Tenney v. Flaxer, 86SA14

Citation727 P.2d 1079
Decision Date10 November 1986
Docket NumberNo. 86SA14,86SA14
PartiesClyde Arthur TENNEY and Ardith Mae Tenney, as Co-Guardians for Steven Clyde Tenney, Plaintiffs-Appellants, v. Carl FLAXER; Eugene Schulman; Frank S. Potestio; and Mercy Medical Center, Defendants-Appellees.
CourtSupreme Court of Colorado

Roath & Brega, P.C., Robert E. Kendig, Denver, for plaintiffs-appellants.

Hall & Evans, Eugene O. Daniels, Alan Epstein, Denver, for defendants-appellees Carl Flaxer & Eugene Schulman.

Pryor, Carney & Johnson, Susan T. Smith, Friedrick C. Haines, Peter W. Pryor, Edward D. Bronfin, Denver, for defendant-appellee Frank S. Potestio.

Long & Jaudon, P.C., Joseph C. Jaudon, Robert M. Baldwin, Denver, for defendant-appellee Mercy Medical Center.

QUINN, Chief Justice.

Pursuant to Rule 21.1 of the Colorado Appellate Rules, the United States Court of Appeals for the Tenth Circuit has certified the following three questions of Colorado law which may be determinative of an appeal presently pending in that court:

1. Under the 1977 amendments to the Colorado medical negligence statute of limitations, Section 13-80-105, C.R.S. [1985 Supp.], is this action barred where brought by a ... mentally incompetent person [who was fifteen years old in 1977] 1 and on his behalf by co-guardians, alleging negligence by medical practitioners and a hospital in July and August 1962, which action was not commenced within one year after the effective date of the said 1977 amendments to the medical negligence statute of limitations?

2. Was the running of the medical negligence statute of limitations, Section 13-80-105, C.R.S. [1985 Supp.], tolled in this case, thereby rendering plaintiffs' action timely on the theory that mental incompetence caused by defendants' negligent conduct tolled the statute of limitations for an action based on that conduct?

3. Did the third clause of the [first] sentence of subsection 2 of the medical negligence statute of limitations, Section 13-80-105, C.R.S. [1985 Supp.], which provides that "if there is a discovered act or omission which could give rise to an action, the limitations period shall not run unless a guardian ad litem is appointed to represent the minor child," toll the running of the medical negligence statute of limitations in this case until the appointment of Steven Clyde Tenney's parents as his co-guardians, thereby rendering plaintiffs' action timely?

We agreed to respond to the certified questions and now answer question one in the negative, and question two in the affirmative. Our answers to these questions render it unnecessary to respond to question three.

I.

The plaintiffs-appellants, Clyde Arthur Tenney and Ardith Mae Tenney, are the parents of Steven Clyde Tenney, who was born on August 10, 1962, at Mercy Medical Center in Denver, Colorado. Steven's parents were appointed his legal co-guardians on September 8, 1980. On August 10, 1982, Steven's parents, as co-guardians on behalf of Steven, filed a diversity action in the United States District Court for the District of Colorado. Alleging that the plaintiffs were citizens and residents of the state of Washington and that the defendants were citizens and residents of the state of Colorado, the complaint sought money damages against the defendants-appellees, Carl Flaxer, Eugene Schulman, Frank S. Potestio, and Mercy Medical Center, for injuries caused to Steven as the result of the defendants' negligence in connection with the treatment administered to Steven's mother during the late stages of her pregnancy in July and August 1962 and during Steven's birth on August 10, 1962. The complaint alleged that as a direct and proximate result of the negligence of the individual defendants Steven was born with severe and permanent brain damage and has suffered total and permanent disability since birth.

The district court granted the defendants' motions for summary judgment, ruling that the action was barred by the Colorado medical malpractice statute of limitations, § 13-80-105, 6 C.R.S. (1985 Supp.). The plaintiff appealed to the United States Court of Appeals for the Tenth Circuit, which thereafter certified the three questions to this court.

