1, 2012.

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(5) notice must be filed with the governing body of the public entity or attorney
representing the public entity; and
(6) on or about November 19, 2012, plaintiffs sent their CGIA notice letter by registered
mail to: Mr. Kenneth Wohl, city attorney for Craig, Colorado3; Mr. John Suthers, Attorney
General for the State of Colorado; Ms. Rebecca Tyree, Moffat County Attorney and Memorial
Hospital, Attn: Ms. Susan McCough, Administrator.
Defendants assert that plaintiffs’ notice filed with various government representatives
including Moffat County Attorney Rebecca Tyree4 was insufficient because although Memorial
Hospital is a governmental entity owned and operated by Moffat County; plaintiffs did not serve
Memorial Hospital’s governing body, the Board of Trustees. (ECF Nos. 22; 33; 42). Defendants
contend that although Ms. Tyree serves as the attorney for various Moffat County entities, she
“do[es] not serve as the attorney for local government entities in litigation of insured claims.”
(ECF No. 42-5, pp.1-2).
Ms. Tyree in her affidavit, states that she did receive plaintiffs’ registered letter of notice
in November 2012, however, because she was relatively new to her job, she did not recognize
that the Memorial Hospital’s address and/or its administrator’s name were incorrect. (ECF No.
42-5, p.2). Further she states that she believed that the plaintiffs had given sufficient notice to
Memorial Hospital via their letter addressed to its administrator, and thus, she did not forward
the letter she received5. Id.

Craig, 2010 census figures show a population of 9,251. http://www.craig-chamber.com/profile.html.
Ms. Tyree is listed on the State of Colorado’s website as the designated agent for Moffat County. (ECF No.35-1).
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Ms. Tyree’s affidavit does not state what if anything, she did with plaintiffs’ letter.
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Plaintiffs note that although the defendants dispute that Ms. McCough was Memorial
Hospital’s administrator in 2012 and that Ms. Tyree was the appropriate representative, neither
defendant has provided the court with the names of the appropriate administrator or attorney that
allegedly should have been served. (ECF No. 45-1, p.3). Plaintiffs also argue that dismissal at
this stage of litigation would be “a de facto dismissal with prejudice” because with the passage of
time the statute of limitations would preclude refiling. (ECF No. 45-1, pp.4-5).
The CGIA serves many public interests. Along with providing notice of the need to
investigate claims, the CGIA’s notice provisions also allow for the abatement of dangerous
conditions, foster prompt settlement of meritorious claims and enable public entities sufficient
notice of potential claims to prepare a defense and make necessary fiscal arrangements to meet
any potential liability. Woodsmall v. Regional Trans. Dist., 800 P.2d 63, 68-69 (Colo 1990).
However, one of the fundamental but often overlooked purposes of the CGIA is to permit
a person to seek redress for personal injuries caused by a public entity. Id. Thus the CGIA
notice provisions are entitled to deferential construction in favor of victims injured by the
negligence of governmental agents. Id. Allowing public entities to escape liability by
misleading plaintiffs or obfuscating the appropriate entity upon whom to serve a complaint and
then asserting the affirmative defense of noncompliance is beyond the legitimate purposes of the
CGIA’s notice provision. Finnie v. Jefferson County Sch. Distr., 79 P.3rd 1253, 1258 (Colo
2003). Interpretations of the CGIA “should not permit public entities to manipulate the notice
provision to dodge otherwise proper suits.” Id.
In a small town with a single hospital that employs physicians (including the defendant
physician), to operate its affiliated clinics, it beggars the imagination to believe that defendants

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failed to receive notice of this suit given that plaintiffs’ letters were delivered inter alia to both
the County attorney and the Memorial Hospital clinic. I decline to elevate form over substance
in this matter and therefore deny defendants’ motions to dismiss.
IV.

CONCLUSION

For the reasons stated above, defendants Motions to Dismiss ((ECF Nos. 22; 33) are
DENIED.
IT IS SO ORDERED
DATED this 5th day of January, 2016.
BY THE COURT:

____________________________________
RAYMOND P. MOORE
United States District Judge

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