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Smith v. Winter2/6/1997
egardless of whether the person then knew all of the elements of a claim or of a cause of action for such injury. Compliance with the provisions of this section shall be a jurisdictional prerequisite to any action brought under the provisions of this article, and failure of compliance shall forever bar any such action. Section 24-10-109(1), C.R.S. (1988 Repl. Vol. 10A); see also Regional Transportation District v. Lopez, 916 P.2d 1187 (Colo. 1996).
The GIA notice period is triggered when claimants discover or should have discovered they have been wrongfully injured. Trinity Broadcasting of Denver, Inc. v. Westminster, 848 P.2d 916 (Colo. 1993).
Further, in medical malpractice claims, patients who rely on their physicians' diagnosis of permanent injury should not be barred from suit because their trust in the physicians prevented earlier discovery of the injury. Nor should patients be compelled to file suit before they are aware of the physician's wrongful conduct. See Mastro v. Brodie, 682 P.2d 1162 (Colo. 1984).
When defendants move to dismiss a complaint based on failure to comply with the GIA notice statute, the trial court acts as fact finder. Our review of such findings is limited to determining whether such findings are clearly erroneous. Trinity Broadcasting of Denver, Inc. v. Westminster, supra; see C.R.C.P. 12(b)(1).
After a hearing, the trial court found that: (1) following Smith's foot surgery, Winter told him walking would cause his foot to "work to the center to avoid the duck feet problem"; (2) Smith was assured the condition would be corrected once he started walking on the leg; (3) Smith believed what Winter had described to him and trusted the advice; and (4) the Smiths did not discover the injury until June 1992 when Smith sought treatment from another physician and was told he needed further surgery.
These findings are supported by the record and are not clearly erroneous. Thus, they may not be disturbed on appeal. See Trinity Broadcasting of Denver, Inc. v. Westminster, supra; Mastro v. Brodie, supra.
III.
We also reject defendants' contention that the trial court erroneously applied the doctrine of equitable estoppel.
The trial court did not base its decision on equitable estoppel. It simply construed ยง 24-10-109(1) based on Trinity Broadcasting of Denver, Inc. v. Westminster, supra, and properly applied the discovery rule to the facts.
The order is affirmed as to the claims of plaintiff Charles Smith, reversed as to the claim of plaintiff Lenna Smith, and the cause is remanded for further proceedings consistent with this opinion.
JUDGE JONES and JUDGE BRIGGS concur.
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