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Supreme Court of Colorado
May 7, 1984
Robert L. AUSTIN and Marquita Austin, Plaintiffs-Appellants,v.John LITVAK, M.D. and St. Anthony's Hospital, Defendants-Appellees.
Rehearing Denied June 18, 1984.
Page 43
Herbert A. Shatz, Denver, for plaintiffs-appellants.
Alan Epstein, Richard A. Hanneman, Hall & Evans, Denver, for defendant-appellee John Litvak, M.D.
Stuart L. Boulter, P.C., Denver, for defendant-appellee St. Anthony's Hosp.
Gene M. Hoffman, Hoffman & McDermott, Denver, for amicus curiae Colo. Trial Lawyers Assoc.
Pryor, Carney & Johnson, P.C., Thomas L. Roberts, Susan Teas Smith, Englewood, Hansen & Breit, P.C., John L. Breit, Susan Smith Fisher, Denver, for amicus curiae Colo. Defense Lawyers Assoc.
Lawrence M. Wood, Constance B. Wood, Denver, for amicus curiae Colo. Medical Soc.
NEIGHBORS, Justice.
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. [1] Each defendant filed a motion for summary judgment. The trial court granted Dr. Litvak's motion on the basis that the plaintiffs' claims were barred by the three-year statute of repose found in section 13-80-105, C.R.S.1973 (1983 Cum.Supp.). St. Anthony's summary judgment motion was granted for the same reason. Relying on Moon v. Mercy Hospital, 150 Colo. 430,
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373 P.2d 944 (1962), the trial court also ruled that the hospital was entitled to a summary judgment because it is "not licensed to practice medicine."
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. [2] Robert L. Austin was admitted to St. Anthony's Hospital in Denver, Colorado in September of 1963 for the treatment of kidney stones. During this hospitalization, Mr. Austin underwent numerous tests. The plaintiffs were informed by Dr. Litvak and other physicians that, based on the test results, Mr. Austin had a parasaggital meningioma, which is a form of brain tumor. Dr. Litvak was retained as the physician in charge of Mr. Austin's care and performed additional tests, one of which consisted of drilling an opening in Mr. Austin's skull, removing part of the skull, and placing a metal screen in his head. The screen remains intact. Dr. Litvak allegedly confirmed the diagnosis, informed Mr. Austin that the tumor was not operable without severe risk, and advised him not to undergo surgery. Mr. Austin also claims that while he was hospitalized at St. Anthony's, he was taken to Colorado General Hospital where additional tests were performed at Dr. Litvak's direction; that these tests, unknown to Mr. Austin at the time, effectively established he did not have a brain tumor; and that Dr. Litvak was aware of this fact.
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
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damnum clause from pleadings; (2) modification of the collateral source rule; (3) limitations on the kind and amount of damages recoverable; (4) mandatory insurance; (5) abolition of punitive damages; (6) establishment of screening panels or mandatory arbitration; and (7) changes in the statute of limitations applicable to medical malpractice claims. Id. at 312 n. 2.
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 [3] running from the date of the act or omission giving rise to the cause of action, except in cases involving unauthorized foreign objects. Colo.Sess.Laws 1971, ch. 232. In 1976, the statute was amended reducing the strict six-year limitation to five years. Colo.Sess.Laws 1976, ch. 90. In 1977, the General Assembly enacted the current statute which provides in pertinent part:
"13-80-105. Actions barred in two years. (1) No person shall be permitted to maintain an action, whether such action sounds in tort or contract, to recover damages from a licensed or certified hospital, health care facility, dispensary, or other institution for the treatment or care of the sick or injured due to alleged negligence or breach of contract in providing care or lack of informed consent or from any person licensed in this state or any other state to practice medicine, chiropractic, nursing, physical therapy, podiatry, veterinary medicine, dentistry, pharmacy, optometry, or other healing arts on account of the alleged negligence, breach of contract, or lack of informed consent of such person in the practice of the profession for which he is licensed or on account of his failure to possess or exercise that degree of skill which he actually or impliedly represented, promised, or agreed that he did possess and would exercise, unless such action is instituted within two years after the person bringing the action discovered, or in the exercise of reasonable diligence and concern should have discovered, the injury. In no event may such action be instituted more than three years after the act or omission which gave rise thereto, subject to the following exceptions:
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"(a) If the act or omission which gave rise to the cause of action was knowingly concealed by the person committing such act or omission, or, if such act or omission consisted of leaving an unauthorized foreign object in the body of the patient, then such action may be 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; ..."
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. [4] We will address each argument separately.
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;
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and (3) this action was filed within two years after the plaintiffs discovered the defendants' alleged act or omission.
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 (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:
"6. That upon information and belief, plaintiff [Mr. Austin] was, while a patient at said Hospital and under the care of and direction of Litvak, administered certain tests at Colorado General Hospital, and which test results unknown to plaintiff, but known to both defendants, effectively established that plaintiff did not have parasaggital meningioma."
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
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the knowing concealment exception to the three-year statute of repose. They failed to do so; rather, they point only to the unsubstantiated allegations in paragraph 6 of their complaint. Under well-established principles of law governing disposition of summary judgment motions, reliance on unverified allegations in pleadings is wholly insufficient. E.g., Ginter v. Palmer & Co., 196 Colo. 203, 585 P.2d 583 (1978); O'Herron v. State Farm Mutual Automobile Insurance Co., 156 Colo. 164, 397 P.2d 227 (1964). Accordingly, the plaintiffs may not pursue their claims on the theory of knowing concealment. Mishek, 616 P.2d 135.
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. [5]
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. [6] Specifically, the plaintiffs maintain that the statute impermissibly discriminates between medical malpractice claimants by allowing persons who premise their "defense" to the three-year statute of repose on "foreign object" or "knowing concealment" theories to bring suit within two years after the plaintiff discovers, or in the exercise of reasonable diligence and concern should have discovered, the act or omission, while requiring persons such as the plaintiffs who base their claim on negligent misdiagnosis to bring suit within two years after discovery of the injury or a maximum of three years from the date of the act or omission. Thus, the plaintiffs conclude that the statute unconstitutionally discriminates against negligently misdiagnosed plaintiffs by depriving them of the benefits of the discovery rule contained in the two statutory exceptions to the three-year repose provision.
