The plaintiffs-appellants, Robert L. Austin and Marquita Austin, filed their complaint against the defendants-appellees, Dr. John Litvak and St. Anthony's Hospital, in the district court on June 4, 1980. The plaintiffs alleged that in 1963 the defendants negligently misdiagnosed Mr. Austin's medical condition as a parasaggital meningioma.
The plaintiffs appealed the trial court's rulings to the court of appeals. However, the appeal was transferred to this court pursuant to sections 13-4-102(1)(b) and 13-4-110(1)(a), C.R.S.1973 (1983 Cum.Supp.). We hold that the three-year statute of repose contained in section 13-80-105, C.R.S. 1973 (1983 Cum.Supp.), insofar as it applies to persons whose claims are premised on a negligent misdiagnosis claim, violates the equal protection guarantees of the Colorado Constitution and reverse the judgment of the trial court with regard to the plaintiffs' claims against Dr. Litvak. We affirm the dismissal of their claims against St. Anthony's Hospital.
We learn the following facts from the plaintiffs' complaint and their answers to Dr. Litvak's interrogatories.
In May 1979, sixteen years after the alleged negligent misdiagnosis, Mr. Austin was involved in an automobile accident in Greeley, Colorado. As a result of a series of medical examinations and tests necessitated by the accident, Mr. Austin learned that he did not have a brain tumor and that, since this condition does not disappear by remission, he could never have suffered from such an illness. Mr. Austin and his wife filed this case eleven months later.
Within the last fifteen years the costs of medical services have increased drastically while their availability has decreased. During the mid-1970's, increased medical malpractice insurance rates raised concerns about higher medical costs to patients and the absence of practicing physicians in some rural areas. See Learner, Restrictive Medical Malpractice Compensation Schemes: A Constitutional "Quid Pro Quo" Analysis To Safeguard Individual Liberties, 18 Harv.J. on Legis. 143 (1981). Suggested causes of the "crisis" included (1) the increasing number of medical malpractice claims filed; (2) large and erratic damage awards; and (3) the "long-tail" problem which forced some insurance companies to impose artificially high present premiums to protect against increased future damage awards. Id. at 145. Although many commentators have argued that this "crisis" has been grossly exaggerated, see D. Louisell & H. Williams, Medical Malpractice § 20.07 n. 55 (Supp.1979), legislation designed to alleviate the crisis has been passed by the legislature in each state. See J. White & W. McKenna, Constitutionality of Recent Malpractice Legislation, 13 Forum 312 (1977). Representative provisions in malpractice legislation have included (1) the elimination of the ad
The Colorado Legislature responded to the problem of increased premium rates for medical malpractice insurance and the refusal of all but a few insurance companies to write such coverage for Colorado physicians by shortening the statute of limitations for medical malpractice claims. Before reviewing this legislation, some brief background is helpful to place the issues raised by this appeal in perspective. Between 1925 and 1971, the Colorado statute of limitations provided that actions sounding in tort or contract to recover damages from certain members of the medical profession could not be maintained unless such action was "instituted within two years after such cause of action accrued." C.R.S. '53, 87-1-6. In 1963 and 1967, the legislature amended the statute by adding additional classes of persons to whom it pertained. C.R.S.1963, 87-1-6; Colo.Sess. Laws 1967, ch. 101. Before 1971, this two-year statute of limitations was judicially construed as beginning to run when the patient discovered, or in the exercise of reasonable diligence should have discovered, the doctor's negligence. Owens v. Brochner, 172 Colo. 525, 474 P.2d 603 (1970); Rosane v. Senger, 112 Colo. 363, 149 P.2d 372 (1944). The adoption of the "discovery" rule was premised on the "manifest unfairness of foreclosing an injured person's cause of action before he has had even a reasonable opportunity to discover its existence." Brown v. Mary Hitchcock Memorial Hospital, 117 N.H. 739, 378 A.2d 1138, 1139-40 (1977).
In 1971, the legislature amended C.R.S. 1963, 87-1-6, explicitly adopting the "discovery" rule. However, the legislature imposed a strict six-year limitation period
Section 13-80-105, C.R.S.1973 (1983 Cum. Supp.); Colo.Sess.Laws 1977, ch. 198. Since the "discovery" rule was thought to play a significant role in the medical malpractice crisis by creating the so-called "long-tail" of liability, this statute was designed to reduce malpractice premiums by eliminating the insurance companies' inability to predict future claims and losses.
