Boland v. Saint Luke's Health System, Inc.

471 S.W.3d 703, 2015 Mo. LEXIS 151, 2015 WL 4926961

• Court: Supreme Court of Missouri
• Decided: August 18, 2015
• Docket: No. SC 93906
• Status: Published

Opinions

Mary R. Russell, Judge

The issue on appeal here is whether the trial courts erred in entering judgments on the pleadings in five wrongful death lawsuits on the basis that the causes of action were time-barred by the three-year limitation in section 537.100.¹ The plaintiffs argue the claims were not barred by the statute of limitation as the defendants intentionally and fraudulently concealed the tortious nature of the decedents’ deaths. This Court finds that Frazee v. Partney, 314 S.W.2d 915 (Mo. banc 1958), remains good law and reaffirms both its holdings that a wrongful death claim accrues at death and that courts may not add exceptions to a special statute of limitation. Accordingly, despite the harsh result, this Court is obligated to follow the mandate of the statute. The plaintiffs’ claims are time-barred because the three-year statute of limitation had passed when the lawsuits were filed, and section 537.100 does not provide for delayed accrual or an exception for fraudulent concealment. The judgments of the trial courts are affirmed.

I. Factual and Procedural Background

The circumstances of these cases are tragic and deeply concerning. This appeal arises from five sepárate but essentially identical wrongful death claims brought by Sally Boland, Sherri Lynn Harper, David C. Gann, Jennirae Littrell, and Helen Pittman (the plaintiffs) against Community Health Group, Saint Luke’s Health Systems, Inc., and Saint Luke’s Hospital of Chillieothe (collectively, “the hospital”). The eases are now consolidated before this Court. Because the trial courts entered judgment on the pleadings in favor of the hospital, the following allegations of the plaintiffs are treated as admitted for purposes of this appeal. See Emerson Elec. Co. v. Marsh & McLennan Cos., 362 S.W.3d 7,12 (Mo. banc 2012).

The plaintiffs all had family members die while being treated at Hedrick Medical Center in Chillieothe in 2002. Sally Bo-land’s father died February 3, 2002. Sherri Lynn Harper’s husband died March 22, 2002. David C. Gann’s father died March 30, 2002. Jennirae Littrell’s father died April 15, 2002. Helen Pittman’s sister died March 9,2002.

The petitions allege that Jennifer Hall, a former employee of the hospital, was responsible for the deaths. Specifically, the allegations are that over a period of time, Hall, a respiratory specialist, intentionally administered a lethal dose of succinylcho-line, insulin, and/or other medication that resulted in the death of each of the decedents.² Hall’s actions are alleged to have caused at least nine suspicious deaths and 18 suspicious “codes,” which are medical emergencies, often involving cardiac arrest or the inability to breathe.

Further, the petitions allege that the hospital was aware of Hall’s actions and acted affirmatively to conceal the suspicious nature of the deaths by: (1) threatening and coercing its employees to conceal information concerning Hall’s , actions; (2) failing to request autopsies so as to conceal the causes of death when there were several suspicious deaths; (3) informing or instructing its employees to notify patients’ families that the causes of death were “natural” rather than due to Hall’s actions; (4) disbanding committees put into place to evaluate codes and determine preventative measures; (5) failing to inform appropriate individuals and medical committees that had authority to act about Hall’s behavior so that future harm by Hall could be prevented; (6) failing to investigate, and/or monitor Hall when requested to do so by law enforcement; Suc-cinylcholine is a muscle relaxant that paralyzes the respiratory muscles and normally is used to allow the insertion of a breathing tube into the throat of a patient who is still conscious. When administered in larger doses, succinylcholine will resült in paralysis, and the patient suffocates to death. (7) removing patients’ medical records so they were inaccessible to the patients’ physicians; (8) discarding or failing to preserve crucial material evidence contained in Hall’s locker regarding her misconduct; • and (9) impeding law enforcement’s investigation of Hall.

