Rauschenberger v. Radetsky

745 P.2d 640, 1987 Colo. LEXIS 636

• Court: Supreme Court of Colorado
• Decided: November 2, 1987
• Docket: 85SC438
• Status: Published

Opinions

KIRSHBAUM, Justice.

In Rauschenberger v. Radetsky, 712 P.2d 1089 (Colo.App.1985), the Court of Appeals affirmed the trial court’s entry of summary judgment in favor of the respondent, Dr. Paul Radetsky, in a wrongful death action brought by the petitioners, Gerald A. Rauschenberger and Terry Raus-chenberger, sons and heirs of the decedent, Elton H. Rauschenberger (Rauschenber-ger).¹ The Court of Appeals concluded that the claim was barred by the limitation provisions of section 13-21-204, 6 C.R.S. (1985 Supp.), and rejected the petitioners’ argument that the statute should be tolled to reflect their inability to discover at any early date the alleged negligence which formed the basis of the wrongful death claim. Having granted certiorari to review that determination,² we reverse and remand the case to the Court of Appeals with instructions to remand the case to the trial court for further proceedings consistent with the views expressed herein.

I

Between October 1962 and April 1981, Radetsky served as Rauschenberger’s personal physician. During that time Radet-sky treated Rauschenberger for obesity, depression, and other ailments; the treatment included prescriptions of several medications. On June 2,1981, Rauschenberger died. On May 31, 1983, the petitioners filed this action, which included a claim that Radetsky wrongfully caused Raus-chenberger’s death by improperly prescribing medication and by failing to diagnose and treat drug and alcohol addiction.

Radetsky filed a motion to dismiss and for summary judgment, contending that the wrongful death claim was barred by the applicable statute of limitation, section 13-21-204, 6 C.R.S. (1985 Supp.), which provides:

Limitation of actions. All actions [seeking damages for death by negligence] shall be brought within two years after the commission of the alleged negligence resulting in the death for which suit is brought or within one year after the death for which suit is brought, whichever is later.

The trial court found that the last day Radetsky had treated Rauschenberger was April 25, 1981. Concluding that April 25, 1981, was the last date upon which Radet-sky could have committed negligence, the trial court ruled that the wrongful death claim was barred because brought more than one year after the death and more than two years after the commission of the alleged negligence resulting in the death.

The petitioners contended that the statute of limitation for wrongful death claims begins to run on the date when the damage or injury arising from the alleged negligence becomes known or by reasonable care could have been discovered and that they did not become aware of Radetsky’s alleged negligence until consulting another physician after Rauschenberger’s death. Referring to affidavits filed by Rauschen-berger’s former spouse and by one of his sons, which stated that in 1975 they had approached Radetsky and expressed concern that prescribed medications and alcohol were having an adverse effect on Raus-chenberger’s physical and psychological health, the trial court concluded that they “knew or by the exercise of reasonable care could have discovered the commission of the alleged negligence at that time.” In affirming the trial court’s rulings, the Court of Appeals held that where the “act of negligence resulting in death occurred two years prior to the filing of suit, the one-year limitation period ... [was] applicable and [began] to run on the date of the death of the decedent.” Rauschenberger v. Radetsky, 712 P.2d 1089, 1090 (Colo.App.1985).

II

The petitioners in essence contend that a discovery rule is applicable to the wrongful death statute of limitation. The “discovery rule,” generally, is the doctrine that a claim for relief does not accrue until the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, the conduct upon which the claim is based. Comstock v. Collier, 737 P.2d 845 (Colo.1987); Owens v. Brochner, 172 Colo. 525, 474 P.2d 603 (1970). Radetsky contends that a discovery rule is inapplicable to wrongful death claims and that, even if such rule were applicable, it is clear that any wrongful death claim should be barred under the facts of this case.³

