Mastro v. Brodie

MASTRO, M.D., Petitioner, Edward R. BRODIE, Respondent.

Barbara Jean No. 81SC305. Colorado, Supreme Court En Banc. 7,May 1984. Rehearing May Denied

I. following learn the

We facts from Bro- complaint, deposition, die’s and affidavit opposition filed in to the motion for summa ry judgment.1 5, 1977, On February Mas surgically a tro removed small nodule from back Brodie’s shoulder.2 He ob surgery tained Brodie’s consent to the af explaining scar, ter that she would have “but it wouldn’t be bad one.” Several however, later, months scar from the surgery “large, unsightly became and un comfortable.” Brodie returned to Mastro in but received no further treat explanation hap ment and no of what had pened. only He told her that “there was nothing else he do could about [the scar].” time, Since that Brodie has contact had no treatment, with Mastro. She received in injections scar, cluding series of into the physicians during from two other next Scott, Johnson, P.C., Mahoney & Paul E. years. She also discussed the scar Scott, Denver, Lampert, peti- Brian J. for attorneys least two at for whom she tioner. scar, during period. worked this time Her Howbert, P.C., Spurgeon, Haney Greg- & however, approximately has remained Piché, ory Springs, R. Colorado size respon- appearance same in as when she it. In August first became aware of dent. physician University at the of Colorado Medical Center Brodie that she informed NEIGHBORS, Justice. developed had a “keloid” on her shoulder. granted We certiorari to review the deci- Further, proce surgical he told her that a appeals sion of court of in Brodie young, dure the shoulder of dark- on Mastro, (Colo.App.1981), 638 P.2d 800 rev- frequently skinned individuals results keloid, ersing grant- which, of the district court order the formation of a un while summary predictable, percentage ing judgment petitioner, Dr. does occur patients. such He indicated to Brodie’s (Mastro), Edward R. Mastro in a medical attorney that “the risk of keloid should malpractice appeals action. The court of anticipated” have and that Mastro been held claim respon- that the a risk should warned Brodie of such dent, (Brodie), Jean Brodie Barbara operating before on her shoulder.4 applicable limi- barred statute of judgment later, tations. affirm the We Three months November complaint against court of filed a Mastro in appeals. Brodie elevated, opinion progressively express irregularly-shaped, en- 1. We no the truth of these prove larging facts. Brodie can al- Whether facts scar due formation of excessive leged during to be collagen remains determined trial. amounts of tissue] ... [fibrous repair.” connective tissue incident, 2. performed without days returned a later Brodie few to have She de- 4.Brodie dark-skinned woman. stitches removed. She makes no claim background deposition her scribed racial in her negligently performed surgery. Mastro fa- as "half black and half Mexican.” Brodie’s her ther had been a of Mastro’s before Dictionary Illustrated Medical Dorland’s (26th ed.1981) surgery. sharply defines "keloid” as "a alleging opposing Brodie filed a memorandum County District Court Pueblo summary that, judgment motion. She acknowl malpractice. She claimed medical edged that her “claim this action him about the nodule she consulted when to secure based ... failure [Mastro’s] shoulder, Mastro knew ” operating consent’ before her ‘informed the inherent risk of keloid known of However, argued her she on shoulder. person with her development in a 13-80-105(1) section also contains characteristics, and that he knew or should which, view, in exception her tolls the two- this risk known that disclosure of year if the or statute of limitations act person a great significance to be “would giving rise a omission to cause action deciding in position in submit [Brodie’s] “knowingly concealed.” See section 13- “under a surgery.’’ Since Mastro was (1983 80-105(1)(a), Supp.).6 Re C.R.S.1973 any substantial duty to inform [Brodie] argued lying provision, on this Brodie procedure,” in special inherent risks “knowingly her Mastro concealed” from scarring his keloid be- failure to mention high formation. stat risk of keloid She prevented her from mak- fore the in her affidavit that she did not learn of ed ing intelligent choice to alternative “an 1979, August existence of this risk until underlying with the treatments consonant surgeon in when she consulted the Denver result, premise of informed consent.” As her about scar. serious, permanent “a dis- Brodie suffered granted The district court the motion for large, form “a figuring injury” summary judgment. It concluded that growth” “plainly unsightly that was visible began two-year statute of limitations admitting While her shoulder.” July when run no later than Brodie of the scar she was aware complain Mastro’s office “to returned to by alleging that she was concluded Brodie scar,” enlarged expired about reasonably have not aware and could not four months before she filed her negligence in aware of been “[Mastro’s] explained its complaint. The court decision high risk of failing to inform her” of when her in terms of Brodie discovered keloid formation until she consulted “injury”: August center in physician at the medical July, “In the scar had achieved attorney. of her the direction proportions that returned such [she] large, depositions parties were because the scar was After tak- Mastro] [see en, unsightly and uncomfortable. summary Mastro filed motion for [Brodie] July, at the discovered the claiming two-year judgment, stat- fully very of it at latest. She was aware ute of limitations for medical point, very made and its existence informed actions based on lack of consent cognizant of risks in the her involved 13-80- barred Brodie’s claim. See section 5, 1977, February surgery. She knew 105(1), Supp.).5 Under C.R.S.1973 only formation was not keloid begins provision, two-year period reality surgery on risk but a for shoulder injured person to run when the discovers or young, dark-skinned female.” diligence in the exercise of reasonable injury.” “the Mas- have discovered should panel A of the Colorado Court of divided genuine no tro claimed that there was issue judgment of the dis Appeals reversed that, “has since Brodie admitted material trict court. conceded fact scar) (unsightly only allegation that she knew of here was unin “[i]f consent,” two-year years prior than to initiation of statute of more formed 13-80-105(1) Complaint.” limitations section would concealed,” "knowingly injured in more detail in Part action This statute is discussed II, file the action must within infra. he or she discovers discov- II, 6. This statute is also discussed in Part infra. "the ered act or omission.” giving an act omission rise to a cause of If However, bar Brodie’s action.7 since Bro- A. alleged knowing