Dr. Cal Greenlaw was a physician working at the hospital during- the relevant period. In February 2002, Dr. Greenlaw treated a patient in the emergency room .who suddenly “coded” due to a cardiovascular collapse. He could not account for the patient’s unusual blood sugar/insulin events. He had previously become aware of two suspicious codes and resulting deaths prior to this incident and subsequently came to suspect that someone had been attempting- to kill patients by injecting them with insulin or some other drug.

Dr. Greenlaw voiced these concerns to the hbspital administration but was told by the hospital’s director of nurses that there was no problem and not to discuss his suspicions further. Later, he told the hospital’s¹ administrator that he suspected Hall was intentionally killing patients at the hospital but was again told to abandon the matter for fear that the hospital’s admissions would be jeopardized. However, he continued to gather evidence and, ultimately, became aware of 18 “code blues” and nine suspicious deaths at the hospital from February to May 2002 that occurred while Hall was on duty.

Aleta Boyd was a registered nurse and longtime employee of the hospital during the relevant period. She worked as the hospital’s risk manager for internal events. In March 2002, she became aware of a dramatic increase in code blue events and deaths. She ultimately came to suspect that patients were intentionally being injected with insulin and/or other drugs and began an internal investigation. She concluded that Hall was- the cause of the events and communicated the findings to the director of nursing and to the hospital’s administrator. Boyd, however, was instructed to keep the matter confidential and not to involve anyone else. She continued to receive reports of code blue events and deaths, ultimately becoming aware of approximately 15 patients who either coded or died under suspicious circumstances in which Hall was listed in the patient’s record. Boyd and other nurses finally met with the hospital administration and communicated a desire to alert the media if the hospital failed to stop Hall.

Hall was suspended and later fired in May 2002 after another patient died under suspicious circumstances. After Hall’s suspension, a bottle of insulin was found in her locker, despite there being no reason for her to have insulin or to administer medication to patients. The suspicious codes and deaths apparently ceased once Hall was fired.

The Joint Commission on Accreditation of Healthcare Organizations ultimately investigated the events at the hospital and identified a number of “sentinel” events occurring during 2002. A sentinel event is defined as “an unexpected occurrence involving death or serious physical or psychological injury, or the risk thereof.” A health care provider is required to report such events to patients and their families. The plaintiffs, however, allege- they were not notified of the circumstances surrounding the deaths of their family members until shortly before their petitions were filed.

The plaintiffs filed petitions against the hospital arguing they were entitled to damages under Missouri’s wrongful death statute, section 5S7.08Ó. The hospital filed motions for judgments on the pleadings, arguing that the claims were time-barred by section 537.100, the three-year wrongful death statute of .limitation. The trial courts granted the hospital’s motions. The plaintiffs appeal.³

IL Standard of Review

. When reviewing the trial court’s grant of a motion for judgment on the pleadings, this Court must determine “whether the moving party is entitled to judgment as a matter of law on the face of the pleadings.” Emerson Elec. Co., 362 S.W.3d at 12. The judgments will be affirmed if the facts pleaded by the plaintiffs, considered by the court as admitted, demonstrate that they could not prevail under any. legal theory. Id.

III. Statutory Provisions

Wrongful death in Missouri is statutory and has no common law antecedent. Sanders v. Ahmed, 364 S.W.3d 195, 203 (Mo. banc 2012). Section 537.080 provides, in relevant part:

Whenever the death of a person results from any act, conduct, occurrence, transaction, or circumstance which, if death had not ensued, would have entitled such person to recover damages in respect thereof, the person or party who, or the corporation which, would have been liable if death had hot ensued shall be liable in an action for damages, notwithstanding the death of the person injured....

