source: Caselaw Access Project

license: Public Domain

text:
    PEDIATRIC NEUROSURGERY, P.C., Petitioner, v. Christine RUSSELL and Uri Neil, as next friends of Michael Russell Neil, a minor, Respondents.
    No. 00SC228.
    Supreme Court of Colorado, En Banc.
    April 15, 2002.

      Johnson, McConaty & Sargent, Craig A. Sargent, Glendale, Colorado, Attorneys for Petitioner.
    Leventhal & Brown, P.C., Jim Leventhal, Natalie Brown, Anthony Viorst, Denver, Colorado, Attorneys for Respondents.
    Kennedy & Christopher, P.C., John R. Mann, Denver, Colorado, Attorneys for Ami-cus Curiae Colorado Defense Lawyers Association.
   Justice BENDER

delivered the Opinion of the Court.

I. Introduction

In this case we determine the effect of section 12-86-134, 4 C.R.S. (2001) on the common-law corporate practice of medicine doctrine. The plaintiffs, Christine Russell and Uri Neil as the next friends of Michael Russell Neil, sued defendant Pediatric Neurosurgery, a professional corporation, for medical negligence related to procedures performed on their son Michael as treatment for spina bifida. The trial court dismissed the case against the professional corporation on the grounds that under the corporate practice of medicine doctrine, a corporation may not be held vicariously liable for the negligence of a doctor.

The court of appeals reversed, holding that section 12-36-134 authorizes professional corporations to practice medicine and likewise be liable for the negligence of their physician employees. The court of appeals therefore remanded the case to the trial court to reinstate the plaintiffs' complaint against Pediatric Neurosurgery and to determine whether the professional corporation exercised control over the doctors. Russell v. Pediatric Neurosurgery, P.C., 15 P.3d 288 (2000).

We affirm in part and reverse in part. We hold that section 12-86-1384 provides an exception to the corporate practice of medicine doctrine by permitting professional corporations to practice medicine and be liable for the negligence of physician employees. We also hold that under the two-prong test for liability under the theory of respondeat superior, the question of control applies only to the determination of whether an employer-employee relationship exists,. When, as here, the corporation's C.R.C.P. 12(b)(5) motion to dismiss concedes that the alleged tortfeasor was its employee, the trial court need not inquire into whether the employer had a right to exercise control over the employee.

Thus, we remand this case to the court of appeals to return this case to the trial court to reinstate the plaintiffs' complaint against Pediatric Neurosurgery, P.C.

II. Facts and Proceedings Below

Michael Russell Neil was born with spina bifida, an incomplete closure of the spine. He was treated from the time of his birth, in 1981, until 1989 by first Dr. Robert Hendee and then his partner Dr. Edward McLeary. The plaintiffs allege that the doctors' negligent treatment of Michael's birth defect caused Michael to change from an incomplete paraplegic to a quadriplegic with some use of his upper extremities.

Dr. Hendee incorporated under the name of Pediatric Neurosurgery, a professional corporation, in 1983. At that time he was the sole shareholder and employee. Dr. McLeary joined Pediatric Neurosurgery as a shareholder and employee in 1986. Dr. Hen-dee retired in 1989 and Dr. McLeary continued to work for Pediatric Neurosurgery until his retirement in 1996.

The plaintiffs initially filed this suit only against the doctors individually. They subsequently amended their complaint to add Pediatric Neurosurgery, P.C., alleging that the professional corporation is vicariously liable for the negligent acts of its employees, doctors Hendee and McLeary, under the theory of respondeat superior.

Pediatric Neurosurgery filed a motion to dismiss under C.R.C.P. 12(b)(5), arguing that the negligence of a physician may not imputed to an employing corporation, "since the corporation is not permitted to practice medicine and cannot exercise any control over the physician's independent medical judgment." It also argued that section 12-86-134(1)(g), 4 C.R.S. (2001) provides that a professional medical corporation may only be statutorily liable for the acts of a physician when the physician does not carry liability insurance that meets the standards set forth in the statute. Because the doctors carried the minimum amount of insurance, Pediatric Neurosurgery is not liable for their actions.

The trial court granted Pediatric Neurosurgery's motion to dismiss. The court held that the corporate practice of medicine doe-trine, as propounded by this court in Rosane v. Senger, 112 Colo. 368, 149 P.2d 372 (1944) and Moon v. Mercy Hospital, 150 Colo. 430, 373 P.2d 944 (1962), precludes a professional medical corporation from controlling the independent medical judgment of a physician and therefore from being liable for the torts of physician employees. The trial court also agreed with Pediatric Neurosurgery's interpretation of section 12-36-1834(1)(g) and held that Pediatric Neurosurgery could not be held liable in this case because the doctors' insurance coverage met the minimum requirements of the statute.

On appeal, the court of appeals reversed the trial court, holding that section 12-36-134 allows professional corporations to practice medicine. However, that court held that liability under the theory of respondeat superior depends upon whether the corporation has the right to control the actions of the employee. Because the question of right to control is a question of fact, the court reasoned that on remand the trial court must determine whether Pediatric Neurosurgery had the right to control the actions of doctors Hendee and McLeary.

Finally, the court disagreed with the trial court's interpretation of section 12-86-134(1)(g). It held that the statute provides only that the shareholders of a professional medical corporation may not be held jointly and severally lable for the actions of a corporate employee when the physicians carry the minimum insurance required. It further held that subsection (1)(g) does not preclude the corporate entity from being held vieari-ously liable, despite the amount of insurance the doctors carry.

III. Analysis

A. Standard of Review

We review the trial court's dismissal of plaintiffs' case under C.R.C.P. 12(b)(5). We apply the same standards as the trial court and accept all pleadings of fact as true in the light most favorable to the plaintiff. Schoen v. Morris, 15 P.3d 1094, 1096 (Colo.2000).

To answer the question presented, we initially discuss the history of the corporate practice of medicine doctrine and then consider whether section 12-86-1384 abolishes the doctrine. Next we consider whether a professional medical corporate entity may be held vicariously liable for the torts of its physician employees. We then consider whether the court of appeals correctly held that the trial court should engage in a factual inquiry into whether the professional corporation had a right to exercise control over the actions of its physician employees when the corporation's C.R.C.P. 12(b)(5) motion to dismiss concedes that the doctors were its employees. Finally we address the contention of Pediatric Neurosurgery that subsection (1)(g) of section 12-36-1834 precludes a court from imposing vicarious liability upon a professional medical corporation if minimum insurance requirements are met.

B. The Corporate Practice of Medicine Doctrine and Professional Corporations

As background, we begin with a brief review of the corporate practice of medicine doctrine. Until 1963, the corporate practice of medicine doctrine absolutely barred doe-tors in Colorado from practicing medicine through corporations. Rosane, 112 Colo. 363, 149 P.2d 372; Moon, 150 Colo. 430, 373 P.2d 944; R. Crawford Morris & Alan R. Moritz, Doctor and Patient and the Law 376-78 (5th ed.1971). The doctrine rests on the principle that only a person, not a corporation, may practice medicine because it is impossible for a fictional entity, a corporation, to perform medical actions or be licensed to practice medicine. Therefore, a corporation or employing entity may not interfere with a doctor's independent medical judgment. The corporate practice of medicine doctrine has historically been used by this court in cases such as Rosane and Moon to preclude hospitals from being held vicariously liable for the negligent acts of doctors.

The doctrine stems from a concern that corporations have distinct interests from those of doctors and that patients will receive inferior care if corporations have any control over physicians' medical judgment. Bruce A. Johnson, The Corporate Practice of Medicine: A Trap for the Unwary, 20 Colo. Law. 2508, 2508 (1991). It is presumed that allowing corporations to employ physicians will force physicians to sacrifice concerns for patient care for those of a corporation that is presumably most concerned with profits and shareholder satisfaction. Id.

The corporate practice of medicine doctrine has historically had the effect of requiring doctors to practice as sole practitioners or in partnerships. Under the dictates of the doctrine, doctors in Colorado generally have had independent contractor relationships with the corporations, such as hospitals, for whom they work. Allen Sparkman, Choice of Emtity for Healthcare Professionals, 29 Colo. Law. 81, 81 (2000). Since 1995, hospitals in Colorado have been able to employ doctors under section 25-3-108.7(2), 8 C.R.S. (2001) (amendment effective July 1, 1995). However, section 25-3-1083.7 explicitly provides that corporations may not control a doctor's independent medical judgment, and therefore does not entirely eviscerate the corporate practice of medicine doctrine. § 25-3-108.7(8), 8 C.R.S. (2001); G. Lane Earnest & Sarah E. Meshak, The Physician as the Hospital's Employee: S.B. 95-212, 24 Colo. Law. 2345, 2847 (1995).