In order to resolve the issues raised by this appeal, we must first interpret the statute to develop the necessary analytical framework. Insofar as the statute is involved in this case, section 13-80-105 establishes the following limitations, and exceptions to those limitations, governing the prosecution of a claim for medical malpractice: The claimant must file the action within two years after the injured person "discovered, or in the exercise of reasonable diligence and concern should have discovered, the injury." Section 13-80-105(1). In addition to this limitation period, the statute contains a repose provision which provides that no action may be filed more than three years after the act or omission which gave rise to the claim. Section 13-80-105(1)(a) contains two exceptions to the three-year period of repose. One, the claim is not barred if the person who committed the act or omission knowingly conceals that fact. Two, the claim is excepted from the period of repose if the physician left an unauthorized foreign object in the claimant's body. Under either exception, the medical malpractice action must be filed by the injured person within two years after the claimant discovers or should have discovered the act or omission.
The plaintiffs first argue that the trial court improperly granted summary judgment against them because the three-year statute of repose, section 13-80-105, does not apply to their claims. Alternatively, they contend that if the statute is applicable to this case, then they are entitled to invoke the "unauthorized foreign object" exception. In addition, the Colorado Trial Lawyers Association, amicus curiae on behalf of the plaintiffs, suggests that the plaintiffs' complaint should be construed as alleging a claim for "knowing concealment," the second exception to the strict three-year statute of repose.
In their complaint the plaintiffs allege that the negligent acts and omissions of the defendants occurred in September or October of 1963. The plaintiffs further state that they did not discover, and, in the exercise of reasonable diligence, could not have discovered that their claims existed until June 15, 1979. The plaintiffs' complaint was filed on June 4, 1980. For purposes of the summary judgment motions, the defendants have conceded that (1) the incorrect diagnosis was made and reported to the plaintiffs in 1963; (2) the plaintiffs discovered the improper diagnosis in 1979;
Under the two-year discovery provision in the present statutory scheme, a claim for medical malpractice accrues on the date the plaintiff discovers or should have discovered the injury. For purposes of the exceptions to the three-year statute of repose, the cause of action accrues when the claimant discovers or should have discovered the act or omission. See Mastro v. Brodie, 682 P.2d 1162 (Colo.S.Ct.1984), and Owens, 172 Colo. 525, 474 P.2d 603. The statute of limitations in effect on the date when the plaintiff's claim accrues governs the time within which an action must be commenced. Mishek v. Stanton, 200 Colo. 514, 616 P.2d 135 (1981); Valenzuela v. Mercy Hospital, 34 Colo.App. 5, 521 P.2d 1287 (1974). Because the plaintiffs' cause of action accrued in 1979, section 13-80-105 applies to their suit against the defendants and the three-year statute of repose bars their claims, unless the defendants' conduct comes within one of the statutory exceptions or the statute is constitutionally infirm. Mishek, 616 P.2d 135.
We next address the issue of whether the metal screen in Mr. Austin's skull is an "unauthorized foreign object" within the meaning of the statutory exception. We conclude it is not, as a matter of law.
The essence of the plaintiffs' complaint is negligent misdiagnosis, not the presence of an unauthorized foreign object left in Mr. Austin's body by Dr. Litvak. Indeed, the plaintiffs' complaint and answers to interrogatories establish that the metal screen was deliberately and necessarily placed in Mr. Austin's skull to replace bone that had been removed during the surgical diagnostic procedure. We conclude that an unauthorized foreign object is an object left inadvertently in the patient's body and which has no therapeutic or diagnostic purpose or effect. See Cal.Civ.Proc. Code § 340.5 (1982); Wis.Stat. § 893.55 (1983). Examples of such foreign objects include sponges (Rosane, 112 Colo. 363, 149 P.2d 372); surgical clamps (Mudd v. Dorr, 40 Colo.App. 74, 574 P.2d 97 (1977)); and injection needles (Nixdorf v. Hicken, 612 P.2d 348 (Utah 1980); Landgraff v. Wagner, 26 Ariz.App. 49, 546 P.2d 26 (1976)). A device which is intentionally placed in the body with the patient's knowledge and consent does not constitute an unauthorized foreign object for purposes of tolling the applicable statute of limitations. Shannon v. Thornton, 155 Ga.App. 670, 272 S.E.2d 535 (1980); Cooper v. Edinbergh, 75 A.D.2d 757, 427 N.Y.S.2d 810 (N.Y.App. 1980).
