State Ex Rel. Cardinal Glennon Memorial Hospital for Children v. Gaertner

583 S.W.2d 107

• Court: Supreme Court of Missouri
• Decided: March 13, 1979
• Docket: 60485
• Status: Published

Opinions

DONNELLY, Judge.

This is prohibition.

Deborah Lynn Burns, a minor, and her parents, Doyle Burns and Phyllis Burns, sued Cardinal Glennon Hospital for Children, Thomas E. Veeser, M.D., G. D. Searle and Company, and six “John Doe” physicians, for professional negligence, in the Circuit Court of the City of St. Louis. Cardinal Glennon Hospital filed a Separate Motion to Dismiss alleging, in part, that plaintiffs’ petition should be dismissed because of their failure to comply with Chapter 538, RSMo Supp. 1976, before filing their petition in the Circuit Court of the City of St. Louis. On November 2, 1977, the trial court overruled the Separate Motion to Dismiss and effectively held Chapter 538 unconstitutional. On December 19, 1977, this Court issued its Provisional Rule in Prohibition ordering the Honorable Carl R. Gaert-ner, Judge, Circuit Court of the City of St. Louis, to show cause why a writ of prohibition should not issue prohibiting him from taking further action against Cardinal Glennon Hospital. The Attorney General and the Executive Secretary of the Professional Liability Review Board Authority were given leave to intervene. If Chapter 538 is constitutional, our provisional rule should be made absolute. If Chapter 538 is unconstitutional, our provisional rule should be quashed.

Section 538.010, RSMo Supp. 1976, reads as follows:

“As used in sections 538.010 to 538.080, the following terms mean:

“(1) ‘Claimant’, a plaintiff or plaintiffs in an action filed in a Missouri court seeking damages from a ‘professional’ or ‘professionals’ alleging malpractice, errors, omissions or other professional negligence;

“(2) ‘Health care provider’, includes physicians, dentists, clinical psychologists, pharmacists, optometrists, podiatrists, registered nurses, physician’s assistants, chiropractors, physical therapists, nurse anesthetists, anesthetists, emergency medical technicians, hospitals, nursing homes and extended care facilities; but shall not include any nursing service or nursing facility conducted by and for those who rely upon treatment by spiritual means alone in accordance with the creed or tenets of any well recognized church or religious denomination;

“(3) ‘Professional’, means ‘health care providers’ as hereinafter defined;

“(4) ‘Review board’, a professional liability review board as provided for in sections 538.010 to 538.080;

“(5) ‘Review board authority’, the professional liability review board authority as provided for in sections 538.010 to 538.-080;

“(6) ‘Secretary’, the executive secretary of the professional liability review board authority.”

Section 538.020, RSMo Supp. 1976, reads as follows:

“1. Before any action seeking damages from a professional alleging malpractice, errors, omissions or other professional negligence can be filed in any court within this state, the plaintiff in the action must have complied with the provisions of sections 538.010 to 538.080 requiring a review of the claims upon which the action is based by a professional liability review board.

“2. Prior to the filing of an action seeking damages from a professional alleging malpractice, errors, omissions or other professional negligence, the claimant shall give written notice to the secretary setting forth therein a statement of the claim, including the time of occurrence, the place, the circumstances, the alleged negligent act, error or omission, the injury or damages sustained and the relief demanded. Simultaneously a copy of the notice shall be sent by registered or certified mail to each party against whom the claim is or may be asserted. The notices shall be given within the time for filing an action as prescribed by the applicable statute of limitations. The giving of the notices shall toll the running of the statutes of limitations until such time as the review board has completed its hearing, made its recommendations, and given the parties an opportunity to act thereon as provided in sections 538.010 to 538.080.

“3. Upon receipt of such a notice, the secretary shall convene as provided herein a medical malpractice review board whose sole purpose shall be to facilitate the disposition of the medical malpractice claim, but not more than one claim may be examined by any particular board.”

Section 538.025, RSMo Supp. 1976, reads, in part, as follows:

“1. Each board shall be composed of six members consisting of a judge of a circuit court, two attorneys at law, two professionals, at least one of whom shall be a member of one of the specialties involved and one lay representative of the general public. All members shall be selected and designated to serve on a board as provided herein. The circuit judge shall preside, but shall be a nonvoting member.”

Section 538.045, RSMo Supp. 1976, reads, in part, as follows:

“Within thirty days after the hearing has been concluded, the review board shall make a formal statement of its recommendations, as to liability, and as to damages, if any, and if ascertainable, and mail a copy thereof to each party. Each party shall have thirty days from the date of mailing to accept or reject the recommendations in writing.”

Section 538.050, RSMo Supp. 1976, reads as follows:

“If any party rejects the recommendations of the board, or, in the event all parties accept the recommendations of the board but fail to execute an agreement within the period of timé provided in section 538.045, the claimant may then proceed to file his action in any court having jurisdiction of the same. No mention of, or reference to, any recommendation of the review board shall be made at the trial, and the statement of recommendations shall not be admissible in evidence.”