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. [7]
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The Fourteenth Amendment to the United States Constitution declares that no state shall deny a person equal protection of the law. It is well-established that a like guarantee exists within this state's due process clause. Colo. Const. art. II, § 25. See Lujan v. Colorado State Board of Education, 649 P.2d 1005 (Colo.1982); Heninger v. Charnes, 200 Colo. 194, 613 P.2d 884 (1980); People v. Layton, 200 Colo. 59, 612 P.2d 83 (1980). The standard to be applied in considering whether a legislative classification denies equal protection depends on the character of the state's interest.
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
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right. Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978). State appellate courts which have considered the issue have reached the same conclusion. E.g., American Bank & Trust Co. v. Community Hospital, 33 Cal.3d 674, 190 Cal.Rptr. 371, 660 P.2d 829 (Cal.1983); Jones v. State Board of Medicine, 97 Idaho 859, 555 P.2d 399 (1976), cert. denied, 431 U.S. 914, 97 S.Ct. 2173, 53 L.Ed.2d 223 (1977); Johnson v. St. Vincent Hospital, Inc., 273 Ind. 374, 404 N.E.2d 585 (1980); Carson v. Maurer, 120 N.H. 925, 424 A.2d 825 (1980); State ex rel. Strykowski v. Wilkie, 81 Wis.2d 491, 261 N.W.2d 434 (1978).
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. [8] In declaring a similar two-year
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statute of limitations unconstitutional on equal protection grounds, the New Hampshire Supreme Court in Carson stated:
"RSA 507-C:4 (Supp.1979) is invalid insofar as it makes the discovery rule unavailable to all medical malpractice plaintiffs except those whose actions are based upon the discovery of a foreign object in the injured person's body. Under the discovery rule a cause of action does not accrue until the plaintiff discovers or, in the exercise of reasonable diligence, should have discovered both the fact of his injury and the cause thereof. Raymond v. Eli Lilly & Co., 117 N.H. 164, 171, 371 A.2d 170, 174 (1977); see United States v. Kubrick, 444 U.S. 111, 118-25, 100 S.Ct. 352, 357-361, 62 L.Ed.2d 259 (1979). The rule is 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, 741-42, 378 A.2d 1138, 1139-40 (1977). Although the discovery rule was initially employed in this State in a 'foreign-object' case, Shillady v. Elliot Community Hospital, 114 N.H. 321, 320 A.2d 637 (1974), we made it clear in Brown v. Mary Hitchcock Memorial Hospital that the rule and the fundamental equitable considerations underlying it applied to medical malpractice cases generally. 117 N.H. at 741, 378 A.2d at 1139. As such, the legislature may not abolish the discovery rule with respect to any one class of medical malpractice plaintiffs. We therefore hold that in all medical malpractice cases in which the cause of action is not discovered and could not reasonably be discovered during the applicable limitation period, that period will not begin to run until the time the plaintiff discovers both his injury and its cause."
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:
"In Carson, we ruled that the legislature's extension of the discovery rule to some medical injury plaintiffs, while denying its applicability to others, constituted an impermissible discrimination between classes of plaintiffs. We therefore held that RSA chapter 507-C (Supp.1979) violated the equal protection provisions of our Constitution to the extent that it limited application of the rule to only a narrow class of medical-malpractice plaintiffs."
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
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Supreme Court, in upholding a similar classification in Ross v. Kansas City General Hospital & Medical Center, 608 S.W.2d 397 (Mo.1980), noted the unfairness to a claimant in whom a foreign object has been left if his suit is foreclosed before discovery of the foreign body. The court also indicated that there were fewer problems with stale evidence and certainty of proof in foreign object cases than in those cases involving negligent misdiagnosis.
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:
"Defendants have argued that the discovery rule is and should be applied only to foreign object cases. We believe the same rule should be applied regardless of the type of negligence involved.
'A few courts appear to have limited the discovery doctrine to cases in which the defendant has left a foreign object inside the plaintiff in order to reduce the possibility that the plaintiff is asserting a completely fraudulent claim ...[citations omitted]. We reject the distinction. In some cases, especially those involving an allegedly negligent diagnosis, a physical object is not involved and proof becomes more difficult. This does not necessarily mean that a fraudulent claim may be more easily asserted. As in the instant case, treatment generally follows diagnosis. The treatment is an objective fact which may be proved or disproved by people other than the plaintiff. The fact that the treatment is the kind normally administered for the ailment the doctor allegedly improperly diagnosed is strong evidence of the diagnosis.' (Emphasis added.)"
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):
"On a theoretical basis it is impossible to justify the applicability of the discovery rule to one kind of malpractice and not to another. The reason for the application of the discovery rule is the same in each instance. It is manifestly unrealistic and unfair to bar a negligently injured party's cause of action before he had had an opportunity to discover that it exists. This is true whether the malpractice consists of leaving a foreign object in the body or whether it consists of faulty diagnosis or treatment."
See also Warrington v. Charles Pfizer & Co., 274 Cal.App.2d 564, 80 Cal.Rptr. 130 (1969); Yoshizaki v. Hilo Hospital, 50 Hawaii 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"
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and "negligent misdiagnosis" cases the injured persons are wholly innocent and may, through no fault of their own, fail to discover their injury prior to the running of the statute of limitations. There is no difference between such claimants in degree of injury or culpability.