In paragraph 6 of their complaint, the plaintiffs allege:
It is suggested on behalf of the plaintiffs that these allegations are sufficient to plead knowing concealment as a reply to the statute of limitations defense and, therefore, the trial court erred when it granted summary judgment for the defendants. We reject this construction of the paragraph.
First, the gravamen of the plaintiffs' complaint is that the acts and omissions of the defendants constitute negligent misdiagnosis. Moreover, the plaintiffs' attorney did not raise this argument in support of his own pleading, either in the briefs filed in the trial court or in his opening brief filed in this court.
Second, since the defendant raised the affirmative defense of the statute of limitations under section 13-80-105, it was incumbent upon the plaintiffs to come forward with facts sufficient to invoke
The plaintiffs have raised a number of arguments in support of their position that the statute is unconstitutional. Indeed, substantial sections of the briefs filed by counsel for the parties and the amici curiae are directed to the due process and equal protection issues which have been presented. Because we elect to resolve this case on equal protection grounds, the due process issues will be saved for another day.
We first focus our attention on the plaintiffs' argument that the provisions of section 13-80-105 violate their right to equal protection of the law.
The defendants suggest that our decision in Mishek, 616 P.2d 135, is dispositive of the plaintiffs' equal protection claim. We disagree. In Mishek, the claimant's equal protection argument was limited to her contention that "`no reasonable basis exists for separating medical and healing professionals from other professionals and lay persons and granting them the special protection afforded by the six-year maximum statute of limitations' and therefore section 13-80-105, C.R.S.1973, violates constitutional provisions guaranteeing equal protection and the state constitutional prohibition against special legislation." Id. at 139. The argument was rejected because we declined to overrule our decision in McCarty v. Goldstein, 151 Colo. 154, 376 P.2d 691 (1962), where this court held that the two-year statute of limitations applicable to negligence claims against "person[s] licensed to practice medicine, chiropractic, osteopathy, chiropody, midwifery or dentistry," C.R.S. '53, 87-1-6, neither constituted special legislation nor violated equal protection principles.
In Colorado, we recognize three standards of review for purposes of equal protection analysis. Lujan, 649 P.2d at 1015. The first standard is labeled as "strict scrutiny" or "compelling governmental interest." Where a fundamental right is affected or a suspect classification is created, the state has the burden of establishing that the act is necessarily related to a compelling governmental interest. San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16, reh'g denied, 411 U.S. 959, 93 S.Ct. 1919, 36 L.Ed.2d 418 (1973); Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969); Lujan, 649 P.2d 1005. This court has recognized that fundamental rights are essentially those rights which have been recognized as having a value essential to individual liberty in our society, Lujan, 649 P.2d at 1015 n. 7, and that a classification is considered "suspect" if it singles out religious, racial, or other discrete or insular minorities, such as those based on lineage or alienage. Id. at 1015 n. 8.
The second standard of review, "rational basis," applies where no fundamental right or suspect class is involved. In that situation, different classes of persons may be treated differently without violating equal protection guarantees if the statutory classification has some rational basis in fact and bears a rational relationship to legitimate governmental objectives. People v. Velasquez, 666 P.2d 567 (Colo. 1983); Smith v. Charnes, 649 P.2d 1089 (Colo.1982); Hurricane v. Kanover, Ltd., 651 P.2d 1218 (Colo.1982); People v. McKnight, 617 P.2d 1178 (Colo.1980).
The third standard, "intermediate review," has been invoked by this court when a statutory classification is based on gender. The burden is upon the state to show that the classification serves important governmental objectives and is substantially related to the achievement of those objectives. See R.McG. v. J.W., 200 Colo. 345, 615 P.2d 666 (1980). See also Caban v. Mohammed, 441 U.S. 380, 99 S.Ct. 1760, 60 L.Ed.2d 297 (1979); Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976). We have acknowledged that the Supreme Court has utilized this intermediate standard of review for a variety of other classifications. Lujan, 649 P.2d at 1015 n. 9. For example, see Foley v. Connelie, 435 U.S. 291, 98 S.Ct. 1067, 55 L.Ed.2d 287 (1979) (alienage); Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977) (illegitimacy). See also J. Nowak, R. Rotunda & J. Young, Handbook on Constitutional Law (1978); Note, Developments in the Law—Equal Protection, 82 Harv.L.Rev. 1065 (1969).