«_C. Professional Medical Corporation Statute Section 12-36-134

We must determine whether seetion 12-86-134 statutorily abolished the common law corporate practice of medicine doctrine. This is a question of statutory interpretation. The task of the court in interpreting a statute is to determine and give effect to the intent of the legislature. Colo. Office of Consumer Counsel v. PUC, 42 P.3d 23, 26 (Colo.2002). If the plain language of the statute clearly expresses the legislative intent, then the court must give effect to the ordinary meaning of the statutory language. Likewise, the court should avoid interpreting a statute in a way that defeats the obvious intent of the legislature. Id.

Further, a statute must be read and considered as a whole. Each part of the statute must be given consistent and harmonious effect. Id.

The plaintiffs contend, and the court of appeals agreed, that the statute at issue, section 12-36-134, allows corporations to practice medicine in a limited manner by allowing doctors to incorporate. We agree. The statute plainly provides, "Persons licensed to practice medicine ... may form professional service corporations for the practice of medicine." § 12-86-134(1), 4 C.R.S. (2001).

The statute includes restrictions on how a professional medical corporation may be established. For example, all shareholders of such a corporation must be licensed to practice medicine, all directors and officers should be physicians, and any lay directors and officers may not exercise any authority over professional matters. § 12-86-134(1)(d), (D.

The language of the statute demonstrates that the legislature contemplated professional corporations may practice medicine, have control over medical matters, and be vicariously liable for the negligent acts of its employees. Several parts of the statute reveal this intent: subsection (1)(b) demonstrates that the legislature intended for professional corporations to practice medicine. That subsection requires the corporation to be organized "solely for the purposes of conducting the practice of medicine only through persons licensed by the board to practice medicine." Additionally, subsection (7) indicates the same intent by providing, "Except as provided in this section, corporations shall not practice medicine," indicating that section 12-36-1834 permits professional corporations to practice medicine.

Furthermore, subsection (1)({), evidences that the legislature intended that professional corporations may exercise control over physician employees. That section forbids lay directors from exercising authority over professional matters and thereby implies that a corporation's physician directors and officers do have such authority.

Finally, the statute demonstrates that the legislature intended for a professional medical corporation to be vicariously liable for acts of physician employees. Subsection (1)(g)(1), a section dealing with insurance for the corporation, states that "insurance shall insure the corporation against Hability imposed upon the corporation by law for damages resulting from any claim made against the corporation arising out of performance of professional services ...." § 12-36-134(1)(g)(I) (emphasis added).

Pediatric Neurosurgery argues that the language in subsection (8) indicates that the general assembly did not intend for professional medical corporations to practice medicine. That section states, "The corporation shall do nothing which, if done by a person licensed to practice medicine ... employed by it, would violate the standards of professional conduct...." We disagree. We read this language to mean that the corporation may practice medicine but, as with the doe-tors themselves, may not do anything that violates medical standards of conduct.

Section 12-86-1384 expressly does not affect the corporate practice of medicine doe-trine as it applies to hospitals. In fact, subsection (7) provides that employment of a physician under section 25-3-108.7 (pertaining to employment of physicians by hospitals) "shall not be considered the corporate practice of medicine." § 12-36-134(7), 4 C.R.S. (2001).

Although we agree that section 12-84-1836 did not abolish the corporate practice of medicine doctrine in Colorado, we hold that it creates an exception to the common-law rule that corporations may not practice medicine.

As further support for our holding that section 12-86-134 creates an exception to the corporate practice of medicine doctrine, we have found references to the exception in various law journal articles regarding the doctrine in Colorado. These references reveal that it is well-accepted within the field of health care law that section 12-86-1384 creates an exception to the corporate practice of medicine doctrine. "[PJjrofessional corporations ... for the practice of medicine are exempted [from the prohibition on the corporate practice of medicine]." Johnson, supra, at 2504. "Corporations other than hospitals are not authorized to employ physicians or otherwise engage in the practice of medicine, and physicians may not practice medicine as the partner, agent, employee of or in joint venture with such corporations, other than professional service corporations." Earnest, swpra, at 2847.

Additionally, the legislature has incorporated this exception into other sections of the Colorado code. In section 12-86-117, 4 C.R.S. (2001), the legislature defines unprofessional medical conduct. Paragraph (1)(m) of that statute prohibits a doctor from practicing medicine with others, including corporations, who are not licensed physicians, "other than a professional services corporation for the practice of medicine as defined in section 12-86-134." § 12-36-117(1)(m), 4 C.R.S. (2001). Likewise, a portion of the Health Care Availability Act that deals with tort reform defines a "health care professional" as any person licensed to practice medicine, nursing, dentistry, or other health profession, and "[the term includes any professional corporation ... permitted by the laws of this state." § 13-64-202(4)(a), 5 C.R.S. (2001); see also § 13-64-408(12)(a), 5 CRS. (2001), § 25-4-2008(8), 8 CRS. (2001).

The plain language of section 12-86-1834 and the references to professional medical corporations in articles regarding the practice of health law and in various sections of the Colorado code convince this court that section 12-36-1834 permits professional corporations to practice medicine.

D. Liability and Respondeat Superior

Having decided that section 12-36-1384 provides an exception to the corporate practice of medicine doctrine, we turn now to the question of whether a professional medical corporation may be held vicariously liable for the acts of its physician employees.

In the 1960s, many states enacted statutes similar to section 12-36-1834 to allow doctors and other professionals to take advantage of benefits that accompany corporate form. Sparkman, supra, at 81; Morris, supra, at 378. Incorporation allows certain tax benefits as well as limited liability, centralized management, continuity of life, and greater freedom of transferability of interests. 18 Am.Jur.2d Corporations § 37 (1985).

Limited liability in the professional corporation context is the same as it is with ordinary business corporations. - William Meade Fletcher, Fletcher Cyclopedia of the Law of Private Corporations § 112.10 (1998). Now that many of the tax benefits that accompany corporate form have been eliminated, limited liability remains one of the most important benefits to incorporation. Ronald L. Antonio, Operating a Personal Service Corporation, 17 Colo. Law.2011, 2011 (1988). Limited liability means that the individual shareholders of the professional corporation are not personally liable for claims against the corporation However, the corporate entity is held responsible for its employees' torts if the torts occur while the employees are acting on behalf of the corporation. 18B Am.Jur.2d Corporations § 1884 (1985); Morris, supra, at 377; Fletcher, supra, §§ 33, 4877.

Likewise, the theory of responde-at superior provides that an employer may be held vicariously liable for an employee's torts when the act is committed within the course and scope of employment. Grease Monkey Int'l, Inc. v. Montoya, 904 P.2d 468, 473 (Colo.1995); Moses v. Diocese of Colo., 863 P.2d 310, 329 (Colo.1993). An act of an employee is within the seope of his employment if the work done is assigned to him by his employer, is necessarily incidental to that work, or is customary in the employer's business. Moses, 863 P.2d at 330.

The court of appeals held that respondeat superior liability "depends upon a showing that the corporate entity had some right to direct or control the actions of the employee." Russell, 15 P.3d at 291. We disagree.

Although the court of appeals' holding correctly states the law, that court's holding compresses the two prongs of the test used to find the employer Hable under the theory of respondeat superior. First, the plaintiff must show that an employer-employee relationship exists. Next, the plaintiff must show that the act occurred in the course and scope of the employee's employment.

Courts only need address the question of control to determine the first prong of the test: whether the tortfeasor has an employee or independent contractor relationship with the employer. Norton v. Gilman, 949 P.2d 565, 567 (Colo.1997) ("[The most important factor in determining whether a worker qualifies as an employee is the alleged employer's right to control the details of performance."); Dumont v. Teets, 128 Colo. 395, 397, 262 P.2d 734, 735 (19583). Once an employer-employee relationship is found, the question of control is no longer part of the court's inquiry.

Pediatric Neurosurgery's motion to dismiss concedes that Hendee and MeLeary were employees of the professional corporation when they cared for Michael Russell Neil. Therefore, the trial court need not address the question of control to determine that an employer-employee relationship existed between the professional corporation and the doctors.

Further, neither party raised the question of whether the care of Michael Russell Neil was performed during Hendee and McLeary's course and scope of employment for Pediatric Neurosurgery. Therefore, we hold for the purposes of the defendant's C.R.C.P. 12(b)(5) motion to dismiss that Pediatric Neurosurgery, P.C. may be held vicariously liable for the negligence of Hendee and McLeary under a theory of respondeat superior. Accordingly, we reverse that portion of the court of appeals' judgment that held the trial court must determine whether Pediatric Neurosurgery had the right to exercise control over Hendee and MeLeary.

