Strahler v. St. Luke's Hospital

706 S.W.2d 7, 62 A.L.R. 4th 735, 1986 Mo. LEXIS 248

• Court: Supreme Court of Missouri
• Decided: February 18, 1986
• Docket: 66789
• Status: Published

Opinions

BILLINGS, Judge.

This appeal challenges the constitutionality of Missouri’s medical malpractice statute of limitations, § 516.105, RSMo 1978, as it applies to minors. We ordered the case transferred to this Court prior to opinion by the court of appeals because of the constitutional issue. Mo. Const, art. V, § 10. We reverse the dismissal of plaintiffs petition and remand the case for further proceedings.

On September 23,1982, plaintiff Carol A. Strahler, then nineteen years old, filed a single count petition for damages in the Circuit Court of Jackson County. Plaintiff’s petition alleged that when she was a fifteen year old minor, defendant Dr. San-dow and four other named defendants had provided her with careless and negligent medical treatment and that as a direct and proximate result of defendants’ negligence, she suffered the' complete amputation of her right leg above the knee.

Defendants moved to dismiss the action on the ground that plaintiff’s common law cause of action was barred by § 516.105, RSMo 1978, because a suit of this kind must be brought within two years from the date of the complained of actionable wrong and plaintiff did not bring suit until four years after the alleged malpractice. Plaintiff appeals from the trial court’s order dismissing her medical malpractice action against defendant Dr. Sandow.¹

Section 516.105 is as follows: Actions against health care providers (medical malpractice.) — All actions against physicians, hospitals, dentists, registered or licensed practical nurses, optometrists, podiatrists, pharmacists, chiropractors, professional physical therapists, and any other entity providing health care services and all employees of any of the foregoing acting in the course and scope of their employment, for damages for malpractice, negligence, error or mistake related to health care shall be brought within two years from the date of occurrence of the act of neglect complained of, except that a minor² under the full age of ten years shall have until his twelfth birthday to bring action, and except that in cases in which the act of neglect complained of its introducing and negligently permitting any foreign object to remain within the body of a living person, the action shall be brought within two years from the date of the discovery of such alleged negligence, or from the date on which the patient in the exercise of ordinary care should have discovered such alleged negligence, whichever date first occurs, but in no event shall any action for damages for malpractice, error, or mistake be commenced after the expira; tion of ten years from the date of the act of neglect complained of.

Although plaintiff has propounded a number of constitutional arguments,³ the dispositive challenge that she raises to the constitutionality of § 516.105, RSMo 1978, is that it violates the mandate of Mo. Const, art. I, § 14, which guarantees to every Missouri citizen “that the courts of justice shall be open to every person, and certain remedy afforded for every injury to person....”

We begin our analysis by pointing out that although our federal Constitution is an important and frequently relied upon source of individual rights, our state Constitution is also a reservoir of personal rights and liberties — some of which are not enumerated in or accorded protection by our federal Constitution. Article I, section 14 is one such provision in our state Constitution which grants to the people of Missouri an express constitutional guarantee not enumerated in our federal Constitution. But see Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982); Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971).

In State ex rel. Cardinal Glennon Memorial Hospital v. Gaertner, 583 S.W.2d 107 (Mo. banc 1979), we found Missouri’s statutorily mandated Professional Liability Review Board, §§ 538.010-.080, RSMo 1978, violative of Mo. Const, art. I, § 14 because it imposed an unduly burdensome precondition on a litigant’s right of access to the courts. State ex rel. Cardinal Glennon v. Gaertner, 583 S.W.2d at 110. Our holding in Cardinal Glennon simply reaffirmed the principle that Mo. Const, art. I, § 14 is a part of this State’s organic law and that it was intended to give constitutional protection to a litigant’s ability to gain access to Missouri’s courts. See generally, DeMay v. Liberty Foundry Co., 327 Mo. 495, 37 S.W.2d 640 (1931); see also State ex rel. National Refining Co., v. Seehorn, 344 Mo. 547, 127 S.W.2d 418 (1939). The language contained in Mo. Const, art. I, § 14 is not simply advisory in nature: it gives express constitutional protection to a litigant’s right of access to our court system.