The statute of limitation in effect when a cause of action accrues governs the time within which a civil action must be commenced. Comstock v. Collier, 737 P.2d 845; Mishek v. Stanton, 200 Colo. 514, 616 P.2d 135 (1980). Here, the relevant statute is section 13-21-204, 6 C.R.S. (1985 Supp.), enacted in 1979. In Crownover v. Gleichman, 194 Colo. 48, 574 P.2d 497 (1977), cert. denied, 435 U.S. 905, 98 S.Ct. 1450, 55 L.Ed.2d 495 (1978), this court addressed the issue of when a wrongful death claim accrued under the pre-1979 version of the wrongful death statute of limitation. That statute, section 13-21-204, provided as follows:

All actions [seeking damages for death by negligence] shall be brought within two years from the commission of the alleged negligence resulting in the death for which suit is brought.

Section 13-21-204, 6 C.R.S. (1973). In Crownover we concluded that the language of that statute plainly provided that the period of limitation began to run not at the time of death but at the time of discovery of the alleged negligence. We specifically noted that the physician’s allegedly negligent failure to detect the presence of cancer when examining X-rays in 1971 was known or reasonably should have been known in April of 1972, when the decedent underwent surgery and cancer was discovered, and that, because the discovery of the alleged negligence necessarily must have occurred more than two years prior to the filing of the wrongful death claim in November of 1974, the action was barred. Crownover v. Gleichman, 194 Colo, at 51, 574 P.2d at 499. Thus, the decision expressly recognized that the discovery rule was applicable to Colorado’s wrongful death statute of limitation. The decision left open, however, the possibility that, where the allegedly negligent act occurred more than two years prior to death, a wrongful death claim could be barred before the death occurred. Crownover v. Gleichman, 194 Colo. at 51, 574 P.2d at 499 (Carrigan, J., dissenting).

In 1979, the General Assembly amended the wrongful death statute of limitation. As then amended, the statute retained the provision authorizing the filing of a wrongful death claim within two years of the commission of the alleged negligence resulting in death, and also permitted the filing of such a claim “within one year after the death for which suit is brought, whichever is later.” Act approved June 7, 1979, ch. 134, § 1, 1979 Colo.Sess.Laws 615. Relevant legislative history reveals that at the time the amendments to the wrongful death statute of limitation were proposed, the General Assembly was well aware of the Crownover decision, specifically referring to the decision by name. The addition of the one-year filing period following death apparently was intended to obviate the possibility that a claim for relief based on wrongful death might be barred before the claimant ever had an opportunity to file the claim. E.g., Hearing on H.B. 1439 Before the Senate Judiciary Comm., 52d Gen. Assembly, 1st Reg. Sess. (April 17, 1979); Hearing on H.B. 1439 Before the House Judiciary Comm., 52d Gen. Assembly, 1st Reg. Sess. (Feb. 27, 1979).

Even in the absence of demonstrative legislative history, the General Assembly is presumed cognizant of the judicial precedent in a particular area when it enacts legislation in that area. Thompson v. People, 181 Colo. 194, 510 P.2d 311 (1973); Smith v. Miller, 153 Colo. 35, 384 P.2d 738 (1963); People v. Mathes, 703 P.2d 608 (Colo.App.1985). When a statute is amended, the judicial construction previously placed upon the statute is deemed approved by the General Assembly to the extent that the provision remains unchanged. E.g., In re Estate of Daigle, 634 P.2d 71 (Colo.1981); Creacy v. Industrial Comm’n, 148 Colo. 429, 366 P.2d 384 (1961); § 2-4-208, IB C.R.S. (1980). Where the General Assembly, in amending section 13-21-204, added language which prevented the running of the statute of limitation prior to death, but did not specifically address the Crownover application of the discovery rule to wrongful death actions, the conclusion is compelling that the General Assembly did not intend to restrict that part of the Crownover holding dealing with the discovery rule. See, e.g., Ritter v. Aspen Skiing Corp., 519 F.Supp. 907 (D.Colo.1981) (citing Crownover and concluding that statute of limitation for wrongful death claims begins to run on date damage arising from alleged negligence becomes known or by reasonable care could have been discovered); Weedin v. United States, 509 F.Supp. 1052 (D.Colo.1981) (concluding that nothing in 1979 amendment to section 13-21-204 indicates that discovery rule no longer applies to wrongful death claim).⁴

In view of this history of judicial and legislative decision-making, we conclude that the discovery rule remains applicable to wrongful death claims. Under this rule, a wrongful death claim must be filed within two years from the date the alleged negligence resulting in death is discovered, or in the exercise of reasonable diligence should have been discovered, or within one year from such death, whichever event is later. The contrary conclusion of the Court of Appeals is, therefore, reversed.

