Owens v. Brochner

• Decision Date: 21 September 1970
• Docket Number: No. 24211,24211
• Citation: 172 Colo. 525,474 P.2d 603
• Parties: Dean S. OWENS, Plaintiff in Error, v. Ruben BROCHNER and John J. Rowe, Defendants in Error.
• Court: Colorado Supreme Court

Page 603

474 P.2d 603

172 Colo. 525

Dean S. OWENS, Plaintiff in Error, v. Ruben BROCHNER and John J. Rowe, Defendants in Error.

No. 24211.

Supreme Court of Colorado, In Department.

Sept. 21, 1970.

Paul A. Morris, Boulder, Walter L. Gerash, Denver, for plaintiff in error.

Yegge, Hall & Evans, Richard D. Hall, Denver, for defendant in error, Ruben Brochner.

Lawrence M. Wood, Denver, Hutchinson, Black & Hill, James W. Buchanan, Boulder, for defendants in error, John J. Rowe.

KELLEY, Justice.

This matter is here for review on writ of error to the District Court of Boulder County. The parties are aligned here as they were in the trial court.

Owens, the plaintiff, filed a complaint against Dr. Brochner for malpractice on June 12, 1967, and joined Dr. Rowe as a defendant on March 6, 1968. The operation from which the complaint arose was performed April 27, 1965.

The lawsuit terminated in the trial court by the entry of a summary judgment in favor of the defendants based upon the two-year statute of limitations. C.R.S. 1963, 87--1--6.

Admittedly, more than two years had elapsed between the date of the operation and the filing of the complaint. The question for our determination is whether the 'cause of action accrued' as of the date of the surgery as the trial court held, or when the plaintiff discovered or, in the exercise of reasonable diligence, should have discovered the alleged negligence of the defendants. The second alternative is known as the 'discovery rule.' For the reasons set forth in this opinion we disagree with the trial court.

The only issue before us is one of law. Although other courts and law review articles have aligned Colorado with those jurisdictions applying the 'discovery rule,' the precise question before us has not previously been considered by this court.

A brief statement of the factual context within which the issue arises will suffice for our discussion.

The complaint alleged that on April 25, 1965, Brochner negligently diagnosed a malignant tumor in plaintiff's brain, and on April 27, 1965, performed unnecessary surgery to remove the tumor; that plaintiff was not aware of the professional negligence of Dr. Brochner until March or April, 1967, at which time he was informed of the true facts by 'competent' doctors. The amended complaint, in which Dr. Rowe, a pathologist, was joined as a party defendant, alleged that on the date of the surgery he negligently diagnosed brain tissue to be malignant (Astrocytoma Grade II), when, in fact, it was normal.

The statute on which the trial court based its summary judgment, C.R.S. 1963, 87--1--6, in material part reads:

'No person shall be permitted to maintain an action, whether such action sound in tort or implied contract, to recover damages from * * * any person licensed in this state or any other state to practice medicine * * * 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.' (Emphasis added.)

When does a cause of action accrue in a professional negligence case? Our alignment with the 'discovery' jurisdictions, as noted above, is the result of two prior decisions. Davis v. Bonebrake, 135 Colo. 506, 313 P.2d 982, and Rosane v. Senger, 112 Colo. 363, 149 P.2d 372.

In Rosane, the doctor, who allegedly left a sponge in the plaintiff after surgery, pleaded the statute of limitations. We there stated:

'* * * Under the facts pleaded it was impossible for plaintiff to sue within the limitation and it is a recognized maxim that the law requires not imposibilities. A legal right to damage for an injury is property and one can not be deprived of his property without due process. There can be no due process unless the party deprived has his day in court and if without his fault his debtor conceals from him his right until a statute deprives him of his remedy he is deprived of due process. It is also an ancient maxim of the common law that 'Where there is a right there is a remedy.' What a mockery to say to one, grievously wronged, 'Certainly you Had a remedy, but while your debtor concealed from you the fact that you had a right the law stripped you of your remedy.''

There is no difference, in our view, as far as the wronged plaintiff is concerned, whether the negligence of the defendants was Concealed or for some Other valid cause the plaintiff failed to learn of the negligence, unless, of course, the plaintiff, in the exercise of reasonable diligence, should have known of the negligence at the time of its occurrence.

Thirteen years after Rosane this court considered the problem again in Davis v. Bonebrake, Supra. In Bonebrake the complaint was filed two years and two months after an operation on the plaintiff. A sponge was left in the plaintiff's abdomen. The defendant admitted the operation but, as a first defense, denied any negligence. As a second defense, the defendant asserted the statute of limitations as a bar to the action.

At the conclusion of plaintiff's evidence the defendant moved for a 'judgment of dismissal' on the basis of the statute of limitations. Pertinent to the issue, this court in Bonebrake stated:

'Defendants take the position that plaintiff knew of the presence of the sponge in her abdomen within a matter of days after her first operation, hinging their argument upon her testimony, as above outlined; therefore, they say the suit was brought too late, and the trial court should have granted their motions 'for judgment of dismissal' and for directed verdict.

'The answer to this is that different minds could have honestly drawn different conclusions from the testimony on this question; that the evidence viewed in its most favorable light in behalf of plaintiff was substantial, and warranted submission of the question to the jury under proper instructions. City of Grand Junction v. Lashmett, 126 Colo. 256, 247 P.2d 909; Singer v. Chitwood, 126 Colo. 173, 247 P.2d 905.'

It is clear that Colorado does not follow the rule of strict construction. In situations where the defendant physician has Concealed his negligence the cause of action does not accrue until the patient discovers the negligence, or by the exercise of reasonable diligence should have discovered it. Rosane v. Senger, Supra.

In Bonebrake, whether or not the plaintiff actually knew or had reason to know of the cause of her injuries prior to the date of the alleged discovery was held to be a question for the jury. In Bonebrake, the issue of 'discovery' turned on the question of Fraudulent concealment.

Bonebrake, therefore, teaches that whether the statute of limitations bars a particular claim is a Fact question. Although Rosane and Bonebrake, on their facts, deal with a Foreign body (sponge) and Concealment, we think the language of the court, particularly in Rosane, points the way to the application of the 'discovery rule' in the context of the facts in this case.

Approximately ninety per cent of the states have statutes of limitation which hinge on the word Accrued. Estep and Van Dyke, Radiation Injuries: Statute of Limitations Inadequacies in Tort Cases, 62 Mich.L.Rev. 753, 756 (1964). The Oregon Supreme Court meticulously analyzed the word in interpreting its statute in Berry v. Branner, 245 Or. 307, 421 P.2d 996:

'* * * The word 'accrue' is derived from the Latin 'ad' and 'creso' to grow to. When...