Austin v. Litvak

Marquita Robert L. AUSTIN and Austin, Plaintiffs-Appellants, LITVAK, Anthony's

John M.D. and St. Hospital, Defendants-Appellees.

No. 82SA236.

Supreme Colorado, Court of En Banc.

May 7, 1984.

Rehearing Denied June judge parties' pro- rect. What is clear is that the trial did not interests the court can utilize such reaching hearings, utilize the correct standard in the deci- cedures as in camera spection in camera in- judge's documents, employment sion. The matter is entrusted to the trial and the discretion, proper court-appointed experts appropriate. sound and it would not be where appellate speculate array court to whether the trial The court should consider the flexible protective differently any suggested by 26(c) court would have ruled spect re- orders C.R.C.P. applied. Rather, party seeking had the correct test been accomodate the needs of the dis- judge opportuni- covery protecting legitimate the trial should be afforded an while interests ty balancing party opposing discovery. to reconsider the matter. Shatz, Denver,

Herbert A. plaintiffs- for appellants. Epstein,

Alan Hanneman, Richard A. Evans, Denver, Hall & defendant-appel- Litvak, lee John M.D. Boulter, P.C., Denver,

Stuart L. for de- fendant-appellee St. Anthony’s Hosp. Hoffman, Gene M. Hoffman & McDer- mott, Denver, for amicus curiae Colo. Trial Lawyers Assoc.

Pryor, Johnson, Carney P.C., & Thomas Roberts, Smith, L. Englewood, Susan Teas Breit, P.C., Breit, Hansen & John L. Susan Fisher, Denver, Smith for amicus curiae Lawyers Colo. Defense Assoc. Wood, Wood, Lawrence M. Constance B. Denver, for amicus curiae Colo. Medical Soc.

NEIGHBORS, Justice. plaintiffs-appellants, Robert L. Aus- Austin, Marquita tin and filed their com- plaint defendants-appellees, Dr. John Litvak Anthony’s Hospital, and St. the district court on 1980. The June plaintiffs alleged that 1963 the defend- negligently misdiagnosed ants Mr. Austin’s parasaggital medical condition as a menin- gioma.1 Each defendant filed a motion for summary judgment. grant- The trial court ed Dr. Litvak’s motion on the basis that the claims were barred the three- year found section 13-80-105, (1983 Cum.Supp.). C.R.S.1973 Anthony’s summary judgment St. motion granted Relying for the same reason. Mercy Hospital, Moon v. 1. Mrs. Austin’s action is for loss of consortium claim. is, therefore, derivative to Mr. Austin’s direction; tests, unknown trial court also vak’s that these time, effectively estab- Mr. Austin at the hospital was entitled

ruled tumor; he did not summary judgment it is “not li- lished have a brain because Dr. Litvak of this fact. practice was aware censed to medicine.” May years after trial sixteen plaintiffs appealed court’s However, negligent Mr. Austin alleged misdiagnosis, rulings appeals. to the court of in an accident in to this court was involved automobile appeal was transferred 13-4-102(l)(b) Greeley, and 13- Colorado. As a result of a series pursuant sections (1983 Cum.Supp.). tests necessi- 4-110(l)(a), of medical examinations and C.R.S.1973 accident, by the Mr. Austin learned that the statute of re- tated' holdWe 13-80-105, tumor that he did not a brain section C.R.S. pose contained that, applies disappear (1983 as it since this condition does Cum.Supp.), insofar remission, he have suffered premised on a could never persons whose claims claim, Mr. Austin and his misdiagnosis violates the from such illness. negligent guarantees the filed this case eleven months later. protection Colora- wife equal judgment the and reverse do Constitution plain- the II. regard court to

of the trial with against We affirm claims Dr. Litvak. tiffs’ years the costs of the last fifteen Within against of their claims St. the dismissal drastically medical services have increased Anthony’s Hospital. availability their has decreased. while mid-1970’s, During the increased medical