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. [9]
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 [10] or extend the discovery rule provided by the exceptions to the plaintiffs' claim of negligent misdiagnosis. In Smith, 649 P.2d at 1091-92 n. 8, we noted that where there is an equal protection violation, a court may "toss 'the equal protection coin' either way." (Quoting L. Tribe, American Constitutional Law § 15-2 at 85 n. 31 (Supp.1979).) Consistent with our earlier cases, the latter alternative is the more appropriate choice. See, e.g., R.McG. v. J.W., 200 Colo. 345, 615 P.2d 666 (1980) (where statutory scheme allows natural mother to seek a judicial declaration of paternity in natural father in connection with child born to natural mother during her marriage to another, equal protection requires a claiming natural father to be accorded standing to pursue claim for judicial declaration of paternity in himself with respect to child born to natural mother during her marriage to another); People v. Bramlett, 194 Colo. 205, 573 P.2d 94 (1977) (equal protection violated where conduct and intent proscribed by first degree assault statute and less severe offense of criminally negligent homicide not sufficiently distinguishable, and proper remedy is to sentence defendant to no greater penalty than applicable to criminally negligent homicide upon his conviction for first degree assault, if jury determines that defendant acted with good faith but unreasonable belief in self-defense in assaulting another). Accordingly, we hold that the plaintiffs must be included within the classes of persons excepted from application of the three-year statute of repose.
Finally, we address the propriety of the trial court's order granting St. Anthony's
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motion for summary judgment on the independent ground that a hospital cannot be held responsible for the negligence of the claimant's treating physician. We affirm the trial court's ruling.
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. [11]
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
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Colo. 461, 427 P.2d 698 (1967). In Yarbro v. Hilton Hotels Corp., 655 P.2d 822 (Colo.1982), this court held that if a plaintiff does not discover his claim before the running of a statute of repose, that claim never vests and is therefore unprotected by Colo. Const. art. II, § 6. I believe that we erred in Yarbro, and that a cause of action vests upon the occurrence of the act or omission constituting breach of the legal duty owed the plaintiff. Once a cause of action vests it may not be time barred, without compelling justification, until the plaintiff has had a reasonable time to assert it.
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:
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"In Dalbey v. Banks, 245 Ga. 162, 163-4, 264 S.E.2d 4 (1980), we held that '[w]hen a physician places a foreign object in his patient's body during treatment, he has actual knowledge of its presence. His failure to remove it goes beyond ordinary negligence so as to be classified by the legislature as a continuing tort which tolls the statute of limitations until the object is discovered. The purpose of the legislature in making a distinction between the two types of medical malpractice was to allow the plaintiff's claim which does not rest on professional diagnostic judgment or discretion to survive until actual discovery of the wrongdoing. In such situations the danger of belated, false or frivolous claims is eliminated. The foreign object in the patient's body is directly traceable to the doctor's malfeasance.' Our holding in Dalbey clearly reflects a determination by this court that the classification created [in the statute] bears 'a fair and substantial relation to the object of the legislation.' [Reed v. Reed, 404 U.S. 71, 76, 92 S.Ct. 251, 254, 30 L.Ed.2d 225 (1971) ]. We find plaintiff's equal protection claim to be without merit."
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:
"[T]here is no legislative history available setting forth the reasons why the General Assembly saw fit to [create an exception for foreign object plaintiffs]. One reason why the legislature acted may have been that the legislature considered it particularly unfair that a claimant in whom a foreign object has been left should be barred by the statute of limitations even before there was any discovery of the foreign object.... Or the legislature might have believed it was proper to measure from the time of discovery in the foreign object cases rather than from the time of the act of neglect, because there is less likely to be as great a problem with stale evidence when a foreign object is left in the body than in the other types of malpractice cases. There are likely to be greater certainties of proof in a foreign object case. A rational legislature could have based its decision on such considerations.
"The classification thus made between two classes of claimants with reference to when the statute of limitations commences to run cannot be said to be without any reasonable basis, nor is any distinction drawn between members within each class. There is no equal protection violation."
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.
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October 2005
Making Waves
Flying Note Records
Here multi-instrumentalist Fasteau plays a set of duos with tenor saxophonist Kidd Jordan and pianist Bobby Few (bassist Sirone makes it a trio with Few and the leader on a couple of tracks). The results are mixed. Jordan and Few are almost uniformly superb. Jordan's intensity, his sound and the fluidity with which he gets around the horn are arresting. Few's approach is occasionally a bit florid for my taste, yet he's a fine player with a wonderful touch. Sirone is fine in a spare, supporting role.
Fasteau's drumming has a certain appealing, quicksilver quality. Soprano sax is her strongest ax, however; on a pair of duos with Few she plays with focused intensity and much imagination. If her pitch is shaky, that's hardly grounds for strong criticism given the expressionist nature of this music. Her vocal, cello and synth work is less accomplished. Are there are any digital synth patches that don't sound like they belong in a Duran Duran song? If so, Fasteau hasn't found them. Her thereminlike vocals don't work, either. I respectfully suggest that she concentrate on the instrument she plays best and set the others aside.

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The maker of Scalextric cars and model trains has avoided being shunted into the sidings after agreeing a crucial debt refinancing.
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The refinancing was a big boost for Richard Ames, the new chief executive, who joined two months ago hoping to put the struggling toymaker back on track.
The former executive of Ladbrokes, the


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A beautiful ensemble becomes all the more cool when framed by accessories such as this pendant necklace by Vivi Dot. To create this dreamy design, Vivi Dot designer Molly Gaines sought out the ethereal photography of Our.City.Lights. The result of their collected vision is this delicate, ever-so-unique charm, which features a vintage ice cream shop inside a tiny bamboo snapshot-inspired frame. Along with its antiqued-brass chain, this piece makes a delightful accompaniment to a chambray shirt and an A-line skirt or a lacy shift and retro T-straps. Every outfit is a work of art with this necklace adorning your neckline!
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More photos at Defense Video and Imagery Distribution System
WATCH: Video of Gen. John Kelly's entire testimony before the Senate Armed Services Committee (from SASC site). NOTE: Hearing begins at 23-minute mark of video
WATCH: Video of Gen. John Kelly's entire testimony before the House Armed Services Committee (from House Armed Services Committee website).
March 13: Budget shortfalls reversing SOUTHCOM gains, commander says
March 13: More Ships Equal More Drugs Seized, Southcom Commander Says
2014 Posture Statement to the House Armed Services Committee
"The Chinese are very active... mostly economics. They trade and sell items where we can't sometimes. The Latin Americans don't see that and neither do I really see that -- looking at it holistically -- as a problem. Because it's, to them, economics.