E. Effect of Section 12-36-134(1)(g)

Lastly, we address Pediatric Neurosurgery's argument that section 12-36-134(1)(g) precludes imposing vicarious liability upon a professional medical corporation if that corporation maintains the minimum levels of insurance required by that section.

The plain language of subsection (1)(g) reveals the flaw in Pediatric Neurosugery's argument. - Paragraph (g) begins, "[All shareholders of the corporation ... shall be jointly and severally liable for all acts, errors, and omissions of the employees of the corporation." § 12-36-134(1)(g) (emphasis added). The paragraph then provides two exceptions to when the shareholders will be jointly and severally liable. Both exceptions require the shareholder employee physicians or the corporation to carry a minimum amount of insurance. - Each individual must be insured-by himself or the corporation-for $50,000 per claim and $150,000 per year.

Nowhere in subsection (1)(g) does the statute address liability of the corporate entity. Likewise, the statute does not indicate that the legislature intended to abrogate the law of eorporations that a corporate entity is liable for the torts of its employees. In fact, as discussed above, under the law of corporations, shareholders are not typically held jointly and severally liable for the actions of corporate employees. This limitation on liability is one of the very reasons businesses choose to incorporate. Fletcher, supra, at § 83 ("'The shareholders of a corporation, unless they personally participate, are not liable individually for torts committed by the corporation.").

Thus, we construe subsection (1)(g) to address only the manner by which shareholders may limit their personal liability for the torts of corporate employees. This subsection does not preclude the corporation from being held vicariously liable under the doctrine of respondeat superior.

IV. Conclusion

For the reasons discussed, we affirm in part and reverse in part and remand this case to the court of appeals to return this case to the trial court to reinstate the plaintiffs' complaint against the defendant.

      . We granted certiorari on the following issue: "Whether the statute authorizing the formation of professional medical services corporations, C.R.S. § 12-36-134, abrogated the long-standing rule of law that an employing entity cannot exercise control over a physician's practice."

      . Section 12-36-134, 4 C.R.S. (2001) provides in pertinent part:
      (1) Persons licensed to practice medicine by the board may form professional service corporations for the practice of medicine under the "Colorado Corporation Code" .... The articles of incorporation of such corporations shall contain provisions complying with the following requirements: R

      (b) The corporation shall be organized solely for the purposes of conducting the practice of medicine only through persons licensed by the board to practice medicine in the state of Colorado.

      (d) All shareholders of the corporation shall be persons licensed by the board to practice medicine in the state of Colorado, and who at all times own their shares in' their own right. They shall be individuals who ... are actively engaged in the practice of medicine in the offices of the corporation.

      (f) The president shall be a shareholder and a director and, to the extent possible, all other directors and officers shall be persons having the qualifications described in paragraph (d) of this subsection (1). Lay directors and officers shall not exercise any authority whatsoever over professional matters. .
      (g) The articles of incorporation shall provid and all shareholders of the corporation shall agree that all shareholders of the corporation shall be jointly and severally Hable for all acts, errors, and omissions of the employees of the corporation or that all shareholders of the corporation shall be jointly and severally liable for all acts, errors, and omissions of the employees of the corporation except during periods of time when each person licensed by the board to practice medicine in Colorado who is a shareholder or any employee of the corporation has a professional liability policy insuring himself and all employees who are not licensed to practice medicine who act at his direction in the amount of fifty thousand dollars for each claim and an aggregate top limit of liability per year for all claims of one hundred fifty thou-
      sand dollars or the corporation maintains in good standing professional liability insurance which shall meet the following minimum standards:
      (I) The insurance shall insure the corporation against liability imposed upon the corporation by law for damages resulting from any claim made against the corporation arising out of the performance of professional services for others by those officers and employees of the corporation who are licensed by the board to practice medicine.
      (II) Such policies shall insure the corporation against liability imposed upon it by law for damages arising out of the acts, errors, and omissions of all nonprofessional employees.
      (III) The insurance shall be in an amount for each claim of at least fifty thousand dollars multiplied by the number of persons licensed to practice medicine employed by the corporation....
      (IV) The policy may provide that it does not apply to: Any dishonest, fraudulent, criminal, or malicious act or omission of the insured corporation or any stockholder or employee thereof; the conduct of any business enterprise, as distinguished from the practice of medicine....

      (3) The corporation shall do nothing which, if done by a person licensed to practice medicine in the state of Colorado employed by it, would violate the standards of professional conduct as provided for in section 12-36-117. Any violation by the corporation of this section shall be grounds for the board to terminate or suspend its right to practice medicine.
      (4) Nothing in this section shall be deemed to diminish or change the obligation of each person licensed to practice medicine employed by the corporation to conduct his practice in accordance with the standards of professional conduct provided for in section 12-36-117.

      (7) Except as provided in this section, corporations shall not practice medicine. Employment of a physician in accordance with section 25-3-103.7, C.R.S., shall not be considered the corporate practice of medicine.

      . Of course, the individual tortfeasor remains liable for his own torts. Valley Dev. Co. v. Weeks, 147 Colo. 591, 600, 364 P.2d 730, 734, (1961); Morris, supra, at 368. This long-standing rule of torts is not disputed in this case.

      . We find it interesting to contrast the minimum required insurance for shareholders of a professional medical corporation to avoid liability with the statutory insurance requirements for physicians to maintain active licensure under section 13-64-301. That statute requires each physician to have insurance of $500,000 per incident and $1.5 million per year. § 13-64-301(1)(a), 5 C.R.S. (2001).


author: Justice RICE

text:
    Karen LEAFFER and Steven Leaffer, Plaintiffs, v. Gerald V. ZARLENGO; Cristee Locke Offerdahl; and Midtown Obstetrics & Gynecology P.C., Defendants.
    No. 01SA324.
    Supreme Court of Colorado.
    April 15, 2002.

      Holland & Hart, LLP, A. Bruce Jones, Marey G. Glenn, Denver, Colorado, Attorneys for Plaintiffs.
    Johnson, MceConaty & Sargent, P.C., Brian G. MceConaty, Catherine O'Brien-Crum, Glendale, Colorado, Attorneys for Respondents. > -
   Justice RICE

delivered the Opinion of the Court.

The petitioners-plaintiffs in this case, Karen and Steven Leaffer, (Petitioners), initiated this original proceeding pursuant to C.A.R. 21, seeking relief from a trial court order denying their motion to compel the respondent-defendants, Gerald V. Zarlengo, Cristee Locke Offerdahl, and Midtown Obstetrics & Gynecology, P.C., (Respondents), to respond to interrogatories and to produce Dr. Zarlen-go's appointment calendar. In a one sentence order, the trial court summarily denied Petitioners' motion - without explanation. Thus, the trial court appears to have accepted Respondents' position (1) that they were not required to answer all of Petitioners non-pattern interrogatories because they included subparts that Respondents were entitled to treat as separate interrogatories; and (2) that they were not required to produce a less-redacted version of Dr. Zarlengo's appointment calendar because only the information specifically related to Ms. Leaffer's visits is relevant, and therefore, it was appropriate for them to omit all other entries.

We issued a rule to show cause why mandamus should not issue to require the trial court to reverse its order denying Petitioners' motion to compel. We conclude that the trial court erred in summarily denying Petitioners' motion to compel Respondents to answer the interrogatories and abused its discretion in similarly denying their motion to compel production of the appointment book. We hold that only discrete subparts of non-pattern interrogatories-and not those logically or factually subsumed within and necessarily related to the primary question-must be counted toward the interrogatory limit set forth in the Case Management Order. In addition, we adopt the test set forth in Kendall v. GES Exposition Services., Inc., 174 F.R.D. 684 (D.Nev.1997) to aid courts in distinguishing between discrete and non-discrete subparts. Applying the Kendall test to the non-pattern interrogatories at issue, we hold that none contain discrete subparts; therefore, each interrogatory counts as one question. Finally, we hold that the trial court abused its discretion in denying Petitioners' motion to compel production of Dr. Zarlengo's appointment calendar. Accordingly, we make the rule absolute.

I. FACTS AND PROCEDURAL HISTORY

Petitioners brought this medical malpractice and wrongful death action in Denver District Court, contending that Respondents' care of Ms. Leaffer during her pregnancy was inadequate and caused physical and emotional harm to her and the death of her infant daughter.