I. raised malpractice insurance rates concerns patients higher medical costs to and following the facts from the about We learn physicians in complaint practicing answers absence of and their to Learner, areas. Robert L. some rural Restrictive interrogatories.2 Dr. See Litvak’s Malpractice Compensation Anthony’s Hos- Medical Austin was admitted to St. “Quid Denver, September A Pro pital in in of Schemes: Constitutional Colorado ”Quo kidney Analysis Safeguard To Individual for the treatment of stones. Liberties, Legis. hospitalization, Mr. Austin un- Harv.J. on During this plaintiffs Suggested causes of the “crisis” included tests. The derwent numerous (1) increasing mal- number of medical Dr. Litvak and other were informed filed; (2) that, results, large claims and erratic practice the test physicians based on awards; (3) “long-tail” damage meningioma, parasaggital Mr. Austin had a com- problem which forced some insurance a form of tumor. Dr. Litvak which is brain present impose artificially high charge panies in to physician as the was retained protect increased fu- premiums to performed care additional Mr. Austin’s damage at 145. Al- tests, drilling an ture awards. Id. one of which consisted argued skull, many removing though in Mr. commentators opening Austin’s grossly exagger- “crisis” has skull, placing a metal that this been part of Williams, ated, D. H. Medi- see Louisell & in his The screen remains screen head. § (Supp.1979), 20.07 n. 55 Malpractice confirmed the cal allegedly intact. Dr. Litvak designed the crisis legislation to alleviate diagnosis, Mr. Austin that informed passed by legislature each has been operable without severe tumor was McKenna, J. White & Con- risk, undergo sur- state. See W. and advised him not to Leg- Malpractice stitutionality Recent gery. Mr. Austin claims that while he also (1977). Represent- islation, 13 Forum 312 hospitalized Anthony’s, he was at St. legislation provisions malpractice Hospital where ative taken to Colorado General (1) ad Dr. included the elimination performed tests Lit- have additional were prove the facts al- can express opinion Whether no as to the truth these 2. complaint trial. alleged leged to be determined at facts which are in the remains response discovery requests. stated in (2) pleadings; legislature clause from damnum modi- amended C.R.S. rule; (3) 87-1-6, adopting fication of the collateral source explicitly the “dis- covery” the kind and However, legislature limitations on amount of dam- rule. im- recoverable; (4) insurance; ages mandatory posed six-year period3 strict limitation (5) punitive damages; (6) running abolition of from estab- the date of the act or omis- screening panels mandatory giving action, lishment or rise to sion the cause of arbitration; (7) changes except involving unauthorized for- eign applicable objects. of limitations to medical mal- Colo.Sess.Laws ch. 232. 312 n. practice claims. Id. at reducing statute was amended six-year years. the strict limitation to five Legislature responded The Colorado Colo.Sess.Laws ch. 90. In problem premium of increased rates for Assembly General enacted current stat- malpractice and the re insurance provides pertinent part: ute companies of all but a insurance fusal few “13-80-105. Actions barred in two coverage physi write such for Colorado years. person permitted No shall be by shortening cians the statute of limita action, to maintain an whether such ac- tions for medical claims. Be contract, tion sounds in tort or to recover reviewing legislation, fore this some brief damages from a or licensed certified hos- background helpful place the issues pital, facility, health dispensary, care perspective. appeal raised Be other institution treatment or tween 1925 and the Colorado statute care of the injured alleged sick or due to provided of limitations that actions sound negligence or of in pro- breach contract ing in damages tort or contract to recover viding care or lack of informed consent pro from certain members medical any person or from licensed this state fession could not be unless maintained such any medicine, practice or other state to action years was “instituted within two af chiropractic, nursing, physical therapy, ter such action cause of accrued.” medicine, podiatry, veterinary dentistry, ’53, C.R.S. 87-1-6. In 1963 and the pharmacy, or optometry, healing other legislature by statute adding amended the alleged negli- arts on account the persons additional classes of to whom it contract, gence, breach of or lack of in- 87-1-6; C.R.S.1963, pertained. Colo.Sess. person formed consent of such in the Laws ch. 101. Before this two- practice profession for which he is year judicially statute of limitations was licensed or on of his account failure to beginning construed as to run when the possess degree or exercise that of skill discovered, patient or the exercise of actually impliedly represent- which he or diligence reasonable have should discover ed, promised, agreed pos- or that he did ed, negligence. the doctor’s Owens v. Bro exercise, sess and would unless such ac- chner, 172 Colo. years tion is instituted within two after Senger, Rosane v. person bringing the action (1944). the discover- adoption of the “dis ed, or in the of reasonable dili- covery” exercise premised rule was on the “mani gence and concern have discover- foreclosing should injured fest unfairness of ed, injury. may the In event no such person’s cause of action before he has had action be instituted more than three opportunity even a reasonable to discover years Mary its existence.” after the act or omission which Brown Hitchcock gave thereto, the Hospital, subject Memorial 117 N.H. rise follow- ing exceptions: A.2d 1139-40 opinion peri- prescribed period. In this the "strict within the term limitation this sense, malpractice properly od” means that a medical the statute is more claim for of limitations barred, absolutely regardless is of the date characterized because the as physician’s plaintiff which the claimant the claim is the discovers act barred even before be- suit, giving or omission the if comes aware rise to not filed of its existence. Two, excepted the is the “(a) gave fact. from If omission claim the act or knowingly period repose if the left an physician

