Liscio v. Pinson, 02CA0124.

• Decision Date: 19 June 2003
• Docket Number: No. 02CA0124.,02CA0124.
• Citation: 83 P.3d 1149
• Parties: Janell L. LISCIO and Robert Liscio, Plaintiffs-Appellants, v. Ronald C. PINSON, M.D.; David P. Fisher, M.D.; and Rocky Mountain Orthopedic Associates, P.C., Defendants-Appellees.
• Court: Colorado Court of Appeals

83 P.3d 1149

Janell L. LISCIO and Robert Liscio, Plaintiffs-Appellants, v. Ronald C. PINSON, M.D.; David P. Fisher, M.D.; and Rocky Mountain Orthopedic Associates, P.C., Defendants-Appellees.

No. 02CA0124.

Colorado Court of Appeals, Div. III.

June 19, 2003.

Certiorari Denied February 9, 2004.

Leventhal, Brown & Puga, P.C., Jim Leventhal, Anthony Viorst, Denver, Colorado, for Plaintiffs-Appellants.

Montgomery Little & McGrew, P.C., Robert N. Spencer, Englewood, Colorado, for Defendant-Appellee Ronald C. Pinson, M.D.

Johnson, McConaty & Sargent, P.C., Craig A. Sargent, Bradley G. Robinson, Glendale, Colorado, for Defendant-Appellee David P. Fisher, M.D.

No Appearance for Defendant-Appellee Rocky Mountain Orthopedic Associates, P.C.

Opinion by Judge DAILEY.

In this medical malpractice action, plaintiffs, Janell L. and Robert Liscio, appeal the judgment entered upon a jury verdict in favor of defendants, Ronald C. Pinson, M.D., David P. Fisher, M.D, and Rocky Mountain Orthopedic Associates, P.C. Plaintiffs also appeal an order imposing sanctions for abuse of deposition procedures. We affirm.

Defendants are orthopedic surgeons who, on October 31, 1997, performed surgery to reconstruct a torn anterior cruciate ligament (ACL) in Janell Liscio's left knee. Following surgery, the screw holding the ACL graft in place detached, requiring defendants to perform a "revision" knee surgery on November 28, 1997.

Within a month of the second surgery, Janell Liscio met with defendant Dr. Pinson on four separate occasions, complaining of pain in her leg. Dr. Pinson referred Mrs. Liscio to other specialists, and one eventually determined she suffered an injury to the sartorial, or main, branch of her saphenous nerve and had a condition known as reflex sympathetic dystrophy.

On November 24, 1999, plaintiffs filed this action, alleging that defendants negligently performed the second surgery, causing damage to Mrs. Liscio's saphenous nerve. Mrs. Liscio's husband, Robert, asserted a claim for loss of consortium. In their answers, defendants denied that they negligently caused any injury or loss of consortium.

In May 2001, plaintiffs filed a motion to amend their complaint to add two additional claims of negligence relating to the first surgery. Upon defendants' objection, the trial court summarily denied plaintiffs' motion.

A prominent issue at trial was whether Mrs. Liscio suffered an injury to the infrapatellar, as opposed to the sartorial, branch of the saphenous nerve. Experts on both sides opined that the infrapatellar branch of the nerve is routinely (and thus, not negligently) sacrificed by doctors during this type of surgery.

After an eleven-day trial, the jury found that defendants had not been negligent.

I. Motion to Amend Complaint

Plaintiffs contend that the trial court erred in denying their motion to amend the complaint. We disagree.

Under C.R.C.P. 15(a), parties may amend their pleadings only by leave of court after responsive pleadings have been filed; however, "leave shall be freely given when justice so requires." C.R.C.P. 15(a) reflects a liberal policy of allowing amendment, and trial courts are encouraged to look favorably on requests to amend pleadings. Super Valu Stores, Inc. v. Dist. Court, 906 P.2d 72, 77 (Colo.1995).

A trial court may deny leave to amend on grounds of undue delay, bad faith, dilatory motive, repeated failure to cure deficiencies in the pleadings via prior amendments, undue prejudice to the opposing party, and futility of amendment. Benton v. Adams, 56 P.3d 81, 86 (Colo.2002); Sandoval v. Archdiocese of Denver, 8 P.3d 598, 605 (Colo.App.2000).

Here, we are unable to determine the precise basis of the trial court's ruling. Nonetheless, we conclude that plaintiffs' motion was properly denied on grounds of futility of amendment. See Davis v. Paolino, 21 P.3d 870, 873 (Colo.App.2001)("if a proposed amendment to the complaint would be futile, reversal is not required").

"An amendment is futile, if, for example, `it merely restates the same facts as the original complaint in different terms, reasserts a claim on which the court previously ruled, fails to state a legal theory, or could not withstand a motion to dismiss.'" Benton v. Adams, supra, 56 P.3d at 86-87 (quoting 3 J.W. Moore, et al., Moore's Federal Practice § 15.15[3], at 15-48 (3d ed.1999)). We review de novo the issue presented in this case, namely, whether the amendment would be futile because it would not survive a motion to dismiss. See Benton v. Adams, supra, 56 P.3d at 86.