During the discovery stage of the litigation, Petitioners served sixteen non-pattern interrogatories, among other discovery demands, to Respondents. Respondents argued that each subpart of each interrogatory should be considered a separate question. Since the Case Management Order limited the number of non-pattern interrogatories to twenty, Respondents separated the interrogatories into sixty separate questions, renumbered them, and advised Petitioners to choose twenty of the sixty for Respondents to answer.

Petitioners filed a motion to compel responses to their first set of written discovery with the trial court, arguing that pursuant to C.RC.P. 88(a) only "discrete" subparts should be counted separately. Applying federal cases interpreting the federal counterpart to C.R.C.P. 88(a), Petitioners argued that discrete subparts are those that are not "logically or factually subsumed within and necessarily related to the primary question." Therefore, Petitioners contended, none of their interrogatories contained discrete sub-parts; rather, any subparts focused on issues that are logically and factually related to the primary question and therefore should not be counted separately. Petitioners also rejected Respondents' contention that C.R.C.P. 88(e) mandates that "any subpart"-whether discrete or not-constitutes a separate interrog-, atory, arguing that this interpretation of the Rule would lead to absurd results.

Respondents countered that C.R.C.P. 83(e) makes it clear that "any subpart to a non-pattern interrogatory" should be considered a separate interrogatory. Therefore, even if a subpart is related to the primary question, Respondents contended that each subpart must be considered a separate question.

In addition, as part of the initial disclosure process, Petitioners requested that Respondents produce copies of Dr. Zarlengo's office calendars and/or appointment books for August through December 1998 with patient names, other than Ms. Leaffer's, redacted. Respondents produced an appointment calendar with all information redacted except for entries specifically related to Ms. Leaffer.

Petitioners argued that the redactions were excessive and did not allow them to determine how many appointments and other activities Dr. Zarlengo had scheduled on the days Ms. Leaffer had appointments. Since the complaint alleged lack of continuity of care at Respondents' offices, Petitioners argued that information regarding or likely to lead to the discovery of evidence of Dr. Zar-lengo's competing obligations is directly relevant to their malpractice claim.

Respondents contended that Dr. Zarlen-go's office calendar is not relevant because the number of patients seen by him does not make it more or less probable that he was negligent in his failure to timely diagnose Ms. Leaffer's condition since he could not have detected cardiomyopathy prior to the congestive heart failure, which occurred about two weeks after Ms. Leaffer's last visit to Dr. Zarlengo. The trial court summarily denied Petitioners' motion to compel Respondents to answer the interrogatories and to produce the calendar, and this petition for mandamus followed.

This proceeding presents two issues: (1) whether the trial court erred by rejecting Petitioners' motion to compel Respondents to answer the non-pattern interrogatories; and (2) whether the trial court abused its discretion in denying Petitioners' motion to compel Respondents to produce Dr. Zarlengo's unre-dacted appointment books. Before we address the merits of the two issues raised in this petition for mandamus, we will discuss our exercise of original jurisdiction in this case.

II. ORIGINAL JURISDICTION

Article VI, Section 3, of the Colorado Constitution is the source of this court's original jurisdiction. C.A.R. 21 governs original proceedings and states in pertinent part:

This rule applies only to the original jurisdiction of the Supreme Court to issue writs as provided in Section 3 of Article VI of the Colorado Constitution.... Relief under this rule is extraordinary in nature and is a matter wholly within the discretion of the Supreme Court. Such relief shall be granted only when no other adequate remedy, including relief available by appeal ... is available.

C.A.R. 21(a).

We have held that we may exercise our original jurisdiction when a pre-trial ruling places a party at a "significant disadvantage in litigating the merits of the controversy" and "conventional appellate remedies would prove inadequate." Mitchell v. Wilmore, 981 P.2d 172, 175 (Colo.1999) (internal quotation marks omitted). Matters of pretrial discovery are usually within the trial court's discretion; however, "they are not exempted from extraordinary relief under appropriate cireumstances." - Sanches v. Dist. Court, 624 P.2d 1314, 1316-17 (Colo. 1981). Indeed, we have recognized numerous times that discovery rulings can have a significant effect on a party's ability to litigate the merits of the controversy, warranting the exercise of our original jurisdiction. See Kerwin v. Dist. Court, 649 P.2d 1086, 1088-89 (Colo.1982) (making rule absolute and directing production of party's ledgers where "an appeal would not provide petitioner with an adequate remedy"); see also, e.g., Caldwell v. Dist. Court, 644 P.2d 26, 30-31, 34 (Colo.1982) (making rule absolute and directing district court to reconsider motion to compel production of documents where the "denial of discovery ... would undercut the Caldwells' ability to prove the allegations of their complaint"); Sanches, 624 P.2d at 1316-17 (reviewing deposition-related question because, among other things, absent mandamus review the discovery issue "may otherwise evade effective review").

In addition, we have exercised our original jurisdiction to address issues of "significant public importance which we have not yet examined." City & County of Denver v. Dist. Court, 939 P.2d 1353, 1361 (Colo.1997) (ruling that district court's denial of petitioner's motion to dismiss respondent's claims and request to stay proceedings raised issues of substantial public concern when parties had included alternative dispute resolution procedures in their contract); Higgs v. Dist. Court, 713 P.2d 840, 849 (Colo.1985) (addressing "significant issues" of first impression relating to nature and seope of prosecu-torial immunity under 42 U.S.C. § 1983); People v. Dist. Court, 673 P.2d 991, 995 (Colo.1983) (holding that issues concerning nature of criminal proceedings were of significant public importance for a C.A.R. 21 proceeding); Sanchez, 624 P.2d at 1316-17 (holding that pretrial discovery issue was of significant public importance for an original proceeding).

The legal question of how subparts to interrogatories should be counted under C.R.C.P. 33 is a matter of significant importance and presents a matter of first impression. In addition, the trial court's order denying Petitioner's motion to compel Respondents to answer the interrogatories and to produce Dr. Zarlengo's appointment book place Petitioners at a significant disadvantage in litigating the merits of their malpractice claim, and the conventional appeals process would not provide an adequate remedy since the issue will likely evade review in any eventual appeal. Therefore, we conclude that it is both necessary and appropriate for us to exercise our original jurisdiction.

III ANALYSIS OF C.R.C.P. 33 ISSUE

Initially, we address the question of whether, under C.R.C.P. 33, all subparts-or only discrete subparts-count toward the limit set forth in the Case Management Order.

C.R.C.P. 88(a) provides in relevant part: "Any party may serve upon any other party written interrogatories, not exceeding the number, including all discrete subparts, set forth in the Case Management Order, to be answered by the party served...." C.R.C.P. 33(a) (emphasis added).

Conversely, C.R.C.P. 33(e) provides in relevant part: "Any pattern interrogatory and its subparts shall be counted as one interrogatory. Any subpart to a non-pattern interrogatory shall be considered as a separate interrogatory." C.R.C.P. 38(e) (emphasis added).

- Ordinarily, we afford a rule's language its "commonly understood and accepted meaning." Farmers Ins. Exch. v. Bill Boom Inc., 961 P.2d 465, 469 (Colo.1998). However, if certain provisions of the rule conflict with other provisions, we may rely on traditional rules of statutory construction to aid our analysis. Martin v. People, 27 P.3d 846, 851 (Colo.2001).

Here, the "any subpart" language in C.R.C.P. 33(e) conflicts with the "all discrete subparts" language of C.R.C.P. 88(a); while subsection (e) states that "any subpart" of a non-pattern interrogatory shall be considered a separate interrogatory, subsection (a) provides that only "discrete subparts" shall be counted as separate interrogatories. Therefore, we look to principles of statutory construction to analyze the rule.

A reviewing court must consider the rule as a whole and interpret it so as to give consistent, harmonious, and sensible effect to all its parts. Martin, 27 P.3d at 851. However, if it is impossible to reconcile all of the provisions of a rule, specific provisions typically prevail over general provisions. See § 24-205, 1 C.R.S. (2001) ("If a general provision conflicts with a special or local provision, it shall be construed, if possible, so that effect is given to both. If the conflict between the provisions is irreconcilable, the special or local provision prevails as an exception to the general provision, unless the general provision is the later adoption and the manifest intent is that the general provision prevail."); see also Clifford F. MacEvoy Co., v. United States, 322 U.S. 102, 107, 64 S.Ct. 890, 88 L.Ed. 1163 (1944) ("Specific terms prevail over the general in the same or another statute which otherwise might be controlling."); Scholz v. Metro. Pathologists, 851 P.2d 901, 909 (Colo.1993) ("As a general rule, a special or specific statutory provision prevails over a general provision unless the general provision is later in time and the legislature has manifested a clear intent that the general provision should prevail.").

