Brown v. Teitelbaum, 90CA1838

• Decision Date: 07 November 1991
• Docket Number: No. 90CA1838,90CA1838
• Citation: 830 P.2d 1081
• Parties: 75 Ed. Law Rep. 532 Glenna Alberta BROWN, Marcie Joanne Brown and Amy Joyce Brown, Plaintiffs-Appellants, v. Isaac TEITELBAUM, M.D.; University Hospital at the University of Colorado Health Sciences Center, and its employees, servants and agents; University of Colorado Health Sciences Center, and its employees, servants and agents; Mark A. Sitarik, M.D., Paul A. Bunn, M.D., and G. Singh, M.D., Defendants-Appellees. . I
• Court: Colorado Court of Appeals

Page 1081

830 P.2d 1081

75 Ed. Law Rep. 532

Glenna Alberta BROWN, Marcie Joanne Brown and Amy Joyce Brown, Plaintiffs-Appellants, v. Isaac TEITELBAUM, M.D.; University Hospital at the University of Colorado Health Sciences Center, and its employees, servants and agents; University of Colorado Health Sciences Center, and its employees, servants and agents; Mark A. Sitarik, M.D., Paul A. Bunn, M.D., and G Singh, M.D., Defendants-Appellees.

No. 90CA1838.

Colorado Court of Appeals Div. I.

Nov. 7, 1991.

Rehearing Denied Dec. 5, 1991.

Certiorari Denied June 1, 1992.

Burg & Eldredge, P.C., Scott J. Eldredge, Denver, for plaintiffs-appellants.

Hansen and Holmes, P.C., Robert W. Hansen, Judith H. Holmes, Denver, Joanne M. McDevitt, Associate University Counsel, Sp. Asst. Atty. Gen., Denver, for defendants-appellees.

Opinion by Chief Judge STERNBERG.

In this medical malpractice action, plaintiffs, Glenna Alberta Brown, Marcie Joanne Brown, and Amy Joyce Brown, appeal from the summary judgments dismissing their claims against defendants, Isaac Teitelbaum, M.D., University Hospital, University of Colorado Health Sciences Center, Mark A. Sitarik, M.D., Paul A. Bunn, M.D., and G. Singh, M.D. We affirm.

The amended complaint alleged that Glenna Alberta Brown was the surviving spouse of Forest Bradford Brown, Jr., deceased, and that the other two plaintiffs were his surviving minor daughters. It also alleged that the decedent was admitted to University Hospital on September 3, 1985; that he was given unreasonable quantities of a certain blood product on September 4, 1985, which caused numerous blood clots to develop throughout his body; that he developed a gangrenous right foot so that his right leg had to be amputated on September 9, 1985; that defendant Teitelbaum, a full-time employee of the Health Sciences Center, performed additional surgery on the decedent on September 13, 1985, which resulted in further injuries; and that the decedent died from the above injuries on September 17, 1985.

The claims for relief included negligence, breach of warranty, misrepresentation, fraud, intentional infliction of emotional distress, outrageous conduct, and deprivation of the decedent's civil rights under 42 U.S.C. § 1983 (1988). Plaintiffs sought both compensatory and punitive damages.

An answer was filed by Teitelbaum, University Hospital, and University of Colorado Health Sciences Center, asserting, as an affirmative defense, that the complaint was barred because of plaintiffs' failure to comply substantially with the provisions of the Colorado Governmental Immunity Act, § 24-10-101, et seq., C.R.S. (1988 Repl.Vol. 10A). The same defendants also filed a motion for summary judgment, with supporting brief, asserting that plaintiffs' claims were barred by their failure to comply with the notice provisions of § 24-10-109 and § 24-10-118, C.R.S. (1988 Repl.Vol. 10A) and their failure to state a claim pursuant to 42 U.S.C. § 1983. The trial court granted partial summary judgment in favor of defendants on Glenna Brown's individual claim, denied the motion as to the claims of the minor children, dismissed the claims under 42 U.S.C. § 1983, and entered summary judgment in favor of the University defendants on the punitive damages claim.

Subsequently, upon defendants' motion to reconsider and defendants' motion to strike the second amended complaint, the trial court dismissed all remaining claims.

I.

Plaintiffs contend that the trial court erred in dismissing the claims of Glenna Brown for failure to file a timely notice of claim pursuant to § 24-10-109. Relying on State v. Young, 665 P.2d 108 (Colo.1983), they argue that she did not "discover" the basic facts underlying her claim until August 1987. We disagree.

In 1985, the notice provision of the Colorado Governmental Immunity Act required any person claiming to have suffered an injury by a public entity or public employee to file a written notice within 180 days after the date of the discovery of the injury. Colo.Sess.Laws 1979, ch. 219, § 24-10-109(1) and § 24-10-118(1)(a) at 862-865. In addition, substantial compliance with the notice provision was a condition precedent to the commencement of any action under the Act.

Under the "discovery rule" then in effect, a claimant was entitled to a reasonable opportunity to discover the basic and material facts underlying a claim before being bound to give the statutory notice. See State v. Young, supra. Nevertheless, the notice provisions did not allow an aggrieved party to wait until all of the elements of the claim matured; rather, a plaintiff's knowledge of the claimed injuries and the potential action for damages started the 180-day notice period running. Morrison v. City of Aurora, 745 P.2d 1042 (Colo.App.1987).

Here, it was undisputed that Glenna Brown had retained counsel and obtained a set of defendants' medical records by December 1985 but filed no notice of claim until August 1987. Under these circumstances, we conclude that the trial court did not err in determining that plaintiff failed to give the statutory notice within 180 days after she had a reasonable opportunity to discover the basic and material facts underlying her claims against defendants.

II.

Plaintiffs also contend that the trial court erred in dismissing the claims of the two minor children for failure to file a timely notice pursuant to § 24-10-109. In support of this contention, they argue that the time for filing the minors' notice should have been extended, pursuant to the tolling provisions of § 13-81-103(1)(a), C.R.S. (1987 Repl.Vol. 6A), until two years after the minors' legal representative was appointed. Again, we disagree.

Section 13-81-103(1)(a) provides that a legal representative shall be allowed not less than two years after his or her appointment to "take action" on behalf of a person under disability. Further, § 13-81-101(4), C.R.S. (1987 Repl.Vol. 6A) defines "take action" to include the bringing, commencement maintenance, or prosecution of any action, suit, or proceeding. Nevertheless, as previously noted, substantial compliance with the 180-day notice provision was a condition precedent to any "action" brought under the Governmental Immunity Act. See Colo.Sess.Laws 1979, ch. 219, § 24-10-109(1) at 862-863.

In Antonopoulos v. Town of Telluride, 187 Colo. 392, 532 P.2d 346 (1975), our supreme court stated that a disabled person, including a minor without a legal representative, was relieved from the statutory duty of giving notice of claim until the removal of the disability. However, the court added that,...