A limitation period within which all wrongful death claims must be . brought is found in section 537.100. It provides that “[e]very action instituted under section 537.080 shall be commenced within three years after the cause of action shall accrue.” Section 537.100 contains two exceptions to the statute of limitation: a tolling provision for defendants.who abscond from the state to avoid personal service and a one-year savings provision if This Court granted transfer after opinion by the court of appeals. Mo. Const, art. V, sec. 10. the plaintiff files a voluntary non-suit or the plaintiffs judgment. is reversed ' and remanded on appeal. There are no other exceptions in the language -of section 537.100.

By contrast,' in chapter 516, the general statutes of limitation chapter, there is an exception for fraudulent concealment. Section 516.280 provides that, “[i]f any person, by absconding or concealing himself,. or by any other improper act, prevents] the commencement of an action, such action may be commenced within the time herein limited, after the commencement of such action shall have ceased to be so prevented.” Section 516.300, however, provides that: “[t]he provisions of sections 516.010 to 516.370 shall not extend to any action which is or shall be otherwise limited by any statute; but such action shall be brought within the time limited by such statute.” In short, section 516.300 states that the general statutes of limitation and exceptions found in chapter 516 are not applicable to causes of action that contain their own special statutes of limitation. Section 537.100 is a special statute of limitation for wrongful death. As a result, the fraudulent concealment tolling exception in section 516.28Ó is not applicable to this case.

IV. Analysis

All parties agree that neither of section 537.100’s two exceptions apply to this case. Instead, the plaintiffs argue that the trial courts erred in granting the hospital’s motions for judgment on the pleadings because, due to the hospital’s fraudulent concealment, their wrongful death claims did not accrue until they learned of the wrongfulness of the hospital’s conduct and were not time-barred by section 537.100. Alternatively, they contend that the statute of limitation was equitably tolled by the hospital’s concealment, that the statute of limitation did not run, or that equitable estoppel precludes the hospital from relying on the statute of limitation as a defense. In other words, the plaintiffs argue either for delayed accrual under section 537.100 or for a de facto exception to the limitation period for fraudulent concealment. The hospital counters that delayed accrual for wrongful death is not recognized in Missouri and that courts may not judicially graft a tolling mechanism onto a special statute of limitation that is not specifically provided for by the legislature.

A. Frazee v. Partney Remains Good Law

At the center of both of the plaintiffs’ arguments is this Court’s decision in Frazee v. Partney, 314 S.W.2d 915 (Mo. 1958). In Frazee, a family was involved in a car accident caused by a driver who fell asleep at the wheel. Id. at 917. Two people were killed, but the driver was unaware an accident had occurred because he did not see where the family’s car went off the road. Id. The driver considered whether to go back and investigate but elected to proceed ahead to his destination. Id. The accident occurred in 1954, but the plaintiffs did not learn the driver’s identity until March 1956. Id. They filed a wrongful death suit against the driver in September of 1956. Id. at 916. The defendant pleaded section 537.100, which at that time provided a one-year limitation period for wrongful death claims. Id. This Court considered two questions: (1) when á wrongful death cause of action accrues, and (2) whether the defendant’s allegedly fraudulent concealment of his identity tolled or extended the limitation period in section 537.100. Id. at 917.

With respect to delayed accrual, this Court addressed whether a wrongful death claim accrues at death or at the point when the suit “could be validly commenced and maintained against an ‘actual’ defendant,” i.e., when the identity of the defendant became known. Id. at 917. Frazee distinguished between the existence of a defendant and the identity of the defendant and noted that the language of section 537.100 specifically provided that the limitation period began at the accrual of the cause of action — when the plaintiffs injury was complete and not at the point when a lawsuit could be effectively commenced. Id. at 920-21. Frazee held that, despite the harshness of the outcome, the wrongful death claim accrued at the moment of death, even though the plaintiff argued the identity of the defendant had been fraudulently concealed. Id. at 921.

In addressing the driver’s identity, Frazee rejected the argument that .such concealment, even if fraudulent, tolled or extended the limitation period and held that section 537.100 “must carry its own exceptions”:

This court has uniformly held that where a statute of limitations is a special one, not included in the general chapter on limitations, the running thereof cannot be tolled because of fraud, concealment or any other reason not provided in the statute itself.... No other exceptions whatever are engrafted on that statute, and it is not the duty or the right of the courts to write new provisions into the statute.

