Robert L. AUSTIN and Marquita Austin, Plaintiffs-Appellants,
John LITVAK, M.D. and St. Anthony's Hospital, Defendants-Appellees.
Rehearing Denied June 18, 1984.
Herbert A. Shatz, Denver, for plaintiffs-appellants.
Alan Epstein, Richard A. Hanneman, Hall & Evans, Denver, for defendant-appellee John Litvak, M.D.
Stuart L. Boulter, P.C., Denver, for defendant-appellee St. Anthony's Hosp.
Gene M. Hoffman, Hoffman & McDermott, Denver, for amicus curiae Colo. Trial Lawyers Assoc.
Pryor, Carney & Johnson, P.C., Thomas L. Roberts, Susan Teas Smith, Englewood, Hansen & Breit, P.C., John L. Breit, Susan Smith Fisher, Denver, for amicus curiae Colo. Defense Lawyers Assoc.
Lawrence M. Wood, Constance B. Wood, Denver, for amicus curiae Colo. Medical Soc.
The plaintiffs-appellants, Robert L. Austin and Marquita Austin, filed their complaint against the defendants-appellees, Dr. John Litvak and St. Anthony's Hospital, in the district court on June 4, 1980. The plaintiffs alleged that in 1963 the defendants negligently misdiagnosed Mr. Austin's medical condition as a parasaggital meningioma.  Each defendant filed a motion for summary judgment. The trial court granted Dr. Litvak's motion on the basis that the plaintiffs' claims were barred by the three-year statute of repose found in section 13-80-105, C.R.S.1973 (1983 Cum.Supp.). St. Anthony's summary judgment motion was granted for the same reason. Relying on Moon v. Mercy Hospital, 150 Colo. 430,
373 P.2d 944 (1962), the trial court also ruled that the hospital was entitled to a summary judgment because it is "not licensed to practice medicine."
The plaintiffs appealed the trial court's rulings to the court of appeals. However, the appeal was transferred to this court pursuant to sections 13-4-102(1)(b) and 13-4-110(1)(a), C.R.S.1973 (1983 Cum.Supp.). We hold that the three-year statute of repose contained in section 13-80-105, C.R.S.1973 (1983 Cum.Supp.), insofar as it applies to persons whose claims are premised on a negligent misdiagnosis claim, violates the equal protection guarantees of the Colorado Constitution and reverse the judgment of the trial court with regard to the plaintiffs' claims against Dr. Litvak. We affirm the dismissal of their claims against St. Anthony's Hospital.
We learn the following facts from the plaintiffs' complaint and their answers to Dr. Litvak's interrogatories.  Robert L. Austin was admitted to St. Anthony's Hospital in Denver, Colorado in September of 1963 for the treatment of kidney stones. During this hospitalization, Mr. Austin underwent numerous tests. The plaintiffs were informed by Dr. Litvak and other physicians that, based on the test results, Mr. Austin had a parasaggital meningioma, which is a form of brain tumor. Dr. Litvak was retained as the physician in charge of Mr. Austin's care and performed additional tests, one of which consisted of drilling an opening in Mr. Austin's skull, removing part of the skull, and placing a metal screen in his head. The screen remains intact. Dr. Litvak allegedly confirmed the diagnosis, informed Mr. Austin that the tumor was not operable without severe risk, and advised him not to undergo surgery. Mr. Austin also claims that while he was hospitalized at St. Anthony's, he was taken to Colorado General Hospital where additional tests were performed at Dr. Litvak's direction; that these tests, unknown to Mr. Austin at the time, effectively established he did not have a brain tumor; and that Dr. Litvak was aware of this fact.
In May 1979, sixteen years after the alleged negligent misdiagnosis, Mr. Austin was involved in an automobile accident in Greeley, Colorado. As a result of a series of medical examinations and tests necessitated by the accident, Mr. Austin learned that he did not have a brain tumor and that, since this condition does not disappear by remission, he could never have suffered from such an illness. Mr. Austin and his wife filed this case eleven months later.