In addition, courts should avoid interpretations "that render statutory provisions redundant and superfluous." Colo. Comp. Ins. Auth. v. Jorgensen, 992 P.2d 1156, 1163 (Colo.2000). Finally, in construing a rule, a court must avoid an interpretation that leads to an absurd result. State v. Nieto, 993 P.2d 493, 501 (Colo.2000).

An application of these rules of statutory construction dictates that C.R.C.P. 38 should be construed to mean that only discrete sub-parts of non-pattern interrogatories count toward the interrogatory limit in a Case Management Order.

Since it is impossible to reconcile C.R.C.P. 33(a) and C.R.C.P. 38(e), we first turn our attention to the rule that specific provisions prevail over general provisions. C.R.C.P. 33(a) contains the specific language "all discrete subparts"; C.R.C.P. 83(e), on the other hand, contains the more general term "any subpart." The only exception to the general rule that the specific provision controls over the more general provision is when the general provision is adopted later; however, in this case, both the amendment to subsection (a) adding the term "all discrete subparts" and the creation of subsection (e) occurred in 1994 and were adopted at the same time. Therefore, we determine that the more specific language in C.R.C.P. 83(a) controls and prevails over the general language in C.R.C.P. 38(e).

Furthermore, to read the word "discrete" out of C.R.C.P. 83(a) and require all sub-parts-whether discrete or not-to be counted separately would fail to give effect to the "all discrete subparts" language of C.R.C.P. 33(a) and render it superfluous. It is clear from the report of the Ad Hoc Committee on Rules Concerning Case Management, Disclosure/Discovery, and Motions Practice in Civil Litigation that their intent was to "retain[ ] a parallel to the Federal Rules where possible." Report and Recommendations of the Ad Hoe Committee on Rules Concerning Case Management, Disclosure/Discovery and Motions Practice in Civil Litigation 22 Colo. Law. 2165, 2166 (Oct.1998). Fed.R.Civ.P. 33 does not contain language parallel to C.R.C.P. 383(e); however, Fed.R.Civ.P. 88(a) caps the total number of interrogatories "including all discrete subparts" as does C.R.C.P. 33(a). Therefore, to ignore the "all discrete subparts" language of C.R.C.P. 88(a) would fail to give this language effect, in contravention of the Ad Hoe Committee's stated intent to retain a parallel to the federal rules.

Finally, to count each subpart-irrespec-tive of whether it is a discrete subpart-toward the interrogatory limit would lead to the absurd result of unreasonably frustrating legitimate discovery.

Examples from this case provide illustrations of this problem. Several of Petitioners' interrogatories ask Respondents to provide specific information in describing an event. For instance, Petitioners' Interrogatory No. 12 asks Respondents to "[dJleseribe the occasions on which [they] have diagnosed and/or treated individuals with cardiomyopathy, including [Respondents'] role in those cases and the cireumstances and outcomes of those diagnoses and/or treatments." Respondents divided this request for a description into three questions: (1) the description; (2) Respondents' role in the cases; and (8) the cireumstances or outcome of the diagnoses and/or treatments. If this interrogatory had asked for no more than a description, it would have been impossible for Respondents to split it into separate questions; however, because Petitioners followed their request for a description with requests that the description contain particular information, Respondents split it into multiple inquiries.

In addition, Petitioners' Interrogatory No. 19 asked Respondents to "[dJlescribe any complaints, lawsuits, grievances, license suspension revocation proceedings, reprimands, or denials of certification instituted against [them], including the name of the complainant, the nature of the complaint, and its resolution." Respondents split this request for a description into four interrogatories: (1) the description; (2) the identity of the complainant; (8) the nature of the complaint; and (4) the resolution of the complaint. Again, the identity of the complainant and nature and resolution of the complaint are integral parts of the description itself.

Yet another of Petitioners' interrogatories (No. 14) asked Respondents to "[dleseribe any and all conversations [they] have had with any of [their] office colleagues or with any other health care provider regarding the treatment of Karen Leaffer or her child's death, including the date that the conversation took place, the persons who were present during the conversations, and what was discussed." Respondents again split this question into four separate interrogatories: (1) the overall description; (2) the date of the conversations; (8) the persons present; and (4) the topic discussed.

In all, Respondents split all but three of Petitioners' interrogatories into as many as twelve separate subparts. As these examples make clear, to parse out each of the requests for specific details of a particular event and require that they count as separate interrogatories would penalize a litigant for requesting information that the opposing party would already reasonably be expected to provide. Indeed, to do so would force parties to create general-perhaps even vague-open-ended interrogatories, leading to absurd results and frustrating the legitimate purpose of using interrogatories to ascertain specific facts. We emphasize that "[llegitimate discovery efforts should not have to depend upon linguistic acrobatics." Ginn v. Gemini Inc., 137 F.R.D. 320, 322 (D.Nev.1991).

Therefore, given the application of the above principles of statutory construction, we find the only reasonable construction of subsection (e) is that its reference to "[alny subpart" means "any discrete subpart." See Travelers Indem. Co. v. Barnes, 191 Colo. 278, 283, 552 P.2d 300, 304 (1976) (adopting "[the reasonable construction" of an ambiguous statute).

Since we have determined that the more specific language in C.R.C.P. 83(a) prevails over the general language in C.R.C.P. 33(e), we must interpret the meaning of the "discrete subparts" language in C.R.C.P. 83(a) to determine whether Petitioners' non-pattern interrogatories contain "discrete subparts" or constitute a single interrogatory. Although this issue is a matter of first impression in Colorado, federal cases interpreting Fed. R.Civ.P. 83(a) provide helpful and highly persuasive guidance in interpreting our virtually identical C.R.C.P. 33(a) See, e.g., King v. People, 785 P.2d 596, 601 (Colo.1990) ("Although we are not bound by federal precedent interpreting the Colorado counterpart of Fed.R.Evid. 808(4), the fact that CRE 808(4) is a mirror image of the federal rule prompts us to construe the Colorado rule in light of the text and purpose of the federal rule."); Faris v. Rothenberg, 648 P.2d 1089, 1091 n. 1 (Colo.1982) ("[Flederal cases and authorities interpreting the [identical] federal rule are highly persuasive").

Noting that "the word 'discrete' essentially means, 'separate,' " Kendall, 174 F.R.D. at 685, federal courts interpreting Fed.R.Civ.P. 33(a) have made a distinction between discrete subparts and those subparts that are "logically or factually subsumed within and necessarily related to the primary question." Kendall, 174 F.R.D. at 685; see also Nyfield, 200 F.R.D. at 247; Safeco, 181 F.R.D. at 444-45, While discrete subparts are counted separately, subparts that are related to the primary question are not. Nyfleld, 200 F.R.D. at 247; Williams, 192 F.R.D. at 701; Safeco, 181 F.R.D. at 444-45; Kendall, 174 F.R.D. at 685; see also 7 James Wm. Moore, Moore's Federal Practice § 38.80[2] (8d ed. 1997) ("The better view is that subparts may be counted as part of one interrogatory if they are logically and necessarily related to the primary question. This approach is most consistent with the intent of the discovery rules to provide information, not hide information, within reasonable limits.") (footnote omitted); 8A Charles Alan Wright, Arthur R. Miller, & Richard L. Marcus, Federal Practice and Procedure § 2168.1, at 261 (2d ed. 1994) ("[Aln interrogatory containing sub-parts directed at eliciting details concerning the common theme should be considered a single question, although the breadth of the area inquired about may be disputable.")

These courts rely, in part, on the advisory committee notes to the federal rule, which support their distinction between discrete and related subparts. According to the drafters of Fed.R.Civ.P. 33:

Each party is allowed to serve 25 interrogatories upon any other party, but must secure leave of court (or a stipulation from the opposing party) to serve a larger number. Parties cannot evade this presumptive limitation through the device of joining as "subparts" questions that seek information about discrete separate subjects. However, a question about communications of a particular type should be treated as a single interrogatory even though it requests that the time, place, persons present, and contents be stated separately for each such communication.

Fed.R.Civ.P. 33, advisory committee's note to 1993 amendment. |

However, the challenge remains to distinguish between subparts that are discrete and those that are "logically or factually subsumed within and necessarily related to the primary question." - Federal courts considering this question have adopted the following test: it

Probably the best test of whether subsequent questions, within a single interrogatory, are subsumed and related, is to examine whether the first question is primary and subsequent questions are see-ondary to the primary question. Or, can the subsequent question stand alone? Is it independent of the first question? Genuine subparts should not be counted as separate interrogatories. - However, discrete or separate questions should be counted as separate interrogatories, notwithstanding they are joined by a conjunctive word and may be related.