Id. at 919. In reaching this conclusion, the Court noted that it was bound to consider only the plain language of section 537.100 and the legislative intent that language evidenced. Id. at 921. Frazee further found it significant that the legislature had twice amended section 537.100 since its adoption and added two exceptions yet never saw fit to craft a fraudulent concealment exception like the one codified at section 516.280. Id. at 920. “We are forced to construe the cold, clear words of the statute, and if its scope is to be enlarged we feel that the remedy is legislative, not judicial.” Id. at 921.

The plaintiffs question the validity of Frazee in light of two subsequent decisions. First, in O’Grady v. Brown, 654 S.W.2d 904, 906-07 (Mo. banc 1983), this Court considered whether a fetus qualified as a “person” under the wrongful death statute. O’Grady held that the wrongful death statute was not in derogation of the common law and should be construed “with a view to promoting the apparent object of the legislative enactment.” Id. at 908. In holding that the fetus was a “person” for purposes of wrongful death, this Court noted three basic objectives underlying the wrongful death statute: (1) to compensate bereaved plaintiffs for their loss, (2) to ensure that tortfeasors pay for the consequences of their actions, and (3) to deter future harmful conduct that might lead to death. Id. at 909.

Second, 'the plaintiffs cite Howell v. Murphy, 844 S.W.2d 42 (Mo. App. 1992), which relied on O’Grady. The plaintiffs argue that Howell abrogated Frazee. In Howell, the plaintiffs filed wrongful death claims against a man who murdered their loved ones and concealed the evidence for more than five years. Id. at 45. The plaintiffs could .not file their claims within three years because the victims had not been found and, by statute, were presumed missing and not dead until five years had passed. Id. at 47. The court favorably cited O’Grady as a “major shift” in the interpretation of wrongful death, holding that the statute of limitation “should not be. so strictly construed as to avoid the wrongful death statute’s purposes.” Howell, 844 S.W.2d at 46. It held that, due to the defendant’s concealment of the bodies and the statutory presumption of life, section 537.100 was tolled “until the plaintiffs could, by reasonable diligence, ascertain they had an action.” Id. at 47. In its discussion, Howell also stated that “the reasoning of Frazee is superseded by O’Grady.” Id. at 46.'

Howell is in error. Frazee was never referenced or cited by this Court in O’Grady. Absent a contrary showing, an opinion of this Court is presumed not to be overruled sub silentio. State v. Wade, 421 S.W.3d 429, 433 (Mo. banc 2013). Additionally, Frazee and O’Grady are dissimilar because the statute of limitation was not at issue in O’Grady. As a result, Frazee remains good law. To the extent that Howell stated that Frazee is superseded by O’Grady, it should no longer be followed.⁴

B. Delayed Accrual

To determine whether a statute of limitation bars recovery, it is necessary to establish when the cause of action accrued. Jepson v. Stubbs, 555 S.W.2d 307, 311 (Mo. banc 1977). A cause of action accrues, and the limitation period begins to run, when the right to sue arises. Hunter v. Hunter, 361 Mo. 799, 237 S.W.2d 100, 103 (1951). Frazee held that a wrongful death claim accrues at death. This has long been the rule in Missouri. See Coover v. Moore, 31 Mo. 574, 576 (Mo.1862); Cummins v. Kansas City Pub. Serv. Co., 334 Mo. 672, 66 S.W.2d 920, 929 (1933); Nelms v. Bright, 299 S.W.2d 483, 487 (Mo. banc 1957). That rule is now reaffirmed. The language of section 537.100 is unambiguous, and this Court’s precedent is clear: the plaintiffs’ claims accrued, at the decedents’ deaths, and- section 537.100 does not provide for delayed accrual under these circumstances.