rise to the cause of action foreign committing object the claim- by person concealed such the unauthorized omission, or, exception, if such or act or act omis- Under either body. ant’s leaving an by must filed malpractice sion consisted unauthorized medical action body of foreign patient, years injured person within two after may such be instituted within then action dis- discovers should have claimant person years bringing two after the act or omission. covered discovered, inor action exercise diligence and concern reasonable should III. omission; discovered, the act or the trial argue first that granted summary judg- improperly court (1983 13-80-105, C.R.S.1973 Section Cum. three-year ment them because Supp.); ch. 198. Colo.Sess.Laws 13-80-105, does repose, section statute “discovery” thought rule was Since Alternatively, to their claims. apply significant mal- play a role applica- they if the statute contend creating practice crisis the so-called case, then they ble to this entitled liability, this was de- “long-tail” of statute object” invoke the “unauthorized premiums by signed to reduce addition, Trial exception. the Colorado eliminating companies’ inabil- the insurance Association, on be- Lawyers curiae amicus predict losses. ity to future claims and plaintiffs, half suggests In order the issues raised to resolve complaint be construed should appeal, interpret must first this “knowing conceal- claim alleging a necessary analytical develop statute to ment,” exception to the strict the second as the in- framework. Insofar statute is repose.4 will ad- case, volved section 13-80-105 es- separately. argument dress each limitations, following and ex- tablishes limitations, ceptions governing the to those A. for prosecution malprac- of a claim medical allege complaint plaintiffs the their must file tice: claimant the action of the acts omissions negligent that the and years injured person two the within after or Octo- occurred in September defendants “discovered, or in the exercise of reason- plaintiffs further state ber of 1963. The diligence dis- concern should have able and discover, and, in the exer- they that did 13-80-105(1). covered, the injury.” Section diligence, not have cise could reasonable period, In addition to limitation the of this until their claims existed discovered provision repose statute which contains a 15, plaintiffs’ complaint 1979. The June provides may be filed that no more action 4, of purposes was on 1980. For filed June years the than three after or omission act motions, the de- summary judgment the gave to the 13- which rise Section claim.' (1) the incor- conceded that 80-105(l)(a) exceptions have two to the contains fendants reported One, diagnosis rect made and three-year period repose. the of claim 1963; (2) plaintiffs plaintiffs the in the person who is not barred if the committed 1979; improper in diagnosis knowingly the act omission conceals that discovered the physi- the urged was no of has also that we cause there continuation 4. The amicus curiae relationship cian-patient the "act or Litvak and construe words omission” found between Dr. misdiagnosis 1963, of section in the context 13-80-105 to consider after and decline Mr. Austin continuing to be act or until omission this Clark v. the case. See further issue discovered candidly the claimant. amicus curiae (1st Cir.1970); Gulesian, Doyle v. 405 429 F.2d is no admits there Colorado which case Parenthood, 126, Wash.App. 639 P.2d 31 Planned statutory interpretation. supports this We novel 228, (1982); Szendey, v. Me. 240 158 Tantish any authority been else- unable to locate rejected the continu- 660 which 182 A.2d support the where to a construction of such theory malpractice cases. ing tort in medical Therefore, reject argument be- statute. 47 (1983). this action was filed within two Examples of such objects years plaintiffs after the discovered the sponges (Rosane, 363, include 112 Colo. 149 alleged act or (Mudd defendants’ omission. 372); surgical clamps P.2d Dorr, v. Colo.App. 40 (1977)); 574 97 P.2d two-year discovery pro Under injection (Nixdorf Hicken, needles v. 612 scheme, present statutory in the vision (Utah 1980); P.2d 348 Landgraff Wag v. for medical accrues on claim ner, Ariz.App. (1976)). 546 P.2d 26 plaintiff date the discovers or should A which intentionally placed device is injury. purposes have discovered the For body patient’s knowledge with and con exceptions three-year statute sent does not constitute an unauthorized repose, the cause action accrues when foreign object purposes tolling the claimant discovers or should have dis applicable statute of limitations. Shannon the act covered or omission. See Mastro v. Thornton, v. 155 Ga.App. 272 S.E.2d Brodie, (Colo.S.Ct.1984), (1980); Cooper v. Edinbergh, 75 Owens, 172 474 P.2d 603. The A.D.2d (N.Y.App. N.Y.S.2d 810 date of limitations effect on the statute 1980). governs claim plaintiffs accrues when must be the time within which action C. Stanton, Mishek commenced. paragraph complaint, of their Valenzuela plaintiffs allege: Colo.App. Mercy Hospital, 34 upon belief, “6. That information and cause Because was, plaintiff pa- while a [Mr. Austin] action accrued section 13-80-105 Hospital said tient at and under the care applies to their suit defendants Litvak, of and direction of administered and the bars certain tests at Hospi- Colorado General claims, their unless defendants’ conduct tal, test results unknown to statutory excep comes within one of the defendants, plaintiff, but known to both constitutionally or the is in tions statute effectively plaintiff established that did Mishek, firm. 616 P.2d 135. parasaggital meningioma.” not have suggested It is behalf B. allegations these are sufficient We next address the issue of wheth knowing plead reply as a concealment er the metal screen Mr. Austin’s skull is and, limitations defense foreign object” an “unauthorized within therefore, the trial court erred when it meaning statutory exception. granted summary judgment for the defend- not, conclude it We as a matter of law. reject ants. construction plaintiffs’ of the com essence paragraph. plaint negligent misdiagnosis, is the not First, gravamen the plaintiffs’ presence object of an unauthorized complaint is that the and acts omissions of in body by left Mr. Austin’s Litvak. Dr. negligent the defendants constitute misdi- Indeed, plaintiffs’ complaint the an and Moreover, agnosis. plaintiffs’ attorney the interrogatories to the swers establish that argument support did not raise this in deliberately screen metal was and neces pleading, his either the own in briefs filed sarily placed in to Mr. Austin’s skull re opening in court in his the trial or brief during place bone that had been removed in court. filed surgical diagnostic procedure. con the We Second, foreign object clude that an unauthorized is since the defendant inadvertently in patient’s left raised the affirmative defense of the stat 13-80-105, body therapeutic diag no which has or ute of limitations under section purpose plaintiffs upon nostic or effect. See it was incumbent to Cal.Civ.Proc. § § (1982); 340.5 in- Code Wis.Stat. 893.55 come forward with facts sufficient to yoke diligence concern should have dis- knowing exception able concealment to covered, omission, They requir- or while repose. act statute three-year so; rather, only ing plaintiffs who base they point persons to such to do failed para negligent misdiagnosis to allegations their claim on unsubstantiated complaint. years well-es bring of their Under suit within two after graph 6 dispo governing injury years law three principles of or a maximum of tablished motions, re summary judgment act from the date of the or omission. sition allegations pleadings Thus, plaintiffs that on unverified conclude the stat- liance wholly E.g., insufficient. Ginter v. unconstitutionally is ute discriminates Co., misdiagnosed plaintiffs by de- negligently & 196 Colo. Palmer Farm Mutual of the dis- priving O’Herron State them of the benefits Co., covery Insurance rule contained two Automobile (1964). Accordingly, repose provi- exceptions P.2d 227 to their claims on plaintiffs may pursue sion. knowing concealment. Mish theory our decision suggest The defendants ek, 616 P.2d 135. Mishek, dispositive of equal We protection claim. IV. Mishek, equal the claimant’s disagree. a number of plaintiffs have raised limited to her con- protection argument was “ support position that of their arguments ‘no reasonable basis exists tention Indeed, statute is unconstitutional. healing profes- separating medical by filed sections of the briefs substantial lay professionals from other sionals curiae parties and the amici counsel for the special pro- persons granting them the equal process and directed to the due six-year maximum tection afforded present- protection have been issues which limitations’ and therefore section statute of to this case Because we elect resolve ed. 13-80-105, C.R.S.1973, constitu- violates pro- grounds, the due equal protection on equal guaranteeing pro- provisions tional day.5 another cess issues will be saved for prohibi- tection and the state constitutional Id. 139. against special legislation.” plain- on the tion first focus our attention argument rejected we provisions sec- The because argument that the