Within the last fifteen years the costs of medical services have increased drastically while their availability has decreased. During the mid-1970's, increased medical malpractice insurance rates raised concerns about higher medical costs to patients and the absence of practicing physicians in some rural areas. See Learner, Restrictive Medical Malpractice Compensation Schemes: A Constitutional "Quid Pro Quo" Analysis To Safeguard Individual Liberties, 18 Harv.J. on Legis. 143 (1981). Suggested causes of the "crisis" included (1) the increasing number of medical malpractice claims filed; (2) large and erratic damage awards; and (3) the "long-tail" problem which forced some insurance companies to impose artificially high present premiums to protect against increased future damage awards. Id. at 145. Although many commentators have argued that this "crisis" has been grossly exaggerated, see D. Louisell & H. Williams, Medical Malpractice § 20.07 n. 55 (Supp.1979), legislation designed to alleviate the crisis has been passed by the legislature in each state. See J. White & W. McKenna, Constitutionality of Recent Malpractice Legislation, 13 Forum 312 (1977). Representative provisions in malpractice legislation have included (1) the elimination of the ad
damnum clause from pleadings; (2) modification of the collateral source rule; (3) limitations on the kind and amount of damages recoverable; (4) mandatory insurance; (5) abolition of punitive damages; (6) establishment of screening panels or mandatory arbitration; and (7) changes in the statute of limitations applicable to medical malpractice claims. Id. at 312 n. 2.
The Colorado Legislature responded to the problem of increased premium rates for medical malpractice insurance and the refusal of all but a few insurance companies to write such coverage for Colorado physicians by shortening the statute of limitations for medical malpractice claims. Before reviewing this legislation, some brief background is helpful to place the issues raised by this appeal in perspective. Between 1925 and 1971, the Colorado statute of limitations provided that actions sounding in tort or contract to recover damages from certain members of the medical profession could not be maintained unless such action was "instituted within two years after such cause of action accrued." C.R.S. '53, 87-1-6. In 1963 and 1967, the legislature amended the statute by adding additional classes of persons to whom it pertained. C.R.S.1963, 87-1-6; Colo.Sess.Laws 1967, ch. 101. Before 1971, this two-year statute of limitations was judicially construed as beginning to run when the patient discovered, or in the exercise of reasonable diligence should have discovered, the doctor's negligence. Owens v. Brochner, 172 Colo. 525, 474 P.2d 603 (1970); Rosane v. Senger, 112 Colo. 363, 149 P.2d 372 (1944). The adoption of the "discovery" rule was premised on the "manifest unfairness of foreclosing an injured person's cause of action before he has had even a reasonable opportunity to discover its existence." Brown v. Mary Hitchcock Memorial Hospital, 117 N.H. 739, 378 A.2d 1138, 1139-40 (1977).
In 1971, the legislature amended C.R.S.1963, 87-1-6, explicitly adopting the "discovery" rule. However, the legislature imposed a strict six-year limitation period  running from the date of the act or omission giving rise to the cause of action, except in cases involving unauthorized foreign objects. Colo.Sess.Laws 1971, ch. 232. In 1976, the statute was amended reducing the strict six-year limitation to five years. Colo.Sess.Laws 1976, ch. 90. In 1977, the General Assembly enacted the current statute which provides in pertinent part:
"13-80-105. Actions barred in two years. (1) No person shall be permitted to maintain an action, whether such action sounds in tort or contract, to recover damages from a licensed or certified hospital, health care facility, dispensary, or other institution for the treatment or care of the sick or injured due to alleged negligence or breach of contract in providing care or lack of informed consent or from any person licensed in this state or any other state to practice medicine, chiropractic, nursing, physical therapy, podiatry, veterinary medicine, dentistry, pharmacy, optometry, or other healing arts on account of the alleged negligence, breach of contract, or lack of informed consent of such person in the practice of the profession for which he is licensed or on account of his failure to possess or exercise that degree of skill which he actually or impliedly represented, promised, or agreed that he did possess and would exercise, unless such action is instituted within two years after the person bringing the action discovered, or in the exercise of reasonable diligence and concern should have discovered, the injury. In no event may such action be instituted more than three years after the act or omission which gave rise thereto, subject to the following exceptions:
"(a) If the act or omission which gave rise to the cause of action was knowingly concealed by the person committing such act or omission, or, if such act or omission consisted of leaving an unauthorized foreign object in the body of the patient, then such action may be instituted within two years after the person bringing the action discovered, or in the exercise of reasonable diligence and concern should have discovered, the act or omission; ..."