die also concealment 13-80-105(1) establishes two- Mastro, the court decided that the year statute of limitations for medical mal- exception provided section 13-80- practice actions based on lack of informed 105(1)(a) might applicable be to Brodie’s provides: consent. The statute According majority, action. the is “No shall permitted to main- knowingly sue was whether Mastro con action, tain an such whether high cealed from Brodie the risk of keloid contract, sounds in tort to recover scarring pigmentation.8 to one of her skin damages any person from ... licensed in Since the evidence on this was “con issue medicine, practice this state ... ... on tradictory,” the court concluded that alleged account negligence, breach disposed “should of by not have been sum contract, or lack of informed consent Brodie, mary judgment.” 638 P.2d at 801.9 person of such in practice the of the profession for he which is licensed ...

II. unless such action is instituted within years person bringing after the Brodie’s claim for medical the is discovered, action or in premised theory the exercise of on the of lack of informed diligence reasonable and concern should prior consent to the surgery which oc discovered, have injury. the In no event February complaint curred on 1977. Her may such be action instituted more was not filed until November 1979. than years three the act or omis- pleaded Mastro the affirmative defense of after thereto, gave subject sion which rise the statute of limitations contained in sec ” exceptions: the following 13-80-105, (1983 tion Supp.). C.R.S.1973 In two-year order to the statute avoid added.) (Emphasis The underlined lan- defense, upon limitations Brodie relies the guage a three-year creates statute re- knowing exception concealment contained pose, subject statutory judicial ex- 13-80-105(1)(a). Thus, in section ceptions. Litvak, the first See Austin v. 682 P.2d knowing issue to be resolved is (Colo.1984). whether The for exception knowing exception an two-year 13-80-105(l)(a) concealment is to the concealment in section statute of limitations. states: only allegation period. exception quoted application