tiffs’ equal to our decision McCar- right their declined overrule 13-80-105 violate tion Goldstein, Specifically, ty protection of the law.6 that the two- imper- where this court held that the statute maintain applicable year of limitations missibly discriminates between li- allowing against “person[s] persons negligence claims malpractice claimants medicine, chiropractic, practice three- to the censed premise who their “defense” midwifery “foreign object” chiropody, or den- osteopathy, year 87-1-6, ’53, neither consti- tistry,” C.R.S. “knowing concealment” theories equal nor plain- special legislation violated years after the tuted bring suit within two principles.7 discovers, protection reason- or in the exercise of tiff (4th Cir.1980); Holy Mishek, expressly Woods v. Cross 291-92 616 P.2d at n. (5th Cir.1979); question Hosp., a statute of 591 F.2d 1172-75 reserved the of whether years comports Hosp., with So.2d shorter than six v. Rankin Fite Memorial limitations Reese process requirements. (Ala.1981); Broomfield, due Eastin v. 160-62 744, 576, (1977); Lacy P.2d 750-51 116 Ariz. 570 Const, Const, XIV; II, art. 6. U.S. amend. Colo. 1171, Green, (Del.Super.1981); v. A.2d 1177-78 428 25. § Hosp. Corp., Lebanon v. Cedars Pinillos 365, (Fla.1981); LePelley v. So.2d 367-68 403 rejected eighteen 7. The courts of states have 962, 422, Grefenson, 614 101 Idaho P.2d 967-68 challenges equal protection based on the claim 295, (1980); Wagner, 37 Anderson v. 79 Ill.2d may not be that medical claimants 558, 560, (1979); 402 N.E.2d 570-71 Ill.Dec. subjected limitations than to a shorter statute of 374, Inc., Hosp., 273 Ind. v. Vincent Johnson St. general. v. See DiAntonio tort claimants 585, (1980); Rudolph v. Iowa 600-01 Memorial, 287, 404 N.E.2d Northampton-Accomak 628 F.2d

49 right suspect Fourteenth Amendment to the mental or class is involved. situation, States declares In United Constitution that no different per classes of equal protection deny person may state shall sons be treated differently without violating equal guarantees of the law. It is well-established that a like protection if the guarantee this statutory exists within state’s due classification has some rational Const, §II, process art. clause. Colo. 25. basis in fact and bears a rational relation Lujan ship legitimate governmental See v. Colorado State Board objectives. Education, (Colo.1982); 1005 People (Colo. 649 P.2d Velasquez, v. 666 P.2d 567 Charnes, Heninger 194, 1983); v. 613 Charnes, Smith v. 649 P.2d 1089 (1980); (Colo. People Layton, 1982); P.2d 884 v. 200 Kanover, Ltd., Hurricane v. 59, (1980). 612 P.2d 83 The standard (Colo.1982); 651 P.2d People 1218 v. applied considering leg whether a McKnight, (Colo.1980). 617 P.2d 1178 equal protec islative classification denies standard, The third “intermediate depends tion on the character of the state’s review,” has been invoked this court interest. when a classification is based on Colorado, recognize gender. three upon The burden is the state to purposes equal standards of review for show impor that the classification serves protection analysis. Lujan, governmental objectives 649 P.2d at tant and is sub 1015. The first standard is stantially labeled as related to the achievement of scrutiny” “compelling govern objectives. “strict or W., those See R.McG. v. 200 J. 345, (1980). mental interest.” Where a fundamental Colo. also See right suspect Mohammed, is affected or a classification 380, Caban v. 441 U.S. 99 created, 1760, (1979); the state has the burden S.Ct. 60 L.Ed.2d 297 Craig v. establishing Boren, 190, necessarily 451, that the act is re 429 U.S. 97 50 S.Ct. compelling governmental (1976). lated to a inter L.Ed.2d 397 We have acknowl Independent edged Supreme est. Antonio San School that the Court has utilized 1, Rodriguez, District v. 411 U.S. 93 S.Ct. intermediate standard of review for a 1278, 16, denied, 36 L.Ed.2d 411 reh’g variety U.S. of other Lujan, classifications. 649 959, 1919, (1973); example, 93 S.Ct. 36 L.Ed.2d 418 P.2d at n. For Foley 1015 see 618, Shapiro Thompson, Connelie, 291, 1067, v. 394 U.S. 89 v. 435 98 55 U.S. S.Ct. 1322, (1969); (1979) 22 Lujan, (alienage); S.Ct. L.Ed.2d 600 L.Ed.2d 287 Trimble v. Gordon, 762, 1459, recognized 649 P.2d 1005. This court has 430 97 U.S. S.Ct. 52 rights essentially (illegitimacy). fundamental L.Ed.2d 31 See also J. rights Nowak, recognized Young, those which have been R. Rotunda & J. Handbook (1978); Note, having a value essential to individual liber on Constitutional Law De ty society, Lujan, 649 P.2d at velopments Equal 1015 Protec our Law— 7, tion, (1969). n. and that a classification is considered 82 Harv.L.Rev. 1065 racial, “suspect” singles religious, if it out determining of these minorities, or other discrete or insular such applied three standards should be to the lineage alienage. as those based on Id. plaintiffs’ equal protection argument, we at 1015 n. 8. reject scrutiny first the strict test. The review, Supreme The second standard right Court has held that the basis,” applies “rational where damages no funda- recover tort is not a fundamen- Ctr., 550, 97, 657, (1977); Methodist Medical N.W.2d 293 557-59 Neb. 256 N.W.2d 667-69 Suchit (Iowa 1980); Ass'n, 407, 670, Stephens Snyder Baxt, N.J.Super. v. Clinic v. 176 423 A.2d 676- 115, 222, (1981); Arlen, 304, 230 Kan. Ev (1980); 233-36 Comiskey v. 55 A.D.2d Goldman, 1256, (La. erett v. 359 So.2d 1265-67 122, (N.Y.App.1976); Beatty N.Y.S.2d 129-30 v. 1978); Johnson, Attorney General v. Md. 483, City Hosp., Akron 67 Ohio St.2d 424 N.E.2d (1978); Long A.2d 76-80 Paro v. (1981); Strykowski State ex rel. 591-95 Hosp., wood 373 Mass. 369 N.E.2d Wilkie, Wis.2d 261 N.W.2d 441-44 Smith, 987-89 Linder v. (Mont.1981); Nelson, Prendergast 1192-93 50 object” “foreign “knowing conceal- right. Duke Power v. Carolina

