Pursuing a Medical Malpractice Claim in Colorado: Be Aware of the Statutes of Limitations

I. Introduction

If you have been injured through a doctor's negligence, you may feel that you should adopt a "wait-and-see" approach with respect to your injury, or perhaps you don't "feel up to" deciding whether you want to pursue your legal remedies. You should, however, bear in mind that the law requires you to pursue legal remedies sooner rather than later. This requirement is generally known as the "statute of limitations." If you fail to file your claim within the statute of limitations, you may be forever barred from bringing your claim, regardless of the merit of your claim. Finally, statutes of limitations applicable to medical malpractice actions are often shorter than for other types of personal injury actions. Therefore, even if you do not think you will be bringing a lawsuit, consulting with an experienced personal injury attorney is essential to determine if any action should be taken to preserve your potential claim.

II. If I Have a Valid Claim, Why Do the Courts Care When I File It?

Historically, there were no limitations of time on bringing a claim for injury to property; the only limit on a claim for injury to a person was the length of the lives of the people involved. If the plaintiff died as a result of the injury, the claim died with him. If the defendant died the day he was sued, the case was over. The problem with this system was that often claims would not be brought until many years after the triggering event occurred. In the years between the original injuring event and the subsequent claim, witnesses might have died or moved away, and documents or other evidence might have been destroyed or lost. When witnesses were not dead or missing, they often had poor recollections of the events leading up to the lawsuit. All of these deficiencies in proof, brought about by the passage of time, left the court in a less than ideal position for delivering justice.

Historically in England, the "doctrine of laches" was the Court of Equity's solution to this problem. Laches was a defense that could be asserted by the person being sued. Basically, a person asserting laches said to the plaintiff, you knew you were injured or wronged, you waited an unreasonably long time to bring your claim, you have no excuse for waiting that long, and because you waited so long you have prejudiced my ability to defend myself. Eventually, the English Parliament, in the time of King James I, came up with the first law that limited the time allowed for bringing suit for personal injury. This early English law served as the basis for the statutes of limitations in effect today. Today, limitations for bringing claims are set forth in statutes for most types of injuries including medical malpractice claims. Unlike the doctrine of laches, the court will not look at the facts surrounding the delay in bringing a claim. The reasonableness of the delay is not generally an issue. Once the time limit for bringing your claim has run out, you may be forever barred from bringing your claim. When the time is up, it is said that the statute of limitations has run or expired.

A true statute of limitations is simply a limitation on exercising an already existing right. A statute of limitations operates as a bar to bringing your claim. It does not extinguish the underlying claim. As noted above, long before statutes of limitations were enacted, the only absolute time limit on a personal claim was the lives of the people involved in the dispute. If either party died, the claim died too. This problem was "fixed" by the enactment of special laws known generally as wrongful death statutes. A wrongful death statute makes it possible to present a claim even after the injured person has passed away. Thus, the statute creates a right where none existed before. A wrongful death statute usually defines both the type of injury that may be claimed and the time during which the claim may be made. Because the right or claim is created by statute, the right only exists for the period of time set forth in the statute. In effect, bringing the claim within the stated time period is necessary for the claim to exist at all. While this kind of limitation is not a true statute of limitation, its effect is essentially the same from the perspective of the claiming party.

Courts take different views on when the statute of limitations begins to run in medical malpractice cases. To some extent, the difference in these views is a reflection of the wording in the statutes. The difference also reflects the courts' views on the relative merit of protecting injured parties versus protecting medical providers by enabling them to defend themselves when records are still in existence and recollections are still fresh.

In some courts, the time for filing a claim begins to run upon the occurrence of the act or omission the plaintiff claims constituted malpractice. Other courts say that the time begins running when the act or omission results in injury. Another view is that the time begins to run when the plaintiff discovered or should have discovered he or she was injured. A fourth view is that the time begins to run when the treatment concludes.

Things get even more complicated when the injured party dies. In the case of malpractice causing death, the courts must first decide whether the wrongful death statute applies or whether the statute of limitations for medical malpractice applies. Once that is decided, the courts must then decide what triggers the running of the statute of limitations. The courts may say that the statute begins to run when the plaintiff dies. Or the court may decide that the statute begins to run when the action that allegedly caused the death occurs. Another court may decide that the time begins to run when the plaintiff discovers or should have discovered the harm done or that the death was caused by malpractice. Yet another view would be that the statute of limitations begins to run on the date of the last treatment, which may or may not be the date of death or the date the plaintiff discovered the harm done by the malpractice.

