Marriott v. Goldstein, 82CA0773

• Decision Date: 17 March 1983
• Docket Number: No. 82CA0773,82CA0773
• Citation: 662 P.2d 496
• Parties: Alfred J. MARRIOTT, Plaintiff-Appellant, v. Dr. Stephen GOLDSTEIN, Radiologist, Defendant-Appellee, and City and County of Denver, Denver General Hospital, Dr. Harlan Kutscher, Attending Physician, Defendants. . I
• Court: Colorado Court of Appeals

Page 496

662 P.2d 496

Alfred J. MARRIOTT, Plaintiff-Appellant, v. Dr. Stephen GOLDSTEIN, Radiologist, Defendant-Appellee and City and County of Denver, Denver General Hospital, Dr Harlan Kutscher, Attending Physician, Defendants.

No. 82CA0773.

Colorado Court of Appeals,

Div. I.

March 17, 1983.

Robert W. Caddes, Denver, for plaintiff-appellant.

Hansen & Breit, P.C., Robert W. Hansen, Douglas E. Best, Denver, for defendant-appellee.

STERNBERG, Judge.

The plaintiff, Alfred J. Marriott, appeals a summary judgment dismissing his medical malpractice claim against defendant Dr. Stephen Goldstein. We affirm.

Following an automobile accident on October 25, 1975, Marriott was taken to the emergency room of Denver General Hospital. He was unconscious at the time he was admitted and, while still unconscious, x-rays were taken. Marriott was released without being told of the x-rays or the results thereof. The following day, because he was experiencing severe pain, he went to another hospital. There, he was examined and found to have several broken ribs and other complications caused, he alleged, by the delay in obtaining treatment.

Marriott did not learn that he had been x-rayed at Denver General until he received a bill for services on July 24, 1978. He filed a complaint on February 21, 1979, stating several claims for relief for negligence and one for willful, wanton, and deliberate conduct in failing to advise him of his condition. This complaint named as defendants the City and County of Denver, Denver General Hospital, and John Doe and Richard Roe, attending physician and radiologist. On or about January 15, 1981, plaintiff filed an amended complaint substituting defendant Goldstein for Richard Roe.

Goldstein answered, alleging, among other things, that the 1981 complaint was barred by the statute of limitations. Contending there were no issues of material fact, he moved for summary judgment on that ground. Marriott contends that under the applicable statute of limitations, his action was not barred because the complaint was filed in 1979 and the amended complaint relates back to that date. He argues on that basis that granting summary judgment was improper because there was a factual issue of whether his claim was within the longer period of limitations for knowing concealment of a negligent act. We disagree.

The statute of limitations for medical tort claims is found at § 13-80-105, C.R.S.1973 (1982 Cum.Supp.). It was amended in 1977, effective July 1, 1977, and applies to all causes of action existing on the effective date. Colo.Sess.Laws 1977, ch. 198 at 818. In pertinent part, it provides that:

"(1) No person shall be permitted to maintain an action ... to recover damages from a licensed or certified hospital ... or from any person licensed in this state or any other state to practice medicine ... on account of the alleged negligence ... of the person in the practice of the profession for which he is licensed ... unless such action is instituted within two years after the person 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 ... 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."

Marriott argues and, for the purpose of his motion for summary judgment, Goldstein agrees that the cause of action accrued on July 24, 1978, when plaintiff discovered that the x-rays had been taken. See ...