Elgin v. Bartlett

• Decision Date: 22 November 1999
• Docket Number: No. 98SC622.,98SC622.
• Citation: 994 P.2d 411
• Parties: J. Casey ELGIN, D.O., and Pat Harris-Dubose, P.A., Petitioners/Cross-Respondents, v. Julie BARTLETT and Guy Bartlett, Individually and as parents and next friends of Heather Bartlett, a minor, Respondents/Cross-Petitioners.
• Court: Colorado Supreme Court

994 P.2d 411

J. Casey ELGIN, D.O., and Pat Harris-Dubose, P.A., Petitioners/Cross-Respondents, v. Julie BARTLETT and Guy Bartlett, Individually and as parents and next friends of Heather Bartlett, a minor, Respondents/Cross-Petitioners.

No. 98SC622.

Supreme Court of Colorado, En Banc.

November 22, 1999.

Richman & Jones, P.C., Alan E. Richman, C. Todd Drake, Denver, Colorado, Attorneys for Petitioner/Cross-Respondent, Pat Harris-Dubose.

Andrew T. Brake, P.C., Lee T. Judd, Englewood, Colorado, Eugene Deikman, P.C., Eugene Deikman, Denver, Colorado, Attorneys for Respondents/Cross-Petitioners.

Justice HOBBS delivered the Opinion of the Court.

We granted certiorari to review three questions regarding the court of appeals opinion in Bartlett v. Elgin, 973 P.2d 694 (Colo.App.1998).¹ These questions stem from a medical malpractice suit brought by parents as "next friends" of their injured minor child. We hold that (1) the statute of limitations applicable to the minor's cause of action for medical negligence does not begin to run until the minor reaches the age of eighteen, unless the minor has a court-appointed legal representative; (2) the minor's legal disability does not toll the statute of limitations applicable to the parents' derivative claim for damages; and (3) loss of filial consortium because of a child's injury is not a viable claim available to parents under Colorado law. Thus, we affirm the judgment of the court of appeals.

I.

Julie and Guy Bartlett (Bartletts) brought suit as parents and next friends of Heather Bartlett (Heather), a minor, against J. Casey Elgin, D.O. (Elgin) for damages allegedly resulting from the negligent acts of his physician's assistant, Pat Harris-Dubose, P.A. (Harris-Dubose). On November 2, 1990, Harris-Dubose diagnosed nine-year-old Heather as having the flu. Several days later, she underwent surgery after hospital staff diagnosed her as having a ruptured appendix and an abdominal infection.

In July of 1992, the Bartletts filed their initial complaint against Elgin for imputed negligence based on respondeat superior and failure to adequately supervise Harris-Dubose. They alleged that his physician's assistant, having misdiagnosed Heather's condition, did not provide proper treatment and referral to a specialist. They claimed compensatory damages on Heather's behalf and reimbursement of medically related expenses on their own behalf. The Bartletts also claimed damages for their loss of Heather's consortium. They did not name Harris-Dubose as a defendant.

In April of 1996, after learning that Elgin's insurance company was insolvent and that Harris-Dubose had insurance, the Bartletts filed a motion to amend their complaint to include Harris-Dubose as a defendant; the trial court granted this motion. Harris-Dubose answered and then filed for summary judgment, invoking the statute of limitations. Additionally, both Harris-Dubose and Elgin challenged the viability of the filial consortium claim by way of motion for summary judgment.

The Bartletts opposed the summary judgment motions, claiming that Heather's legal disability as a minor tolled the applicable statute of limitations as to both their own and Heather's claims against Harris-Dubose. In their brief to the trial court, they argued that the two-year statute of limitations under section 13-80-102.5(1), 5 C.R.S. (1999) (action must be brought not more than two years after the date that such action accrues) was tolled by operation of sections 13-80-102.5(3)(d)(II) and 13-81-101, 5 C.R.S. (1999) (person under disability includes minor under eighteen years of age who does not have a legal guardian).

The trial court ruled that the Bartletts' suit on behalf of Heather as next friends was the "functional equivalent" of a suit brought by a guardian ad litem. It dismissed the amended complaint against Harris-Dubose as time-barred, and further ruled that, even if Heather's claims were not time-barred, the statute of limitations had run as to the parents' derivative claims against Harris-Dubose. The trial court also ruled that Colorado does not recognize a parental claim for loss of consortium due to a child's tortiously caused injury.

