McCarty v. Goldstein, 20149
| Citation | 151 Colo. 154,376 P.2d 691 |
| Decision Date | 03 December 1962 |
| Docket Number | No. 20149,20149 |
| Parties | Evalene McCARTY and Wesley McCarty, Plaintiffs in Error, v. Esther GOLDSTEIN, also known as Esther Q. Spangler, Defendant in Error. |
| Court | Colorado Supreme Court |
Fugate, Mitchem, McGinley & Hoffman, Denver, for plaintiffs in error.
T. Raber Taylor, Denver, for defendant in error.
We will refer to the parties as they appeared in the trial court where plaintiffs in error were plaintiffs and defendant in error was defendant.
May 31, 1960, plaintiffs filed their complaint in which it was alleged that in April 1955 defendant, a dentist, was employed to fit new dentures for the plaintiff Evalene McCarty; that the professional services rendered by defendant were negligently performed in a manner not generally considered as 'effective dental diagnosis, procedure, treatment or remedy' within the community in which she practiced dentistry; all to the damage of plaintiffs.
Defendant denied the negligence alleged by plaintiffs and asserted defenses as follows: (1) Failure to state a claim; (2) res adjudicata; (3) one year statute of limitations (C.R.S. '53, 87-1-2); (4) two year statute of limitations (C.R.S. '53, 87-1-6); and (5) three year statute of limitations (C.R.S. '53, 87-1-8 and 9). Subsequently plaintiffs moved to strike defendant's defense relating to C.R.S. '53, 87-1-6 (the two year statute of limitations) on the grounds that said statute was violative of the Fourteenth Amendment to the United States Constitution and Article V, Section 25, of the Constitution of the State of Colorado. The Attorney General for the State of Colorado was served with the motion.
Defendant filed a motion for summary judgment asserting that on the face of the complete record the statute of limitations applied and barred the claim. Upon hearing, the trial court ruled that the plaintiffs' action was barred by the two year statute of limitations relating to actions based on negligence in the practice of certain professions enumerated therein; such actions being barred unless 'instituted within two years after such cause of action accrued.' The practice of dentistry is one of the professions included within the coverage of the statute.
On the motion to strike the defense of the two year statute, the trial court ruled that plaintiffs had no standing or capacity to raise the constitutional issue tendered. In response to the argument that the two year statute was discriminatory and denied equal protection of the law to attorneys, scientists, engineers, nurses, X-Ray technicians, and other professional persons who should be entitled to equal protection of the law, the trial court ruled that the plaintiffs, not being persons within any category of professional calling which might claim to be discriminated against by the statute, had no standing to raise the constitutional issue. The court further held that even assuming that plaintiffs had capacity to raise the issue, the statute was not discriminatory and did not deny equal protection of the law.
It is admitted that more than two years had elapsed following the date on which plaintiffs' cause of action accrued, before the complaint was filed in the district court. Unless the two year statute is discriminatory in denying equal protection of the law to persons followng occupations and professions similar to those enumerated in the statute, then the judgment of the trial court should be sustained. The statute involved provides:
'No person shall be permitted to maintain an action, whether such action sound in tort or implied contract, to recover damages from any persons licensed to practice medicine, chiropractic, osteopathy, chiropody, midwifery or dentistry on account of the alleged negligence 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 be instituted within two years after such cause of action accrued.'
It is claimed that the statute is 'special legislation' prohibited by Article V, Section 25, of the Colorado Constitution, and the argument is advanced that others should have been afforded the protection of the two year...
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...if it is "general and uniform in its operation upon all in like situation." Curtiss, 774 P.2d at 876 (quoting McCarty v. Goldstein, 151 Colo. 154, 158, 376 P.2d 691, 692-93 (1962)); Rifle Potato Growers Ass'n v. Smith, 78 Colo. 171, 176, 240 P. 937, 939 (1925); People v. Earl, 42 Colo. 238,......
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...reasonable, Chaffin v. Nicosia, 261 Ind. 698, 310 N.E.2d 867 (1974), and reasonably related to the objective sought, McCarty v. Goldstein, 151 Colo. 154, 376 P.2d 691 (1962). Some cases have found the shortened limitations period applicable to health care providers to be justified by the me......
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State ex rel. Schneider v. Liggett
...(D.Kan.1948); Naismith Dental Corp. v. Board of Dental Examiners, supra, 68 Cal.App.3d at 262, 137 Cal.Rptr. 133; McCarty v. Goldstein, 151 Colo. 154, 376 P.2d 691 (1962). Cf., Prendergast v. Nelson,199 Neb. 97, 256 N.W.2d 657, 669 (1977).) The fact nurses and dentists were not affected by ......
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Austin v. Litvak
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