tal Co. 59, Study 438 U.S. mis- Group, “negligently ment” claimants but not Environmental 2620, (1978). State L.Ed.2d 595 diagnosed” 98 S.Ct. 57 three- avoid the which have considered appellate courts repose year to invoke the same conclusion. issue have reached discovery rule are without a reasonable & v. Com Bank Trust Co. E.g., American fact, thereby arbitrary creating an basis 674, 190 Cal. munity Hospital, 33 Cal.3d though a may classification. Even there be 371, (Cal.1983); v. Rptr. P.2d 829 Jones 660 foreclosing interest in legitimate state 859, Medicine, 555 97 Idaho State Board claims, the prosecution of stale or frivolous 914, denied, cert. 431 U.S. P.2d 399 upon which classification is distinction (1977); 2173, 53 L.Ed.2d 223 John 97 S.Ct. Owens, arbitrary be based was found to Inc., Ind. Hospital, 273 v. St. son Vincent P.2d 172 474 where we (1980); 585 404 N.E.2d Carson given patient that the treatment a noted (1980); Maurer, 424 A.2d 825 120 N.H. negligent misdiagnosis capable case a Wilkie, 81 Strykowski v. ex rel. State being proved by objective and that facts 491, 261 N.W.2d 434 Wis.2d strong evi- the treatment administered is application of We decline to address the diagnosis. dence of We conclude standard in this case be- the intermediate substantially statutory exemptions the two fails un- legislative cause the classification legislative apparent purpose undermine the test. der the rational basis enacting the strict prescribed by section 13-80-105. recent have made Our dependent upon knowing conceal- Claims separate clear are two and distinct there repose provision far ment to avoid the The first prongs to the rational basis test. likely more frivolous or involve stale has been formulated as prong the test misdiag- negligent than claims of evidence reason requiring that “the classification is for the reasons stated More- nosis above. able, Hurricane, arbitrary,” 651 P.2d not over, by the exceptions the two created statutory at or that “the classifica a legislature governmental also manifest has rational in fact....” tion some basis preserving malpractice interest medical Smith, at The second 1091. claimant an claims where the has sustained requires prong either that “the injury any opportunity but reasonable lacks a relation classification ... rational bear[s] discover the act or omission which legitimate objectives,” ship to state Hurri injury. caused the classification which cane, 651 or that it be “rea of the rule to results denial sonably legitimate governmen related to a negligently patients whose conditions are Smith, tal P.2d at 1091. interest.” 649 misdiagnosed legiti- does further Regardless linguistic formulation and, therefore, governmental interest mate test, must conduct a “serious relationship goal. to that lacks rational judicial inquiry correspon genuine into the and the dence between the classification only jurisdictions have found three legislative goals.” Bank & American legisla- that have considered whether the Co., P.2d at Trust rule to ture’s extension of claimants, malpractice while some persuaded We are that the statuto others, imper- it to denying 13- constitutes an ry prescribed by section classification classes of two-pronged test. missible discrimination between 80-105 to meet fails declaring two-year statutory exceptions permit claimants.8 In similar action, Goldman, constitutionality spe- mg addressing So.2d 8. When see Everett Johnson, (La.1978); Attorney provisions malpractice General v. cific of medical statutes Long analysis Md. A.2d 57 Paro v. courts are from uniform in their far upheld Hosp., major Mass. N.E.2d 985 Some wood (1977); issues. courts Smith, (Mont. requirements plaintiff his or Linder v. that the submit her 1981). upheld the panel fil- Others have abolition claim to a review before