In this case, the trial court concluded as a matter of law that the petitioners knew of or by the exercise of reasonable care should have discovered the commission of the alleged negligence in 1975 when one of the petitioners expressed concerns to Radetsky that he might be prescribing medication improperly for Rauschenberger. However, the question of whether a party discovered or reasonably should have discovered an injury caused by another’s negligence in most circumstances involves determination of questions of fact to be made by the fact-finder rather than by the trial judge. E.g., Mastro v. Brodie, 682 P.2d 1162 (Colo.1984); Owens v. Brochner, 172 Colo. 525, 474 P.2d 603 (1970); Davis v. Bonebrake, 135 Colo. 506, 313 P.2d 982 (1957).

Summary judgment is appropriate only if the pleadings and supporting documents demonstrate that “there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law.” C.R.C.P. 56(c). The burden is on the moving party to establish that no genuine issue of fact exists, and any doubts in this regard must be resolved against the moving party. E.g., Southard v. Miles, 714 P.2d 891 (Colo.1986); Tapley v. Golden Big O Tires, 676 P.2d 676 (Colo.1983); Ginter v. Palmer & Co., 196 Colo. 203, 585 P.2d 583 (1978).

In this case, the petitioners allege that they relied upon assurances by Radet-sky that he was administering proper treatment to Rauschenberger. However, the record also discloses that in late 1980 Raus-chenberger was examined by a second physician at the insistence of one of the petitioners. The evidence as to when the petitioners discovered the alleged negligence resulting in Rauschenberger’s death is certainly conflicting. Therefore, the issue should be resolved by the finder of fact, and the entry of summary judgment was not appropriate.

The judgment is reversed, and the case is remanded to the Court of Appeals with directions to remand the case to the trial court for further proceedings consistent with the views expressed in this opinion.

ERICKSON, J., specially concurs. ROYIRA, J., dissents. VOLLACK, J., does not participate.

2 . The Court of Appeals also affirmed the trial court’s judgment dismissing the medical malpractice claim. We do not review that determination; our review is limited to the narrow question upon which we granted certiorari.

3 . The medical malpractice statute of limitation in effect during the relevant time period, § 13-80-105, 6 C.R.S. (1985 Supp.), allowed the filing of an action "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 Mastro v. Brodie, 682 P.2d 1162 (Colo.1984), we held that the limitation period began to run when the claimant reasonably was on notice concerning the nature and extent of injury and that the injury resulted from the wrongful conduct of another. Section 13-80-105 also contained a repose provision, barring suits brought more than three years after the act or omission in question, with the exception of suits involving knowing concealment, unauthorized foreign objects left in the patient’s body or minor claimants less than six years of age. In Austin v. Litvak, 682 P.2d 41 (Colo.1984), a plurality of this court concluded that negligent misdiagnosis claims must also be excepted from application of the three-year repose provision to satisfy constitutional standards.

4 . Cf. § 13-80-102(l)(d), 6 C.R.S. (1986 Supp.) (all actions for wrongful death shall be commenced within two years of accrual and not thereafter); § 13-80-108(2), 6 C.R.S. (1986 Supp.) (a cause of action for wrongful death accrues on the date of death). The 1986 amendments apply to claims for relief arising on or after July 1, 1986. Act approved May 23, 1986, ch. 114, § 23, 1986 Colo.Sess.Laws 695, 706. Our decision here necessarily applies only to those claims arising before July 1, 1986.