Kendall, 174 F.R.D. at 685; see also Nyfield, 200 F.R.D. at 247 (adopting Kendall test).

Therefore, based on the conflict between C.R.C.P. 33(a) and C.R.C.P. 38(e) and the application of the above principles of statutory construction, we hold that only discrete subparts of non-pattern interrogatories-and not those logically or factually subsumed within and necessarily related to the primary question-count toward the limit stated in the Case Management Order. We further adopt the Kendall test to determine whether a subpart is discrete or whether it is logically or factually subsumed within and necessarily related to the primary question.

We turn now to the ultimate issue presented by this case, namely whether the trial judge erred by failing to grant Petitioners' motion to compel answers to these non-pattern interrogatories. Applying the Kendall test we have today adopted, we determine that each of Petitioners' sixteen non-pattern interrogatories constitutes a single question and does not contain discrete subparts. Accordingly, we make the rule absolute.

IV. ANALYSIS OF MOTION TO COMPEL PRODUCTION OF CALENDAR

The next issue we consider is whether the trial court abused its discretion by denying Petitioners' motion to compel production of Dr. Zarlengo's appointment calendar. We conclude that it did.

Respondents argued to the trial court that Dr. Zarlengo's schedule, as evidenced by his appointment book, is not relevant to the issue of whether Respondents were negligent in their failure to diagnose Ms. Leaffer's cardiomyopathy prior to her congestive heart failure and not reasonably calculated to lead to the discovery of admissible evidence. As Petitioners admit, Ms. Leaffer was not diagnosed with congestive heart failure until after her last appointment with Dr. Zarlengo. Therefore, Respondents argued that because "it is impossible to diagnose cardiomyopathy prior to congestive heart failure" and because there is no factual issue about when Ms. Leaffer presented with congestive heart failure, Dr. Zarlengo's schedule before that date is both irrelevant and not reasonably calculated to lead to the discovery of admissible evidence.

C.R.C.P. 26(b)(1) provides that "parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party." Further, it states that "[the information sought need not be admissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence." C.R.C.P. 26(b)(1).

Accordingly, the seope of discovery is "very broad," and the information sought "need only be relevant to the subject matter" of the litigation. Kerwin v. Dist. Court, 649 P.2d 1086, 1088 (Colo.1982). Moreover, the information need not be admissible at trial to be discoverable as long as it is reasonably calculated to lead to admissible evidence. Id. Given the discovery rules' "purpose of adequately informing the litigants of the facts giving rise to a claim or defense," we have interpreted the rules liberally, Smith v. Dist. Court, 797 P.2d 1244, 1248 (Colo.1990), and "in close cases, the balance must be struck in favor of allowing discovery." Id.

In this case, the trial court abused its discretion by apparently assessing the discoverability of the appointment calendar based only on Respondents' argument and disregarding the allegations in Petitioners' complaint that Respondents failed to provide Ms. Leaffer with "proper continuity of care." The trial court not only ignored our emphatic holding that "the standard of relevance for purposes of discovery under C.R.C.P. 26(b)(1) is not equivalent to the standard for admissibility of evidence at trial," Williams v. Dist. Court, 866 P.2d 908, 911 (Colo.1993), its order directly contravenes the clear language of C.R.C.P. 26(b)(1), which provides that parties may obtain discovery regarding any unprivileged, relevant matter that "relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party" if it is "reasonably calculated to lead to the discovery of admissible evidence."

Petitioners' request to produce Dr. Zarlen-go's appointment calendar relates to their claim that Dr. Zarlengo failed to give Ms. Leaffer proper attention, which they claim ultimately contributed to Respondents' negligence in failing to timely diagnose Ms. Leaf-fer's heart condition and to her baby's premature birth and eventual death. Thus, the information Petitioners expect to garner from the appointment calendar-whether Dr. Zarlengo had competing obligations during the period of time Ms. Leaffer was under his care that distracted him from rendering satisfactory care to her-is both relevant and related to "the claim ... of the party seeking discovery."

The trial court's order ignores the relevance of the appointment book to Petitioners' claim, seemingly focusing instead solely on Respondents' theory that they could not have been negligent as alleged since Ms. Leaffer did not present with congestive heart failure until after her last appointment with Dr. Zarlengo. Thus, the order disregards the focus of Petitioners' claim that but for Respondents' negligence, they would have diagnosed Ms. Leaffer's cardiomyopathy earlier and taken steps to treat her and prevent congestive heart failure, thereby prolonging her pregnancy. For these reasons, we hold that the trial court abused its discretion by denying Petitioners' motion to compel Respondents to produce Dr. Zarlengo's appointment books with only patient names-other than Ms. Leaffer's name-redacted.

v. CONCLUSION

In summary, we hold that pursuant to C.R.C.P. 38, only discrete subparts of non-pattern interrogatories and not those logically or factually subsumed within and necessarily related to the primary question-must be counted toward the interrogatory limit set forth in the Case Management Order. We also adopt the Kendall test to distinguish between discrete subparts and those that are logically or factually subsumed within and necessarily related to the primary question. Applying the Kendall test to the non-pattern interrogatories at issue, we hold that none contain discrete subparts; therefore, each interrogatory counts as one question. Finally, we hold that the trial court abused its discretion by denying Petitioners' motion to compel Respondents to produce Dr. Zarlen-go's appointment calendar. The rule is made absolute and the trial court is directed to grant Petitioners' motion to compel Respondents to respond to interrogatories and to produce Dr. Zarlengo's appointment calendar.

      . The trial court record in this case is not before us. We rely upon the briefs of the parties, the available pleadings and motions, and copies of the trial court's pre-trial orders for the facts of this case.

      . For example, Plaintiffs' Interrogatory No. 11 asked: "Describe your medical training specific to the conditions of cardiomyopathy, pre-eclamp-sia, and high-risk pregnancies (particularly involving twin pregnancies and advanced maternal age)." Respondents treated this interrogatory as three separate interrogatories directed to their training for each of the conditions in question.

      . Article VI, Section 3 provides in relevant part: ''The supreme court shall have power to issue writs of ... mandamus ... as may be provided by rule of court with authority to hear and determine the same...." Colo. Const. art. VI, § 3.

      . We, like the federal courts that have interpreted Fed.R.Civ.P. 33(a), recognize the importance of determining how subparts should be counted. On one hand, the extensive use of subparts could defeat the numerical limit imposed by the Case Management Order unless each subpart counts as a separate question; however, if each subpart counts as a separate interrogatory, then a party's fact-gathering ability might be unduly stymied or requests for an increase in the numerical limit might become automatic. Nyfield v. Virgin Islands Tel. Corp. 200 F.R.D. 246, 247 (D.Vi.2001); Williams v. Bd. of County Comm'rs of the Unified Gov't of Wyandotte County, 192 F.R.D. 698, 701 (D.Kan.2000); Safeco v. Rawstron, 181 F.R.D. 441, 443 (C.D.Cal.1998).

      . The interrogatories at issue are non-pattern interrogatories.

      . Principles of statutory construction apply equally to construction of rules of procedure. See Patterson v. Cronin, 650 P.2d 531, 534 (Colo.1982).

      . - In fact, many of Respondents' own interrogatories could have been similarly separated. For example, Respondents' Interrogatory No. 2 similarly addressed conversations regarding Ms. Leaffers' care and inquired: "For each and every visit you had with Dr. Zarlengo or Dr. Locke Offerdahl, please describe specifically who, if anyone was present; what you complained of or discussed; and what each doctor told you." Just as Respondents split Petitioners' question into four separate interrogatories, Respondents' own question could be similarly split into three separate queries: (1) the persons present for the visits; (2) the focus of the discussion; and (3) the doctors' responses. However, neither party split this question in this manner.

      . In fact, federal courts interpreting local rules that do not contain the "discrete subparts" language-and thus do not have the same conflict as CRCP. 33-still have refused to necessarily count each subpart toward the interrogatory limit; instead, they have counted a subpart as part of a single question if a direct relationship exists between the specific information called for in the interrogatory. See Clark v. Burlington N. R.R., 112 F.R.D. 117, 118 (N.D.Miss.1986) (interpreting local rule providing that "each subpart of a question shall be counted as a question," reasoning that the local rule was not "intended to frustrate legitimate discovery efforts," and concluding that "an interrogatory is to be counted as but a single question ... even though it may call for an answer containing several separate bits of information, if there is a direct relationship between the various bits of information called for'); see also Ginn, 137 F.R.D. at 320, 322 (interpreting local rule limiting number of interrogatories to 40 "including subparts" and holding that "subparts are to be counted as part of but one interrogatory for the purposes of [the local rule] if they are logically or factually subsumed within and necessarily related to the primary question"). But see Valdez v. Ford Motor Co., 134 F.R.D. 296, 297-98 (D.Nev.1991) (interpreting local rule limiting interrogatories to 40 "including subparts" and holding that rule requires that every part of an interrogatory be counted toward the limit).