Section 13-80-105, C.R.S.1973 (1983 Cum.Supp.); Colo.Sess.Laws 1977, ch. 198. Since the "discovery" rule was thought to play a significant role in the medical malpractice crisis by creating the so-called "long-tail" of liability, this statute was designed to reduce malpractice premiums by eliminating the insurance companies' inability to predict future claims and losses.
In order to resolve the issues raised by this appeal, we must first interpret the statute to develop the necessary analytical framework. Insofar as the statute is involved in this case, section 13-80-105 establishes the following limitations, and exceptions to those limitations, governing the prosecution of a claim for medical malpractice: The claimant must file the action within two years after the injured person "discovered, or in the exercise of reasonable diligence and concern should have discovered, the injury." Section 13-80-105(1). In addition to this limitation period, the statute contains a repose provision which provides that no action may be filed more than three years after the act or omission which gave rise to the claim. Section 13-80-105(1)(a) contains two exceptions to the three-year period of repose. One, the claim is not barred if the person who committed the act or omission knowingly conceals that fact. Two, the claim is excepted from the period of repose if the physician left an unauthorized foreign object in the claimant's body. Under either exception, the medical malpractice action must be filed by the injured person within two years after the claimant discovers or should have discovered the act or omission.
The plaintiffs first argue that the trial court improperly granted summary judgment against them because the three-year statute of repose, section 13-80-105, does not apply to their claims. Alternatively, they contend that if the statute is applicable to this case, then they are entitled to invoke the "unauthorized foreign object" exception. In addition, the Colorado Trial Lawyers Association, amicus curiae on behalf of the plaintiffs, suggests that the plaintiffs' complaint should be construed as alleging a claim for "knowing concealment," the second exception to the strict three-year statute of repose.  We will address each argument separately.
In their complaint the plaintiffs allege that the negligent acts and omissions of the defendants occurred in September or October of 1963. The plaintiffs further state that they did not discover, and, in the exercise of reasonable diligence, could not have discovered that their claims existed until June 15, 1979. The plaintiffs' complaint was filed on June 4, 1980. For purposes of the summary judgment motions, the defendants have conceded that (1) the incorrect diagnosis was made and reported to the plaintiffs in 1963; (2) the plaintiffs discovered the improper diagnosis in 1979;
and (3) this action was filed within two years after the plaintiffs discovered the defendants' alleged act or omission.
Under the two-year discovery provision in the present statutory scheme, a claim for medical malpractice accrues on the date the plaintiff discovers or should have discovered the injury. For purposes of the exceptions to the three-year statute of repose, the cause of action accrues when the claimant discovers or should have discovered the act or omission. See Mastro v. Brodie, 682 P.2d 1162 (1984), and Owens, 172 Colo. 525, 474 P.2d 603. The statute of limitations in effect on the date when the plaintiff's claim accrues governs the time within which an action must be commenced. Mishek v. Stanton, 200 Colo. 514, 616 P.2d 135 (1981); Valenzuela v. Mercy Hospital, 34 Colo.App. 5, 521 P.2d 1287 (1974). Because the plaintiffs' cause of action accrued in 1979, section 13-80-105 applies to their suit against the defendants and the three-year statute of repose bars their claims, unless the defendants' conduct comes within one of the statutory exceptions or the statute is constitutionally infirm. Mishek, 616 P.2d 135.
We next address the issue of whether the metal screen in Mr. Austin's skull is an "unauthorized foreign object" within the meaning of the statutory exception. We conclude it is not, as a matter of law.
