dissenting.
I dissent from Parts 11(B), (C), and (D) of the majority opinion. In particular, I disagree with the majority’s interpretation of the word “injury” and with the majority’s application of that interpretation to the facts of this case. In both instances, the analysis presented by the majority is carefully tailored to achieve a certain result. It also signifies a growing discomfort in close cases with the standard operation of statutes of limitation. I am not unaware of these tensions. At the same time, I prefer a more straightforward approach than that adopted by the majority in this case.
On its face, section 13-80-105 neither defines the word “injury” nor provides *1170guidance on how to determine when an injury has been discovered. The majority therefore identifies and compares several interpretations before deciding that the “legal injury” interpretation is what the legislature really intended when it enacted the statute. In my view, however, the “legal injury” interpretation ignores the recent legislative history of section 13-80-105. This statute was amended on July 1, 1977.1 Before that date, persons were prohibited from maintaining malpractice actions based on negligence or breach of contract
“unless such action is instituted within two years after the person bringing the action either discovered, or in the exercise of reasonable diligence and concern should have discovered, the seriousness and character of his injuries and the negligence or breach of contract which gave rise to such action. In no event may such action be instituted more than five years after the act or'omission which gave rise thereto....”
Section 13-80-105, C.R.S.1973 (emphasis added). A separate statute established another two-year statute of limitations for malpractice actions based on lack of informed consent. It provided:
“No person shall be permitted to maintain an action for noncompliance with [the statute imposing a duty on physicians to provide information sufficient for informed consent] unless such action is instituted within two years after the person bringing the action either discovered or in the exercise of reasonable diligence and concern should have discovered the injury about which the patient was not informed.”
Section 13-80-105.5, C.R.S.1973 (1976 Supp.) (emphasis added). Effective July 1, 1977, the General Assembly revised and combined these two statutes. It repealed section 13-80-105.5 and inserted “lack of informed consent” in section 13-80-105. It also deleted the provision in section 13-80-105 calling for discovery of the negligence or breach of contract which gave rise to such action.
These changes convince me that the word “injury,” as used in the current statute, does not mean “legal injury.” It defies common sense to conclude, as the majority does, at 1167, that even "though the legislature deleted the words “and the negligence or breach of contract” from the statute, it simultaneously inserted the concept of legal injury into the single word “injury” that remained in the statute. If the legislature intended the revised statute to include the concept of legal injury, it certainly would have avoided such confusing subterfuge. In the language of the majority, it would have “combine[d] a number of complex legal concepts into [one] legal term,” id., and that term would have been “legal injury.”
In analyzing the current statute, I do not disagree with the basic premise that “injury” must mean something more than mere physical damage or manifestation. For example, the injured person may be aware of a physical manifestation but have no understanding of its seriousness; or the injured person may be aware of its seriousness but not associate it with a particular time, place, or person. In either situation, a person discovering the physical manifestation could be barred unfairly by the running of the statute of limitations. In Gleason v. Guzman, 623 P.2d 378 (Colo.1981), we invalidated a personal injury release on the grounds that the executor of the release was mistaken about the true nature of the injury suffered. We stated:
“Knowledge of the nature of an injury requires an awareness and some appreciation of its extent, severity and likely duration. See, e.g., ... Mitzel v. Schatz, 175 N.W.2d 659 (N.D.1970); Poti v. New England Road Machinery Co., 83 N.H. 232, 140 A. 587 (1928). Admittedly, line-drawing here is difficult and its direction may well vary with the thrust of evidence. These basic components of *1171knowledge, however, relate primarily to a comprehension of the basic character of the injury as distinct from a prediction or opinion about the future course of recovery when its basic nature is otherwise unknown.”
Gleason, 623 P.2d at 385.
I would prefer that this court adopt an approach similar to Gleason in this case. Our emphasis in Gleason on recognizing the seriousness and character of one’s injury represents a middle ground between the view that discovery of the physical injury is enough, see Allen v. Newport, 427 F.Supp. 42 (M.D.Tenn.1976), and the view that discovery of the “legal injury” is required. Under this approach, the pivotal question in this case becomes whether Brodie discovered or reasonably should have discovered the “seriousness and character” of her injury more than two years before she filed her complaint.
As a general rule, the trier of fact should decide whether the statute of limitations bars a particular claim. Owens v. Brochner, 172 Colo. 525, 474 P.2d 603 (1970); Davis v. Bonebrake, 135 Colo. 506, 313 P.2d 982 (1957). However, the trial court in this ease decided that summary judgment was appropriate, since the evidence, when viewed in the light most favorable to Brodie, revealed that she was “fully aware” of her injury by July 1977. The court of appeals agreed; in its view, the evidence was “undisputed” that Brodie discovered her injury more than two years before she filed her complaint. Brodie v. Mastro, 638 P.2d 800, 801 (Colo.App.1981). After reviewing Brodie’s deposition, I concur with the courts below that she discovered her injury by July 1977.