      . Fed.R.Civ.P. 33(a) limits the number of interrogatories to "written interrogatories, not exceeding 25 in number, including all discrete sub-parts." Fed.R.Civ.P. 33(a) (emphasis added). C.RC.P. 33(a) similarly limits the number of interrogatories to "written interrogatories, not exceeding the number, including all discrete sub-parts, set forth in the Case Management Order." C.R.C.P. 33(a) (emphasis added).

      . Petitioners' non-pattern interrogatories are as follows:
      Interrogatory No. 11 (to the individual Defendants): Describe your medical training specific to the conditions of cardiomyopathy, pre-eclamp-sia, and high risk pregnancies (particularly involving twin pregnancies and advanced maternal age).
      Interrogatory No. 12: Describe the occasions on which you (including any physician employed by Defendant Midtown) have diagnosed and/or treated individuals with cardiomyopathy, including your role in those cases and the circumstances and outcomes of those diagnoses and/or treatments.
      Interrogatory No: 13: State the approximate number of patients involving multiple birth and advanced maternal age, seen by each member of Midtown in 1996, 1997, and 1998.
      Interrogatory No. 14 (to the individual Defendants): Describe any and all conversations you have had with any of your office colleagues or with any other health care provider regarding either treatment of Karen Leaffer or her child's death, including the date that the conversation took place, the persons who were present during the conversations, and what was discussed.
      Interrogatory No. 15: Identify all consultations and phone conversations you had with either or both Plaintiffs in 1998, including the date that the conversation took place, the persons who were present during the conversations, and what was discussed.
      Interrogatory No. 16: Describe in detail any investigation you have done regarding the care and treatment of Karen Leaffer, including any materials you have reviewed, any persons with whom you have spoken, or any other research you have performed since you treated Karen Leaffer; said description should include the name of any reference materials you have reviewed, computer queries and search results, the names of persons with whom you have spoken, and the results of any such investigation.
      Interrogatory No. 17: Describe every step you took to assess and/or diagnose Karen Leaffer's condition in 1998.
      Interrogatory No. 18: Since November 1998, identify each physician or other person with whom you have discussed Karen Leaffer's condition, including the nature of the discussions, where the discussion took place, whether the discussion was part of a formal meeting (Le., rounds, medical meetings, internal review processes, etc.), and whether the discussion referred to her condition prior to November 1998, or thereafter.
      Interrogatory No. 19: Describe any complaints, lawsuits, license suspension revocation proceedings, reprimands, or denials of certification instituted against you, including the name of the complainant, the nature of the complaint, and its resolution.
      Interrogatory No. 20: Describe any complaints, lawsuits, or grievances instituted by you, including the date of the complaint, lawsuit, or grievance, the basis for the complaint, and its resolution.
      Interrogatory No. 21 (to Defendant Zarlengo): State the total number (or best approximation) of patients you had in 1998, and the number of patients you saw each day from June 1, 1998 through November 19, 1998.
      Interrogatory No. 22 (to Defendant Zarlengo): State the approximate number of hours you devoted to the following activities on a weekly basis for each month of 1998, beginning in June:
      (a) office practice (e.g., seeing or speaking to patients)
      (b) hospital practice (e.g., seeing or speaking to patients)
      (c) administration of Midtown Obstetrics & Gynecology, P.C.
      (d) professional association activities
      (e) service as Secretary of Foundation Board of St. Joseph Hospital
      (€) service as President of medical staff of St. Joseph
      (g) consultation for CPEP
      (h) service as director of Medwest Management Group
      (i) service as director of Exempla Healthcare
      (§) service on the United Healthcare Credentialing Committee
      (k) service on the Colorado Foundation for Medical Care
      (1) service on the Blue/Cross/Blue Shield [sic] Advisory Committee
      Interrogatory No. 23 (to Defendant Zarlengo): Identify all documents, whether in your possession or otherwise, reflecting the time devoted to the activities set forth in the preceding interrogatory.
      Interrogatory No. 24: Identify all medical journals, periodicals or similar publications you received during 1998, and, for the individual Defendants, state the approximate amount of time each month devoted to review of same.
      Interrogatory No. 25: Identify the number of employees for Midtown as of June 1, 1998, and identify how many of those employees remained with Midtown as of the end of November 1998, and how many new employees had been hired in the interim.
      Interrogatory No. 26: Describe in detail all efforts made to locate Ms. Leaffer's records in response to her request of December 14, 1998, and any subsequent requests.
      Respondents split all but three of these sixteen non-pattern interrogatories into sixty separate questions and advised Petitioners to choose 20 of the 60 for Respondents to answer.

      . Alternatively, Respondents argued that even if the calendar is relevant, it should be excluded because its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, and a waste of the court's time under CRE 403 because Petitioners seek to portray Dr. Zarlengo as a "careless physician" who is "too busy" to care for his patients. However, CRE 403 has no bearing on the discoverability of evidence under the broad standard set forth in CRCP. 26(b)(1). CR.C.P. 26(b)(1) specifically provides that the information sought need not be admissible at trial if it "appears reasonably calculated to lead to the discovery of admissible evidence." C.R.C.P. 26(b)(1); see also, Sheila K. Hyatt & Stephen A. Hess, Colorado Civil Rules Annotated, 386 (3d ed. 1998) ("[Dliscovery is not bound up in the evidentiary rules applicable at trial. ...").

      . The trial court's order summarily denied Petitioners' motion. Therefore, we must assume that it accepted Respondents' argument.

      . In their complaint, Petitioners included specific allegations of occasions when Dr. Zarlengo was not present for scheduled appointments or when Petitioners or others expressed concern about Dr. Zarlengo's unavailability. Petitioner's claim of lack of continuity of care was one of several allegations of acts of professional negligence.

      . We recognize that "relevancy is not the end of the inquiry," Williams, 866 P.2d at 912, and that C.RC.P. 26(c) allows the trial court to issue protective orders as justice requires ""to protect a party ... from annoyance, embarrassment, oppression, or undue burden or expense."


text:
    Joseph Edward LAWRENCE, Petitioner, v. Lynn GUYER, Warden, Montana State Prison, Respondent.
    OP 18-0440
    Supreme Court of Montana.
    Submitted on: February 6, 2019 Decided: March 26, 2019 Rehearing Denied: May 14, 2019
    For Petitioner: Joseph E. Lawrence, Self-Represented, Deer Lodge, Montana
    For Respondent: Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant Attorney General, Helena, Montana
    Justice Laurie McKinnon delivered the Opinion and Order of the Court.
   ¶1 Representing himself, Joseph Edward Lawrence filed a petition for a writ of habeas corpus asserting he is entitled to relief because he pleaded guilty to two sexual offenses pursuant to North Carolina v. Alford , 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), in violation of § 46-12-204(4), MCA, which provides that a "court may not accept a plea of nolo contendere in a case involving a sexual offense[.]" This Court ordered a response from the State. The State filed its response and the matter is now ready for decision.

¶2 In August 2012, the State charged Lawrence in the Twenty-First Judicial District Court, Ravalli County, with two counts of soliciting sexual intercourse without consent. The affidavit in support of the Information alleged that Lawrence offered to give a 14-year-old boy a "blow job" in July 2012 and offered to pay a 13-year-old $100 to perform oral sex in September 2007. Following subsequent investigation, the State filed a Second Amended Information adding 243 counts of sexual abuse of children based on Lawrence's possession and production of pornographic images of children.

¶3 In May 2014, Lawrence signed a plea agreement in which he agreed to enter an " Alford plea" to amended charges of sexual assault and solicitation for sexual assault. The agreement allowed Lawrence to reserve his right to appeal any denial of his motion to sever the charges, but the District Court did not rule on the severance motion prior to accepting Lawrence's plea. The District Court sentenced Lawrence to thirty years in prison with twenty years suspended. Lawrence appealed, arguing that his conditional plea was invalid because the District Court did not rule on his motion to sever prior to accepting Lawrence's plea. Based upon the State's concession, we reversed and remanded with instructions to vacate the entry of Lawrence's guilty plea and sentence. State v. Lawrence , DA 14-0720, 2016 MT 209N, 2016 Mont. LEXIS 773.