Regardless of the approach taken by the courts in deciding when a plaintiff's claim accrues or begins, statutes of limitations remain primarily pragmatic devices used by legislatures and courts to control litigation. Because the reasons underlying statutes of limitations have not traditionally been considered "fundamental rights," the policy of repose expressed in a statute of limitations is frequently outweighed where the interests of justice require a vindication of rights. When a plaintiff has not slept on his or her rights, but rather, has been prevented from asserting them, a court will often take this into consideration. Thus, while theoretically a court only looks at whether you filed your claim within the required time period, in actuality many factors can come into play in the operation of the rule. An experienced attorney can determine when the time period for filing your claim began and whether that time period might be lengthened due to certain circumstances such as your age, fraudulent concealment by the defendant, or the existence of a disability which prevented you from filing a claim within the limit set forth in the statute of limitations.

There is also a concept known as a statute of repose. This is a deadline that is intended to serve as an absolute bar to litigation commenced afterwards.

III. Statute Of Limitations Applicable to Medical Malpractice Cases Filed in Colorado

In 1988, Colorado enacted tort reform legislation that made dramatic changes pertaining to medical malpractice claims and when those claims must be filed. Prior to tort reform, a variety of legal theories were available for medical malpractice claims such as breach of contract, negligence, and lack of informed consent. Each of these theories had different statutes of limitations. A breach of contract claim had to be brought within three years of the breach. A negligence claim had to be brought within two years of the negligence, but not more than six years afterwards. A claim based on lack of informed consent is a claim in the nature of a battery. A battery claim had to be brought within one year of the battery. As part of the tort reform legislation, the Colorado General Assembly enacted a presumptive statute of limitations of two years for any claim against a physician, no matter if the claim was based on breach of contract, negligence, or lack of informed consent. The presumptive statute of limitations also provides that a claim may not be filed more than three years after the act or omission that gave rise to the action.¹ The three-year provision is in the nature of a statute of repose. Colorado follows the continuous treatment rule, which means that the three-year statute of repose does not begin running until the physicians final act of treatment.² There are several exceptions to the presumptive statute of limitations. First, the limitations period does not apply if the physician knowingly concealed the act or omission which gave rise to the cause of action. In that case, the action may be maintained if instituted within two years after the person bringing the action discovered, or in the exercise of reasonable diligence and concern should have discovered, the act or omission.³

Second, the presumptive statute of limitations does not apply if the act or omission consisted of leaving an unauthorized foreign object in the body of the patient. In that case, the action may be maintained if instituted within two years after the person bringing the action discovered, or in the exercise of reasonable diligence and concern should have discovered, the act or omission.⁴ Third, the presumptive statute of limitations does not apply if both the physical injury and its cause are not known or could not have been known by the exercise of reasonable diligence. There are no Colorado cases construing the meaning of this provision.

Fourth, there is an exception to the presumptive statute of limitations if the action is brought by or on behalf of: (a) a minor under eight years of age who was under six years of age on the date of the occurrence of the act or omissions for which the action is brought, in which case the action may be maintained at any time prior to his attaining eight years of age; or (b) a person otherwise under a disability as defined by Colorado statute. The statute in question is 13-81-101, C.R.S., which defines a person under disability as any person who is a minor under eighteen years of age, a mental incompetent, or a person under other legal disability and who does not have a legal guardian. With certain exceptions, a person under a disability will be allowed to take action within two years after removal of the disability.⁵ For purposes of minors, the legal disability pertaining to their minority terminates when they reach the age of 18 years. Thus, the statutes operate strictly to toll the otherwise applicable statute of limitations for medical malpractice actions in favor of a minor child who does not have a court-appointed legal representative.

All wrongful death actions in Colorado must be filed within two years after the cause of action accrues, and not thereafter.⁶ For purposes of a wrongful death action, the cause of action accrues on the date of death.⁷ The wrongful death statute provides that during the first year following the death, the surviving spouse has the exclusive right to assert the wrongful death claim or, if there is no spouse, then the decedents heir or heirs have that right.⁸ After the first year anniversary of the death, either or both the spouse and the heir or heirs may commence the action.⁹

Medical malpractice claims against physicians may be subject to the Federal Tort Claims Act (the FTCA) or the Colorado Governmental Immunity Act. The FTCA does not permit an injured person to sue a federal employee directly for the employees negligent acts committed while working on behalf of the federal agency. If a physician employed by the federal government injures you, the FTCA requires you to file an administrative claim with the employing agency within two years from the date you knew, or through the exercise of reasonable diligence should have known, of the negligence. The claim must contain certain information. If the government does not receive a valid claim within the two year period, then you have lost, forever, the right to make the claim and to collect money damages. The FTCA gives the federal agency served with the notice of claim six months to take action on the claim. The purpose of this provision is to afford the employing agency the opportunity to take remedial steps to prevent injury to others. If the agency does not take action within six months or denies the claim, the injured party may file a lawsuit in the federal district court against the agency. The lawsuit must be filed within two years after the claim accrued or within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.

