Southard By and Through Southard v. Miles

• Decision Date: 03 March 1986
• Docket Number: No. 84SA98,84SA98
• Citation: 714 P.2d 891
• Parties: Douglas N. SOUTHARD, By and Through his parents and next friends, Edgar F. SOUTHARD and Geraldine Southard, Plaintiffs-Appellants, v. Vincent MILES, Defendant-Appellee, and Children's Hospital Association, a Colorado corporation, Charles R. Hawes, Mary Smotherman, also known as Mary Martorano, and Thomas Lowe, Defendants.
• Court: Colorado Supreme Court

Page 891

714 P.2d 891

Douglas N. SOUTHARD, By and Through his parents and next friends, Edgar F. SOUTHARD and Geraldine Southard Plaintiffs-Appellants, v. Vincent MILES, Defendant-Appellee and Children's Hospital Association, a Colorado corporation Charles R. Hawes, Mary Smotherman, also known as Mary Martorano, and Thomas Lowe, Defendants.

No. 84SA98.

Supreme Court of Colorado En Banc.

March 3, 1986.

Bragg & Dubofsky, P.C., Douglas E. Bragg, James A. Cederberg, Denver, for plaintiffs-appellants.

Cooper & Kelly, P.C., Elizabeth A. Starrs, Denver, for defendant-appellee.

QUINN, Chief Justice.

The appellant Douglas Southard, through his parents and next friends, appeals from an order granting the summary judgment motion of the appellee Dr. Vincent Miles. Southard claims that summary judgment was improperly granted because there is a genuine issue of material fact as to whether he is "a person under disability" so as to suspend the running of the statutory periods of limitation and repose in § 13-80-105, 6 C.R.S. (1985 Supp.), which deals with medical malpractice claims. Southard alternatively contends that the application of section 13-80-105 in a manner that barred his claim would deprive him of due process and equal protection of the laws. ¹ We find it unnecessary to address Southard's constitutional arguments, as we conclude that there is a genuine issue of material fact with respect to whether Southard was under sufficient disability as to toll the applicable periods of limitation and repose. We therefore reverse the summary judgment in favor of Dr. Miles and remand the case to the district court for further proceedings.

I.

On August 13, 1974, plaintiff Douglas Southard, then twenty years old, underwent surgery at Denver Children's Hospital to correct scoliosis, a congenital curvature of the spine. Following the operation, and while Southard was still at the hospital, hospital personnel discovered that Southard's heartbeat was irregular. Although premature heart contractions often occur in normal patients for a short time following surgery, one of Southard's surgeons, Dr. Haber, referred him to the cardiology unit of the hospital. The cardiology unit administered two separate electrocardiogram examinations on August 15 and August 16, 1974. Dr. Mary Martorano was present at the administration of the August 15 EKG and prepared a short note interpreting the findings. Dr. Martorano indicated that at this time the plaintiff was experiencing premature contractions of the heart and recommended further procedures to determine the cause. At the end of the note, before her signature, Dr. Martorano included the words "will follow." ² No other report was prepared for the August 15 EKG. The August 16 electrocardiogram was interpreted by Dr. Charles Hawes, who was the Director of the Pediatric Cardiology Department at the hospital. Dr. Hawes observed the irregularity in the heartbeat and concluded that the tracings were "highly suggestive of Wolff-Parkinson-White syndrome."

Wolff-Parkinson-White syndrome is an abnormality of the electrical conduction pathways of the heart that can trigger uncontrolled heartbeats. Under some circumstances the condition, if left untreated, can lead to cardiac arrest and sudden death. The syndrome can be controlled in some cases by medication and in others by limiting the patient's physical activities. With foreknowledge of the condition and prompt medical care, a patient suffering cardiac arrest as a result of Wolff-Parkinson-White syndrome can usually survive without receiving permanent injury.

Southard was discharged from the hospital on August 24, 1974. There was no follow-up by the hospital staff regarding his abnormal heart activity, and no one at the hospital had ever informed him or his parents that he possibly suffered from Wolff-Parkinson-White syndrome. On September 12, 1976, Southard went into cardio-respiratory arrest, lapsed into a coma, and was temporarily deprived of the oxygen supply to his brain. By the time he was taken to a hospital emergency room and revived, he had sustained irreversible brain damage.