7. "If the here were uninformed The consent, if, agree portion damaged e.g., party, we would the the in this case, only requires question the surgeon statute is conclusive as it were the as to the aware, the should have or the results and then he were to conceal results injury. undisputed become aware It is surgery patient. from This the is what that her than awareness occurred more I when believe the statute referred to it states: years prior filing to her this lawsuit.” gave ‘If the act or omission which rise to the Mastro, (Colo.App. Brodie v. 638 P.2d knowingly by cause was concealed of action 1981). person committing or such act omission.’ "The claim relief here is that Dr. Mastro 8. did The not elaborate on how or plaintiffs did not have informed consent to may engaged knowing when in Mastro perform operation. It would be immateri- principal opinion of its concealment. focus al if the lack of informed resulted consent was that the failure to warn Brodie about the ‘knowingly advising concealing,’ from not or scarring may risk keloid have constituted misadvising. Such be barred action would concealment, knowing regardless of when the year person period within the two 'after place. failure to warn took discovered, bringing or in the the action exer- diligence cise of should have ... dissent, Judge Coyte, emphasized in his injury.’ discovered the distinction lack of informed between consent "Here, fully plaintiff was aware of the re- knowing concealment: in when sults of her she complain by returned to Dr. Mastro of the exception “The to the statute relied view, surgery. my this majority, application results of the At the time action has no 19, 1979, statute, this case. was commenced November facts in As I read 13-80-105, (1980 by an lack C.R.S.1973 § action for of informed consent barred brought year Cum.Supp.).” barred if within the two knowing exception gave which rise concealment “If the act omission inapplicable. Brodie filed suit Mas- knowingly- cause of action years February tro within three committing such concealed 1977, the act or omission. date omission, then such action act ... Thus, her claim is not the three- barred years within two be instituted repose. year statute of We conclude discovered, or bringing action pivotal question case is whether diligence exercise of reasonable years Brodie filed suit within two after she discovered, the and concern “discovered, in the exercise reason- omission, act or ...” diligence dis- able and concern should have provisions, we construing these In covered, 13-80-105(1) injury.” Section malpractice claim that a medical conclude added). Therefore, (emphasis we must in- within two ant must file terpret appears as it the word “discovered, or in the exer after he or she governing medical the statute of limitations diligence concern cise of reasonable malpractice cases. discovered, injury.” Sec should have 13-80-105(1). peri addition to this tion B. limitation, provision pro repose od of 13-80-105, C.R.S.1973 than filing an action more scribes Supp.), became effective on 1977.11 which three after the act omission date, prohibited a Before However, gave section rise to claim. malpractice maintaining a ac- from 13-80-105(l)(a) exceptions two contains sounding in “tort or contract” to be tion First, repose. the three-year period of maintained: com claim not barred if the who “[ujnless such action is instituted within knowingly con or mitted the act omission years person bringing Second, the is ex ceals fact. claim in the action either discovered or exercise cepted repose if period from diligence and concern foreign ob physician left an unauthorized discovered the seriousness should have body. either ject in the claimant’s Under injuries neg- of his and the and character however, malprac exception, the medical ligence gave which or breach contract years within tice must be filed may In no rise such action. event plaintiff or should after the discovers more six such action be instituted than act the defendant’s or omission. discovered years after the act or omission which con knowing ” persuaded We are gave rise thereto.... object exceptions ap foreign cealment and 13-80-105, A separate C.R.S.1973. repose ply only three-year statute of 13-80-105.5, C.R.S.1973, statute, es- section limita two-year. statute of two-year statute of limi- tablished another Hos v. South Hoover tions. See Sanchez malpractice actions based on tations for 657, 93, Cal.Rptr. 553 pital, 18 Cal.3d consent. The General As- lack of informed Hansen, (Cal. 1976); Graham 13-80-105.5, sembly section effec- repealed 965, Cal.Rptr. Cal.App.3d 1977, lack in- tive inserted (1982). It 13-80-105. formed consent section inter “seriousness and applying statutory