That said, with economics comes influence. If a given nation is trading primarily with the Chinese, and again, the Chinese are very different than us in that they don't consider things like human rights, which we do and should. They don't consider things like environmental impact on projects. We do and should; they don't. They're easier, if you will, to work with. And with that comes influence. And that's what concerns me about the Chinese.
The Russians are also increasingly active in the area, working with countries that want to partner with the United States -- particularly on the drug fight -- but can't for a lot of different reasons. There's restrictions. So the Russians not nearly [engaged] as much and certainly not economically as [much] as the Chinese. But the Russians are flying long-range bomber missions there. They haven't done that in years. They did this this year.
We haven't had a Russian ship in the Caribbean since 2008. We had three come -- a task force of three come about 6 months ago and now there's two still there, two additional have come.
So they're on the march. Again, it's Russia. But they're working the seams where we can't work. And they're doing a pretty good job of, again, the influence."
"[The] vast majority of heroin that's consumed in the United States is actually produced in Latin America. The poppies are now grown in places like Guatemala, Colombia, places that we try to work with.
But the poppies are grown here. The heroin is produced primarily in Mexico, and then moved across the border. The distribution network that it rides on is the same network that works cocaine, the same network that works methamphetamines."
"By the U.N. figures, it is the most dangerous country on the planet. The U.N. figure is murders per 100,000. The United States has three murders per 100,000. Western Europe is one murder per 100,000. Interesting enough, Venezuela is 79 murders per 100,000, and Honduras is up around 86 murders per 100,000.
The effect of the drug trafficking as it flows through Honduras, which is not a consumer nation, making its way to the United States consumption demand, has essentially destroyed most of the institutions of the government.
...The new president asked to see me -- when he became the president elect -- he asked to see me in Miami. We had a very, very small meeting over dinner at a private residence and he laid out in his mind what he was thinking about for the future of his country. This is I think a powerful indicator of where he wants to go.
What did he talk about? He talked about extraditing criminals out of his country to the United States. He talked about human rights. He talked about cleaning up his police somehow. He talked about cleaning up the... reestablishing the institutions of government that just simply don't work, his legal justice system, his tax system, all of these kind of things.
I then visited him three weeks after that in Honduras after he'd taken over as president, met with his entire national security team with the ambassador, then met with him and his smaller national security team. He asked me to help him develop plans in how we could more effectively deploy his military to get after the drugs that flow through his country on the way to our country because of the demand in our country.
He wants to help us fight our problem, and he's very, very serious I think in that attempt."
"Last year we had to cancel more than 200 engagement activities and numerous multilateral exercises in Latin America. Because of asset shortfalls we're unable to get after 74 percent of suspected maritime drug trafficking contacts.
And because of service cuts, we won't be able to immediately respond to humanitarian crises or disasters in the region without significant time lost in augmentation required.
Ultimately, the cumulative effect impact of our reduced engagement won't be measured in the number of canceled activities and reduced deployments, it will be measured in terms of U.S. influence, leadership, relationships in a part of the world where our engagement has made a real and lasting difference over the decades."
"I would tell you, a lot of people talk about human rights in the world. The U.S. military does human rights. We will not work with someone who violates human rights in Latin America. And I think that goes around the world. So that's the first point.
The second point is we are already very, very restrictive in who we work with. I look to human rights all of the time, but I will tell you the reason why the human rights record is getting better and better and better in Latin American countries, and in some cases very, very good, is because of the effect the U.S. military has had in working with them over the last few decades."
"This network that brings things to the United States, it is incredibly efficient. It's more efficient than FedEx could ever hope to be. And anything can travel on it. Most of what travels on it is drugs -- heroin, methamphetamines, cocaine. But people travel on it, all sorts of guns travel on it, money travels on it. It's incredibly effective. It's just now drugs are the big money-maker for them.
As I mentioned a little earlier, I spend 1.5 percent of the counternarcotics budget -- 1.5 percent. I get the vast majority of cocaine with no violence in large amounts. And we capture these traffickers, bring them to the U.S. court system, and they cooperate to a man. And we gain a great deal of intelligence from them.
...SOUTHCOM and Joint Interagency Task Force South in Key West, we can see it with amazing clarity this drug movement. But 74 percent of it, I watch go by. I can't touch it. And when I say I watch it go by, in the maritime domain to Honduras primarily, is because I don't have the assets to stop it."
"In 2011 we got 172 metric tons of cocaine before it ever reached shore in Honduras or in Latin America. Last year, 2012, because of a lack of assets, 152 tons. That's 20 tons that got by us -- 20 more tons. This year they just finished with 132 tons. It's all about ships, ISR [intelligence, surveillance and reconnaisance] -- and not many ships.
Typically, today we have on station four ships, one of which is a British oiler. That British oiler, in six months, will get 20 tons to 30 tons of cocaine that's flowing into the United States.
...Less ships, less cocaine off the market."
"The Comfort is a really, really big engagement deal in Latin America. They look forward to it. It has huge impact on the local communities that it visits. And it really does -- it really is appreciated. And it's a great image of what the United States does for the world -- a big American flag with no guns.
...And to have lost that this year was very, very disappointing."
"Generally speaking, those of us in uniform get credit for serving the nation. Those of us in uniform are pretty well taken care of. But, frankly, there's a big aspect to our readiness in terms of personnel, and that is our civilian workforce. And that includes, in my opinion, contractors.
These are very, very dedicated men and women who we haven't really been very nice to in the last year or so. It's amazing to me that the morale I have in SOUTHCOM, in my headquarters and throughout the region... is as high as it is.
They have a lot of confidence in me. We do the best we can to share the good news and the bad news with them."
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Ledbury, Herefordshire.co.uk
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is one of the finest Black and White towns in the Country. Full of beautiful shops and restaurants with staff eager to help and assist.
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To get the most out of a Ledbury Visit, why not take a guided walk, a look around our buildings or a Ghost Walk? - not for the faint hearted!!