51 any of limitations unconstitutional on class of malpractice one medical Hamp- grounds, the New equal protection plaintiffs. We therefore hold all stated: Supreme shire Court Carson malpractice cases in which (Supp.1979)is invalid in- cause of action is not “RSA 507-C:4 discovered discovery rule una- reasonably as it makes the could sofar not be discovered dur- plain- malpractice ing to all medical applicable vailable period, limitation whose except those actions period tiffs begin will not to run until the time upon based plaintiff injury discovers both his body. injured person’s in the Un- its cause.” discovery rule of action der the a cause (emphasis 424 A.2d 833 in original). La- not plaintiff does accrue until the dis- ter, Sears, Co., v. Heath 464 Roebuck & or, reasonable covers exercise of 288, (N.H.1983), Hamp- A.2d 295 the New diligence, should have discovered both Supreme shire Court summarized hold- its injury fact of his and the cause there- ing in as follows: Carson Co., 117 Raymond Lilly of. v. Eli & Carson, legisla- “In we ruled that the 164, 171, 170, (1977); N.H. 371 A.2d 174 ture’s extension of the discovery rule Kubrick, 444 v. U.S. see United States injury plaintiffs, some medical de- while 118-25, 352, 357-361, Ill, 62 100 S.Ct. nying applicability others, its consti- (1979). premised 259 The rule is L.Ed.2d impermissible tuted an be- discrimination manifest foreclos- on ‘the unfairness of plaintiffs. tween classes of We there- injured person’s of action ing an cause chapter (Supp. fore held that RSA 507-C op- he has had even a reasonable before 1979) equal protection provi- violated portunity to discover existence.’ its sions of our Constitution to the extent Mary v. Hitchcock Memorial Brown application limited that it of the rule to 741-42, 739, 117 N.H. 378 A.2d Hospital, only medical-malprac- a narrow class of 1138, (1977). Although 1139-40 the dis- plaintiffs.” tice covery rule initially employed Supreme Georgia Court reached a case, ‘foreign-object’ in a Shillady State contrary Emory result Allrid v. Univer- 114 Community Hospital, N.H. v. Elliot 35, (1982). sity, 249 Ga. 285 S.E.2d 521 321, A.2d it 320 637 we made clear upheld court Georgia Mary in Brown v. Memorial Hitchcock granted ob- “foreign classification that the rule fundamen- Hospital and the exception Georgia equitable ject” to the underlying it tal considerations two-year statute of limitations on the theo- applied gen- to medical ry that the classification “the erally. 117 N.H. at 378 A.2d at eliminated such, belated, legislature may danger As false or frivolous respect 285 Mis- abolish rule with claims....” S.E.2d at 525. The rule, rule, Broomfield, collateral collateral source see Eastin v. abolition of the source see Doran (1977); F.Supp. (D.Kan.1981); Graley Pinillos v. Priddy, 116 Ariz. 570 744 v. 30 534 Hosp. Corp., So.2d (Ohio Cedars Lebanon 403 365 Satayatham, 343 v. N.E.2d 832 Ct.Com. (Fla.1981); Rudolph Medical Iowa Methodist v. 1976). Pleas Courts have also found medical Ctr., (Iowa 1980); 293 N.W.2d 550 and mone malpractice statutes unconstitutional because tary plaintiff's attor limitations on the fees of exists, alleged longer “crisis” no see Ameri Inc., neys, Hosp., Johnson v. St. Vincent 273 see Community Hosp., can Bank & Trust Co. v. 33 However, (1980). Ind. 404 N.E.2d 585 Cal.Rptr. Cal.3d 190 courts have struck down unconstitu some (R.I. (1983); Sayeed, Boucher v. 459 A.2d 89 requirement of a tional for submission 1983); impermissibly because the statute panel, to a medical review Aldana v. claim Holub, see irrationally discriminates between minors (Fla.1980); Glen 381 So.2d 231 Cardinal by allowing age those minors under ten Gaertner, Hosp. non Memorial (Mo.1979); v. 583 S.W.2d 107 years "discovery" while the benefits rule monetary imposition of a limita denying the same benefit to those over minors Maurer, recovery, see 120 N.H. tion on Carson ten, age see Schwan v. Riverside Method Olson, A.2d 825 Arneson Hosp., Ohio St.3d N.E.2d 1337 ist (N.D.1978); Simon v. N.W.2d St. Elizabeth Ctr., (Ohio 1976); 355 N.E.2d Medical in Court, plaintiff possi- the order to reduce the upholding in a similar Supreme souri City plaintiff in Ross Gen- the bility asserting classification v. Kansas is a Center, 608 Hospital & Medical eral completely fraudulent claim ... [citations (Mo.1980),noted the unfairness S.W.2d 397 the reject We distinction. In omitted]. has foreign object in to a claimant whom a cases, especially involving those some if his suit is foreclosed before been left physical a negligent diagnosis, allegedly The court discovery foreign body. the of proof object is not becomes involved prob- that there were fewer also indicated necessarily more difficult. This does certainty of stale evidence and lems with may that a claim be mean fraudulent object in those proof foreign cases than in easily in the more As instant asserted. negligent misdiagnosis. involving cases case, generally diagno- treatment follows in forth Car- adopt the rationale set We objective sis. The treatment is an fact 825, the medi- son, A.2d and hold that 424 disproved may proved be or equal the malpractice statute violates cal plaintiff. other people than the to protection provisions of our constitution that the is the kind nor- treatment fact application that it denies the extent mally the ailment the administered for misdiagnosed discovery negligently rule to diagnosed improperly doctor allegedly plaintiffs. The reason- malpractice strong diagnosis.’ the is evidence of Georgia the Missouri ing applied added.)” (Emphasis prior deci- in direct conflict with courts is Colo, 531-32, at 172 474 P.2d 606-07. in found the this court which we sions of rejected similarly courts have Other irrational, arbitrary, and to classification be Supreme As the Court of distinction. Ore- 363, Rosane, 149 suspect. Greene, 1, gon stated 253 Or. Frohs v. Bonebrake, 135 and Davis v. P.2d (1969): 565 452 P.2d physi- P.2d each 313 982 Colo. leaving for- negligence of a cian’s consisted impossible it is “On a theoretical basis body. in the eign object patient’s justify applicability the of the dis- theory relied on the of conceal- malpractice covery rule to kind of one limi- applicable the of ment to avoid reason for and not to another. The the plaintiff’s held that each tations. We discovery of rule is the application until she of action did not accrue cause manifestly in each It is same instance. by the of reasonable or exercise discovered negligent- a unrealistic unfair to bar negli- diligence should discovered injured party’s of action ly cause before Owens, 172 474 gence. Colo. opportunity had an he had discover extended the rule that it exists. This is true whether involving negligent misdiagnosis in a cases leaving a consists of al- defendants-physicians where ease body it or whether consists as ma- misdiagnosed a tumor legedly brain diagnosis faulty or treatment.” of argued that lignant. The defendants there Warrington also v. Charles & See Pfizer rule should application of Co., Cal.App.2d 564, Cal.Rptr. 130 involving foreign ob- limited to cases Hospital, 50 Yoshizaki Hilo Ha jects. rejected argument and stat- (1967); Lipsey waii ed: Ill.2d Hospital, Michael Reese argued that the dis- “Defendants have N.E.2d 450 only applied covery rule is should be foreign object We'believe these not deal with the cases. While cases do regardless applied rule should be constitutionality same of the statute issue of negligence type limitations, involved. with whether or but rather “discovery” extend-

not the rule should be involving ed to cases other than those for- appear to have limited ‘A few courts equally per- eign objects, rationale discovery doctrine to cases which Moreover, “foreign ob- foreign object left inside suasive. both has defendant “negligent (Supp.1979).) misdiagnosis” Consistent with our earlier ject” and persons wholly cases, innocent and injured the latter is the alternative more own, fail to through no fault their may, See, appropriate e.g., choice. R.McG. v. injury prior running of their to the J.W., discover dif- There is no

the statute limitations. (where statutory natural scheme allows degree such claimants ference between judicial mother to seek declaration culpability. injury paternity in natural father connection during with child born to natural mother legislature could constitu- Whether marriage another, equal protection her to three-year limita- tionally enact a requires claiming a natural father to be repose a statute of for all classes tions or standing pursue to judi- accorded claim for malpractice claims is not an of medical paternity of cial declaration in himself with us. us is the issue before What is before respect to child born to natural mother legislative of narrow issue whether the another); during marriage her to People v. governing malpractice scheme Bramlett, 194 Colo. grants from the exception claims which foreign (equal protection of ob- conduct three-year repose statute violated where claimants, knowing proscribed by degree concealment intent as- ject and and first negligently misdiagnosed claim- but not sault statute and less offense of severe ants, it is is constitutional. We hold that criminally negligent not suffi- homicide not.9 distinguishable, remedy ciently proper and pen- greater is to sentence defendant to no Having ruled that the alty applicable criminally negligent than plaintiffs’ equal protec the scheme denies upon his for first de- homicide conviction claims, applied guarantees tion to their assault, jury gree if determines that de- reme appropriate we must determine the good fendant acted with faith but unrea- excep either two dy. We could strike the assaulting sonable belief self-defense three-year repose10 the of tions to statute another). Accordingly, the we hold that by discovery provided extend the rule or plaintiffs must be within the included exceptions to the claim of persons applica- excepted classes of from Smith, negligent misdiagnosis. three-year repose. of tion of statute 8,n. P.2d at 1091-92 noted that where we violation, equal protection a there is an coin’ may equal protection “toss ‘the Y.