In this also deleted words case, injuries,” “negligence,” hold character of his pretation to the of this we facts (a) exception to after the child reaches six within two 10. Subsection also contains an three-year repose "act age. statute of where the leaving or omission consisted body foreign object of the in the unauthorized Actions, Concerning Limitation of 11. See An Act provided patient....” exception in subsec- During Relating to the Period Which (b) by applies brought actions tion May an Action Medical Person Maintain age are under the of six behalf of minors who years Malpractice, ch. 13- Colo.Sess.Laws This on the date of the act omission. 105(l)(a) at 817. 80— requires the case be instituted subsection contract,” and “breach of substituted the with post-operative recovery and treatment generic “injury” word which had been used is continued treating doctor who provision, patient in the informed consent reassures the per and add- that there is no damage, manent ed the words “act or omission.” who We view reason ably trusts the this action doctor and relies legislature as an effort to physician’s advice unfairly would be combine a barred complex legal number of con- bringing addition, suit. the physi cepts legal into three terms. cal requires standard a claimant to C. immediately physician, file suit though even possible knowledge There are at least three has no interpre- any wrongful part conduct on the (1) tations of the “injury”: of the word the al- doctor. Courts adopt should not a con leged negligent omission; (2) act or struction of a may statute which encourage physical damage or resulting manifestation filing of frivolous claims. In Foil v. omission; (3) from the act or legal Ballinger, (Utah 601 P.2d 147-48 i.e., injury, all the essential elements of a 1979), Supreme the Utah Court cogently claim malpractice. for medical summarized rationale for rejecting this At least two courts adopted interpretation “injury”: of the word first definition. Landgraff Wagner, See recipient may “While the be aware of a Ariz.App. 49, 546 P.2d (Ariz.App.), disability dysfunction, be, there appeal dismissed, 429 U.S. 97 S.Ct. understanding the untutored (1976); 50 L.Ed.2d 67 Dunn v. St. average layman, apparent no connection Inc., Hospital, (Del. Francis 401 A.2d 77 provided between the treatment by a 1979). reject interpretation We physician and the suffered. Even The legislature clearly word. intended that is, may if there passed off as an the word have a different meaning unavoidable side effect or a side effect than “act or omission” because the three time_ pass that will [Wjhen in- words are each used juries are suffered that have been caused statute. Newport, See Allen v. 427 by negligence an unknown act of by an F.Supp. (M.D.Tenn.1976). 42 A claimant expert, ought the law not to be construed must file suit within two after dis destroy right to a of action before a and, covering “injury” event, the in no person even becomes aware of the exist- more than three after the date of the right. ence of that Moreover, “act or omission.” such a con “Furthermore, adopt to a construction struction purpose defeats the of the dis encourages person experi- ... who covery rule which has been specifically injury, ailment, ences an dysfunction or adopted by legislature. the cause, knowledge has no of its to file Likewise, reject interpreta we the provider lawsuit a health care “injury” tion that the purposes occurs for prevent a statute of limitations from of the statute of limitations on the date running is not consistent with the injury that the physi manifests itself in unarguably proposition sound that un- cally objective and ascertainable manner. strongly founded claims should be dis- physical damage The couraged. test fails to account ... adequately for all relevant factors. imprudent “It adopt would also be cases, discovery some such as the of a might tempt rule that some health care sponge patient during surgery left the providers patients to fail to advise of

(Peralta Martinez, v. 90 N.M. 564 mistakes that have been made and even (N.M.App.1977)), discovery 194 the of to make suppress knowledge efforts to injury may occur simulta hope of such mistakes in the neously discovery with the only pos running of the statute of limitations cause, i.e., negligence. sible the doctor’s would make a valid cause of action non- However, injury where the is consistent actionable.”