The trial court certified all of its rulings as appealable under C.R.C.P. 54(b). Although the trial court set a trial date for the Bartletts' claims against Elgin, the court noted that the Bartletts might wish to appeal its rulings dismissing the consortium claim against Elgin and dismissing all claims against Harris-Dubose. The parties stipulated to a continuance of the trial date, and the trial court then entered an order staying further proceedings pending resolution of the issues on appeal. The Bartletts appealed the trial court's rulings on all three issues: its decision not to toll the statute of limitations as to Heather's claims against Harris-Dubose, its decision not to toll the statute of limitations as to the Bartletts' derivative claims against Harris-Dubose, and its decision to dismiss the loss of filial consortium claim against Elgin and Harris-Dubose.

The court of appeals, in light of Heather's age and in the absence of a court-appointed legal representative, held that Heather was under a legal disability at the time her cause of action for medical negligence arose, thus tolling the statute of limitations as to her claims. Nevertheless, it held that the statute of limitations had run as to the Barletts' derivative claims against Harris-Dubose. In addition, the court of appeals agreed that the trial court had properly dismissed the Bartletts' claim against Elgin and Harris-Dubose for loss of consortium. We affirm the judgment of the court of appeals.

II.

We hold that the tolling provisions of sections 13-80-102.5(3)(d)(II) and 13-81-101 operate strictly to toll the otherwise applicable statute of limitations in favor of a minor child who does not have a court-appointed legal representative. Parents cannot revoke or suspend operation of the tolling provisions through a next friends suit filed on behalf of their child. However, we hold that the two-year statute of limitations applicable to suits against health care professionals, section 13-80-102.5(1), does operate in connection with the parents' derivative claims for damages. Finally, we decline to recognize a cause of action in parents for loss of filial consortium on account of a child's injuries.

A. The Minor Child's Legal Disability

Harris-Dubose argues that the court of appeals erred in reversing the trial court's summary judgment ruling that Heather's claims were time-barred. We agree with the court of appeals.

Pursuant to section 13-80-102.5(1), actions alleging negligence against any health care professional must be "instituted within two years after the date that such action accrues... but in no event shall an action be brought more than three years after the act or omission that gave rise to the action." Under section 13-80-108(1), 5 C.R.S. (1999), a cause of action for personal injury accrues on the date both the alleged injury and its cause are known or should have been known through the exercise of reasonable diligence.² The two-year statute of limitations applicable to negligence of a health care professional is tolled with regard to "a person otherwise under disability as defined in section 13-81-101, in which case the action may be maintained within the time period as provided in section 13-81-103." § 13-80-102.5(3)(d)(II).

Section 13-81-101(3) defines "person under disability" as "any person who is a minor under eighteen years of age, a mental incompetent, or a person under other legal disability and who does not have a legal guardian." A person under disability, for whom the court has not appointed a legal representative, is protected by the statute of limitations' tolling provisions. See § 13-81-103(1)(c), 5 C.R.S. (1999). The statute of limitations begins to run when the minor reaches the age of eighteen or when, if it does, a court appoints a legal representative for the minor. Court appointment of the legal representative averts the minor's legal disability for purposes of litigating the minor's rights, thereby rendering inapplicable the tolling provisions. See § 13-81-103(1)(a), 5 C.R.S. (1999). The statute defines a "legal representative" as "a guardian, conservator, personal representative, executor, or administrator duly appointed by a court having jurisdiction of any person under disability or his estate." § 13-81-101(2) (emphasis added).

In determining the meaning of "person under disability," we look first to the language of the statute and give effect to its apparent legislative purpose and intent. See Nicholas v. People, 973 P.2d 1213, 1216 (Colo.1999)

; Industrial Claim Appeals Office v. Orth, 965 P.2d 1246, 1252 (Colo.1998). In the absence of ambiguity in the statutory language or seemingly contradictory provisions, we apply the language as written. See Farmers Ins. Exch. v. Bill Boom, Inc., 961 P.2d 465, 469-70 (Colo.1998).

Here, the language of the statute is clear. The definition of "legal representative" does not include natural parents or next friends acting on behalf of a minor. See § 13-81-101(2); see also Tenney v. Flaxer, 727 P.2d 1079, 1084 (Colo.1986)

. Our reading of the statute is consistent with the court of appeals holding in Hane ex rel. Jabalera v. Tubman, 899 P.2d 332 (Colo.App.1995). In Hane, the court of appeals examined the legislative history of the definition of "person under disability." See

899 P.2d at 336-37.

Specifically, the General Assembly refused to redefine "person under disability" so as to include "natural guardian (parent)" along with "legal guardian". See id. at 337. The proposed bill would have recognized a "natural guardian" to the same extent as a "legal guardian," but the bill was criticized in the legislative process, adjusted, and enacted, in light of the argument that an irresponsible parent who had little or no interest in a child could...