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h.Art is Herefordshire's Open Studios event, giving you exclusive access to artists' studios, workshops and exhibitions. Meet the makers in relaxed, informal surroundings, learn about their techniques and inspiration and perhaps buy an original artwork for yourself - or as a gift. Many venues also offer demonstrations, refreshments and even the chance to develop your own talents
Our Twin Town
Strömstad is the official Twin Town of Ledbury. Strömstad is a lovely Swedish town on the West Coast.
A warm "Velkommen" awaits any Swedish visitors in "Little Strömstad" , the official twinning bar at the Talbot in New Street. Information in Swedish about Ledbury here
HMS Ledbury
The Ledbury Hunt gives its name to HMS Ledbury A specialist vessel used for Mine Hunting. Long associations exist between the town and the ship.
Click here for more information
Around and About?
If you are going to stay in Ledbury, then you will want to explore the beautiful countryside around the town, Villages like Bosbury, Much Marcle with its Cider Works, and into Big Apple Country around Putley and Aylton.
Look at our Activities section for things to do!
Lovely walks can be taken and the area is idea for cycling.
You may want to venture further and Ledbury is ideally situated with a motorway link only a few miles away and within easy reach of Cheltenham, Gloucester, Malvern, Hereford, Worcester and Ross on Wye
Copyright © 2003-2009 Spencer Lane


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ANAHEIM, Calif., May 17, 2012 (GLOBE NEWSWIRE) -- Pacific Sunwear of California, Inc. (Nasdaq:PSUN) (the "Company"), announced today that net sales from continuing operations for the first quarter of fiscal 2012 ended April 28, 2012, were $173.8 million versus net sales of $171.9 million for the first quarter of fiscal 2011 ended April 30, 2011. Total Company same-store sales increased 1% during the period.
On a GAAP basis, the Company reported a loss from continuing operations of $15.6 million, or $(0.23) per share, for the first quarter of fiscal 2012, compared to a loss from continuing operations of $28.7 million, or $(0.43) per share, for the first quarter of fiscal 2011. The loss from continuing operations for the Company's first quarter of fiscal 2012 included a non-cash gain of $6.3 million, or $0.09 per share, related to a derivative liability that resulted from the issuance of the Convertible Series B Preferred Stock (the "Series B Preferred") in connection with the term loan financing the Company completed in December 2011.
On a non-GAAP basis, excluding the non-cash gain on derivative liability and using a normalized annual income tax rate of approximately 37%, the Company's loss from continuing operations for the first quarter of fiscal 2012 would have been $13.7 million, or $(0.20) per share, as compared to a loss from continuing operations of $18.1 million, or $(0.27) per share, for the same period a year ago.
"We had a strong second half of the quarter that led to sales at the high end of our guidance and gross margins which exceeded plan, resulting in close to a $10 million improvement in our pre-tax operating results compared to the first quarter of last year," said Gary H. Schoenfeld, President and Chief Executive Officer. "As we begin to re-establish PacSun's relevance and connection with our target customers, we achieved positive comps in both genders for the first time since 2005 and are optimistic that these positive trends can continue as reflected in our guidance for the second quarter."
Financial Outlook for Second Fiscal Quarter of 2012
The Company's guidance range for the second quarter of fiscal 2012 contemplates a non-GAAP net loss from continuing operations of between $(0.11) and $(0.16) per share.
The forecasted second quarter non-GAAP loss from continuing operations per share guidance range is based on the following assumptions:
The Company's second fiscal quarter of 2012 guidance range excludes the quarterly impact of the change in the fair value of the derivative liability due to the inherently variable nature of this financial instrument.
Discontinued Operations
In accordance with applicable accounting literature and consistent with the Company's financial statement presentation in its fiscal 2011 annual report, the Company has reclassified the results of operations of its closed stores as discontinued operations for all periods presented, as applicable.
Derivative Liability
In fiscal 2011, as a result of the issuance of the Series B Preferred in connection with the Company's $60 million senior secured term loan financing with an affiliate of Golden Gate Capital, the Company recorded a derivative liability equal to approximately $15.0 million, which represents the fair value of the Series B Preferred upon issuance. In accordance with applicable U.S. GAAP, the Company has marked this derivative liability to fair value through earnings and will continue to do so on a quarterly basis until the shares of Series B Preferred are either converted into shares of PacSun common stock or until the conversion rights expire (December 2021). The Company's second fiscal quarter of 2012 earnings guidance excludes the quarterly impact of the change in the fair value of the derivative liability due to the inherently variable nature of this financial instrument.
About Pacific Sunwear of California, Inc.
Pacific Sunwear of California, Inc. and its subsidiaries (collectively, "PacSun" or the "Company") is a leading specialty retailer rooted in the action sports, fashion and music influences of the California lifestyle. The Company sells a combination of branded and proprietary casual apparel, accessories and footwear designed to appeal to teens and young adults. As of May 17, 2012, the Company operates 729 stores in all 50 states and Puerto Rico. PacSun's website address is www.pacsun.com. The Company will be hosting a conference call today at 4:30 p.m. Eastern time to review the results of its first fiscal quarter. A telephonic replay of the conference call will be available, beginning approximately two hours following the call, for one week and can be accessed in the United States and Canada at (855) 859-2056 or internationally at (404) 537-3406; passcode: 78167566. For those unable to listen to the live Web broadcast or utilize the call-in replay, an archived version will be available on the Company's investor relations website through midnight, August 22, 2012.
About Non-GAAP Financial Measures
This press release and the accompanying tables include non-GAAP financial measures. For a description of these non-GAAP financial measures and reconciliations of these non-GAAP financial measures to the most directly comparable financial measures prepared in accordance with Generally Accepted Accounting Principles, please see the accompanying table titled "Reconciliation of Selected GAAP Measures to Non-GAAP Measures" and the section following such table titled "About Non-GAAP Financial Measures."
