Hickman v. Catholic Health Initiatives

328 P.3d 266

Kathleen HICKMAN and Earl Hickman, Plaintiffs–Appellees,

v.CATHOLIC HEALTH INITIATIVES, d/b/a St. Anthony Hospital, Defendant–Appellant.

Court of Appeals No. 13CA0939

Colorado Court of Appeals, Div. A.

Announced August 29, 2013

Jefferson County District Court No. 13CV238, Honorable Margie L. Enquist, Judge

LeHouillier & Associates, P.C., Patric J. LeHouillier, Benjamin P. Gifford, Colorado Springs, Colorado, for Plaintiffs–Appellees

Kennedy Childs, P.C., Barbara H. Glogiewicz, Ronald H. Nemirow, Sara C. Sharp, Denver, Colorado, for Defendant–Appellant

Kutak Rock LLP, Mark L. Sabey, Denver, Colorado, for Amicus Curiae Colorado Hospital Association

ORDER AFFIRMED AND CASE REMANDED WITH DIRECTIONS

Opinion by JUDGE WEBB

¶ 1 Since 1989, Colorado hospitals have been statutorily immune “from damages in any civil action brought against [them] with respect to ... peer review proceeding[s].” Kauntz v. HCA–Healthone, LLC, 174 P.3d 813, 817 (Colo.App.2007). Section 12–36.5–203(2), C.R.S.2012 (current statute), abrogated this immunity as to credentialing decisions. In this interlocutory appeal under C.A.R. 4.2, defendant, Catholic Health Initiatives, doing business as St. Anthony Hospital (hospital), asserts that the current statute does not apply because the credentialing decision and injury at issue occurred before the statute's effective date, although the action was filed after that date.

¶ 2 The plain language shows that the General Assembly clearly intended the current statute to apply retroactively. We conclude that such application is not unconstitutionally retrospective. Therefore, because the current statute applies, the trial court correctly rejected the hospital's assertion of immunity.

I. Facts

¶ 3 In 2011, Kathleen Hickman sustained a knee injury. She sought treatment from a physician who was credentialed to practice as a vascular surgeon at the hospital. Allegedly as a result of the physician's failure to diagnose and treat a circulatory problem, Ms. Hickman's leg was amputated on November 18, 2011.

¶ 4 Ms. Hickman and her husband sued the hospital and the physician on January 23, 2013.¹ The sole claim against the hospital was for negligent credentialing. The hospital moved to dismiss, arguing that under Ch. 113, sec. 1, § 12–36.5–203, 1989 Colo. Sess. Laws 687–88 (former statute), it was immune from damages. Plaintiffs responded that the current statute, effective July 1, 2012, controlled, removing the prior immunity.

¶ 5 The trial court denied the hospital's motion. It concluded that the General Assembly had intended the current statute to apply retroactively, and such application was not unconstitutionally retrospective under Article II, section 11 of the Colorado Constitution.

II. Standard of Review

¶ 6 “C. R.C.P. 12(b)(5) motions to dismiss test the complaint's legal sufficiency to determine whether the plaintiff has asserted a claim for which relief may be granted.” State ex rel. Suthers v. Mandatory Poster Agency, Inc., 260 P.3d 9, 12 (Colo.App.2009). Rulings on such motions are reviewed de novo, id. as are determinations of immunity. N. Colo. Med. Ctr., Inc. v. Nicholas, 27 P.3d 828, 838 (Colo.2001). Appellate courts “also review de novo the question of whether a statute is constitutional ... as applied.” People v. Herdman, 2012 COA 89, ¶ 14 (citation omitted).

III. Discussion

¶ 7 Deciding whether the current statute applies involves a two-stage inquiry. First, we must determine whether the plain language evinces “a clear legislative intent that the law apply retroactively.” City of Golden v. Parker, 138 P.3d 285, 290 (Colo.2006). If so, then we must determine whether retroactive application violates the constitutional prohibition against “retrospective” application of statutes.²Id. Addressing each step in turn, we agree with the trial court.

A. The General Assembly Clearly Intended Retroactive Application

1. Law

¶ 8 Generally, “[a] statute is presumed to be prospective in its operation.” § 2–4–202, C.R.S.2012; seeCity of Golden, 138 P.3d at 289. “Nevertheless, where the plain language of an act shows a clear legislative intent that it be applied retroactively, such language is sufficient to overcome the presumption.” In re Estate of Becker, 32 P.3d 557, 560 (Colo.App.2000), aff'd sub nom.In re Estate of DeWitt, 54 P.3d 849, 861 (Colo.2002). However, this intent “need not be explicitly expressed in the legislation.” Shell W. E & P, Inc. v. Dolores Cnty. Bd. of Commis., 948 P.2d 1002, 1012 (Colo.1997). But merely providing an effective date is insufficient to show retroactive intent, as we presume that a statute “operates on transactions occurring after its effective date.” Am. Comp. Ins. Co. v.McBride, 107 P.3d 973, 977 (Colo.App.2004).

