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Smith v. Winter2/6/1997
In this medical malpractice action, defendants, William G. Winter, M.D., Rick Pfeiffer, M.D., Kirk Kinsfater, M.D., Andrew Brown, M.D., William Montgomery, M.D., and Robert Roland M.D., appeal the denial of their motion to dismiss the complaint filed by plaintiffs, Charles and Lenna Smith, based on the failure to provide timely notice of their claim under the Colorado Governmental Immunities Act (GIA). We affirm the order as to Charles Smith (Smith), reverse as to Lenna Smith, and remand for further proceedings.
Defendants are orthopedic surgeons or orthopedic residents. At all pertinent times, they were public employees for purposes of the GIA.
Smith injured his foot in November 1991. He was treated at University Hospital which is a public hospital. Later, he began to experience external rotation in his left lower leg, causing his foot to point to the side in a "duck footed" position.
In January 1992, Smith underwent surgery to correct the problem after which he experienced external rotation in his left ankle. Defendant Winter told him the ankle rotation was a post-operative condition that would improve with time and Smith relied on this diagnosis for several months.
In June 1992, Smith consulted another physician for treatment of an infection in his leg. That physician told him the ankle rotation was not temporary and further surgery would be needed to straighten the leg. Smith then obtained his medical records, learned that the plate and screws placed inside his leg were loose, and contacted an attorney.
On November 11, 1992, Smith filed his own notice of claim pursuant to the GIA and later filed this action. Lenna Smith sued in the same complaint requesting damages for loss of consortium, but she did not file a notice of claim.
The trial court denied defendants' motion to dismiss, finding that the Smiths did not discover their injury until June 1992 and, therefore, that notice was timely.
I.
Initially, we address defendants' contention that Lenna Smith's claim should have been dismissed because she failed to file her own notice of claim pursuant to the GIA. We agree.
In Colorado, a claim for loss of consortium constitutes an injury under the GIA, and gives rise to a separate and individual right of recovery on behalf of the spouse claiming loss of consortium. Lee v. Colorado Department of Health, 718 P.2d 221 (Colo. 1986). We therefore hold that a spouse may not maintain a claim for loss of consortium unless the spouse submits his or her own written notice of claim in accordance with the GIA. See Lee v. Colorado Department of Health, supra.
In so holding, we recognize that a loss of consortium claim does not necessarily arise at the same time as the underlying claim. Therefore, in appropriate cases, the trial court should make a factual determination when such a claim arose in order to decide if notice of the loss of consortium claim was timely.
Here, however, it is undisputed that Lenna Smith failed to file a notice at any time as required by the GIA. Accordingly, her claim is barred and should have been dismissed.
II.
Defendants next contend the trial court abused its discretion in determining that the date of discovery of the facts giving rise to Smith's claim was June 1992. We disagree.
The relevant GIA notice provision stated that:
Any person claiming to have suffered an injury by a public entity or by an employee thereof while in the course of such employment shall file a written notice as provided in this section within one hundred and eighty days after the date of the discovery of the injury, r
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