Pacific Sunwear Safe Harbor
This press release contains "forward-looking statements" including, without limitation, the statements made by Mr. Schoenfeld in the fourth paragraph and the statements made under the heading "Financial Outlook for Second Fiscal Quarter of 2012." In each case, these statements are made pursuant to the safe harbor provisions of the Private Securities Litigation Reform Act of 1995. The Company intends that these forward-looking statements be subject to the safe harbors created thereby. These statements are not historical facts and involve estimates, assumptions and uncertainties that could cause actual results to differ materially from those expressed in such forward-looking statements. Uncertainties that could adversely affect the Company's business and results include, among others, the following factors: increased sourcing and product costs; adverse changes in economic conditions generally; adverse changes in consumer spending; changes in consumer demands and preferences; adverse changes in same-store sales; higher than anticipated markdowns and/or higher than estimated selling, general and administrative costs; currency fluctuations; competition from other retailers and uncertainties generally associated with apparel retailing; merchandising/fashion risk; lower than expected sales from private label merchandise; reliance on key personnel; economic impact of natural disasters, terrorist attacks or war/threat of war; shortages of supplies and/or contractors as a result of natural disasters or terrorist acts, which could cause unexpected delays in store relocations, renovations or expansions; reliance on foreign sources of production; and other risks outlined in the Company's filings with the Securities and Exchange Commission ("SEC"), including but not limited to the Company's Annual Report on Form 10-K for the year ended January 28, 2012, and subsequent periodic reports filed with the SEC. Historical results achieved are not necessarily indicative of future prospects of the Company. Readers are cautioned not to place undue reliance on these forward-looking statements, which speak only as of the date hereof. The Company assumes no obligation to update or revise any such forward-looking statements to reflect events or circumstances that occur after such statements are made. Nonetheless, the Company reserves the right to make such updates from time to time by press release, periodic report or other method of public disclosure without the need for specific reference to this press release. No such update shall be deemed to indicate that other statements not addressed by such update remain correct or create an obligation to provide any other updates.
The accompanying press release dated May 17, 2012, contains non-GAAP financial measures. These non-GAAP financial measures include non-GAAP SG&A expenses, non-GAAP loss from continuing operations and non-GAAP loss from continuing operations per share for the first quarters of fiscal 2012 and 2011 and non-GAAP loss from continuing operations per share guidance for the second quarter of fiscal 2012. Non-GAAP financial measures should not be considered as a substitute for, or superior to, measures of financial performance prepared in accordance with GAAP. These non-GAAP financial measures do not reflect a comprehensive system of accounting, differ from GAAP measures with the same names and may differ from non-GAAP financial measures with the same or similar names that are used by other companies. The Company computes non-GAAP financial measures using the same consistent method from quarter to quarter and year to year. The Company may consider whether other significant items that arise in the future should be excluded from the non-GAAP financial measures. The Company has excluded the following items from all of its non-GAAP financial measures:
The Company believes that these non-GAAP financial measures provide meaningful supplemental information regarding the Company's operating results primarily because they exclude amounts that are not considered part of ongoing operating results when planning and forecasting and when assessing the performance of the organization, individual operating segments or its senior management. In addition, the Company believes that non-GAAP financial information is used by analysts and others in the investment community to analyze the Company's historical results and in providing estimates of future performance and that failure to report these non-GAAP measures, could result in confusion among analysts and others and create a misplaced perception that the Company's results have underperformed or exceeded expectations.CONTACT: Michael W. KaplanChief Financial Officer(714) 414-4003


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Get in touch
01269 592734
Please note on days we are closed our phone is not always manned, if you reach an answer phone please leave a message so we can return your call.
Make an enquiry
*required fields
Where are we?
Superb, easy to find location, just 2 minutes from Jct 49 of the M4 motorway in Carmarthenshire South Wales.
Pontardulais Rd, Tycroes, Carmarthenshire SA18 3RH
Driving Directions
We are located just off the main A483 trunk road, in Tycroes, Ammanford, just 15 minutes from Swansea. 1.5 miles from Jct 49 of the M4 motorway. We have a brown tourism sign on the main road. Wherever you are coming from, find your way to the roundabout at Jct 49 of the M4 motorway ( Pont Abraham Services ) Take the A483 Llandeilo / Ammanford trunk road, you will see our brown sign at the top of the hill 1.5 miles from the roundabout.
Opening times?
We are open most of the year Wed - Sun (Wed - Fri for bookings only outside of school holidays). We are also open all Bank Holidays except Christmas, Boxing and New Years Day, please visit our booking system to check exact availability.
Other days are available by appointment for larger groups, please enquire.


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Artichoke Stuffed Chicken Breasts
Total Time
Prep 15 mins
Cook 15 mins
Chicken Breasts stuffed with Artichoke Mixture
Ingredients Nutrition
- 2 tablespoons olive oil
- 1 teaspoon dried thyme
- 1⁄4 teaspoon red pepper flakes
- 1 (7 ounce) jar artichoke hearts
- 2 tablespoons finely chopped basil
- 2 teaspoons minced garlic
- 1⁄4 teaspoon kosher salt
- 1⁄4 teaspoon pepper
- 3 ounces crumbled goat cheese
- 3 tablespoons minced sun-dried tomatoes
- 4 (8 ounce) boneless chicken breasts, with skin (ask the meat man at your local supermarket to do this)
- in a saute pan, cook oil, thyme, and pepper flakes over med-high heat for 1-2 minutes. Drain, rinse, and coarsely chop artichoke heats and add them to the saute pan along with the garlic, salt and pepper and cook 3-4 min more. Remove from heat stir in goat cheese, tomato and basil. Mix evenly and allow to cool to room temperature.
- Between 2 sheets of plastic wrap, pound chicken breast to 1/4 in thick. Place breasts skin side down and spread 1/4 of the stuffing over each breast, fold breasts in half and hold closed with toothpicks.
- Brush or spray with olive oil, season with kosher salt and pepper, and grill over med heat until cheese melts and chicken is fully cooked.
Most Helpful
This was FANTASTIC! I made it for a family get together and everyone LOVED it. It can be a lot of work, but I had a lot of help so it was fun. Next time, if I have to do it alone, I will make the filling one day prior. I didn't have fresh basil, so I used one tsp dried basil. I used a tablespoon of fresh thyme instead of dried. I only had frozen chicken breast w/ out skin, they work just fine. We made two batches, one with the meat tenderized and another where we cut through half the breast and stuffed it. The tenderized pieces had better texture and flavor. I will definitely make this again! Thank you!