Here, plaintiff contends that § 516.105, RSMo 1978 — in violation of Mo. Const, art. I, § 14 — unconstitutionally devitalizes and* effectively extinguishes her common law right and practical opportunity to seek legal redress for injuries sustained through defendant’s alleged negligent medical treatment. Defendant, however, argues that § 516.105, RSMo 1978, does not contravene Mo. Const, art. I, § 14 because plaintiff, who was fifteen years of age at the time of the alleged malpractice, could have recruited a next friend to bring suit and was thus able to institute an action in her own right under Missouri law.

In Missouri, a person who is under the legal disability of minority still lacks capacity to institute, in his own right, a civil lawsuit. See Scott v. Royston, 223 Mo. 568, 123 S.W. 454 (1909); see e g., Martin v. Martin, 539 S.W.2d 756 (Mo.App.1976) (an award of child support is made to the custodial parent for the benefit of children who because of minority lack legal status to bring suit directly). Rule 52.02(a) requires that “civil actions by minors ... be commenced and prosecuted only by a duly appointed guardian ... or by a next friend appointed for him_” This legal principle is also codified in statutory form and is found at §§ 507.110-.120, RSMo 1978.

Defendant suggests that Rule 52.02(c) serves to relieve a minor who is at least fourteen years of age of the legal disability of minority. To the contrary, Rule 52.02(c) provides only that in the case of a minor who is fourteen or older, appointment of a next friend can be made without notice to the persons with whom the minor resides, and it can be accomplished without formal application to the court. The minor, however, must still have a next friend who agrees in writing to serve as such. This provision of Rule 52 simply does not imbue a minor who is at least fourteen years old with the legal capacity necessary to maintain a civil action in his own right.⁴

It should not escape notice that although the present case involves a fifteen year old minor, § 516.105, RSMo 1978, applies with equal force to all minors past the ripe old age of ten.⁵ We think defendant’s contention that plaintiff should not now be heard to complain because she was free to “initiate her own suit” plainly ignores the disabilities and limitations that childhood, familial relationships, and our legal system place upon a minor of tender years — who has little if any understanding of the complexities of our legal system.

The many value-laden issues to which this controversy gives rise were eloquently distilled and put into sharp relief by a commentator writing in a recent edition of the Journal of Legal Medicine:

State legislatures reacted in the 1970’s to a perceived crisis in medical malpractice insurance by enacting these types of limitations provisions. While such provisions no doubt go some distance in alleviating the problems of malpractice insurers and health care providers, they do so only at a high cost. Their effect is to bar the malpractice suits of minors without regard to the validity of their claims or the fact that the minors are wholly innocent in failing to timely pursue their claims. Such a result seems to unfairly penalize the blameless minor in order to protect the potentially negligent health care provider. (emphasis added).

Andrews, Infant Tolling Statutes in Medical Malpractice Cases: State Constitutional Challenges, 5 J. Legal Medicine, 469 (1984).

The fact of the matter is that for most minors the opportunity to pursue a common law cause of action for injuries sustained from medical malpractice is one that is inextricably linked to the diligence and willingness of their parents to act in a responsible and timely manner. When faced with a controversy involving very similar legal issues, the Texas Supreme Court concluded that “it is neither reasonable nor realistic to rely upon parents, who may themselves be minors, or who may be ignorant, lethargic, or lack concern, to bring a malpractice lawsuit action within the time provided....” Sax v. Votteler, 648 S.W.2d 661, 667 (Tex.1983). In this connection, we think it is equally unreasonable to expect a minor, whose parents fail to timely vindicate his legal rights, to independently seek out another adult willing to serve as a next friend. Such an expectation would ignore the realities of the family unit and the limitations of youth.

The Sax case involved a similarly restrictive, though not identical, medical malpractice limitations period⁶ which ran against minors, who under Texas law lacked the capacity to bring their own lawsuits.⁷ The Texas Supreme Court held that the statute ran afoul of the state’s constitutional due process clause and open courts provision. The court employed a test that balanced the litigant’s right to redress and the extent to which this right had been burdened against the legislative purpose of the statute and the method employed by the legislature to reach the ends desired. After applying this test, the Texas Supreme Court held the statute to be an arbitrary and unreasonable exercise of legislative power as it pertains to minors because the statute “effectively abolishes a minor’s right to bring a well-established common law cause of action without providing a reasonable alternative.” Sax v. Votteler, 648 S.W.2d at 667.