Brodie originally went to see Mastro in part because both she and her mother thought the nodule might be cancerous. She did not consider the nodule unsightly and would have declined surgery had she known that a large and “ugly” scar would develop on her shoulder. She specifically asked Mastro about scarring because she did not want a bad scar. The scar from the surgery was small and normal-looking when Brodie returned to have the sutures removed. She did not discuss the surgery at that time because “[tjhere was nothing wrong then.” During the next several months, both she and her mother noticed that the scar was “growing” and “getting bigger.” It itched and became painful. Brodie knew that the scar was “real bad” and did not resemble other scars she had on her own body and other scars she had seen. As she kept track of the scar on her shoulder, she became aware for the first time that scars could become “this big or this unsightly.” She returned to Mastro’s office in July 1977 specifically to complain about the size and appearance of the scar. It was enlarged, raised, unsightly, uncomfortable, and painful in July 1977. She found it embarrassing and tried to cover it with clothing so that other people would not see it. After Mastro told her there was nothing more he could do, Brodie sought out and received further treatment, including a series of injections into the scar tissue, from at least two other doctors, neither of whom mentioned keloids or the risk of keloids. She also discussed her scar with at least two attorneys because she remained “unhappy” about what had happened. She waited, however, until the latter part of 1979 to bring her action because she wanted, if possible, to “tr[y] to get it fixed” first. Finally, after the plastic surgeon explained to her the nature of keloids, she brought her action against Mastro because he “misled” her by not warning her about the risk of bad scarring.
Brodie’s deposition testimony indicates that she discovered the physical manifestation resulting from the surgery within several months after the surgery on her shoulder. It also demonstrates that she was fully aware of both the seriousness and character of her injury when she saw Mas-tro in July 1977. At that point, she had a true appreciation of the extent and severity of her injury and a clear perception of Mastro’s role in inducing it. She knew and was upset that Mastro had not warned her about the possibility of bad scarring. The only piece of information not in her posses*1172sion in July 1977 was the knowledge that, as a young, dark-skinned female, she fit into a high-risk category. While this knowledge may have increased her understanding about what happened, she did not need to know why the keloid appeared in order to bring an action based on lack of informed consent. She only needed to know that it did appear and that Mastro never warned her about it.
This point can best be illustrated by analogizing Brodie’s situation to that of a light-skinned person. If a light-skinned person undergoes surgery and develops a keloid, and if the physician never mentioned the admittedly low risk of keloid scarring in a light-skinned person, that person would have a cause of action based on lack of informed consent. See Bloskas v. Murray, 646 P.2d 907 (Colo.1982) (duty to warn turns on significance of the risk to the patient’s informed decision to submit to the medical procedure); Mallet v. Pirkey, 171 Colo. 271, 466 P.2d 466 (1970) (physician has affirmative duty to warn patient of substantial risks). The complaint would allege that the physician never warned the patient about the risk of bad scarring. The fact that a light-skinned person fits into a low-risk category would be of no significance to the plaintiff’s cause of action. That fact would only be important when the trier of fact decided if the physician’s failure to warn was consistent with community standards for this particular risk. See Bloskas, 646 P.2d at 914 (duty of disclosure depends upon the extent of information given by reasonably careful physicians in the same or similar community); Miller v. Van Newkirk, 628 P.2d 143 (Colo.App.1980) (whether disclosure was adequate depends upon community standards); Stauffer v. Karabin, 30 Colo.App. 357, 492 P.2d 862 (1971) (failure to inform must be consistent with community standards); Colo. J.I. 15:16 (1984 Supp.).2
I see no reason to distinguish between a light-skinned person, with a low risk of keloid scarring, and a dark-skinned person, with a high risk of keloid scarring, for purposes of determining when a person discovers his or her injury. Discovery of injury in an informed consent case should not mean one thing for a low-risk person and another for a high-risk person. Yet, by suggesting that Brodie may not have completed the necessary discovery until she learned of her high risk, the majority appears to have imposed an artificial distinction based on a person’s particular level of risk. That level of risk will affect the factual determination at trial of whether the failure to warn was consistent with community standards. It should not, however, affect the outcome of a summary judgment motion based on the running of the two-year statute of limitations. The outcome in this case is dependent upon whether Brodie discovered the seriousness and character of her injury and whether she realized that Mastro never warned her about the possibility of bad scarring. In my view, she made the necessary discovery by July 1977, more than two years before she filed her complaint.
Accordingly, I dissent.
I am authorized to say that ERICKSON, C.J., joins in this dissent.
. See An Act Concerning Limitation of Actions, and Relating to the Period During Which a Person May Maintain an Action for Medical Malpractice, Colo.Sess.Laws 1977, ch. 198, 13-80-105(1) at 817.
."Before a physician (treats) (operates on) (or) (performs a procedure on) a patient, he has a duty to secure the informed consent, whether express or implied, from the patient.
For a patient’s consent to be an informed consent, a physician must have informed the patient of the following:
1. The nature of the ailment;
2. The nature of the (operation) (procedure) (or) (treatment);
3. The alternative treatments available, if any, and
4.The substantial risks, if any, involved in undergoing the (operation) (procedure) (or) (treatment), and the substantial risks, if any, involved in undergoing any alternative treatments available.
A physician has a duty to inform a patient of the above ... items to the extent a reasonable physician practicing in the same field of practice (as a general practitioner in the same or similar locality) (as a specialist) at the same time would have informed the patient under the same or similar circumstances.”