C. Fraudulent Concealment Exception

As the plaintiffs’ claims accrued at death, the claims are time-barred unless an exception or tolling mechanism applies. The plaintiffs argue that due to the hospital’s fraudulent concealment, the statute of limitation was equitably tolled, did not run, or that equitable estoppel prevents the hospital from relying on the statute, of limitation as a defense. Though these are distinct legal concepts, under these circumstances they amount to an argument for a de facto exception tó Section 537.100 for fraudulent concealment.

Faced with statutory language that does not provide the fraudulent concealment exception they seek, the plaintiffs contend that this Court should construe the limitation period for wrongful death found in section 537.100 to avoid frustrating the remedial purpose behind wrongful death. They argue that section 537.100 can be interpreted “with reference to its spirit and reason so that, even if a case falls within the letter of the statute, courts are not bound thereby if the case is not within the spirit and reason of the law and the plain intention of the legislature.” Essentially, they argue that the wrongful death statutory scheme’s purposes can be used to override or amend its statutory language. They believe Frazee was wrongly decided, particularly in light of law in other jurisdictions.⁵

This Court is presented with an extremely difficult decision. What occurred here is undoubtedly a tragedy, and the plaintiffs put forth what amounts to a compelling policy argument for why their suits should be allowed to proceed. This proposed “freewheeling” approach to statutory interpretation, however, is also troubling, particularly when the precedent of this Court counsels a different result.⁶

1. Precedent Cautions Against Judicially-Created Exceptions

As noted above, Fmzee re mains good law and is directly on point in this case. It unambiguously held that “[a] special statute of limitation must carry its own exceptions and we may not engraft others upon it.” 314 S.W.2d at 919. Despite the difficult result for the plaintiff, Fmzee held that “[t]he legislature has not seen fit to enact for death actions either a tolling provision or a delayed accrual on account of fraud, concealment, or other improper act” and that it was “not the duty or the right” of the courts to add exceptions not provided for by statute. Id. at 919, 921. The principles of legislative deference as well as stare decisis must be respected.

Moreover, this is not the first time this Court, has declined appealing policy arguments when applying statutes of limitation. In Laughlin v. Forgrave, 432 S.W.2d 308 (Mo. banc 1968), this Court, in construing section 516.140, RSMo 1959, held that a plaintiffs medical malpractice action was barred by the statute of limitation despite the claim that the injury — a foreign object left in the plaintiffs back following a surgery in 1951 — could not have been discovered within the limitation period. This is because the statute of limitation did not contain a discovery provision. Id. at 313. In rejecting the plaintiffs argument for the discovery rule, this Court stated that:

This argument is appealing and has some force, so far as justice is concerned; in that respect the conclusion we reach is distasteful to us. But, the legislative branch of the government has determined the policy of the state and clearly fixed the time when the limitation period begins to run against actions for malpractice. This argument addressed to the court properly should be addressed to the General Assembly. Our function is to interpret the law; it is not to disregard the law as written by the General Assembly.

Laughlin, 432 S.W.2d at 314. Addressing the result of Laughlin, the General Assembly in 1976 repealed section 516.140 and enacted section 516.105, a new special statute of limitation for medical malpractice actions with a specific provision that, for foreign objects left inside the body, the limitation period began to run from the date of discovery. 1976 Mo. Laws 767 (codified as amended at section 516.105, RSMo 2000).

Similarly, in Weiss v. Rojanasathit, 975 S.W.2d 113 (Mo. banc 1998), this Court again addressed the statute of limitation for a medical malpractice action under section 516.105, RSMo 1994. In Weiss, the plaintiff received a routine gynecological examination and was told she would be notified of any abnormal results. Id. at 116. The plaintiff was not notified that the test indicated a cancerous or precancerous condition; Id. During another examination nearly four years later, she discovered she had Stage lib endoeervix cancer. Id. She brought a medical malpractice action based on failure to notify, arguing that because her injury was not capable of being discovered until the subsequent examination, her claim was not barred by ’the two-year limitation period of section 516.105, RSMo 1994. Id. at 117.