1168 by injury by know was caused pronouncement

The recent most involving appellate court a statute wrongful an acts of another.” the words “act or omission” employs which Moore, 226-27, 447 69 Ill.Dec. at N.E.2d in Moore v. Jackson “injury” is found are persuaded 411-12. We that under the Hospital, Ill.2d 69 Ill.Dec. Park standard, legal injury “act or omission” (Ill.1983). Illinois 447 N.E.2d 408 The wrongful equivalent is the of conduct and discovery as formulates rule statute as “injury,” element of the is but one “knew, of through or the use the claimant two-year of word used statute is known,” diligence should have reasonable limitations. ¶ Ill.Rev.Stat., (1977). The dis ch. 22.1 We hold that limita stat covery phrased rule is Colorado claimant has begins tions run when the “discovered, or in the exercise ute as put rea knowledge of facts which would diligence and concern should reasonable discovered_” sonable on notice nature 13-80- injury injury an and that extent of 105(1), Supp.). view C.R.S.1973 We wrongful by caused conduct another. insignificant. semantic difference this overwhelming appel The of state to its Supreme Illinois adhered Court late courts which have addressed the issue previously adopted legal injury rule and “legal adopted injury” here con stated: used in struction of word stat malpractice in which "In medical cases medical governing utes of limitation mal discovery applied rule the cause plain The focus on the practice actions. plaintiff knows accrues when the facts, knowledge tiffs rather than on reasonably should know applicable legal discovery of theories. De reasonably and also knows should of Califor appellate cisions courts wrongfully know it was caused.... nia, Hawaii, Iowa, Nevada, Hamp New Logic plaintiff cannot dictates shire, Dakota, Ohio, Jersey, North New bring a of action until he knows or cause Utah, Oregon, Virginia support reasonably and West injury, know of should his interpretation “injury.” reasonably and also knows word Hansen, plaintiff legal Cal.App.3d receives advice as to 12. See Graham v. not when the claim, (1982) (statute Cal.Rptr. of limitations of his but rather when he merits begins him to run when before significant provide facts discovers which put person on which would a reasonable claim); facts inquiry malpractice Iverson basis for a medical action, possible his notice of cause of Lancaster, (N.D.1968) (limita 158 N.W.2d whether or not it has occurred period against malprac tions commences run advice); patient to Yama seek further medical act of tice time Ctr., (Ha guchi Queen's Medical P.2d 689 is, diligence resulting 1982) (cause the of action accrues when waii plaintiff be, discovered); Corp., Hobart could Schiele v. discovered, discovers, have or should 483, (statute (1978) 284 587 1010 of Or. act, negligent damage, the and the causal the commencing for to recover limitations latter); connection the former and between injuries person begins to run claim for Blenderman, (Iowa N.W.2d Baines v. 223 199 occupational resulting allegedly disease from (statute 1974) begin to of limitations does not negligence reasonably pru defendant’s when a malpractice case until run in medical injured person symptoms dent associates his with a charged with knows or can be permanent at the condition and same serious or knowledge tion); ac of his of of the existence cause perceives time the role which the defendant Litton, (Nev.1983) Massey v. 669 P.2d 248 condition); causing Berry played v. that Bran (“injury” malpractice used in medical 307, ner, (1966) (the Or. 421 P.2d 996 cause 245 i.e., legal injury, all essen of limitations means malpractice accrued of action for medical action); malpractice cause tial of of elements plaintiffs knowledge, time obtained or reason Hosp., Mary Brown v. Hitchcock Memorial ably knowledge, should have obtained of the 739, (in (1977) a medical N.H. 378 A.2d 1138 defendant). upon person by tort committed plaintiffs cause of action case Or.App. Augler, see Duncan v. discovers, also not accrue until he should does Co., (1983), discovered, v. could) may P.2d 83 and Dortch A.H. Robins (not injury that the Inc., (1982); Or.App. 650 P.2d 1046 Foil by negligent have been caused conduct); the defendant’s (Utah 1979).(the Ballinger, N.J.Super. 601 P.2d 144 term Lathrop, Silverman (1979) (cause discovery "discovery injury” of of means 403 A.2d 18 action accrues wrongful D. of conduct the defendant. The court held that in such cases summary question We turn to the of whether the judgment inappropriate. is This result is court properly granted trial motion for consistent with our decisions in Owens v. by summary judgment filed Mastro. The Brochner, 172 Colo. 474 P.2d 603 appeals trial court and the court conclud- (1970), Bonebrake, and Davis v. 135 Colo. her injury July ed that Brodie discovered (1957), in 313 P.2d 982 which we held However, of 1977. we believe there whether the statute limitations bars fact are issues of material to be resolved at question. claim is fact trial. Therefore, only in the clearest of cases Blenderman, In 223 N.W.2d Baines v. may summary judgment motion grant- be (Iowa 1974), Supreme the Iowa Court ed discovery injury where is the discovery requires rule held that the both pivotal Here, question issue. it is a of fact knowledge by injury that an claimant whether, during period occurred and that Brodie should discovered wrongful caused conduct of the negligent either Mastro been had Baines, defendant. In the defendant ar- performing surgery or that he had gued perception the claimant’s failed to advise her before that a equated harm be im- with develop keloid scar could and that she was puted origin in knowledge malprac- of its class, high member of a risk or whether rejected tice. The court the contention. Brodie discovered her when she vis- knowledge inju- The court stated that of an specialist ited the during in Denver ry may may not be sufficient to alert a August 1979, month of when she was ad- reasonably diligent person to the basis of a high vised of her risk status for keloid claim, depending circumstances of scarring. However, order case. for the stat- claim, ute of limitations bar is not judgment appeals court necessary defendant-physician for the affirmed.

