Smith v. Boyett

• Decision Date: 11 December 1995
• Docket Number: No. 94SC420,94SC420
• Citation: 908 P.2d 508
• Parties: Stuart L. SMITH, and Lutheran Medical Center, a Colorado non-profit corporation, Petitioners, v. Patricia A. BOYETT and Gary A. Boyett, Respondents.
• Court: Colorado Supreme Court

Page 508

908 P.2d 508

Stuart L. SMITH, and Lutheran Medical Center, a Colorado non-profit corporation, Petitioners, v. Patricia A. BOYETT and Gary A. Boyett, Respondents.

No. 94SC420.

Supreme Court of Colorado En Banc.

Dec. 11, 1995.

Hall & Evans, L.L.C., Alan Epstein, Linda C. Comer, Richard A. Hanneman, Denver, for Petitioner Stuart L. Smith.

Douglas E. Best, P.C., Douglas E. Best, Denver, for Petitioner Lutheran Medical Center.

Myers Hoppin Bradley & Devitt, P.C., Frederick J. Myers, Gregg W. Fraser, Denver, for Respondents.

Justice KOURLIS delivered the Opinion of the Court.

We granted certiorari to clarify the elements of knowing concealment under the Medical Malpractice Statute of Limitations ¹, and to determine whether the plaintiffs' claim in this case should have survived imposition of summary judgment. We affirm the court of appeals, both in its holding that a plaintiff need not confront a doctor with discovered negligence and then be misled by that doctor in order to qualify for the knowing concealment exception to the statute of limitations; and in its determination that the plaintiffs have raised material issues of disputed fact that preclude imposition of summary judgment, and remand with directions.

I.

We derive the following facts from the parties' pleadings and briefs to the trial court. The facts are presented in the light most favorable to the plaintiffs, as is required at this juncture in the proceedings.

This appeal arises from a medical malpractice action that plaintiffs Patricia Boyett and Gary Boyett filed against Dr. Stuart L. Smith, Dr. Robert Weiss, and Lutheran Medical Center. On December 23, 1985, Dr. Smith operated on Ms. Boyett to remove her gallbladder. During surgery, Dr. Smith probed Ms. Boyett's common duct and perforated it. The perforation allowed bile to leak into Ms. Boyett's abdominal cavity causing extensive damage to her pancreas.

Five X-ray dye studies, called cholangiograms, were performed on Ms. Boyett during surgery. They established that Dr. Smith's probe of the common duct caused the perforation. The first film was used as a baseline to establish anatomy before surgery. The second and third cholangiograms were taken at approximately 6:00 p.m. after the gallbladder had been removed, but before Dr. Smith explored the common duct with a probe. They showed no leakage of dye into the abdominal cavity. The last two cholangiograms, taken during the latter portions of the surgery at approximately 7:15 p.m. after the probe of the duct, showed that dye was leaking into the abdominal cavity instead of flowing into the duodenum. ² One or two days after surgery, the official radiological interpretation of the operating room cholangiograms was typed and placed in Ms. Boyett's hospital chart. The report indicated that there probably was a leak from Ms. Boyett's common duct and that the leak had developed during surgery.

Ms. Boyett was discharged on January 7, 1986, from Lutheran Medical Center. Her condition worsened and she was readmitted to the hospital on January 10, 1986. On January 17, 1986, Dr. Smith met with Ms. Boyett and told her that she had a hole in her common duct caused by a gallstone. On January 18, 1986, Ms. Boyett was transferred to another hospital for ongoing treatments and additional surgery to repair the puncture. Ms. Boyett had no further contact with Dr. Smith after the transfer. Not until January of 1989 did Ms. Boyett learn that the hole in her common duct was caused by the gallbladder surgery.

On December 28, 1990, the Boyetts filed a medical malpractice suit against Dr. Smith. ³ In their complaint, they alleged that Dr. Smith had negligently treated Ms. Boyett's condition, thereby causing her injury. Specifically, the Boyetts alleged that Dr. Smith should have discovered and treated the hole in the common duct during surgery and that he failed to do so. ⁴ The Boyetts admitted that they were told about the hole in the common duct in January of 1986, but assert that they were unaware that Dr. Smith's failure to diagnose the hole and treat it earlier constituted negligence until February of 1989. In his answer, Dr. Smith denied the allegations and raised the affirmative defense of the statute of limitations pursuant to section 13-80-105, 6 C.R.S. (1985 Supp.).