Weiss rejected the various proffered discovery theories and held that the discovery exception added after Laughlin was limited to cases concerning foreign objects. Id. at 120. Citing the above language from Laughlin, the Court noted that the outcome was a hardship to the plaintiff but that “[t]he general assembly evidenced its clear intent to limit a discovery rule to cases concerning foreign objects. That is its prerogative. This Court must follow the policy determination expressed there.” Id. at 121. Additionally, the plaintiffs argument that equitable estoppel should prevent the defendant from asserting the statute of limitation as a defense was rejected. Id. at 120. In response, during the next legislative session in 1999, the General Assembly amended section 516.105, adding a discovery exception for cases where the act of negligence is “negligent failure to inform the patient of the results of medical tests.” 1999 Mo. Laws 329.

Frazee, Laughlin, and Weiss do not seek to incentivize fraudulent acts. Rather, they stand for the principle that it is this Court’s role to interpret the law, not rewrite it. Accordingly, the plaintiffs’ argument here is one better made to the General Assembly, which is in the best position to determine policy on exceptions to statutes of limitation. See Hunter, 237 S.W,2d at 104 (exceptions to statutes of limitation are matters of public policy for the General Assembly; exceptions are to be strictly construed and not enlarged by courts upon considerations of hardship).⁷

It is further noted that, although the result the plaintiffs argue for is appealing, the method of using a common law equitable maxim to work around the dictates of section 537.100 is inherently problematic. Equity should not be deployed in a manner that countermands the clear intent and language of the legislature, particularly in regard to a statutorily created cause of action. This Court has previously held that:

Equity Courts may not disregard a statutory provision, for where the Legislature has enacted a statute which governs and determines the rights of the parties under stated circumstances, equity courts equally with courts of law are bound thereby. Equity follows the laiv more circumspectly in the interpretation and application of statute law than otherwise.

Milgram v. Jiffy Equip. Co., 362 Mo. 1194, 247 S.W.2d 668, 676-77 (1952) (emphasis added) (internal citations omitted). Implicit in the plaintiffs’ argument is that all equitable maxims become a part of all statutory schemes unless expressly written out of the law by the legislature. This merely invites the future reexamination by courts of otherwise settled areas of statutory interpretation, and this Court declines to so hold.

2. Legislative Intent of Section 537.100

The plaintiffs argue that the legislature could not have intended for the wrongful death statutory scheme to operate in this manner and that the primary rule of interpretation is to give effect to the legislature’s intent as reflected in the plain language of the statute. See Fred Weber, Inc. v. Dir. of Revenue, 452 S.W.3d 628, 630 (Mo. banc 2015). Though it is rendered somewhat tertiary in light of the plain language of section 537.100 and precedent regarding judicially created exceptions to special statutes of limitation, the legislative history of section 537.100 .indicates a legislative intent not to provide the exception the plaintiffs seek.

Prior to the result in Fmzee, the General Assembly twice amended section 537.100 to add exceptions. In 1905, a one-year savings provision to allow a new suit following dismissal without prejudice ' was added. 1905 Mo. Laws 137 (codified at section 2868, RSMo 1906). In 1909, a tolling provision for defendants who abscond from the state to avoid personal service was added. 1909 Mo. Laws 463 (codified at section 5429, RSMo 1909). In enacting these two exceptions to the limitation period, the General Assembly declined to adopt an exception for fraudulent concealment. Yet it appears the legislature was well aware of how to provide for a fraudulent concealment exception to a statute of limitation as such an exception, currently codified at section 516.280, has existed in Missouri for over 150 years. See Limitation: art. 8, sec. 3, RSMo 1836. The legislature could have added a fraudulent concealment exception to section 537.100, but it did not.