I used this recipe many years ago and it's incredible. It's a little work but well worth the effort. It's a very nice company dish and can be made ahead of time and served cold on mesclun lettuce as a salad.


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Conveyancing Advice
Looking for a new house can be tough. You have to look at the real estate market and scour for so many available properties, but the job doesn't end when you finally found the right house. Before you can buy that property, there's a lot of paperwork you have to go through and lots of legal stuff that can be cumbersome. This is why many home buyers hire conveyancers.
Conveyancing is simply the legal process of transferring the ownership of a property. It is a transaction between a buyer and a seller that is usually facilitated by a conveyancer. The transaction involves preparation, execution, and verification of documents involved in buying and selling a real estate property.
Because this legal procedure is taxing to ordinary people, who are not familiar with real estate market ins and outs, it is always recommended to hire someone who can walk you through the entire process.
What Conveyancers Do
Conveyancers are professionals who conduct the conveyancing process. You can always do without their help, but it would take you a much longer time and you will have to trouble yourself with some legal stuff that you cannot afford to miss out.
That is why the first thing to do if you're out there wanting to buy a house or a property is to look for a conveyancer. He makes the job easier by doing the following:
- Prepare and verify legal documents involved in sale or transfer of property
- Look for information about the property, check its title (for instance, to find out what type of title it is), assess the condition of the property
- Compute taxes and rates
- Execute settlement transactions
This is a simplistic enumeration of what a conveyancer does. In real life, their job can be cumbersome. If you do their job, you'd be irked.
Finding a Conveyancer
Conveyancers or solicitors are just like other professionals. There are reliable people in the field, and there are dishonest scumbags that rip their clients off. It's difficult to find the right person in the field if this is the first time you're finding one.
Ask friends who have bought or sold properties before through a conveyancer. Find out if the person they hired to facilitate transactions was reliable.
Look online for companies or agents who provide conveyancing services. Guess what. There are a lot of them. That's how businesses gain exposure nowadays. So hunt for them on the web. But don't forget to watch out for reviews.
Visit the Council for Licensed Conveyancers.
Check out what properties they specialise in. Some people are more familiar with commercial properties. Others, residential properties. Find the professional with keen experience in sale or transfer of properties similar to what you're interested in selling or buying now.
Contact a potential conveyancer. Don't make arrangements right away. You can always sort out dishonest people from the good ones during the interview.
Most importantly, make sure he or she is experienced and has license or certifications to show you. Honest professionals don't mind showing you their credentials.
Advice: Although you may feel awkward asking questions and you may appear to be rude, ask the important questions anyway. This will reduce your risk of having to work with a ridiculously unreliable conveyancer who'll represent you in the transactions. Ask what property he or she specialises in. Ask about his or her credentials, fees and rates, experience, and educational background. Ask about how long it takes him or her to execute the sale or purchase or transfer and when you can move to the property.
Tip: Pay attention to how they answer or converse with you? Are they approachable, courteous, and jovial? Or do they sound like someone who's sick of their job?


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Nick On Demand/Other
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The Style Gallery is a great new way for you to view, love, and share outfit photos. It's meant to showcase
all the expressive, creative, and inspirational personalities of our community!
Love you too!
Your email has been sent!
Clear some space in the center of your jewelry box - whenever you spot these cool chandelier earrings from Mata Traders, there's no doubt that they'll quickly become an accessory you wear again and again! By transforming fashion into action, Mata Traders strives to fight poverty with the employment - and empowerment - of craftswomen in India and Nepal. This feminist-minded brand specializes in fair-trade and handmade products, which are both beautiful and ethical. Tiers of aqua-blue circles, each adorned with a doily-inspired cutout pattern, dangle from your ears with a dash of welcomed color. Wear this pair above a floral frock and vintage-inspired heels for a finishing touch that will have you looking fabulous day in and day out!
Final Sale: This item cannot be returned or exchanged.
Sorry this item isn't available anymore


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Leighton Buzzard Observer
It was founded in 1861 as The Leighton Buzzard Observer and Linslade Gazette. In 1954 it was rebranded first as the Observer in January and then the Beds and Bucks Observer in July; after reverting to its original title in 1989, it relegated the Linslade Gazette to an "incorporating" subtitle in 1996.
It's published by Premier Newspapers, a Milton Keynes-based subsidiary of regional newspaper publishing house Johnston Press, who took over the newspaper from Home Counties Newspapers in 1998. The editorial offices used to be in Leighton Buzzard, but have now been centralised at the Luton Observer's offices in Luton.
Aan associated weekly freesheet, the Leighton-Linslade Citizen, ceased publication in 2012.
It comes out on Tuesdays.
- Leighton Buzzard Observer
Media House
39 Upper George Street
- 01525 700666
- 01525 850043
Latest posts in England - East of England
Diss Mercury
Weekly freesheet tabloid for SE Norfolk from Archant Anglia
Dunmow Broadcast
Weekly freesheet tabloid for the NW Essex town of Great Dunmow and neighbouring villages
Dunmow and Stansted Observer
Weekly tabloid sold in Great Dunmow, Stansted Mountfitchet and surrounding parts of north-western Essex
Dunstable Gazette
Weekly tabloid sold in Dunstable, Houghton Regis and nearby S Beds villages


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Oh, Andy. If only we could celebrate your birthday with you IRL.
Instead, we're going to go shopping in your honor, and scooping up tons of awesome goodies that remind us of you. Because let's face it--why have a windbreaker when you can have an Andy Warhol windbreaker? Exactly.
So browse the gallery to check out our 15 favorite Warhol-inspired products that we can't wait to get our hands on, then scoop them up yourself to celebrate the pop art icon every day.
Swipe to page through gallery.
Click arrows or click & drag to page through gallery.


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Filter by:
Content type:
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Challenge level:
Imagine a stack of numbered cards with one on top. Discard the top,
put the next card to the bottom and repeat continuously. Can you
predict the last card?
