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Koch v. Sadler3/24/1988
Opinion by JUDGE STERNBERG
Glen V. Koch, the plaintiff in this medical malpractice and battery action, appeals a judgment entered on a jury verdict in favor of the defendants, Thomas Sadler and Alan D. Hilgenberg. We reverse and remand for a new trial.
The plaintiff, a psychiatrist, alleged that, while hospitalized, he consented to exploratory surgery concerning a possible osteomyelitic condition of the tenth right rib, but that the surgery resulted in removal of that rib and that the rib was not diseased. He filed suit pro se, but did not serve defendants for nearly three years.
The complaint contained two claims for relief: one based on negligence, and one denominated as a battery claim. The surgeon, Sadler, and his associate Hilgenberg, moved for summary judgment asserting that the one-year statute of limitations for assault and battery applied to the battery claim, that the case should be dismissed because of the delay of service and process, and that the case should be dismissed because of the lack of expert witnesses to establish the standard of care. The trial court granted the part of the motion relating to the one-year statute of limitations and dismissed the battery claim, but denied the balance of the motion. The case was tried to a jury only on the theory of lack of implied consent. Judgment was entered on a verdict for defendants.
Plaintiff's principal contention of error on appeal is that the trial court erred in dismissing his battery claim as being untimely. He argues that his allegation of battery by a physician (failure to obtain consent for the operation actually performed) should be governed by the two-year medical malpractice statute of limitations, rather than by § 13-80-102, C.R.S., the one-year general tort statute of limitations, applied by the trial court. Cf. § 13-80-102(1)(c), C.R.S. (1987 Repl. Vol. 6A) and § 13-80-103(1)(a), C.R.S. (1987 Repl. Vol. 6A). We agree.
At the times pertinent here, medical actions of all types were governed by Colo. Sess. Laws 1977, ch. 198 § 13-80-105 at 816. This specific statute covers actions which could also be categorized, if committed outside of the patient-physician relationship, as assault and battery. See Maercklein v. Smith, 129 Colo. 72, 266 P.2d 1095 (1954). We hold that it was the intent of the General Assembly in passing that statute to control all actions brought by a patient arising out of the patient-physician relationship. See Mastro v. Brodie, 682 P.2d 1162 (Colo. 1984); Austin v. Litvak, 682 P.2d 41 (Colo. 1984). Thus, the trial court erred in applying the one-year statute governing assault and battery.
The defendants urge that because plaintiff did not respond in writing to the motion for summary judgment and because he did not argue against that portion of the motion in which they contended the one-year statute of limitations barred the battery claim, he should be foreclosed from raising this issue on appeal. We do not agree.
The provisions of C.R.C.P. 121 concerning confession of a motion by failing to respond thereto are inapplicable to a motion for summary judgment. See Seal v. Hart, 755 P.2d 462... (Colo. App. No. 86CA0443, April 21, 1988). Further, the test on granting a motion for summary judgment is whether the movant has established that no genuine issue of material fact existed, and that movant is entitled to judgment as a matter of law. Although it may be risky for a party not to respond to such a motion, the absence of a respons
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