Comstock v. Collier

• Decision Date: 26 May 1987
• Docket Number: No. 84SC482,84SC482
• Citation: 737 P.2d 845
• Parties: Janice COMSTOCK, as Personal Representative of the Estate of Reva A. Nelson, Petitioner, v. Robert COLLIER, M.D., Respondent.
• Court: Colorado Supreme Court

Page 845

737 P.2d 845

Janice COMSTOCK, as Personal Representative of the Estate of Reva A. Nelson, Petitioner, v. Robert COLLIER, M.D., Respondent.

No. 84SC482.

Supreme Court of Colorado En Banc.

May 26, 1987.

Rehearing Denied June 15, 1987.

Green & Josefiak, Mary M. Josefiak, Denver, for petitioner.

Long & Jaudon, P.C., Joseph C. Jaudon, Robert M. Baldwin, Denver, for respondent.

KIRSHBAUM, Justice.

In Comstock v. Collier, 694 P.2d 1282 (Colo.App.1984), the Court of Appeals affirmed in part and reversed in part a trial court order granting a motion for summary judgment filed by the respondent-defendant, Robert Collier, and dismissing certain medical negligence claims alleged against Collier by the petitioner-plaintiff, the Estate of Reva A. Nelson. The Court of Appeals held that the medical malpractice statute of limitation, § 13-80-105(1), 6 C.R.S. (1982 Supp.), barred all of the plaintiff's claims except one claim based on conduct allegedly occurring within the three-year period immediately preceding the commencement of the action. We granted certiorari to review that holding, and now conclude that the plaintiff's claims are not barred by section 13-80-105(1).

I

Nelson was treated by Collier from 1961 to August of 1982 for a condition diagnosed by Collier as chronic phlebitis. ¹ From 1967 to 1982, Collier prescribed the drug "Talwin," a morphine-based painkiller. Following Collier's instructions, Nelson injected the drug into her legs five times each day. On December 1, 1982, other physicians diagnosed Nelson as having cancer in those spots where the Talwin was injected.

On January 17, 1983, Collier was served with a complaint alleging, inter alia, that he had been negligent "in his treatment and diagnosis of ... Reva A. Nelson." ² Collier subsequently filed a motion for summary judgment under C.R.C.P. 56, asserting that the plaintiff's claims were absolutely barred under the applicable statute of limitation. The trial court granted the motion and ordered the complaint as to Collier dismissed without prejudice. The Court of Appeals recognized that section 13-80-105(1) does not bar completely claims alleging misdiagnosis, but concluded that the plaintiff's claims pertained only to allegedly negligent treatment.

II

The statute of limitation in effect when a cause of action accrues governs the time within which a civil action must be commenced. Mishek v. Stanton, 200 Colo. 514, 616 P.2d 135 (1980). The statute of limitation in effect at the time Nelson discovered her claim provided, in pertinent part, as follows: ³

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 ... any person licensed in this state or any other state to practice medicine ... 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....

6 C.R.S. (1982 Supp.) (emphasis added). Under this statutory scheme, actions alleging negligence by a physician must be commenced within two years of the date the plaintiff discovered, or in the exercise of reasonable diligence should have discovered, the injury. This legislatively declared "discovery rule" eliminates the unfairness of prohibiting the filing of an action before a patient becomes aware of the existence of a claim. Owens v. Brochner, 172 Colo. 525, 474 P.2d 603 (1970).

In balancing the need to permit patients to recover losses from injuries caused by negligent conduct of their physicians against the need of physicians to practice medicine without fear of becoming defendants in suits alleging conduct that occurred in the past, which allegations, because of the passage of time, could prove difficult to refute, the General Assembly also established a period of time after which very few medical malpractice actions could be filed even if the injury were later discovered. With the exception of claims based upon knowing concealment or the leaving of an unauthorized foreign object in the patient's body, the General Assembly required that all claims alleging negligent conduct by a physician must be filed within the period of repose--that is, within three years of the act or omission giving rise to the action. § 13-80-105(1).

