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Visser v. Mahan3/24/2005
ORDER AFFIRMED
Nieto and Hawthorne, JJ., concur
In this medical malpractice action, defendants, Bryan Mahan, D.O., and James D. Albert, M.D., appeal from the trial court's order denying their motions seeking, on governmental immunity grounds, dismissal of the complaint brought by plaintiff, Elaine B. Visser, by and through her court-appointed conservator, Janice Eder. We affirm.
On April 17, 2002, plaintiff underwent cardiothoracic surgery at Memorial Hospital in Colorado Springs. The hospital is owned and operated by the City of Colorado Springs, and defendants are doctors employed by the hospital. Mahan was the operating surgeon, and Albert assisted on the operation. Plaintiff failed to awaken from the operation and suffered severe, permanent brain damage.
On September 11, 2002, within 180 days of the surgery, counsel hired by plaintiff's husband gave notice to the City of a potential tort claim pursuant to the notice of claim provisions of the Colorado Governmental Immunity Act (GIA), § 24-10-101, et seq., C.R.S. 2004. The notice stated, inter alia, that the incident involved a surgical procedure on plaintiff and that " s a result of inadequate perfusion, [plaintiff] went on to suffer a stroke and catastrophic brain injury." The notice further stated that " he involvement of the surgeon and the anesthesiologist is not yet confirmed."
In November 2002, the El Paso County Department of Human Services filed a petition with the probate court seeking appointment of a guardian for plaintiff as a result of her alleged incapacity. The Department subsequently moved to dismiss the petition based on a request from plaintiff's husband.
On February 10, 2003, the probate court appointed a guardian ad litem for plaintiff. The guardian ad litem subsequently obtained permission from the probate court to enter a contingency fee relationship with a law firm on plaintiff's behalf.
Shortly thereafter, on April 9, 2003, plaintiff, by and through her husband, filed suit against defendants, other health care providers, and Memorial Hospital. Plaintiff then filed an amended notice of claim on April 24, 2003, that listed claims against both Mahan and Albert.
On May 20, 2003, the probate court entered an order appointing plaintiff's husband as special conservator to initiate and prosecute legal actions on plaintiff's behalf.
On July 17, 2003, following a hearing and determination that plaintiff was incapacitated within the meaning of § 15-14-102(5), C.R.S. 2004, the probate court appointed plaintiff's husband as the unlimited conservator and unlimited guardian of plaintiff. Plaintiff's husband was subsequently discharged as conservator in February 2004, and the current conservator was appointed.
Defendants filed a joint motion to dismiss plaintiff's claims against them on the basis that she had failed to provide them with a timely and proper notice of claim. The trial court found that the April 24, 2003, notice of claim was timely because it was given within 180 days of the probate court's appointment of a guardian for plaintiff on February 10, 2003. Consequently, it denied defendants' motion. Defendants then brought this interlocutory appeal pursuant to § 24-10-118(2.5), C.R.S. 2004.
I.
Under the GIA, an injured person seeking damages from a public entity or employee must provide written notice of the claim within 180 days of discovery of the injury. Sections 24-10-109(1), 24-10-118(1)(a), C.R.S. 2004. The failure to comply with the 180-day period is an absolute bar to suit. Mesa County Valley Sch. Dist. No. 51 v. Kelsey, 8 P.3d 1200 (Colo. 2000). Because § 24-10-109(1) is
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