Find the point whose sum of distances from the vertices (corners)
of a given triangle is a minimum.
In how many different ways can I colour the five edges of a
pentagon red, blue and green so that no two adjacent edges are the
same colour?
We're excited about this new program for drawing beautiful mathematical designs. Can you work out how we made our first few pictures and, even better, share your most elegant solutions with us?
For any right-angled triangle find the radii of the three escribed
circles touching the sides of the triangle externally.
A cyclist and a runner start off simultaneously around a race track each going at a constant speed. The cyclist goes all the way around and then catches up with the runner. He then instantly turns. . . .
Given the nets of 4 cubes with the faces coloured in 4 colours, build a tower so that on each vertical wall no colour is repeated, that is all 4 colours appear.
Some students have been working out the number of strands needed for different sizes of cable. Can you make sense of their solutions?
Can you make a tetrahedron whose faces all have the same perimeter?
Watch these videos to see how Phoebe, Alice and Luke chose to draw 7 squares. How would they draw 100?
The reader is invited to investigate changes (or permutations) in the ringing of church bells, illustrated by braid diagrams showing the order in which the bells are rung.
Can you use the diagram to prove the AM-GM inequality?
A game for 2 people. Take turns joining two dots, until your opponent is unable to move.
Jo made a cube from some smaller cubes, painted some of the faces of the large cube, and then took it apart again. 45 small cubes had no paint on them at all. How many small cubes did Jo use?
This is a simple version of an ancient game played all over the world. It is also called Mancala. What tactics will increase your chances of winning?
A game for 2 players
Two motorboats travelling up and down a lake at constant speeds
leave opposite ends A and B at the same instant, passing each
other, for the first time 600 metres from A, and on their return,
400. . . .
Your data is a set of positive numbers. What is the maximum value
that the standard deviation can take?
The triangle OMN has vertices on the axes with whole number co-ordinates. How many points with whole number coordinates are there on the hypotenuse MN?
In a three-dimensional version of noughts and crosses, how many winning lines can you make?
Problem solving is at the heart of the NRICH site. All the problems
give learners opportunities to learn, develop or use mathematical
concepts and skills. Read here for more information.
A and C are the opposite vertices of a square ABCD, and have
coordinates (a,b) and (c,d), respectively. What are the coordinates
of the vertices B and D? What is the area of the square?
This article outlines the underlying axioms of spherical geometry giving a simple proof that the sum of the angles of a triangle on the surface of a unit sphere is equal to pi plus the area of the. . . .
Small circles nestle under touching parent circles when they sit on
the axis at neighbouring points in a Farey sequence.
An irregular tetrahedron has two opposite sides the same length a
and the line joining their midpoints is perpendicular to these two
edges and is of length b. What is the volume of the tetrahedron?
A triangle PQR, right angled at P, slides on a horizontal floor
with Q and R in contact with perpendicular walls. What is the locus
of P?
What can you see? What do you notice? What questions can you ask?
Use the diagram to investigate the classical Pythagorean means.
We are given a regular icosahedron having three red vertices. Show
that it has a vertex that has at least two red neighbours.
A 10x10x10 cube is made from 27 2x2 cubes with corridors between
them. Find the shortest route from one corner to the opposite
A circular plate rolls in contact with the sides of a rectangular
tray. How much of its circumference comes into contact with the
sides of the tray when it rolls around one circuit?
Three frogs hopped onto the table. A red frog on the left a green in the middle and a blue frog on the right. Then frogs started jumping randomly over any adjacent frog. Is it possible for them to. . . .
Two angles ABC and PQR are floating in a box so that AB//PQ and BC//QR. Prove that the two angles are equal.
The aim of the game is to slide the green square from the top right
hand corner to the bottom left hand corner in the least number of
This is an interactive net of a Rubik's cube. Twists of the 3D cube become mixes of the squares on the 2D net. Have a play and see how many scrambles you can undo!
Build gnomons that are related to the Fibonacci sequence and try to
explain why this is possible.
Use a single sheet of A4 paper and make a cylinder having the greatest possible volume. The cylinder must be closed off by a circle at each end.
What happens to the perimeter of triangle ABC as the two smaller
circles change size and roll around inside the bigger circle?
Can you recreate these designs? What are the basic units? What
movement is required between each unit? Some elegant use of
procedures will help - variables not essential.
Can you describe this route to infinity? Where will the arrows take you next?
Can you make sense of the charts and diagrams that are created and used by sports competitors, trainers and statisticians?
Show that all pentagonal numbers are one third of a triangular number.
Can you find a rule which relates triangular numbers to square numbers?
A square of area 3 square units cannot be drawn on a 2D grid so that each of its vertices have integer coordinates, but can it be drawn on a 3D grid? Investigate squares that can be drawn.
Discover a way to sum square numbers by building cuboids from small
cubes. Can you picture how the sequence will grow?
The coke machine in college takes 50 pence pieces. It also takes a certain foreign coin of traditional design...
A box of size a cm by b cm by c cm is to be wrapped with a square piece of wrapping paper. Without cutting the paper what is the smallest square this can be?
Can you find a rule which connects consecutive triangular numbers?
Can you visualise whether these nets fold up into 3D shapes? Watch the videos each time to see if you were correct.
Simple additions can lead to intriguing results...


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THIS IS A DIRECTORY PAGE. Britannica does not currently have an article on this topic.
Alternative Title: gooseneck die-casting
Learn about this topic in these articles:
In the piston, or gooseneck, process the plunger and its cylinder are submerged in the molten metal, the metal being admitted through a hole in the top of the cylinder when the plunger is retracted; the advance of the plunger forces the metal into the die cavity as before. The die core is in position in the die cavity when the metal enters and fills the space around it; as soon as the metal...


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CORAM - Police say a woman was killed after a two-car accident in Coram.
An 89-year-old woman was driving on Route 112 when she crossed into oncoming traffic and struck a Nissan. The 45-year-old driver of the Nissan was transported to a local hospital, but only suffered non-life threatening injuries.
The victims' identities have not been released.