In Austin v. Litvak, 682 P.2d 41 (Colo.1984), this court concluded that, in view of provisions of the United States and Colorado Constitutions, a claim alleging injury caused by a physician's negligent misdiagnosis must also be deemed exempt from the repose provision of section 13-80-105. The plurality opinion reached this conclusion on the basis of equal protection notions. The concurring opinion was based on the provisions of the Colorado Constitution, article II, section 6. The plurality reasoned that there is no rational basis to deny relief to a patient who cannot within any fixed time period reasonably learn that he or she has been injured as the result of negligent conduct by a physician because the conduct consists of wrongful diagnosis yet permit relief for a patient who cannot within any fixed time period reasonably learn that he or she has been so injured because the conduct was concealed. In both cases, no amount of reasonable diligence would permit the discovery of the injury. In both cases, the legislative policy of permitting an action by a person who through no lack of diligence does not learn of the injury until some time after the causal conduct ended is undermined by a contrary rule.

The complaint in this action alleges that "because of the diagnosis of chronic phlebitis, [Nelson] was kept a semi-invalid for twenty years," that Collier "failed to properly treat [Nelson] and continued to misprescribe Talwin" and that Collier "failed to comply with the general principles and standards of care of his profession in his treatment and diagnosis of [Nelson]." ⁴ A complaint is sufficient to sustain an action if it affords the defendant reasonable notice of the general nature of the claims alleged. C.R.C.P. 8(a); Hadley v. Moffat County School Dist., 681 P.2d 938 (Colo.1984); Vance v. St. Charles Mesa Water Ass'n, 170 Colo. 313, 460 P.2d 782 (1969). Summary judgment is appropriate only if the pleadings "show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." C.R.C.P. 56(c). When read in the light most favorable to the plaintiff, as it must be, the complaint in this action alleges that Collier was negligent in his diagnosis of Nelson's illness. So viewed, the complaint reasonably stated a claim for negligent misdiagnosis that is an exception to the repose period of the statute. ⁵

III

The plaintiff asserts that the two-year statute of limitation begins to run against the negligent treatment claim only at the end of a continuous course of improper treatment. In reaching its conclusion in Comstock v. Collier, 694 P.2d 1282, the Court of Appeals stated that this court rejected a continuous treatment exception in Austin v. Litvak. We agree that no "exception" to the two-year statute of limitation or the three-year statute of repose exists for a continuous course of improper treatment. However, in the case of a continuous course of treatment for a particular condition, we conclude that the three-year statute of repose does not begin running until the final act constituting the treatment.

Under the provisions of section 13-80-105, the two-year statute of limitation begins to run on the date that the person bringing the action discovered or in the exercise of reasonable diligence should have discovered the injury. The three-year statute of repose, however, begins to run on the date of the "act or omission which gave rise" to the action. In cases not covered by the exceptions to the statute of repose, this statute prevents the assertion of stale claims and reduces the so-called "long-tail" of liability created by the discovery rule. Austin v. Litvak, 682 P.2d at 46. Under some circumstances, the statute of repose bars an action before discovery of the injury.

When the alleged negligence of a person licensed to practice medicine consists of a continuous course of treatment, the date of any one particular act or omission causing injury may be impossible to determine. Indeed, the negligence in many cases may consist of a series of acts or omissions each contributing to the injury. In such cases involving a continuous course of treatment, the act or omission which triggers the three-year statute of repose is the end of the course of treatment. See Smith v. Dewey, 214 Neb. 605, 335 N.W.2d 530 (1983) (ten-year statute of repose "after the date of rendering or failure to render ... professional service which provides the basis for the cause of action" begins to run at end of course of treatment alleged to be malpractice). Fixing this point to trigger the statute of repose is based on a theory of continuing negligence--the physician...