In determining which of these three standards should be applied to the plaintiffs' equal protection argument, we first reject the strict scrutiny test. The Supreme Court has held that the right to recover damages in tort is not a fundamental
We decline to address the application of the intermediate standard in this case because the legislative classification fails under the rational basis test.
Our recent cases have made clear there are two separate and distinct prongs to the rational basis test. The first prong of the test has been formulated as requiring that "the classification is reasonable, not arbitrary," Hurricane, 651 P.2d at 1222, or that "the statutory classification has some rational basis in fact...." Smith, 649 P.2d at 1091. The second prong requires either that "the statutory classification ... bear[s] a rational relationship to legitimate state objectives," Hurricane, 651 P.2d at 1222, or that it be "reasonably related to a legitimate governmental interest." Smith, 649 P.2d at 1091. Regardless of the linguistic formulation of the test, we must conduct a "serious and genuine judicial inquiry into the correspondence between the classification and the legislative goals." American Bank & Trust Co., 660 P.2d at 837.
We are persuaded that the statutory classification prescribed by section 13-80-105 fails to meet the two-pronged test. The statutory exceptions which permit "foreign object" and "knowing concealment" claimants but not "negligently misdiagnosed" plaintiffs to avoid the three-year statute of repose and to invoke the discovery rule are without a reasonable basis in fact, thereby creating an arbitrary classification. Even though there may be a legitimate state interest in foreclosing the prosecution of stale or frivolous claims, the distinction upon which the classification is based was found to be arbitrary in Owens, 172 Colo. 525, 474 P.2d 603, where we noted that the treatment given a patient in a negligent misdiagnosis case is capable of being proved by objective facts and that the treatment administered is strong evidence of the diagnosis. We conclude that the two statutory exemptions substantially undermine the apparent legislative purpose in enacting the strict three-year statute of repose prescribed by section 13-80-105. Claims dependent upon knowing concealment to avoid the repose provision are far more likely to be frivolous or involve stale evidence than claims of negligent misdiagnosis for the reasons stated above. Moreover, the two exceptions created by the legislature also manifest a governmental interest in preserving medical malpractice claims where the claimant has sustained an injury but lacks any reasonable opportunity to discover the act or omission which caused the injury. The classification which results in the denial of the discovery rule to patients whose conditions are negligently misdiagnosed does not further this legitimate governmental interest and, therefore, lacks a rational relationship to that goal.
We have found only three jurisdictions that have considered whether the legislature's extension of the discovery rule to some medical malpractice claimants, while denying it to others, constitutes an impermissible discrimination between classes of claimants.
424 A.2d at 833 (emphasis in original). Later, in Heath v. Sears, Roebuck & Co., 464 A.2d 288, 295 (N.H.1983), the New Hampshire Supreme Court summarized its holding in Carson as follows:
The Georgia Supreme Court reached a contrary result in Allrid v. Emory University, 249 Ga. 35, 285 S.E.2d 521 (1982). The Georgia court upheld the statutory classification which granted "foreign object" plaintiffs an exception to the Georgia two-year statute of limitations on the theory that the classification eliminated "the danger of belated, false or frivolous claims...." 285 S.E.2d at 525. The Missouri
We adopt the rationale set forth in Carson, 424 A.2d 825, and hold that the medical malpractice statute violates the equal protection provisions of our constitution to the extent that it denies application of the discovery rule to negligently misdiagnosed medical malpractice plaintiffs. The reasoning applied by the Georgia and Missouri courts is in direct conflict with prior decisions of this court in which we found the classification to be irrational, arbitrary, and suspect. In Rosane, 112 Colo. 363, 149 P.2d 372, and Davis v. Bonebrake, 135 Colo. 506, 313 P.2d 982 (1957), each physician's negligence consisted of leaving a foreign object in the patient's body. The plaintiffs relied on the theory of concealment to avoid the applicable statute of limitations. We held that each plaintiff's cause of action did not accrue until she discovered or by the exercise of reasonable diligence should have discovered the negligence. In Owens, 172 Colo. 525, 474 P.2d 603, we extended the discovery rule to cases involving negligent misdiagnosis in a case where the defendants-physicians allegedly misdiagnosed a brain tumor as malignant. The defendants there argued that the application of the discovery rule should be limited to cases involving foreign objects. We rejected the argument and stated:
172 Colo. at 531-32, 474 P.2d at 606-07. Other courts have similarly rejected this distinction. As the Supreme Court of Oregon stated in Frohs v. Greene, 253 Or. 1, 452 P.2d 564, 565 (1969):
See also Warrington v. Charles Pfizer & Co., 274 Cal.App.2d 564, 80 Cal.Rptr. 130 (1969); Yoshizaki v. Hilo Hospital, 50 Haw. 150, 433 P.2d 220 (1967); Lipsey v. Michael Reese Hospital, 46 Ill.2d 32, 262 N.E.2d 450 (1970).