In late 1977 or early 1978, Dr. John Graham and Dr. Robert Marshall, Southard's treating physicians, discovered Dr. Hawes' interpretation of the August 16 electrocardiogram in Southard's hospital chart and advised Southard's parents that the Wolff-Parkinson-White syndrome accounted for their son's collapse on September 12, 1976. Southard's parents consulted an attorney in April 1979. On October 11, 1979, Southard's present attorneys filed a complaint on behalf of Southard in his individual capacity against Denver Children's Hospital, Dr. Thomas Lowe, his principal orthopedic surgeon, Dr. Martorano, and Dr. Hawes, alleging that they were negligent either in failing to diagnose Wolff-Parkinson-White syndrome or in failing to communicate the existence of the condition to him.

On March 3, 1980, Southard's attorney took Dr. Martorano's deposition. She testified that in August 1974 she was not a cardiologist, but rather a pediatric cardiology fellow, i.e., a student of pediatric cardiology. She stated that her activities were limited to recording and following the directions of Dr. Vincent Miles, who was the staff cardiologist at the hospital, and that her professional contact with patients would have been under his direction. A nurse's note included in Southard's medical records revealed that Dr. Miles was present with Dr. Martorano at the administration of the August 15 electrocardiogram. ³ There is no indication in the record, however, that Dr. Miles had any other direct contact with Southard.

On April 20, 1981, as a result of the information obtained from Dr. Martorano's deposition, Southard moved to amend his complaint to add Dr. Miles as a defendant. The other defendants agreed by stipulation. At the same time, Southard's parents were given party status in the capacity of next friends of their son.

Dr. Miles thereafter moved for summary judgment, claiming, as pertinent here, that Southard had failed to bring the action within the two-year limitation period and the three-year period of repose applicable to medical malpractice claims as set forth in section 13-80-105, 6 C.R.S. (1985 Supp.). ⁴ Southard countered the motion, arguing that he was a "person under disability" within the meaning of section 13-81-103(1)(a), 6 C.R.S. (1973), and that the two-year limitation and the three-year repose periods of section 13-80-105 were accordingly suspended by reason of his disability. In support of his position, Southard submitted affidavits from Dr. Roy Wright, a neurologist, Dr. Robert Marshall, a cardiologist, and Dr. John Graham, an internist, all of whom treated Southard for several years. These affidavits basically stated that Southard had incurred moderate to severe brain damage as a result of the injuries on September 12, 1976, that he had impaired memory and reasoning abilities, and that he was not capable of making decisions involving business, financial, and legal matters. Also submitted on Southard's behalf was an affidavit by Helen Woodard, a rehabilitation specialist who had evaluated Southard. Attached to Woodard's affidavit was her report of her examination which stated, in pertinent part, as follows:

Doug [Southard] has serious residual disabilities. These include loss of central vision in both eyes, spasticity of the left hand and leg causing dexterity problems and gait disturbance, memory deficits, and intellectual deficits. He also exhibits difficulty in decision making and planning and has poor judgment. In addition to these problems, Doug is unable to accept his deficits, and to perceive of himself as less than a fully capable and able-bodied person. He is aware on one level that he has extreme deficits, but is unable to begin to adjust to his limitations by changing ways of doing things.

Doug has great difficulty making even simple decisions, and he is not capable of always understanding, remembering, and following through with activities. This is a major deficit alone, but added to his inability to understand and exercise judgment, it becomes totally incapacitating. I would not feel Doug would be capable of handling his own funds, or of making critical decisions about his life.

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Because of the multiple disabilities which Doug has, he will function as a totally disabled person. He will not be employable in any work setting unless it is a subsidized program. He will be unable to care for himself on a daily basis and will need personal care assistance on a routine and daily basis.

After hearing argument only on the applicability of section 13-80-105 to Southard's claim, the district court granted Dr. Miles' motion for summary judgment, giving no reasons in support of its order, and certified the judgment as final pursuant to C.R.C.P. 54(b). ⁵

Briefly stated, Southard contends that the summary judgment of dismissal must be reversed because a factual question exists as to whether he was so disabled by the cardio-respiratory arrest on September 12, 1976, as to suspend the running of the two-year limitation period and the three-year period of repose applicable to medical malpractice claims. A proper resolution of this contention requires us to evaluate whether the record does indeed raise a genuine issue of material fact as to Southard's disability status, and, if such a factual question exists, whether the statutory scheme relating to medical malpractice claims contemplates the tolling of the limitation and repose periods in the case of a person having such a disability. Before reaching the merits of Southard's contention, however, it is appropriate to briefly review the general standards applicable to a summary judgment motion and then to analyze the statutory limitation and repose periods for filing a medical malpractice claim and the circumstances under which those periods might possibly be tolled.

II.

C.R.C.P. 56(b)...