prove specific that the claimant knew the J., negligence ROVIRA,

acts of committed the de- dissents. fendant or that he knew the details of the ERICKSON, C.J., in the joins dissent. necessary evidence prove which were ROVIRA, Justice, dissenting. claim. enough It the claimant knew, reasonably charged be 11(B),(C), (D) I dissent from Parts of, knowledge sufficient facts to be aware majority opinion. particular, I disa- that a claim existed more than two gree interpretation with the majority’s before it was filed. majority’s the word and with application interpretation of that The court in Baines stated that the instances, facts of this In both case. fact the claimant received assurances from analysis presented by is care- nothing wrong, his doctor al fully tailored to a certain result. It achieve though a factor to considered on the signifies also discomfort in growing close diligence, issue of does not nec operation cases with the standard of stat- essarily mean that the should have utes not of limitation. I am unaware of known sooner he did of the than defend time, same prefer these tensions. At the I Thus, alleged malpractice. ant’s the court straightforward approach a more than that question concluded it is a of fact as to adopted by the in this majority case. discovered, plaintiff when the or in the face, exercise of care On its reasonable should have section 13-80-105 neither discovered, injuries “injury” provides that his were caused defines the word nor

physical negligence injury knowledge, and the which result to run until the has or in Asli, injury); diligence ed in the v. 280 S.E.2d 240 the exercise of has reason Renner know, (W.Va.1981) (limitations period malpractice). begin does not of the medical gave which rise to an or breach of contract on to determine when