While these cases do not deal with the issue of the constitutionality of the statute of limitations, but rather with whether or not the "discovery" rule should be extended to cases other than those involving foreign objects, the rationale is equally persuasive. Moreover, in both "foreign object"
Whether the legislature could constitutionally enact a three-year statute of limitations or a statute of repose for all classes of medical malpractice claims is not an issue before us. What is before us is the narrow issue of whether the legislative scheme governing medical malpractice claims which grants an exception from the three-year statute of repose to foreign object and knowing concealment claimants, but not to negligently misdiagnosed claimants, is constitutional. We hold that it is not.
Having ruled that the statutory scheme denies the plaintiffs' equal protection guarantees as applied to their claims, we must determine the appropriate remedy. We could either strike the two exceptions to the three-year statute of repose
Finally, we address the propriety of the trial court's order granting St. Anthony's
We, as have the parties, characterized the plaintiffs' complaint as alleging claims based on a negligent misdiagnosis. The diagnosis and treatment of human illnesses and any surgery performed in connection with such diagnosis and treatment constitute the practice of medicine. Moon, 150 Colo. 430, 373 P.2d 944. When a doctor performs these functions in a hospital setting, the hospital and its employees "subserve him in his administrations to the patient. He has sole and final control in the matter of diagnosis, treatment, and surgery. Possessed of this authority, it follows that his actions as doctor are his responsibility." Id. 373 P.2d at 946. Our earlier cases hold that a hospital cannot be licensed to, and cannot practice medicine. Moon, 150 Colo. 430, 373 P.2d 944; Rosane, 112 Colo. 363, 149 P.2d 372.
The plaintiffs do not allege in their complaint that the hospital negligently extended staff privileges to a physician, see Kitto v. Gilbert, 39 Colo.App. 374, 570 P.2d 544 (1977), or that in some other way it is legally responsible for the alleged negligent misdiagnosis. See Moon, 150 Colo. 430, 373 P.2d 944. Accordingly, St. Anthony's motion for summary judgment on this ground was properly granted.
The judgment dismissing the plaintiffs' complaint against Dr. John Litvak is reversed. The summary judgment entered against the plaintiffs on their claims against St. Anthony's Hospital is affirmed. This case is remanded to the trial court for further proceedings consistent with this opinion.
QUINN and KIRSHBAUM, JJ., concur.
DUBOFSKY, J., specially concurs.
ROVIRA, J., concurs in part and dissents in part.
ERICKSON, C.J., and LOHR, J., join in the concurrence and dissent.
DUBOFSKY, Justice, specially concurring.
I concur in the result reached by the plurality opinion. Although I agree with the dissent that section 13-80-105, C.R.S. does not violate constitutional guarantees of equal protection, I believe that under Colo. Const. art. II, § 6, the General Assembly, absent compelling justification, may not employ a statute of repose to cut off a cause of action before plaintiffs have had reasonable time to assert that cause of action. Cf. Rosane v. Senger, 112 Colo. 363, 149 P.2d 372 (1944) ("Under the facts pleaded it was impossible for the plaintiff to sue within the limitation and it is a recognized maxim that the law requires not impossibilities."); Overland Construction Co., Inc. v. Sirmons, 369 So.2d 572 (Fla. 1979) (interpreting language similar to Colo. Const. art. II, § 6 to forbid abrogation of common law rights absent an overpowering public necessity and declaring a statute of repose unconstitutional on that basis); Terry v. New Mexico Highway Comm., 98 N.M. 119, 645 P.2d 1375 (1982) (A plaintiff whose right of action accrued shortly before expiration of a statute of repose is denied due process if he is denied a reasonable time within which to bring his suit.); Dincher v. Marlin Firearms Co., 198 F.2d 821, 823 (2nd Cir.1952) (Frank, J., dissenting) (It is axiomatic that a statute of limitations does not begin to run against a cause of action before that cause of action exists.).
Undoubtedly, the General Assembly has the power to modify and even abrogate particular causes of action before those causes of action vest. O'Quinn v. Walt Disney Productions, 177 Colo. 190, 493 P.2d 344 (1972); Goldberg v. Musim, 162 Colo. 461,
I do not believe that there is a compelling justification for the three year statute of repose at issue here. I would therefore hold this provision unconstitutional. Colo. Const. art. II, § 6.