Dr. Smith filed a motion for summary judgment alleging that the Boyetts' suit was time-barred by section 13-80-105. Section 13-80-105 required all causes of action for medical malpractice to be instituted within three years of the act or omission that gave rise to the suit. ⁵ See infra pp. 511-12. Because the Boyetts did not file suit against Dr. Smith until December 28, 1990, nearly five years after the alleged negligence took place, Dr. Smith argued that their claim was time-barred.

In response, the Boyetts claimed that their suit was not time-barred because Dr. Smith had knowingly concealed his negligent acts from them under section 13-80-105(1)(a).

The trial court granted summary judgment for Dr. Smith. Relying on Adams v. Richardson, 714 P.2d 921 (Colo.App.1986), the trial court found that the Boyetts had not satisfied the knowing concealment exception under section 13-80-105 because they were not able to set forth facts from which the jury could conclude that they suspected a wrong had been committed and were subsequently misled or misinformed by the doctor. The Boyetts appealed the trial court's ruling to the Colorado Court of Appeals.

The court of appeals reversed. Boyett v. Smith, 888 P.2d 294 (Colo.App.1994). The court of appeals held that the knowing concealment exception does not require that the plaintiff suspect negligence prior to being misled. Id. at 296. The court of appeals further held that the Boyetts had sustained their burden of demonstrating a genuine issue of material fact regarding whether Dr. Smith had knowingly concealed his negligence from them. Id. Thus, the court of appeals reversed the trial court's dismissal of the Boyetts' case on summary judgment and remanded the case to the trial court for further proceedings. Dr. Smith petitioned for certiorari.

We granted certiorari to determine:

Whether the court of appeals erred in construing the provisions of § 13-80-105, 6A C.R.S. (1980 Supp.),[ ⁶] with respect to the elements required to establish knowing concealment.

Whether the court of appeals erred in concluding that a factual issue remained with respect to the application of the "knowing concealment" exception to the Medical Malpractice Statute of Limitations, § 13-80-105, 6A C.R.S. (1980 Supp.).

We hold that the knowing concealment exception to the Medical Malpractice Statute of Limitations, section 13-80-105, 6 C.R.S. (1985 Supp.), does not require a plaintiff to suspect negligence, confront her physician, and then be misled. In addition, we hold that the Boyetts have plead sufficient facts to raise an issue of material fact as to whether Dr. Smith knowingly concealed his negligence from them. Therefore, we affirm the judgment of the court of appeals.

II.

The pertinent provisions of section 13-80-105, 6 C.R.S. (1985 Supp.), the applicable statute of limitations, provide that:

No person shall be permitted to maintain an action ... to recover damages from ... any person licensed in this state or any other state to practice medicine ... unless such action is instituted within two years after the person bringing the action 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;

(Emphasis added.) At issue in this case is the meaning of the phrase "knowingly concealed" for purposes of delineating the exception to the Medical Malpractice Statute of Limitations.

In 1977, the General Assembly enacted the statute at issue in this case, section 13-80-105. See ch. 198, sec. 1, § 13-80-105, 1977 Colo. Sess. Laws 816-17. The statute included a three year statute of repose with two exceptions. First, the claim was excepted if the physician left an unauthorized foreign object in the claimant's body. Second, the claim was excepted if the person who committed the act or omission knowingly concealed that fact. ⁷

The knowing concealment exception to section 13-80-105 embodies the common law concept that a wrongdoer should not be able to take advantage of his own wrong. See Rosane v. Senger, 112 Colo. 363, 368, 149 P.2d 372, 375 (1944). It prevents a doctor from benefiting from his or her own efforts to hinder the claimant's discovery of the cause of action against the doctor.

We have not defined the elements necessary to prove knowing concealment in the context of a medical malpractice claim. However, we have consistently recognized fraudulent concealment as a basis for tolling statutes of limitation. See First Interstate Bank v. Piper Aircraft Corp., 744 P.2d 1197, 1200 (Colo.1987); Davis v. Bonebrake, 135 Colo. 506, 515, 313 P.2d 982, 987-88 (1957). ⁸ We have defined the elements of fraudulent concealment that a plaintiff must prove to toll a statute of limitations as follows:

(1) the concealment of a material existing fact that in equity and good conscience should be disclosed; (2) knowledge on the part of the party against whom the claim is asserted that such a fact is being concealed; (3) ignorance of that fact on the part of the one from whom the fact is concealed; (4) the intention that the concealment be acted upon; and (5) action on the concealment resulting in damages.

First Interstate Bank, 744 P.2d at 1200;...