Turning to the present case, we fully appreciate the legislative purpose intended by § 516.105, RSMo 1978, and we are unwilling to denominate it as being illegitimate, but we think the method employed by the legislature to battle any escalating economic and social costs connected with medical malpractice litigation exacts far too high a price from minor plaintiffs like Carol Strahler and all other minors similarly situated. For minor plaintiffs like Carol Strahler, the cure selected by the legislature would prove no less pernicious than the disease it was intended to remedy.

The requirement that “[c]ivil actions by minors may be commenced and prosecuted only by a duly appointed guardian of such minor ...” (emphasis added), acts as an impediment to a minor’s access to the courts. See Rule 52.02(a) and § 507.110. That right of access is “an aspect of the right to petition the government ... explicitly preserved in the constitution of Missouri.” State ex rel. Cardinal Glennon Memorial Hosp. v. Gaertner, 583 S.W.2d at 110.

Recognizing that a minor lacks the legal capacity to bring an action in his own right as well as the difficulties which generally surround a minor’s ability to vindicate, by his own initiative, his legal rights, our statutes of limitations applicable to personal injury suits have traditionally been tolled for minors. Section 516.170, RSMo Cum.Supp.1984. The prosecution of an action by a guardian or next friend is an option available to the minor; failure of a next friend to bring the action during minority does not, however, destroy the cause of action, generally speaking. Nor for that matter does the running of a statute of limitations technically “destroy” a minor plaintiff’s right of action: it merely bars the maintenance of the action and leaves the injured party without a remedy. See generally, Herrman v. Dixon, 285 S.W.2d 716 (Mo.App.1956). Thus, the general tolling provisions of § 516.170 preserve the cause of action for a minor and safeguard the minor’s constitutionally guaranteed right of access to the courts — even if parents, guardians or others having custody of a child fail to protect the child’s legal rights.

The statutory limitation period, as applied to minors, violates their right of access to our courts⁸ under Mo. Const, art. I, § 14 and renders vacant the guarantee contained in this constitutional provision which declares in no uncertain terms “that the courts of justice shall be open to every person, and certain remedy afforded for every injury to person.... ” To the extent that it deprives minor medical malpractice claimants the right to assert their own claims individually, makes them dependent on the actions of others to assert their claims, and works a forfeiture of those claims if not asserted within two years, the provisions of § 516.105 are too severe an interference with a minors' state constitutionally enumerated right of access to the courts to be justified by the state’s interest in remedying a perceived medical malpractice crisis.

Our society takes great pride in the fact that the law remains forever at the ready to “jealously guard” the rights of minors. Section 516.105, RSMo 1978 arbitrarily and unreasonably denies them a set of rights without providing any adequate substitute course of action for them to follow. We consider § 516.105, RSMo 1978, as it pertains to minors, a statutory aberration which runs afoul of our state Constitution and we accordingly hold it constitutionally infirm.

The judgment is reversed and the case remanded to the circuit court for further proceedings.⁹

HIGGINS, C.J., and RENDLEN, J., concur. ROBERTSON, J., concurs in separate opinion filed. BLACKMAR, DONNELLY and WEL-LIVER, JJ., dissent in separate opinions filed.

1 . The four other defendants who were named in the petition have reached a settlement with plaintiff and are no longer parties to this action.

2 . In Missouri a minor, or infant, in connection with the commencement of a civil action, is defined as any person who has not attained the age of eighteen years. Section 507.115, RSMo 1978. And, when a minor sustains injuries due to another’s negligence, he acquires his own independent common law cause of action, separate and distinct from any his parents may acquire from the tortfeasor’s negligent acts. See generally, Evans v. Farmers Elevator Co., 347 Mo. 326, 147 S.W.2d 593 (1941).

3 .Plaintiff has also advanced state and federal equal protection and due process arguments as well as the theory that § 516.105, RSMo 1978, constitutes a special or local law in violation of article 3, § 40 of our state constitution. Our disposition of plaintiffs challenge to § 516.105, RSMo 1978, under Mo. Const., art. I, § 14 eliminates the necessity of reaching the merits of these other constitutional points.