court propriety address (Quoting Tribe, Finally, we way.” L. American either § Anthony’s granting n. 31 order Law at 85 trial court’s St. 15-2 Constitutional 9. correctly act omission." Section The dissent summarizes our conclu- have discovered or added). 13-80-105(1) Accordingly, (emphasis that section two classes sion 13-80-105 favors may by granting rule two classes of to the dis- used claimants them access covery discriminating a third and is denied to a third. rule while claimants by depriving its of the benefit class members must, concedes, The dissent as it that exceptions that rule. Striking inconsistent would be said, argu- strong excep- what the a legislature’s this is “[i]f intent to create such with pro- equal could be made it repose provision might require ment that violated tions to the and point, precisely the tection." At 55. This is enactment as that we also strike well, provides. Assembly that is what the statute because the basis that the General agree malpractice claimants approved repose, that all medical the statute of would not rule, two-year discovery ini- analysis have access to the exceptions. could lead This absent However, tially. three such claims are barred logical statuto- conclusion that the entire to the omission, years after the date the act or leave ry is unconstitutional and would scheme rule, notwithstanding a unless applicable limitations to medical no statute of exceptions. six-year falls into one of the two general claimant or stat- claims 13-80-110, exceptions require presence (section The two either C.R.S.1973 ute of limitations (C.R. knowing and (1983 provisions a concealment Cum.Supp.)), or the 1963 years brought S.1963, 87-1-6). Therefore, reject the action be within two the first “discovered, unnecessary claimant or in the exercise being after the both unwise and choice as concern, diligence should of reasonable narrow issues before us. resolve the ROVIRA, J., part concurs summary judgment on the inde- dissents

motion for hospital part. ground that cannot be pendent responsible negligence for the

held ERICKSON, LOHR, J., C.J., join treating physician. We affirm claimant’s the concurrence and dissent. ruling. the trial court’s DUBOFSKY, Justice, specially concur- We, parties, as have the character ring. alleging plaintiffs’ complaint as ized the I in the result reached concur negligent misdiagnosis. claims based on Although agree with plurality opinion. I diagnosis ill and treatment of human 13-80-105, C.R.S. dissent section in con any surgery performed nesses guarantees not violate constitutional does diagnosis and treatment nection with such equal protection, I that under believe Moon, medicine. practice constitute the Const, §II, As art. the General When a doc 373 P.2d 944. sembly, compelling justification, absent hospital in a performs these functions tor employ to cut may not a statute setting, hospital employees its plaintiffs off a cause of action before him in his administrations to “subserve had reasonable time to assert that cause of final in patient. He has sole and control Senger, v. 112 Colo. action. Rosane treatment, diagnosis, matter of Cf. 363, (1944) (“Under 372 facts authority, it surgery. of this Possessed pleaded impossible plaintiff it was for the his doctor are his follows that actions as is to sue within the limitation and it a responsibility.” Id. 373 P.2d 946. Our recognized requires maxim that law not hospital that cannot be earlier cases hold a impossibilities.”); Overland Construction to, practice licensed cannot medicine. (Fla. Co., Sirmons, 369 572 Inc. v. So.2d 430, Moon, 944; P.2d Ro 150 Colo. 373 1979) language (interpreting similar to 363, sane, 112 149 P.2d 372. Colo. Const, §II, abroga art. 6 forbid Colo. plaintiffs allege The not in their com- do rights an over tion of common law absent plaint hospital negligently extend- that the declaring powering public necessity and a privileges physician, ed staff to a see Kitto repose on unconstitutional that Gilbert, 374, Colo.App. 570 P.2d 544 v. 39 basis); Terry Highway New v. Mexico (1977), or in it is way some other Comm., 119, 645 1375 98 N.M. P.2d alleged negli- legally responsible for the (A right of accrued plaintiff whose action Moon, gent misdiagnosis. 150 Colo. See shortly expiration before a statute 430, Accordingly, 373 P.2d 944. St. Antho- process is denied if he is denied due ny’s summary judgment motion for on this bring a time within which to his reasonable granted.11 ground properly Co., suit.); Dincher v. Marlin Firearms judgment dismissing The 821, Cir.1952) (2nd (Frank, J., 198 823 F.2d complaint against Dr. Litvak is re- John (It dissenting) is axiomatic that a statute summary judgment entered versed. begin against does to run a limitations not their against plaintiffs claims of action that cause of action cause before Anthony’s Hospital is against St. affirmed. exists.). This case is remanded to the trial court Undoubtedly, Assembly the General has proceedings with this further consistent abrogate modify power even opinion. particular causes of action before those O’Quinn action v. causes of vest. Walt KIRSHBAUM, JJ., QUINN concur. 190, Productions, 177 Disney Colo. Musim, (1972); DUBOFSKY, J., Goldberg specially concurs. P.2d 344 v. effect, any, provisions is not us. The al- 11. The if of the contained an issue before 13-80-105, (1983 negligence Anthony’s Hospital leged oc- Cum. of St. section C.R.S.1973 question Supp.), relating hospitals upon has not been our decision curred in and the appeal. Mercy Hosp., in Moon Colo. raised on v. effect, 13-80-105 favors two (1967). In that section 427 P.2d 698 Yarbro Colo. (Colo. granting Corp., plaintiffs by 655 P.2d 822 them ac- Hotels classes of Hilton plaintiff rule, if a does 1982), court held that discovery while it discrimi- cess to the running of his claim before the discover a third class of nates vests that claim never repose, a statute “depriving” its members of the same ac- by Colo. unprotected therefore and is said, If the statute cess. this is what Const, §II, we erred I art. 6. believe strong argument could be made that it vests Yarbro, of action and that a cause equal protection. problem violated act or omission of the upon the occurrence dealing with a situation that we are not duty owed legal constituting breach of only plaintiffs have the benefit some of action vests a cause plaintiff. Once That situation has rule. barred, compel without may not be time it by this court and already been addressed plaintiff has had until the ling justification, Assembly. by the See Owens v. General it. reasonable time to assert Brochner, 474 P.2d 603 172 Colo. compelling there is a I do not believe that Bonebrake, (1970); Davis v. year statute of for the three justification Senger, 313 P.2d 982 Rosane therefore I would repose at issue here. (1944); An Act ... Colo. provision unconstitutional. hold this Against Of Actions Concerning Limitation Const, §II, art. Health Care Institutions Certain Licensed I in the result. concur Persons, ch. And Colo.Sess.Laws result, every medical at 952. As a 87-1-6 Justice, ROVIRA, concurring part plaintiff now has access to dissenting part. two-year stat- part rule II, reached in Parts in the result I concur 13-80-105. limitations in section ute of opinion. I dis- III, plurality and V of is not whether in this case The issue plurality opinion Part IV of the sent from plaintiffs should misdiagnosed negligently aspects declares certain which of.section Rather, discovery rule. have access to the equal protec- unconstitutional on 13-80-105 for the rational basis exists it is whether a view, grounds. tion In its “[t]he toll the decision to legislature’s ‘foreign object’ permit exceptions of only two classes repose of statute but ‘knowing claimants concealment’ only two plurality cites plaintiffs. The ‘negligently misdiagnosed’ plaintiffs ... is the constitutional which address discovery to invoke the rule are without a context, of and both closely in a related sue fact, thereby creating reasonable basis in contrary result. a cases reach those arbitrary an classification.” At 50. This Frohs, Yo Carson, Heath, Warrington, repeated throughout theme is Part IV. Be- shizaki, (cited Lipsey in plural reaching decision, plurality fore its 51-52), ity opinion, at the courts were frames the issue as whether “the statute confronting problem the same faced with unconstitutionally discriminates to extend in whether this court Owens: negligently misdiagnosed plaintiffs by de- excluded previously to discovery rule priving them of the benefits of the discov- Emory In Allrid v. plaintiffs. classes of ery reaching rule.” Id. at 48. After its 35, 285 S.E.2d 521 decision, 249 Ga. University, plurality explains that “[t]he City (1982), v. Kansas General classification which results in the denial and Ross Center, discovery 608 S.W.2d negligently rule to ... mis- Medical Hospital & diagnosed [patients] (Mo.1980), was whether does not further the issue [a] ” legitimate governmental repose interest .... for for Id. exception to the statute at 50. equal protec plaintiffs violated eign object court decided The Allrid tion. give phrased statements carefully These the rational under was valid classification is- constitutional impression of the a false basis test: suggests, plurality The sue in this case. 162, 163-4, greater Banks, likely Ga. There are to be Dalbey