¶ 9 Inquiry into legislative intent begins with the language of the statute. McKinney v. Kautzky, 801 P.2d 508, 509 (Colo.1990). “Where the legislative intent is clear from the statutory language, we need look no further, and we may not depart from it. Rather, if statutory language is plain and its meaning clear, it must be applied as written.” Andrew v. Teller Cnty. Bd. of Equalization, 2012 COA 104, ¶ 15, 284 P.3d 172 (citation omitted).

2. Analysis

¶ 10 Because the allegedly negligent credentialing and amputation occurred before July 1, 2012, the trial court applied the current statute retroactively. SeeFicarra v. Dep't of Regulatory Agencies, 849 P.2d 6, 11 (Colo.1993) (A statute is applied retroactively “when it operates on transactions that have already occurred.”). For the following reasons, retroactive application is required by the effective date clause, which states that the pertinent subsection, as amended, “applies to actions filed on or after July 1, 2012.” § 12–36.5–203(2)(c), C.R.S.2012.

¶ 11 Black's Law Dictionary 704 (9th ed.2009),³ defines the verb “file” as “[t]o deliver a legal document to the court clerk ... for placement into the official record,” or “[t]o commence a lawsuit.” And an “action” is “a civil or criminal judicial proceeding.” Id. at 32. These two words, read together, state the statute's effective date in terms of legal proceedings rather than the occurrence of any underlying event.⁴Cf.Vetten v. Indus. Claim Appeals Office, 986 P.2d 983, 985 (Colo.App.1999) (concluding that the statute of limitations at the time the petition was filed controls, rather than the statute of limitations in force at the time of injury, because the amended statute “expressly applies to petitions to reopen filed on or after July 1, 1988,” and the petition was “ filed after that date” (emphasis added)).

¶ 12 This language necessarily requires retroactive application of the statute because “for an action to be ‘filed’ on [the effective date], it must have accrued prior to that date.” Martin by Scoptur v. Richards, 192 Wis.2d 156, 531 N.W.2d 70, 88 (1995) (emphasis added). For this reason, courts in other jurisdictions have concluded that such language shows clear legislative intent to apply the statute retroactively.⁵ The hospital cites no contrary authority involving an effective date clause phrased in terms of “actions filed” or similar wording.

¶ 13 Further, had the General Assembly intended to apply the current statute only to injuries occurring on or after July 1, 2012, as the hospital asserts, “it could have easily added specific language to do so, as it has elsewhere.” In re Marriage of Tognoni, 313 P.3d 655, 660, 2011 WL 5436480 (Colo.App. No. 10CA1138, Nov. 10, 2011); see, e.g.,Golden Animal Hosp. v. Horton, 897 P.2d 833, 836 (Colo.1995) (concluding that “[t]he plain meaning” of a statute made effective July 1, 1991, and applying “to injuries occurring on or after said date” is that the statute “applies only to injuries occurring on or after July 1, 1991”); Nye v. Indus. Claim Appeals Office, 883 P.2d 607, 609 (Colo.App.1994) (noting that ch. 67, sec. 14, 1989 Colo. Sess. Laws 415, which said that the statute at issue applied to “all claims ... for injuries occurring on or after” the effective date, made the statute “expressly ... applicable to all claims for injuries occurring on or after that date”).

¶ 14 Similar reasoning disposes of the hospital's assertion that the current statute does not apply to a credentialing decision made before its effective date. The effective date clause could have addressed “actions filed based on credentialing decisions that occurred on or after.” Further, an action for personal injury accrues when both “the injury and its cause” are or should be known. § 13–80–108(1), C.R.S.2012. Thus, if an action based on negligent credentialing could have been filed on July 1, 2012, the statute necessarily would apply to credentialing that occurred earlier. But under the hospital's interpretation, a hospital would be forever immune from damages based on a credentialing decision that occurred before that date.

¶ 15 Nevertheless, the hospital argues that the General Assembly did not intend the statute to apply retroactively because the effective date appears in section 12–36.5–203(2)(c), but the provision abrogating immunity is found in section 12–36.5–203(2)(a), C.R.S. 2012. However, the effective date explicitly applies to “[t]his subsection (2), as amended.” § 12–36.5–203(2)(c). A court does not interpret clauses in isolation, but rather in “the broader context of the statute as a whole.... to give consistent, harmonious and sensible effect to all of its parts.” Curtis v. Hyland Hills Park & Recreation Dist., 179 P.3d 81, 83 (Colo.App.2007) (internal citations and quotations omitted).⁶

¶ 16 Therefore, we conclude that the language of the current statute clearly shows the General Assembly's intent to apply it retroactively.⁷

B. Retroactive Application is not Unconstitutionally Retrospective

¶ 17 Initially, we address the hospital's argument that the current statute is retrospective because applying it retroactively is “unfair.” The supreme court has used this general principle to illuminate...