4 . Defendant also cites Rule 52.02(m) and our decision in Concerned Parents v. Caruthersville School District 18, 548 S.W.2d 554 (Mo. banc 1977), as additional authority for the proposition that appellant was free to initiate her own law suit as a fifteen year old minor.

In Concerned Parents, we determined only that the minor plaintiffs’ failure to comply with our rules governing appointment of a next friend proved to be harmless under Rule 52.-02(m) because it was shown that the minors’ interests had been adequately protected. We note that the adult plaintiffs, though not formally appointed, were the natural guardians of the minor plaintiffs and were also real parties in interest. We also instructed the parties to comply with the rule upon remand. Concerned Parents, supra, at 558, n. 3. Rule 52.02(m) provides only that the failure to appoint a next friend will not render a proceeding invalid if it is determined that the interests of the minor were adequately protected. Application of this rule contemplates a minor gaining entry to the courtroom. In the present case, however, the rule would have no application because the minor was barred from ever getting inside the courthouse doors.

5 . In this connection we note that under the operation of § 516.105, RSMo 1978, minors under the full age of ten have until two years after their tenth birthday to file an action of this kind. See McLeran v. St. Luke’s Hospital of Kansas City, 687 S.W.2d 892, 893 (Mo. banc 1985).

6 . The Texas statute read as follows:

Notwithstanding any. other law, no claim against a person or hospital covered by a policy of professional liability insurance covering a person licensed to practice medicine or podiatry or certified to administer anethe-sia in this state or a hospital licensed under the Texas Hospital Licensing Law, as amended (Art. 4437f, Vernon’s Texas Civil Statutes), whether for breach of express or implied contract or tort, for compensation for a medical treatment or hospitalization may be commenced unless the action is filed within two years of the breach or the tort complained of or from the date the medical treatment that is the subject of the claim or the hospitalization for which the claim is made is completed, except that minors under the age of six years shall have until their eighth birthday in which to file or have filed on their behalf, such claim. Except as herein provided, this section applies to all persons regardless of minority or other legal disability.

Texas Ins.Code Ann. art. 5.82 (Vernon 1975) (repealed 1977).

7 . Texas is not the only jurisdiction which has held a state medical malpractice limitations statute unconstitutional as applied to minors. See Barrio v. San Manuel Div., Magma Copper, 143 Ariz. 101, 692 P.2d 280 (1984) (statute unconstitutional under Arizona’s state constitutional guarantee against abolition of the fundamental right to recover damages by way of a common law action); Carson v. Maurer, 120 N.H. 925, 424 A.2d 825 (1980) (statute violates state constitution because it contravenes equal protection principles); Schwan v. Riverside Methodist Hosp., 6 Ohio St.3d 300, 452 N.E.2d 1337 (1983) (statute declared unconstitutional under state equal protection analysis).

8 . According to defendant, the result we reach today is foreclosed by our decision in Laughlin v. Forgrave, 432 S.W.2d 308 (Mo.1968). Our decision in Laughlin, however, does not speak to the issues raised in the present case — because in Laughlin we decided only that the medical malpractice statute of limitations in force at that time, § 516.140, RSMo 1959, was not tolled until the damage complained of was discovered.

In the course of our decision we also reaffirmed the unquestioned right of the legislature to enact statutes of limitations, but we also noted in the same breath that the legislature is not empowered to create a statute of limitations which would be "unreasonable" — that is one which would infringe upon an enumerated constitutional right. Though we found the operation of the particular statute of limitations in Laughlin to be harsh and our decision distasteful, we nevertheless concluded that the plaintiff failed to demonstrate how the statute was constitutionally infirm. In the present case, however, the plaintiff has succeeded at this task. Our holding in Laughlin does not remedy the constitutional infirmity present in § 516.105, RSMo 1978.

9 . The dissent of WELLIVER, J., conjures up and then knocks down the dual straw men of due process and equal protection. The dissent of DONNELLY, J., creates a third diversion. As we carefully note this case is narrowly ruled under the open courts guarantee found in Mo. Const, art. I, § 14. Questions concerning limiting the amount of recovery, “caps”, and other statute of limitations relating to minors are not before us in this case.