guidance how such action. discovered. injury been compares several identifies therefore me that changes These convince the “le- deciding that interpretations before stat- “injury,” used the current word as legis- gal injury” interpretation what It de- ute, “legal injury.” does not mean really when it enacted lature intended conclude, the ma- common fies sense view, however, “legal In my statute. does, "though jority 1167, that even ignores recent injury” interpretation neg- legislature “and the deleted words of section 13-80-105. legislative history ligence or from breach of contract” on 1977.1 statute was amended This statute, simultaneously it the con- inserted date, prohibited persons were Before legal single word cept injury into the malpractice actions based maintaining If that remained the statute. negligence of contract on or breach legislature intended revised statute within “unless such action instituted concept injury, of legal to include the it bringing the years person after certainly have confus- would avoided such discovered, in the exer- action either In the of the ing subterfuge. language diligence and concern cise of reasonable num- majority, would “combine[d] discovered, the seriousness should have complex legal concepts into ber [one] injuries his and the and character of term,” id., legal and that term would have of contract which negligence or breach “legal injury.” been action. In no event gave rise to such statute, current I do analyzing In not more than may such be instituted action premise “inju disagree with the basic which five the act or'omission after something must than mere ry” mean more gave rise thereto....” ex physical damage or manifestation. For 13-80-105, (emphasis C.R.S.1973 Section ample, injured person may aware of be an- added). A statute separate established no under physical manifestation but have for two-year statute limitations other seriousness; injured standing of or the its in- based on lack of actions may of its person be aware seriousness but provided: formed consent. It time, associate it with not permitted to main- “No situation, shall person. In place, or either noncompliance with for tain action person discovering the manifesta physi- imposing duty statute run unfairly by the [the tion could be barred provide information sufficient cians ning of the of limitations. Glea for informed unless such (Colo.1981), Guzman, consent] son is instituted within personal injury release on we invalidated a the action either discov- bringing re grounds executor dili- ered or in exercise of reasonable about the true nature lease mistaken discover- gence and concern injury We suffered. stated: ed the about which the “Knowledge of the nature of an informed.” appreci- requires an awareness and some extent, likely severity and 13-80-105.5, ation of its C.R.S.1973 Schatz, See, added). e.g., ... (emphasis Effective duration. Mitzel Supp.) (N.D.1970); v. New Assembly 175 N.W.2d 659 Poti revised General Co., 83 repealed England Machinery N.H. statutes. It Road combined these two (1928). Admittedly, line- “lack of A. 587 section 13-80-105.5 and inserted drawing It is difficult and its direction in section 13-80-105. here informed consent” of evi- vary 13-80- well thrust provision section also deleted the components of calling negligence dence. These basic discovery Actions, Malpractice, ch. 13- Concerning Colo.Sess.Laws See An Act Limitation 80-105(1) During Relating Which a and to the Period at 817. May an Action for Medical Person Maintain however, knowledge, primarily relate to when Brodie returned to have the sutures comprehension of the basic character surgery removed. She did not discuss the injury prediction of as distinct from a at “[tjhere that time because nothing was opinion about the future course of wrong then.” During the next several recovery when its basic nature other- months, she both and her mother noticed wise unknown.” “growing” the scar was “getting and bigger.” Gleason, itched painful. It and became 385. P.2d at Brodie knew the scar was “real bad” prefer adopt I would that this court and did not resemble other scars she had approach similar to Gleason in this case. on her body and own other scars had she emphasis recognizing Our in on Gleason kept seen. of As she track the scar her the seriousness inju- and character of one’s shoulder, she became aware the first ry ground represents a middle between the time big that scars could become “this discovery physical view that injury is unsightly.” She returned to Mastro’s enough, Newport, F.Supp. see Allen July office in 1977 specifically complain (M.D.Tenn.1976), and dis- view about appearance the size and of scar. covery required. of “legal injury” enlarged, raised, It was unsightly, question uncom- approach, pivotal Under this in fortable, painful July and this case becomes in 1977. She whether Brodie discover- reasonably embarrassing ed found it should have discovered and tried to it cover with clothing the “seriousness and character” of her in- so people that other would jury more than she before filed not see it. After Mastro told her there complaint. her do, nothing he sought more could Brodie treatment, out and received further includ- general rule, the As a trier of fact should ing injections of series into the tis- scar decide whether the statute of limitations sue, doctors, from at least two other nei- bars a claim. Owens Bro ther of whom mentioned keloids or risk chner, (1970); Colo. P.2d 603 She keloids. also discussed her scar Bonebrake, Davis v. 135 Colo. attorneys least because she (1957). However, P.2d 982 the trial court “unhappy” hap- remained what about had summary this ease decided that judg waited, however, pened. She until lat- appropriate, evidence, ment was since the part ter to bring of 1979 her action because light when viewed most favorable to wanted, possible, she if “tr[y] get Brodie, “fully revealed that she was Finally, plastic fixed” first. sur- injury by July aware” her 1977. The geon keloids, explained to her nature of view, appeals agreed; court its brought she her action Mastro be- “undisputed” evidence was Brodie dis cause warning he “misled” her not her her injury covered more than two scarring. about the risk bad she complaint. before filed her Brodie v.