Here, plaintiffs' motion requested leave to file two new claims of negligence related to the first operation. Plaintiffs' motion was filed, however, three and a half years after the second operation. Defendants opposed plaintiffs' motion, arguing that plaintiffs' new claims were barred by the applicable two-year statute of limitations set forth in § 13-80-102.5(1), C.R.S.2002.

In determining when a claim accrues, for purposes of applying § 13-80-102.5, we look to § 13-80-108(1), C.R.S.2002, which provides, in pertinent part, that "a cause of action for injury to person ... shall be considered to accrue on the date both the injury and its cause are known or should have been known by the exercise of reasonable diligence."

In a medical malpractice case, a claim accrues when a plaintiff has knowledge of facts which would put a reasonable person on notice of the nature and extent of an injury and that the injury was caused by the wrongful conduct of another. A plaintiff need not know the specific acts of negligence committed by the defendant or the details of the evidence necessary to prove the claim. "It is enough that the claimant knew, or may reasonably be charged with knowledge of, sufficient facts to be aware that a claim existed more than two years before it was filed." Mastro v. Brodie, 682 P.2d 1162, 1169 (Colo.1984); see also Sandoval v. Archdiocese of Denver, supra, 8 P.3d at 604 ("The limitation period does not begin to run until the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, the existence of facts forming the basis of a claim for relief.").

Although whether a statute of limitations bars a claim is ordinarily a question of fact, Owens v. Brochner, 172 Colo. 525, 529, 474 P.2d 603, 605 (1970), it may, in appropriate cases, be decided as a matter of law. See Adams v. Leidholdt, 38 Colo.App. 463, 468, 563 P.2d 15, 18 (1976), aff'd, 195 Colo. 450, 579 P.2d 618 (1978).

Here, Mrs. Liscio was told that a second operation was required because a bone graft implanted in the first operation had pulled apart. And during her deposition she twice testified that, by the time of the second operation, she believed that defendants had done something negligently in the first operation. She also testified that within a week of the second surgery, she experienced excruciating pain in her left leg.

Under these circumstances, we conclude that reasonable people could not disagree that, within a week of the second operation, plaintiffs were "aware of [the] injury and knew or should have known that any alleged negligence occurred on or before the date of that injury." See Adams v. Leidholdt, supra. Because the amended complaint was filed well beyond two years after this time, the new claims would be barred by the statute of limitations, absent the application of C.R.C.P. 15(c).

C.R.C.P. 15(c) provides that a claim asserted in an amended pleading relates back to the date of the original complaint when it arises out of the same conduct, transaction, or occurrence alleged in the original pleading.

Because notice is the essence of C.R.C.P. 15(c), the issue is whether, when viewed from the perspective of a reasonably prudent party, a defendant ought to have anticipated or expected that "other aspects of the conduct, transaction, or occurrence set forth in the original pleading might be called into question." See United States v. Bell, 724 P.2d 631, 638 (Colo.1986)(quoting 6 Wright & Miller, Federal Practice and Procedure: Civil § 1497, at 498-99 (1971)).

A defendant will not be held to have anticipated or expected a new claim which arises from events other than those included in the original complaint. See Allen Homesite Group v. Colo. Water Quality Control Comm'n, 19 P.3d 32, 34 (Colo.App.2000); see also Peters v. Smuggler-Durant Mining Corp., 930 P.2d 575, 581 (Colo.1997)("Where an `amended complaint attempts to add a new legal theory which is unsupported by the factual claims raised in the original complaint, the proposed claim arises from new and distinct conduct, transactions, or occurrences not found in the original complaint.'" (quoting 27A Federal Procedure Pleadings and Motions § 62:335 (Lawyer's ed.1996)).

Here, plaintiffs' original complaint set forth several claims of relief, each specifically linked to the November 28, 1997 surgery. Plaintiffs' amended complaint alleged defendants were negligent in performing the October 31, 1997 surgery and in failing to properly secure the ACL graft at that time, which required Mrs. Liscio to undergo further surgery resulting in "an increase in her injuries and damages."

Plaintiffs' new claims alleged defendants' liability based upon specific conduct and events that were separate and distinct from that set forth in the original complaint. Thus, under C.R.C.P. 15(c), plaintiffs' new claims could not relate back to date of the original complaint.

Because the new claims were barred by the two-year statute of limitations, we conclude that the amended complaint would have been futile. Hence, we find no error in the trial court's denial of leave to amend the complaint.

II. Expert Testimony

Plaintiffs also contend the trial court erred in precluding their expert from testifying that defendants negligently or otherwise improperly performed the first surgery. Plaintiffs argue that the expert's opinion with respect to the first surgery qualified as res gestae...