I concur in the result.
ROVIRA, Justice, concurring in part and dissenting in part.
I concur in the result reached in Parts II, III, and V of the plurality opinion. I dissent from Part IV of the plurality opinion which declares certain aspects of section 13-80-105 unconstitutional on equal protection grounds. In its view, "[t]he statutory exceptions which permit `foreign object' and `knowing concealment' claimants but not `negligently misdiagnosed' plaintiffs... to invoke the discovery rule are without a reasonable basis in fact, thereby creating an arbitrary classification." At 50. This theme is repeated throughout Part IV. Before reaching its decision, the plurality frames the issue as whether "the statute unconstitutionally discriminates against negligently misdiagnosed plaintiffs by depriving them of the benefits of the discovery rule." Id. at 48. After reaching its decision, the plurality explains that "[t]he classification which results in the denial of the discovery rule to ... negligently misdiagnosed [patients] does not further [a] legitimate governmental interest ...." Id. at 50.
These carefully phrased statements give a false impression of the constitutional issue in this case. The plurality suggests, in effect, that section 13-80-105 favors two classes of plaintiffs by granting them access to the discovery rule, while it discriminates against a third class of plaintiffs by "depriving" its members of the same access. If this is what the statute said, a strong argument could be made that it violated equal protection. The problem is that we are not dealing with a situation in which only some plaintiffs have the benefit of the discovery rule. That situation has already been addressed by this court and by the General Assembly. See Owens v. Brochner, 172 Colo. 525, 474 P.2d 603 (1970); Davis v. Bonebrake, 135 Colo. 506, 313 P.2d 982 (1957); Rosane v. Senger, 112 Colo. 363, 149 P.2d 372 (1944); An Act ... Concerning Limitation Of Actions Against Certain Licensed Health Care Institutions And Persons, Colo.Sess.Laws 1971, ch. 232, 87-1-6 at 952. As a result, every medical malpractice plaintiff now has access to the discovery rule as part of the two-year statute of limitations in section 13-80-105.
The issue in this case is not whether negligently misdiagnosed plaintiffs should have access to the discovery rule. Rather, it is whether a rational basis exists for the legislature's decision to toll the three-year statute of repose for only two classes of plaintiffs. The plurality cites only two cases which address the constitutional issue in a closely related context, and both of those cases reach a contrary result. In Carson, Heath, Frohs, Warrington, Yoshizaki, and Lipsey (cited in the plurality opinion, at 51-52), the courts were faced with the same problem confronting this court in Owens: whether to extend the discovery rule to previously excluded classes of plaintiffs. In Allrid v. Emory University, 249 Ga. 35, 285 S.E.2d 521 (1982), and Ross v. Kansas City General Hospital & Medical Center, 608 S.W.2d 397 (Mo.1980), the issue was whether an exception to the statute of repose for foreign object plaintiffs violated equal protection. The Allrid court decided that the classification was valid under the rational basis test:
Allrid, 285 S.E.2d at 525 (emphasis added).
Likewise, the Ross court decided that the exception was not arbitrary and had a reasonable basis in fact:
Ross, 608 S.W.2d at 399 (emphasis added).
I do not believe that the rationale which prompted this court and others to adopt the discovery rule should be applied to a case in which the constitutionality of various exceptions to the statute of repose is at stake. There are real differences between denying a class of plaintiffs access to the discovery rule and excluding that class from the list of exceptions to the statute of repose. In the view of the General Assembly, foreign object and knowing concealment plaintiffs are in a special category exposed to unfair risks that require the tolling of the statute of repose. The exclusion of negligently misdiagnosed and other medical malpractice plaintiffs reflects a legislative evaluation that these plaintiffs do not face the same risks. In fact, the legislature has concluded that the risks facing medical malpractice defendants, risks such as the bringing of fraudulent claims and the use of stale evidence, outweigh the occasional unfairness that excluded plaintiffs must endure. These types of decisions are within the prerogative of the General Assembly and should not be second-guessed by the courts, especially under the rubric of a rational basis analysis. I prefer the approach taken by the Allrid and Ross courts and would uphold the classification scheme in section 13-80-105. Accordingly, I dissent.
I am authorized to say that Chief Justice ERICKSON and Justice LOHR join in this concurrence and dissent.