Mastro, (Colo.App.1981). 638 P.2d deposition testimony Brodie’s indicates reviewing deposition, After Brodie’s I con that she discovered manifesta- cur with the courts below she discover resulting surgery tion from the sev- within injury by ed her eral surgery months after the on her shoul- originally Brodie went to see Mastro in der. It also demonstrates she was part fully she because both and her mother aware both the and seriousness thought might the nodule character her be cancerous. when she Mas- saw not tro unsightly point, She did consider the nodule 1977. At that she had a and true surgery appreciation severity would declined had she of the extent and large “ugly” known that a of her and perception scar would a clear develop specifically on her shoulder. in inducing She Mastro’s role it. She knew scarring upset asked Mastro about because she was that Mastro had warned possibility did not want a bad scar. The scar from the about the scarring. of bad normal-looking only piece posses- small of information not in her 1172 that, Karabin, Colo.App. 357, 30 knowledge v. 492 P.2d was the sion fer female, (1971) (failure fit inform must young, she to be con

as a dark-skinned standards); community high-risk category. While sistent with Colo. into a knowledge Supp.).2 her under- 15:16 may have increased J.I. did not standing happened, she about what distinguish I between see no reason to a appeared the keloid why need to know person, risk light-skinned with a low of of based on lack bring to an action order person, scarring, keloid a dark-skinned and only She needed informed consent. scarring, risk high with a of keloid appear and that Mastro that it

know did purposes determining when a of her it. never warned about Discovery injury. discovers his her of injury in consent case by anal an informed point This can best be illustrated thing not mean one for a light- low-risk ogizing to that of a Brodie’s situation Yet, high-risk person. and for a another person. light-skinned person If a skinned by suggesting Brodie keloid, develops undergoes surgery a and completed necessary discovery until she physician if the never mentioned and risk, high majority ap- learned of her in a admittedly scarring of keloid low risk imposed pears to have distinc- artificial light-skinned person, person would person’s particular tion based on a level of a on lack of cause of based level risk will affect risk. That of Murray, v. Bloskas informed consent. See factual determination at trial of whether (Colo.1982) (duty warn P.2d 907 the failure to warn was consistent with significance turns on of risk not, community standards. It should how- patient’s to submit to the informed decision ever, summary affect of a outcome procedure); Pirkey, medical Mallet judgment running motion on the based of (1970) (physician Colo. two-year limitations. The patient duty warn affirmative dependent upon outcome in this case is risks). complaint would The substantial whether Brodie discovered the seriousness allege physician that the never warned and character whether The patient scarring. about the risk of bad she realized that Mastro never warned her into a light-skinned person fact that a fits scarring. possibility about the of bad category signifi be of no low-risk would view, my necessary discovery made she plaintiff’s cance to the cause of action. by July more than before only important when That fact would complaint. she filed her physician’s trier of if the fact decided failure to warn consistent with commu Accordingly, I dissent. nity for this risk. See standards ERICKSON, say I am authorized

Bloskas, (duty at of disclosure 646 P.2d C.J., joins in this dissent. depends the extent information given reasonably physicians in careful community);

the same similar Miller Newkirk, (Colo.App. 628 P.2d 143 Van 1980) (whether adequate de disclosure standards); community pends upon Stauf risks, (or) (treats) on) (operates any, physician if 2."Before a 4.The substantial involved in (or) on) patient, undergoing (operation) (procedure) (performs procedure he has risks, consent, (treatment), any, if duty the substantial to secure the informed whether any patient. undergoing express implied, alternative treat- involved patient’s to be ments available. For a consent an informed consent, patient physician duty physician A has a to inform a must have informed patient following: the extent a reasonable the above ... items to ailment; practicing physician prac- field of same nature (as general (operation) (proce- practitioner tice in the same or 2. The nature of the dure) (or) locality) (as specialist) (treatment); same similar available, if time have informed the under 3. The alternative treatments would any, circumstances.” same similar

Case Details

Case Name: Mastro v. Brodie

Court Name: Supreme Court of Colorado

Date Published: May 7, 1984

Citation: 682 P.2d 1162

Docket Number: 81SC305

Court Abbreviation: Colo.