II.
A.

Section 13-80-105, 6 C.R.S. (1985 Supp.), the version of the medical malpractice statute of limitations under which we decide the questions before us, was enacted in the form herein discussed in 1977. 3 Under section 13-80-105(1), a claim for medical malpractice in Colorado must be filed within two years "after the person bringing the action discovered, or in the exercise of reasonable diligence and concern should have discovered, the injury." The statute also contains a repose provision which, subject to specified exceptions, states that "[i]n no event may such action be instituted more than three years after the act or omission which gave rise" to the injury. § 13-80-105(1). The three-year repose provision does not apply in cases of knowing concealment of the act or omission, or of leaving an unauthorized foreign object in the body, or in the case of a minor who was under six years old at the time of injury. § 13-80-105(1)(a), (b). In the case of an injury to a child under six, an action may be brought on his behalf within two years of his sixth birthday. § 13-80-105(1)(b).

In addition to the above exceptions to the repose provision, section 13-80-105(2) provides for the tolling of the periods of limitation and repose in the case of a minor under eighteen who has no natural or legal guardian; such a claim must be filed within two years after a legal guardian has been appointed, or within two years after the minor reaches eighteen, whichever first occurs. Section 13-80-105(3) states that for purposes of the limitation and repose periods of the statute a person under disability includes a "mental incompetent." 4 Before 1977 a minor entitled to bring an action for medical malpractice had until two years after he reached the age of majority to file his claim. See § 13-80-116, 6 C.R.S. (1973). Since Steven was only fifteen years of age in 1977, his claim was still viable under the pre-1977 statutory scheme. In 1977 the General Assembly amended the medical malpractice statute by including, among other revisions, a special section which stated that all causes of action existing on the effective date of the statute, July 1, 1977, would not be barred until one year after that date, or until the expiration of the limitations period, whichever was longer. See ch. 198, sec. 5, 1977 Colo.Sess.Laws 816, 818.

B.

The United States District Court interpreted section 13-80-105(1)(b), 6 C.R.S. (1985 Supp.), which states that any claim on behalf of a minor under six years on the date of the act or omission must be filed within two years after the minor reaches six years of age, as applicable to any claim on behalf of a minor who had either a natural or legal guardian irrespective of the existence of any other disability, such as mental incompetency. It was the district court's view that:

[W]hether a minor under six years of age has a disability or doesn't have a disability ... simply does not make any difference because the statute very clearly says if the action is brought by or on behalf of a minor who is under six years of age on the date of occurrence of the act or omission for which the action is brought, then such action may be instituted within two years after said minor reaches six years of age.... The natural or legal guardian has the obligation to bring the action within two years of the minor reaching six years of age, or because of the change in the statutory language, one year after July 1, 1977.

Because in the present case the action was not filed by Steven's parents before Steven's eighth birthday or within one year of July 1, 1977, the district court concluded that his claim was barred.

The district court's resolution of the matter, however, does not take into account that Steven, in addition to having been a minor one year after July 1, 1977, was at all times since his birth a mental incompetent. If mental incompetency, not minority, is viewed as Steven's disability for the purposes of the statute of limitations, then Steven's claim was not time-barred. While section 13-80-105(3), 6 C.R.S. (1985 Supp.), includes a mental incompetent within the definition of a person under disability, it does not specifically address the effect of such incompetency on the limitation and repose periods applicable to medical malpractice claims. Section 13-81-103(1)(a), 6 C.R.S. (1973), does address this question, 5 and, as we recently held in Southard v. Miles, 714 P.2d 891 (Colo.1986), this section establishes an indefinite toll for a "person under a disability" by reason of mental incompetency. 6

In Southard, suit had been brought against three physicians and a hospital by the parents of a twenty-five-year-old man who had sustained irreversible brain damage, allegedly as a result of the defendants' negligence. Since the action was filed over three years after the date of the injury, the defendants argued that the claim was barred under section 13-80-105. We disagreed, concluding that if plaintiff Southard were found on remand to be under a disability sufficient to invoke the general tolling provisions of section 13-81-103(1)(a), his claim would not be barred, since that provision also applied to the limitations period for medical malpractice claims:

[Section 13-81-103] is intended to apply to any statute of limitations in this state, § 13-81-101(1), 6 C.R.S. (1973), unless there exists a special statute pertinent to the claim that conflicts with the general provisions of section 13-81-103. No such conflict exists here, as section 13-80-105 is totally silent on the effect of mental incompetency on the two-year period of limitation and the three-year period of repose applicable to medical malpractice claims.

714 P.2d at 897. In the case of a claim of a mental incompetent for...

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