“In cases. held that proof foreign object 264 S.E.2d certainties of in a ‘[w]hen object foreign in his places a physician a legislature case. A rational could have treatment, he has body during patient’s based its decision on such considerations. presence. His knowledge of its actual “The classification thus made between beyond ordinary goes it failure to remove two classes claimants with reference by the to classified negligence so as be when limitations com- continuing tort which legislature a run cannot mences to said to be with- be limitations until the statute of tolls the basis, any any out reasonable nor is dis- purpose The of the is discovered. object drawn between members within tinction in making a distinction be- legislature equal protection each class. There is no malprac- medical types the two tween violation.” plaintiffs claim tice was allow professional di- Ross, which does not rest (emphasis added). at 608 S.W.2d judgment or discretion sur- agnostic I do not believe the rationale which wrong- until actual vive prompted adopt this court and others to danger doing. such situations applied rule should to a case belated, claims elimi- false or frivolous is constitutionality which the of various foreign object pa- nated. exceptions is body directly traceable to the tient’s stake. There are real differences between holding Our doctor’s malfeasance.’ plaintiffs denying a class of access to the clearly a Dalbey reflects determination excluding discovery rule and that class court that the classification creat- exceptions from the list of to the statute of ‘a fair sub- ed bears [in statute] repose. In the view of the General Assem- object legis- relation to the stantial bly, knowing conceal- Reed, 71, 76, lation.’ U.S. [Reed special category ment 30 L.Ed.2d 225 92 S.Ct. ]. plaintiff’s equal protection claim exposed require findWe to unfair risks that merit.” to be without tolling repose. of the statute exclu- added). negligently misdiagnosed sion of other Allrid, (emphasis 285 S.E.2d at 525 plaintiffs reflects Likewise, the court decided that the Ross legislative evaluation that these arbitrary and exception was not had a rea- fact, do face the same risks. sonable basis fact: legislature has concluded that the risks fac- legislative no history avail- “[TJhere defendants, ing risks setting why reasons able forth the bringing such of fraudulent claims Assembly fit to as General saw [create foreign object plaintiffs]. evidence, outweigh exception of stale the use why legislature acted One reason plain- unfairness that excluded occasional legislature may have been that the con- types of tiffs must endure. These deci- particularly it unfair a claim- sidered prerogative sions of the Gen- are within object foreign in whom has been ant Assembly eral and should not be second- left should barred courts, guessed by especially under the any there limitations even before was prefer I analysis. rubric a rational basis foreign object.... Or approach taken the Allrid Ross legislature might have believed it uphold courts and would the classification proper to measure from the time of Accordingly, scheme in section 13-80-105. foreign object I dissent. rather than from the time of the act of neglect, likely less because there is to be say I that Chief Justice am authorized great problem stale with evidence join and Justice ERICKSON LOHR body is left in when a types malpractice concurrence dissent. than in other

Case Details

Case Name: Austin v. Litvak

Court Name: Supreme Court of Colorado

Date Published: May 7, 1984

Citation: 682 P.2d 41

Docket Number: 82SA236

Court Abbreviation: Colo.