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Whitenhill v. Kaiser Permanente6/26/1997
In this wrongful death action, plaintiffs, Gwen and William Whitenhill, seek review of the summary judgment granted in favor of defendants, Kaiser Foundation Health Plan of Colorado, Dr. Joe Marion, Dr. Michael Gibson, Dr. Carol Eidsvoog, and Dr. Norman Mowrey, dismissing their complaint. We reverse and remand for further proceedings.
Plaintiffs' complaint alleged that defendants were negligent in failing to diagnose timely their daughter's ovarian cancer. In response to the complaint, defendants filed a motion for summary judgment. In the motion, they asserted that plaintiffs lacked standing under what is commonly referred to as the Colorado Wrongful Death Act, § 13-21-201, et seq., C.R.S. (1997 Repl. Vol. 6A) to pursue any claim because their deceased daughter left a surviving spouse.
In support of the motion, defendants submitted an affidavit prepared on behalf of the defendants during the course of treatment and signed by the decedent and Alfred E. Taylor, the decedent's alleged common law spouse. The affidavit was executed on January 27, 1994, and stated that the decedent and Taylor had lived together "continuously" as husband and wife since that same date and that, "during this period," they professed to be husband and wife and had held themselves out to the community as being married.
Defendants also submitted an unnotarized affidavit allegedly executed by Taylor in August 1994 in which Taylor stated that he was the common law husband of the decedent, that he understood he had the right to participate in medical decisions concerning the decedent, and that he did not wish to participate in those decisions.
In response, plaintiffs produced affidavits of the decedent's attorney, Taylor, and the decedent's father, plaintiff William Whitenhill. The affidavit of decedent's attorney recites that the decedent told counsel that she was signing documents prepared by defendants that would allow Taylor, a "close acquaintance," to make medical decisions for her. The affidavit also stated that counsel had visited the decedent's home on five occasions and that she observed no evidence that the decedent was living with anyone.
In Taylor's affidavit, he stated that defendants asked him and the decedent to sign an affidavit stating that they were married at common law "for the purposes of providing medical assistance to [the decedent] in the event she was on life support and unable to make decisions for herself."
The decedent's father stated in his affidavit that he had visited the decedent at her apartment during the year before her death and observed nothing to indicate that she was living with Taylor. He also stated that he had no information indicating that the decedent was married by common law until he saw the medical affidavit relied upon by defendants.
The trial court held that plaintiffs had failed to present sufficient evidence to rebut the affidavit of common law marriage submitted by defendants. The court noted that the affidavits of both decedent's attorney and her father indicated only that they were unaware of decedent's marriage, and that Taylor did not specifically deny that he was the decedent's husband in his affidavit. Accordingly, the court found that Taylor was the decedent's spouse for purposes of the Wrongful Death Act.
The trial court also rejected plaintiffs' argument that they could maintain the action under § 13-21-201(1)(a)(III), C.R.S. (1996 Cum. Supp.) which allows the "heir or heirs" of the deceased to bring a wrongful death action in the first year upon the written election of a deceased's spouse. The court held that the term "heir or heirs" refers only to the child or children of the de
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