concluding that the doctor, who has "sole and final control" should have sole responsibility
How later courts described this case
- concluding that the doctor, who has "sole and final control" should have sole responsibility
- "The Supreme Court has held that the right to recover damages in tort is not a fundamental right."
- statute of repose violated equal protection; no rational basis for giving the benefit of the discovery rule only to patients alleging fraud or the negligent leaving of a foreign object in their bodies, and not to any other classes of patients
- three-year statute of repose, providing no medical malpractice action could be filed more than three years after act or omission which gave rise to claim, violated state equal protection guarantee insofar as it applied to persons whose claims were pursued on negligent misdiagnosis
Written by the judges who cited it.
The opinion
DUBOFSKY, Justice,
specially concurring.
I concur in the result reached by the plurality opinion. Although I agree with the dissent that section 13-80-105, C.R.S. does not violate constitutional guarantees of equal protection, I believe that under Colo. Const, art. II, § 6, the General Assembly, absent compelling justification, may not employ a statute of repose to cut off a cause of action before plaintiffs have had reasonable time to assert that cause of action. Cf. Rosane v. Senger, 112 Colo. 363 , 149 P.2d 372 (1944) (“Under the facts pleaded it was impossible for the plaintiff to sue within the limitation and it is a recognized maxim that the law requires not impossibilities.”); Overland Construction Co., Inc. v. Sirmons, 369 So.2d 572 (Fla.1979) (interpreting language similar to Colo. Const, art. II, § 6 to forbid abrogation of common law rights absent an overpowering public necessity and declaring a statute of repose unconstitutional on that basis); Terry v. New Mexico Highway Comm., 98 N.M. 119 , 645 P.2d 1375 (1982) (A plaintiff whose right of action accrued shortly before expiration of a statute of repose is denied due process if he is denied a reasonable time within which to bring his suit.); Dincher v. Marlin Firearms Co., 198 F.2d 821, 823 (2nd Cir.1952) (Frank, J., dissenting) (It is axiomatic that a statute of limitations does not begin to run against a cause of action before that cause of action exists.).
Undoubtedly, the General Assembly has the power to modify and even abrogate particular causes of action before those causes of action vest. O’Quinn v. Walt Disney Productions, 177 Colo. 190 , 493 P.2d 344 (1972); Goldberg v. Musim, 162 *55 Colo. 461 , 427 P.2d 698 (1967). In Yarbro v. Hilton Hotels Corp., 655 P.2d 822 (Colo.1982), this court held that if a plaintiff does not discover his claim before the running of a statute of repose, that claim never vests and is therefore unprotected by Colo. Const, art. II, § 6. I believe that we erred in Yarbro , and that a cause of action vests upon the occurrence of the act or omission constituting breach of the legal duty owed the plaintiff. Once a cause of action vests it may not be time barred, without compelling justification, until the plaintiff has had a reasonable time to assert it.
I do not believe that there is a compelling justification for the three year statute of repose at issue here. I would therefore hold this provision unconstitutional. Colo. Const, art. II, § 6.
I concur in the result.