In order to be eligible to maintain a lawsuit against a physician who is employed by the State of Colorado or one of its political subdivisions, the plaintiff must submit a statutory notice of claim within one hundred and eighty days after discovery of the injury, regardless of whether the person then knew all of the elements of a claim or cause of action for such injury. Compliance with the notice requirement is mandatory. Failure of compliance bars forever the right of suit against the physician.¹⁰ The State or political subdivision is granted six months to review the claim. The injured party may sue only after denial of the claim or expiration of ninety days following filing of the notice of claim. The lawsuit still must be filed within the two-year statute of limitations, except that, if compliance with the ninety-day forbearance provision would otherwise result in the barring of the action, then the statute of limitations is extended by the time period required for such compliance. Under limited circumstances, the Civil Rights Act may also apply. The Civil Rights Act contains no statute of limitations, and the federal courts apply the appropriate state statute of limitations. In Colorado, that would be the two year statute of limitations, except that a federal court may regard a claim in the nature of lack of informed consent to be subject to the one-year statute of limitations for battery. The question of when the cause of action accrues is a matter of federal law. Under federal law, the time of accrual of a cause of action under the Civil Rights Act is when the plaintiff knows or has reason to know of the injury, which is the basis of the action.¹¹

IV. Other Timing Considerations

Medical malpractice actions are serious undertakings, which require careful investigation and evaluation before filing suit. The investigation and evaluation may take several months to complete because of the delays encountered in obtaining medical records and locating and retaining the services of qualified medical experts to review the claim.

In Colorado, a medical malpractice action usually cannot be maintained without the support of a qualified expert who, after reviewing the known facts, including the records, documents, and other materials the expert believes are relevant to the allegations of malpractice, has concluded that the filing of the claim does not lack substantial justification. Your attorney must file a certificate of review confirming the expert review and his or her conclusion with the court within sixty days of service of the complaint. If a proper certificate of review is not filed timely, the court is required to dismiss your lawsuit.¹²

V. Conclusion

A statute of limitations cuts off a plaintiff's right to seek a remedy for an injury. Many of the triggering events for the statute of limitations are tied to what a plaintiff knew or should have known about his injury and its cause. It is, therefore, important to consult an experienced attorney promptly when you have been injured. An experienced attorney can analyze the facts surrounding your case to determine the following: when the malpractice occurred, when you would have been reasonably expected to know you were injured, whether the time for filing a claim can be lengthened due to the circumstances of your case, and what recourse you may have for your injury.

VI. Preeo Silverman Green & Egle, P.C. and Medical Malpractice Cases Our firm represents exclusively the patient in medical malpractice actions and has litigated such cases not only in Colorado, but in other states as well. Our firm is located at 1401 17th Street, Suite 800, Denver, Colorado 80202, (303) 296-4440. The firms attorneys representing clients in these matters may be reached by e-mail as follows:

Eldon E. Silverman, Esq. Email Me
Jersey M. Green, Esq. Email Me

• ¹ 13-80-102.5(1), C.R.S.
• ² Comstock v. Collier, 737 P.2d 845 (Colo. 1987).
• ³ 13-80-102.5(3)(a), C.R.S.
• ⁴ 13-80-102.5(3)(b), C.R.S.
• ⁵ Bartlett v. Eglin, 973 P.2d 694 affd 994 P.2d 411 (Colo. 1999).
• ⁶ 13-21-204 and 13-80-102, C.R.S.
• ⁷ 13-80-108(2), C.R.S.
• ⁸ 31-21-201(1)(a), C.R.S.
• ⁹ 13-21-201 (1)(b), C.R.S.
• ¹⁰ 24-10-109(1), C.R.S.
• ¹¹ 52 A.L.R. Fed. 780 (1981).
• ¹² 13-20-602, C.R.S.