¶4 The District Court, upon receiving this Court's Opinion, reinstated the second Amended Information as the effective charging document and set the matter for trial to begin April 28, 2017. However, a month prior to trial, Lawrence requested the District Court dismiss his counsel and that he be permitted to proceed pro se . The District Court granted Lawrence's request. During a final pretrial conference, the State and Lawrence entered into a plea agreement whereby Lawrence pleaded "guilty by Alford " to one count of sexual assault and one count of solicitation for sexual assault and, in exchange, the State dismissed 243 counts of sexual abuse. On June 28, 2017, the District Court imposed a twenty-year sentence with ten years suspended and gave Lawrence credit for 1,103 days of time already served.

¶5 In his Petition for Writ of Habeas Corpus, Lawrence raises many claims, including a claim that his Alford pleas are invalid because, pursuant to § 46-12-204(4), MCA, a court may not accept a "plea of nolo contendere in a case involving a sexual offense[.]" Lawrence also relies on State v. Hansen , 2017 MT 280, 389 Mont. 299, 405 P.3d 625, in which this Court determined Hanson's sentence was illegal because the sentence was imposed based on Hanson's no contest plea to a sexual offense. Lawrence's petition requires us to resolve the following dispositive issue:

In Montana, is an "Alford plea" synonymous to a "nolo contendere plea" which, under § 46-12-204(4), MCA, the court may not accept in a case involving a sexual offense?

¶6 In Alford , the Supreme Court held that Alford's plea of guilty was valid even though Alford protested his innocence and indicated he would not have pleaded guilty except for the opportunity to limit the possible penalty. The Supreme Court noted that "[s]tate and lower federal courts are divided upon whether a guilty plea can be accepted when it is accompanied by protestations of innocence and hence contains only a waiver of trial but no admission of guilt." Alford , 400 U.S. at 33, 91 S.Ct. at 165. However, the Court concluded that "the Constitution does not bar imposition of a prison sentence upon an accused who is unwilling expressly to admit his guilt but who, faced with grim alternatives, is willing to waive his right to trial and accept the sentence." Alford , 400 U.S. at 36, 91 S.Ct. at 167. Moreover, the fact that Alford's plea "was denominated a plea of guilty rather than a plea of nolo contendere is of no constitutional significance with respect to the issue now before us, for the Constitution is concerned with the practical consequences, not the formal categorizations, of state law." Alford , 400 U.S. at 37, 91 S.Ct. at 167. Thus, while most guilty pleas consist of both a waiver of trial and an admission of guilt, "the latter element is not a constitutional requisite to the imposition of criminal penalty." Alford , 400 U.S. at 37, 91 S.Ct. at 167. Significantly, the Supreme Court recognized that a trial judge does not have to accept every constitutionally valid plea merely because a defendant wishes to plead. "A criminal defendant does not have an absolute right under the Constitution to have his guilty plea accepted by the court, ..." and "the States may bar their courts from accepting guilty pleas from any defendants who assert their innocence." Alford , 400 U.S. at 38, 91 S.Ct. at 169 n.11.

¶7 The Montana Legislature responded to Alford by enacting § 46-12-212, MCA (1991), which requires courts to determine whether a factual basis exists to support a guilty plea before accepting it. Section 46-12-212, MCA, provides:

(1) The court may not accept a guilty plea without determining that there is a factual basis for the plea in charges of felonies or misdemeanors resulting in incarceration.
(2) A defendant who is unwilling to admit to any element of the offense that would provide a factual basis for a plea of guilty may, with the consent of the court, enter a plea of guilty to the offense if the defendant considers the plea to be in the defendant's best interest and if a factual basis exists for the plea.

¶8 The 1991 Commission Comments to § 46-12-212, MCA, indicate:

Subsection (2) was developed to allow formal recognition of what is commonly called the 'Alford plea.' This procedure, arising from the United States Supreme Court case of N.C. v. Alford , 400 U.S. 25 [91 S.Ct. 160, 27 L.Ed.2d 162] (1970), allows a defendant to plead guilty without actually admitting to the charge if he has reviewed the evidence against him, if he is capable of making a voluntary, knowing, and intelligent choice, and if the record contains strong evidence of guilt.

The 1991 Commission Comments to § 46-12-204, MCA, indicate that the committee considered including a nolo contendere plea, but determined it was unnecessary in light of the defendant's plea option under Alford . Section 46-12-212(2), MCA, permits a defendant to enter a guilty plea without admitting that he committed the offense if a factual basis exists and if the defendant believes the plea is in his best interest. This Court has recognized that "[a]n Alford plea allows a defendant to plead guilty to an offense without acknowledging his guilt." State v. Peterson , 2013 MT 329, ¶ 8, 372 Mont. 382, 314 P.3d 227. In Montana, when a defendant enters such a "plea by Alford ," as Lawrence did here, he still pleads guilty.

¶9 The Legislature enacted § 46-12-212(2), MCA, in 1991 to provide defendants with the option of entering a guilty plea pursuant to Alford , and then, in 1999, the Legislature added a third plea alternative to § 46-12-204(1), MCA, by allowing a defendant to plead "nolo contendere." Section 46-12-204(1), MCA, now sets forth a defendant's three plea alternatives in Montana, whereby a defendant may plead: (1) guilty, which includes a "plea by Alford " pursuant to § 46-12-212(2), MCA ; (2) not guilty; or (3) nolo contendere with the consent of the court and prosecutor. In a case involving a sexual offense, however, a court may not accept a plea of nolo contendere. Section 46-12-204(4), MCA ; see also Hansen , ¶ 3. Therefore, a defendant charged with a sexual offense may only plead guilty, which includes an Alford guilty plea pursuant to § 46-12-212(2), MCA, or not guilty.

¶10 In this case, Lawrence entered a plea of "guilty by Alford " to the sexual offenses pursuant to § 46-12-212(2), MCA ; he did not enter a plea of nolo contendere. Because an " Alford plea" is a guilty plea, courts are not statutorily prohibited from accepting Alford pleas in sexual offenses. Accordingly, we conclude Lawrence's Alford pleas were guilty pleas, not nolo contendere pleas, and that § 46-12-204(4), MCA, did not prohibit the District Court from accepting the Alford pleas to the sexual offenses.

¶11 Lawrence raises several other issues that are not appropriate for us to address in a petition for habeas corpus relief. " '[A] defendant waives the right to appeal all nonjurisdictional defects upon voluntarily and knowingly entering a guilty plea, including claims of constitutional violations which may have occurred prior to the plea.' " State v. Pavey , 2010 MT 104, ¶ 11, 356 Mont. 248, 231 P.3d 1104 (quoting State v. Violette , 2009 MT 19, ¶ 16, 349 Mont. 81, 201 P.3d 804 ) (internal citations omitted). Lawrence's challenges to the court's authority needed to be raised prior to the plea agreement. Lawrence's constitutional challenges are also not appropriately raised in this habeas corpus proceeding. See Gates v. Missoula County Comm'rs , 235 Mont. 261, 262, 766 P.2d 884, 884-85 (1988).

¶12 Lawrence's Motion for Plain Error Review, in which he requests a full court docket review under federal law, is not appropriate in this state court habeas corpus proceeding. Lawrence should have raised any structural defect or error on direct appeal. State v. Clemans , 2018 MT 187, ¶ 20, 392 Mont. 214, 422 P.3d 1210. Lawrence is barred from requesting such review. Section 46-22-101(2), MCA.

¶13 Finally, Lawrence contends that he is due 695 days of credit for house arrest. He provides no case law or argument to support such request. An offender is only entitled to credit under home arrest if he is serving a deferred or suspended sentence.

Section 46-18-203(7)(b), MCA, provides: "If a suspended or deferred sentence is revoked, the judge shall consider any elapsed time[,] ... Credit must be allowed for time served in a detention center or for home arrest time already served." Lawrence correctly received credit for time served prior to his conviction and sentencing, pursuant to § 46-18-403(1), MCA, and is not entitled to any credit for house arrest. Furthermore, Lawrence is ineligible for home arrest. See § 46-18-1004, MCA ("A person being held under a detainer, warrant, or process issued by some other jurisdiction is not eligible for home arrest.").

IT IS ORDERED that Lawrence's Petition for a Writ of Habeas Corpus is DENIED.

IT IS FURTHER ORDERED that Lawrence's Motion for Plain Error Review is DENIED and DISMISSED.

The Clerk of the Supreme Court is directed to provide a copy of this Order to counsel of record and to Joseph Edward Lawrence personally.

We concur:

BETH BAKER, J.

JAMES JEREMIAH SHEA, J.

DIRK M. SANDEFUR, J.

JIM RICE, J.