Even after Fmzee, the General Assembly twice more amended section 537.100 but has never seen fit to craft a fraudulent concealment exception. Instead, it chose to alleviate the result in Fmzee by enlarging the limitation period — first from one year to two years in 1967, then to three years in 1979. 1967 Mo. Laws 665; 1979 Mo. Laws 631. The Court respects these legislative choices and “presumels] that the legislature acted with a full awareness and complete knowledge of the present state of the law.” State v. Rumble, 680 S.W.2d 939, 942 (Mo. banc 1984). .

V. Conclusion

Without commenting on whether the plaintiffs have other viable remedies at law, the conclusion that the plaintiffs are without a remedy for wrongful death is a difficult one; But as it was written over a century ago, “[h]ard cases ... are apt to introduce bad law.” Winterbottom v. Wright, (1842)152 Eng. Rep. 402 (Exch.). In that regard, this Court echoes the sentiment of baughlin in recognizing that, though the outcome is distasteful, “the legislative branch of the government has determined the policy of the state and clearly fixed the time when the limitation ' period begins to run.... Our function is to interpret 'the law; it is not to disregard the law as written by the General Assembly.” 432 S.W.2d at 314. The judgments of the trial courts are affirmed.

Breckenridge, C.J., Fischer, and Wilson, JJ., concur; Draper, J., concurs in part and dissents in part in separate opinion filed; Stith and Teitelman, JJ., concur in opinion of Draper, J.

1 . All statutory references are to RSMo 2000 unless otherwise indicated.

2 . Succinylcholine is a muscle' relaxant that paralyzes the respiratory muscles and normally is used to allow the insertion of a breathing tube into the throat of a patient who is still conscious. When administered in larger doses, succinylcholine will result ’ in paralysis, and the patient suffocates to death.

3 . This Court granted transfer after opinion by the court of appeals. Mo. Const, art V, sec. 10.

4 . The plaintiffs argue that Howell, controls this case. However, Howell is distinguishable. There, the plaintiffs were not aware they had a wrongful death claim because they could not be certain that a death had occurred due to the defendant’s fraudulent concealment and the statutory presumption of life. Howell, 844 S.W.2d at 46. Here, by contrast, the plaintiffs had knowledge of their decedents’ deaths; they lacked knowledge of the hospital’s wrongful conduct regarding treatment of their decedents. The cases are inapposite, and Howell does not control.

5 . The plaintiffs cite numerous cases from other jurisdictions in support of a fraudulent concealment exception to section 537.100. This citation of authority is impressive and spans nearly 200 years. However, law from other states or the federal courts is not controlling in applying section 537.100.

6 . The dissenting opinion argues this opinion ignores binding precedent on the interpretation of the wrongful death statute, citing O'Grady. Yet, notwithstanding the fact that O’Grady stated its holding was limited to the facts presented, 654 S.W.2d at 911, the language on which the dissent relies was made in a very different factual and legal context than here. And though the dissent casts aside the distinction, O’Grady does not control because it did not consider the statute of limitation. O’Grady weighed only the broad purposes behind the wrongful death statute. When a statute of limitation is also in play, however, its unique purposes should also be weighed. O'Grady never had to consider the purposes of the wrongful death statute in light of the purposes of the statute of limitation. Absent such analysis, O’Grady cannot conclusively determine this outcome. Frazee, however, which the dissent agrees is valid and binding, not only considered the wrongful death statute and section 537.100, but it did so in a similar context as this case — fraudulent concealment. Frazee controls over O’Grady.

7 . There is also historical precedent for this view:

It was at one time held in regard to these [statutes of limitations], that where by reason of the defendant’s fraud the existence of a cause of action was concealed, it would furnish an equitable exception to the express language of the statute. [B]ut the idea

that implied and equitable exceptions, which the Legislature has not made, are to be engrafted by the courts on a statute of limitations is now generally abandoned.

Theodore Sedgwick, A Treatise on the Rules Which Govern the Interpretation and Construction of Statutory and Constitutional Law, 277 (Pomeroy, ed., 2d ed. 1874, reprint 2012).