# Austin v. Litvak > Supreme Court of Colorado · May 7, 1984 · 682 P.2d 41 URL: https://www.frixlaw.com/law-library/cases/9850061 ## Case - **Full name:** Robert L. AUSTIN and Marquita Austin, Plaintiffs-Appellants, v. John LITVAK, M.D. and St. Anthony's Hospital, Defendants-Appellees - **Court:** Supreme Court of Colorado - **Decided:** May 7, 1984 - **Citations:** 682 P.2d 41; 50 A.L.R. 4th 225; 1984 Colo. LEXIS 537 - **Precedential status:** Published - **Opinion:** Concurring in part by Rovira - **Judges:** Dubofsky, Erickson, Kirshbaum, Lohr, Neighbors, Quinn, Rovira - **Cited by:** 83 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9850061 ## How later opinions describe it (automated extraction) - concluding that the doctor, who has "sole and final control" should have sole responsibility - applying the rational-basis test and holding the three-year statute of repose violated equal protection ## Opinion text ROVIRA, Justice, concurring in part and dissenting in part. I concur in the result reached in Parts II, III, and V of the plurality opinion. I dissent from Part IV of the plurality opinion which declares certain aspects of.section 13-80-105 unconstitutional on equal protection grounds. In its view, “[t]he statutory exceptions which permit ‘foreign object’ and ‘knowing concealment’ claimants but not ‘negligently misdiagnosed’ plaintiffs ... to invoke the discovery rule are without a reasonable basis in fact, thereby creating an arbitrary classification.” At 50. This theme is repeated throughout Part IV. Before reaching its decision, the plurality frames the issue as whether “the statute unconstitutionally discriminates against negligently misdiagnosed plaintiffs by depriving them of the benefits of the discovery rule.” Id. at 48. After reaching its decision, the plurality explains that “[t]he classification which results in the denial of the discovery rule to ... negligently misdiagnosed [patients] does not further [a] legitimate governmental interest .... ” Id. at 50. These carefully phrased statements give a false impression of the constitutional issue in this case. The plurality suggests, in effect, that section 13-80-105 favors two classes of plaintiffs by granting them access to the discovery rule, while it discriminates against a third class of plaintiffs by “depriving” its members of the same access. If this is what the statute said, a strong argument could be made that it violated equal protection. The problem is that we are not dealing with a situation in which only some plaintiffs have the benefit of the discovery rule. That situation has already been addressed by this court and by the General Assembly. See Owens v. Brochner, 172 Colo. 525 , 474 P.2d 603 (1970); Davis v. Bonebrake, 135 Colo. 506 , 313 P.2d 982 (1957); Rosane v. Senger, 112 Colo. 363 , 149 P.2d 372 (1944); An Act ... Concerning Limitation Of Actions Against Certain Licensed Health Care Institutions And Persons, Colo.Sess.Laws 1971, ch. 232, 87-1-6 at 952. As a result, every medical malpractice plaintiff now has access to the discovery rule as part of the two-year statute of limitations in section 13-80-105. The issue in this case is not whether negligently misdiagnosed plaintiffs should have access to the discovery rule. Rather, it is whether a rational basis exists for the legislature’s decision to toll the three-year statute of repose for only two classes of plaintiffs. The plurality cites only two cases which address the constitutional issue in a closely related context, and both of those cases reach a contrary result. In Carson, Heath, Frohs, Warrington, Yoshizaki, and Lipsey (cited in the plurality opinion, at 51-52), the courts were faced with the same problem confronting this court in Owens : whether to extend the discovery rule to previously excluded classes of plaintiffs. In Allrid v. Emory University, 249 Ga. 35 , 285 S.E.2d 521 (1982), and Ross v. Kansas City General Hospital & Medical Center, 608 S.W.2d 397 (Mo.1980), the issue was whether an exception to the statute of repose for foreign object plaintiffs violated equal protection. The Allrid court decided that the classification was valid under the rational basis test: *56 “In Dalbey v. Banks, 245 Ga. 162, 163-4 , 264 S.E.2d 4 (1980), we held that ‘[w]hen a physician places a foreign object in his patient’s body during treatment, he has actual knowledge of its presence. His failure to remove it goes beyond ordinary negligence so as to be classified by the legislature as a continuing tort which tolls the statute of limitations until the object is discovered. The purpose of the legislature in making a distinction between the two types of medical malpractice was to allow the plaintiffs claim which does not rest on professional diagnostic judgment or discretion to survive until actual discovery of the wrongdoing. In such situations the danger of belated, false or frivolous claims is eliminated. The foreign object in the patient’s body is directly traceable to the doctor’s malfeasance.’ Our holding in Dalbey clearly reflects a determination by this court that the classification created [in the statute] bears ‘a fair and substantial relation to the object of the legislation.’ [Reed v. Reed, 404 U.S. 71, 76 , 92 S.Ct. 251, 254 , 30 L.Ed.2d 225 (1971) ]. We find plaintiff’s equal protection claim to be without merit.” Allrid, 285 S.E.2d at 525 (emphasis added). Likewise, the Ross court decided that the exception was not arbitrary and had a reasonable basis in fact: “[TJhere is no legislative history available setting forth the reasons why the General Assembly saw fit to [create an exception for foreign object plaintiffs]. One reason why the legislature acted may have been that the legislature considered it particularly unfair that a claimant in whom a foreign object has been left should be barred by the statute of limitations even before there was any discovery of the foreign object.... Or the legislature might have believed it was proper to measure from the time of discovery in the foreign object cases rather than from the time of the act of neglect, because there is less likely to be as great a problem with stale evidence when a foreign object is left in the body than in the other types of malpractice cases. There are likely to be greater certainties of proof in a foreign object case. A rational legislature could have based its decision on such considerations. “The classification thus made between two classes of claimants with reference to when the statute of limitations commences to run cannot be said to be without any reasonable basis, nor is any distinction drawn between members within each class. There is no equal protection violation.” Ross, 608 S.W.2d at 399 (emphasis added). I do not believe that the rationale which prompted this court and others to adopt the discovery rule should be applied to a case in which the constitutionality of various exceptions to the statute of repose is at stake. There are real differences between denying a class of plaintiffs access to the discovery rule and excluding that class from the list of exceptions to the statute of repose. In the view of the General Assembly, foreign object and knowing concealment plaintiffs are in a special category exposed to unfair risks that require the tolling of the statute of repose. The exclusion of negligently misdiagnosed and other medical malpractice plaintiffs reflects a legislative evaluation that these plaintiffs do not face the same risks. In fact, the legislature has concluded that the risks facing medical malpractice defendants, risks such as the bringing of fraudulent claims and the use of stale evidence, outweigh the occasional unfairness that excluded plaintiffs must endure. These types of decisions are within the prerogative of the General Assembly and should not be second-guessed by the courts, especially under the rubric of a rational basis analysis. I prefer the approach taken by the Allrid and Ross courts and would uphold the classification scheme in section 13-80-105. Accordingly, I dissent. I am authorized to say that Chief Justice ERICKSON and Justice LOHR join in this concurrence and dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9850061. Public record. Not legal advice.