Medical Malpractice Question
When is the action time barred if the injury and/or its cause were not discovered within two years?
Medical Malpractice Answer
The § 13-80-102.5. Limitation of Actions – Medical or Health Care- provides:
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- Except as otherwise provided in this section, no action alleging negligence, breach of contract, lack of informed consent, or other action arising in tort or contract to recover damages from any health care institution, as defined in paragraph (a) of subsection (2) of this section, or any health care professional, as defined in paragraph (b) of subsection subsection (2) of this section, shall be maintained unless such action is instituted within two years after the date that such action accrues pursuant to section 13-80-108(1), but in no event shall an action be brought more than three years after the act or omission which gave rise to the action.
- The limitation of actions provided in subsection (1) of this section shall not apply under the following circumstances:
c. If both the physical injury and its cause are not known or could not have been known by the exercise of reasonable diligence…
Interpretation of § 13-80-102.5. Limitation of Actions
The first thing to be aware of is the general rule of 2 years to file with 3 years as an outside limitation
for the action; however, this is apparently set aside by the plain language of (3)(c). What is important
to understand about section (3)(c) is that it is silent as to when the action then must be filed! (Another
case of poor drafting by the Legislature.) What is the meaning of “but in no event shall the action be
brought more than three years after the act or omission which gave rise to the action” in part (1)?
Presumably the two year limitation period applies after ‘discovery’ of the injury. What if the injury is
discovered within the window of time between the two and three years after the injury? Whether the
statute of limitations bars a particular claim is normally a question of fact. I think the safe bet is to file
within three years from the date of injury if discovered within three years. If three years is past, then
you should consider two years from the date of discovery, but beware! The ‘discovery rule’ is a fact-
based inquiry. In other words, the facts of the case (that is, whether the injury and its cause ‘could not
have been known by the exercise of reasonable diligence’) will be decided either by a judge or jury. It
is best to avoid this possible trap and file within three years if possible. Never run the gauntlet of a
limitation determination if it can be avoided.
Note-The Court of Appeals (not the highest court in Colorado, but governs unless Supreme Court
reverses) applied the discovery rule to allow two years from the date of discovery, considered a fact
issue. Quiroz v. Goff, 46 P.3d 486 (Colo. App. 2002). This is the general understanding of the statute
which makes the most sense and is the rule unless the statute is changed or the Supreme Court rewrites
it. See also, Garhart ex rel. Tinsman v. Columbia/Healthone, L.L.C., 95 P.3d 571 (Colo. 2004):
[A] cause of action for injury to [a] person … shall be considered to accrue on the date both the injury and its cause are known or should have been known by the exercise of reasonable diligence.