The essence of the plaintiffs' complaint is negligent misdiagnosis, not the presence of an unauthorized foreign object left in Mr. Austin's body by Dr. Litvak. Indeed, the plaintiffs' complaint and answers to interrogatories establish that the metal screen was deliberately and necessarily placed in Mr. Austin's skull to replace bone that had been removed during the surgical diagnostic procedure. We conclude that an unauthorized foreign object is an object left inadvertently in the patient's body and which has no therapeutic or diagnostic purpose or effect. See Cal.Civ.Proc.Code § 340.5 (1982); Wis.Stat. § 893.55 (1983). Examples of such foreign objects include sponges (Rosane, 112 Colo. 363, 149 P.2d 372); surgical clamps (Mudd v. Dorr, 40 Colo.App. 74, 574 P.2d 97 (1977)); and injection needles (Nixdorf v. Hicken, 612 P.2d 348 (Utah 1980); Landgraff v. Wagner, 26 Ariz.App. 49, 546 P.2d 26 (1976)). A device which is intentionally placed in the body with the patient's knowledge and consent does not constitute an unauthorized foreign object for purposes of tolling the applicable statute of limitations. Shannon v. Thornton, 155 Ga.App. 670, 272 S.E.2d 535 (1980); Cooper v. Edinbergh, 75 A.D.2d 757, 427 N.Y.S.2d 810 (N.Y.App.1980).
In paragraph 6 of their complaint, the plaintiffs allege:
"6. That upon information and belief, plaintiff [Mr. Austin] was, while a patient at said Hospital and under the care of and direction of Litvak, administered certain tests at Colorado General Hospital, and which test results unknown to plaintiff, but known to both defendants, effectively established that plaintiff did not have parasaggital meningioma."
It is suggested on behalf of the plaintiffs that these allegations are sufficient to plead knowing concealment as a reply to the statute of limitations defense and, therefore, the trial court erred when it granted summary judgment for the defendants. We reject this construction of the paragraph.
First, the gravamen of the plaintiffs' complaint is that the acts and omissions of the defendants constitute negligent misdiagnosis. Moreover, the plaintiffs' attorney did not raise this argument in support of his own pleading, either in the briefs filed in the trial court or in his opening brief filed in this court.
Second, since the defendant raised the affirmative defense of the statute of limitations under section 13-80-105, it was incumbent upon the plaintiffs to come forward with facts sufficient to invoke
the knowing concealment exception to the three-year statute of repose. They failed to do so; rather, they point only to the unsubstantiated allegations in paragraph 6 of their complaint. Under well-established principles of law governing disposition of summary judgment motions, reliance on unverified allegations in pleadings is wholly insufficient. E.g., Ginter v. Palmer & Co., 196 Colo. 203, 585 P.2d 583 (1978); O'Herron v. State Farm Mutual Automobile Insurance Co., 156 Colo. 164, 397 P.2d 227 (1964). Accordingly, the plaintiffs may not pursue their claims on the theory of knowing concealment. Mishek, 616 P.2d 135.
The plaintiffs have raised a number of arguments in support of their position that the statute is unconstitutional. Indeed, substantial sections of the briefs filed by counsel for the parties and the amici curiae are directed to the due process and equal protection issues which have been presented. Because we elect to resolve this case on equal protection grounds, the due process issues will be saved for another day. 
We first focus our attention on the plaintiffs' argument that the provisions of section 13-80-105 violate their right to equal protection of the law.  Specifically, the plaintiffs maintain that the statute impermissibly discriminates between medical malpractice claimants by allowing persons who premise their "defense" to the three-year statute of repose on "foreign object" or "knowing concealment" theories to bring suit within two years after the plaintiff discovers, or in the exercise of reasonable diligence and concern should have discovered, the act or omission, while requiring persons such as the plaintiffs who base their claim on negligent misdiagnosis to bring suit within two years after discovery of the injury or a maximum of three years from the date of the act or omission. Thus, the plaintiffs conclude that the statute unconstitutionally discriminates against negligently misdiagnosed plaintiffs by depriving them of the benefits of the discovery rule contained in the two statutory exceptions to the three-year repose provision.
The defendants suggest that our decision in Mishek, 616 P.2d 135, is dispositive of the plaintiffs' equal protection claim. We disagree. In Mishek, the claimant's equal protection argument was limited to her contention that " 'no reasonable basis exists for separating medical and healing professionals from other professionals and lay persons and granting them the special protection afforded by the six-year maximum statute of limitations' and therefore section 13-80-105, C.R.S.1973, violates constitutional provisions guaranteeing equal protection and the state constitutional prohibition against special legislation." Id. at 139. The argument was rejected because we declined to overrule our decision in McCarty v. Goldstein, 151 Colo. 154, 376 P.2d 691 (1962), where this court held that the two-year statute of limitations applicable to negligence claims ...