Cases from other jurisdictions are collected in Annotation, Validity and Construction of State Statutory Provisions Relating to Limitations on Amount of Recovery in Medical Malpractice Claim and Submission of Such Claim to Pretrial Panel, 80 A.L. R.3d 583, §§ 8-16 (1977). However, we agree with Respondent that the statutes involved in these cases are so dissimilar from Chapter 538 that they “provide no real guidance to this Court in the determination of this case.”

Chapter 538 establishes a Professional Liability Review Board Authority. Any person having a malpractice claim against a health care provider is required to refer the claim to the Secretary of the Authority before filing an action in court. Notice must simultaneously be sent to each party against whom a claim is asserted. The notice must be sent within the applicable two-year statute of limitations. § 516.105, RSMo Supp. 1976. Giving the notice tolls the running of the statutes of limitations until the procedure is completed. § 538.020. The Professional Liability Review Board is empowered to hold hearings on the malpractice claim and to subpoena any record, report or other evidence deemed relevant. § 538.035. After the hearing process, the Board is to make a recommendation as to liability and damages which the parties are free to accept or reject. § 538.045. If the recommendation is rejected, an action may be filed in court. The Board’s recommendation may neither be commented upon nor introduced in evidence in a subsequent court action. § 538.050. A period of six months may elapse between the time the claim is filed with the Secretary of the Authority and the time a court action may be filed. ,

The determinative challenge to Chapter 538 is that it imposes a procedure as a precondition to access to the courts. It is contended that it violates Mo. Const. Art. I, § 14 which provides that “the courts of justice shall be open to every person, and certain remedy afforded for every injury to person, property or character, and that right and justice shall be administered without sale, denial or delay.”

In 1954, Article II, § 19 of the Illinois Constitution read as follows:

“Every person ought to find a certain remedy in the laws for all injuries and wrongs which he may receive in his person, property or reputation; he ought to obtain, by law, right and justice freely, and without being obliged to purchase it, completely and without denial, promptly, and without delay.”

In People ex rel. Christiansen v. Connell, 2 Ill.2d 332, 118 N.E.2d 262 (1954), the Supreme Court of Illinois was confronted with a statute which required any person desiring to commence an action for divorce to file with the clerk of court a written statement of intention to file a complaint not less than sixty days or more than one year before filing the complaint. The statute provided a procedure by which a judge would attempt to induce the parties to voluntarily confer with him in an attempt at reconciliation. Enactment of the statute was motivated by concern with the increasing divorce rate. It was argued to the Court that the statute obstructed litigants’ right of access to the courts without delay. It was stated that the objection was not to the length of the delay as such but rather to the fact that the delay was interposed before jurisdiction was obtained, and therefore, a litigant’s right to seek immediate redress in the courts was violated. It was said that the enforced waiting period imposed by the statute not only caused a useless and arbitrary delay, but that delay, by abridging the right to file suit and have summons issued promptly, necessarily destroyed the remedies which depended on obtaining personal service on defendants.

The Supreme Court of Illinois agreed and held “that the divorce statute here challenged violates our constitution * * * and must be held invalid for that reason.”

In Comiskey v. Arlen, 55 A.D.2d 304, 390 N.Y.S.2d 122 (1976), the court held that a statute providing for a medical malpractice panel did not deny the fundamental right of access to the courts. However, in New York the screening panel is convened after the court proceedings are commenced.

We find the Christiansen holding persuasive. The right of access to the courts is said to trace back to Magna Charta. DeMay v. Liberty Foundry Co., 327 Mo. 495, 506, 37 S.W.2d 640, 645 (1931). It has been held to be an aspect of the right to petition the government contained in the First Amendment to the United States Constitution. California Motor Transport Company v. Trucking Unlimited, 404 U.S. 508, 510, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972). Most importantly, it is explicitly preserved in the Constitution of Missouri.

We hold that Chapter 538 violates Art. I, § 14 of the Constitution of Missouri and must be held invalid for that reason.

We note that plaintiffs Burns failed to follow the mandate of Rule 55.05 (as amended Laws 1976, H.B. No. 1307, § 1) which requires that in actions for damages based upon the alleged negligence or malpractice of a health care provider, “the prayer shall be for such damages as are fair and reasonable.” Plaintiffs Burns would justify their failure on the grounds that they plead special damages and “[wjhen items of special damage are claimed, they shall be specifically stated.” Rule 55.19. The General Assembly did not amend Rule 55.19 when it amended Rule 55.05 in 1976. However, the intent is apparent and plaintiffs may not use Rule 55.19 as an excuse for failure to follow Rule 55.05. We have no reason to believe respondent judge will fail to require literal compliance with the provisions of Rule 55.05.

The provisional rule in prohibition is quashed.

BARDGETT, SEILER and WELLIVER, JJ., concur. SIMEONE, J., concurs in separate concurring opinion filed. MORGAN, C. J., dissents in separate dissenting opinion filed. RENDLEN, J., dissents and concurs in separate dissenting opinion of MORGAN, C. J.