Austin v. Litvak

Citation50 A.L.R.4th 225,682 P.2d 41
Decision Date07 May 1984
Docket NumberNo. 82SA236,82SA236
CourtSupreme Court of Colorado
PartiesRobert L. AUSTIN and Marquita Austin, Plaintiffs-Appellants, v. John LITVAK, M.D. and St. Anthony's Hospital, Defendants-Appellees.

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.

NEIGHBORS, Justice.

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. 1 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.

I.

We learn the following facts from the plaintiffs' complaint and their answers to Dr. Litvak's interrogatories. 2 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.

II.

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 3 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...

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