Caldwell v. Lester E. Cox Medical Centers-South, Inc.

• Decision Date: 27 February 1997
• Docket Number: CENTERS-SOUT,INC,No. 20831,20831
• Citation: 943 S.W.2d 5
• Parties: Kenneth CALDWELL, Shirley Caldwell, and Kenneth Caldwell, as Plaintiff ad litem, Plaintiffs/Appellants, v. LESTER E. COX MEDICAL, Jeffrey S. Wheeler, M.D., and Richard Seagrave, M.D., Defendants/Respondents.
• Court: Missouri Court of Appeals

Page 5

943 S.W.2d 5

Kenneth CALDWELL, Shirley Caldwell, and Kenneth Caldwell, as Plaintiff ad litem, Plaintiffs/Appellants, v. LESTER E. COX MEDICAL CENTERS-SOUTH, INC., Jeffrey S Wheeler, M.D., and Richard Seagrave, M.D. Defendants/Respondents.

No. 20831.

Missouri Court of Appeals,

Southern District,

Division One.

Feb. 27, 1997.

Motion for Rehearing or Transfer

Denied March 17, 1997.

Glenn R. Gulick, Jr., Hershewe & Gulick, P.C., Joplin, for Plaintiffs/Appellants.

Richard E. Dorr, Dorr, Baird and Lightner, P.C., Springfield, for Respondent Wheeler.

Lisa A. Ghan, Gerald H. Lowther, Lowther, Johnson, Joyner, Lowther, Cully & Housley, L.L.C., Springfield, for Respondent Lester E. Cox Med. Ctr.

Before BARNEY, P.J., and SHRUM and PREWITT, JJ.

PER CURIAM.

Appellants Kenneth Caldwell and Shirley Caldwell and Kenneth Caldwell as Plaintiff ad litem (Plaintiffs) appeal from an order entered by the trial court striking and dismissing Counts II, III, IV and V of their third amended petition against Respondent Lester E. Cox Medical Centers-South, Inc., (Cox Medical) and dismissing Counts III and V of the same petition against Respondent, Dr. Jeffrey S. Wheeler (Wheeler). ¹ Plaintiffs raise two points of trial court error, discussed below. We affirm.

Plaintiffs Kenneth Caldwell and Shirley Caldwell are the surviving parents of Marshall Caldwell, who passed away on January 3, 1990. These same Plaintiffs filed a petition in wrongful death, § 537.080, ² on February 4, 1992, against Cox Medical, Wheeler and Dr. Richard Seagrave (Seagrave) for negligent care of their son.

On June 22, 1992, Plaintiffs Kenneth and Shirley Caldwell filed a first amended petition in wrongful death against Defendants and added additional Defendants, not pertinent to the appeal herein. Thereafter on February 11, 1993, Plaintiffs Kenneth and Shirley Caldwell filed their second amended petition against Cox Medical, Wheeler and Seagrave, pleading the original wrongful death action in Count I. Count II sought damages against Cox Medical for its violation of 42 U.S.C. § 1395dd (the Federal Patient Anti-Dumping Act) and for the first time sought damages for lost chance of survival. Count III sought damages against Cox Medical, Wheeler and Seagrave for lost chance of survival.

On April 2, 1992, the Missouri Supreme Court gave recognition to "a cause of action for lost chance of recovery in medical malpractice cases." Wollen v. DePaul Health Ctr., 828 S.W.2d 681, 685 (Mo. banc 1992). ³ The court stated that such a cause of action was to be brought by the personal representative of the decedent's estate, in accordance with the provisions of the survivorship statute then in existence. Id. at 686; see also § 537.020.

Effective August 28, 1993, the Missouri General Assembly codified the Missouri Supreme Court's decision in Wollen establishing "lost chance of recovery or survival" as a cause of action. See § 537.021.1(1), RSMo 1993. The statute also provided for an appointment of either a plaintiff ad litem or a personal representative to pursue the cause of action.

Thereafter, on July 27, 1994, Plaintiffs filed their third amended petition. Count I consisted of the previous wrongful death action. In Count II, Plaintiffs Kenneth and Shirley Caldwell sought damages against Cox Medical under a lost chance of survival claim and for a Federal Patient Anti-Dumping Act claim. In Count III, Plaintiffs Kenneth and Shirley Caldwell sought damages against Defendants for lost chance of survival. In Count IV, Plaintiff ad litem sought damages against Cox Medical for violation of the Federal Patient Anti-Dumping Act. Lastly, in Count V, Plaintiff Kenneth Caldwell, as Plaintiff ad litem, prayed for damages against Defendants, jointly and separately, for lost chance of survival.

Cox Medical filed its motion to strike Counts II, III, IV and V of Plaintiffs' third amended petition on the basis of the running of the statute of limitations on the lost chance of survival claims. Cox Medical also filed an alternative motion to dismiss Counts II, III, IV and V for failure to state a claim. By leave of court, Cox Medical's motion to strike was amended on November 14, 1994. Cox Medical more specifically asserted that the two year statute of limitations under § 516.105 was applicable to all counts relating to a cause of action of lost chance of survival and the two year statute of limitation barred any claim on the basis of the Federal Patient Anti-Dumping Act. Cox Medical additionally stated that it was not until August 15, 1994, that the trial court appointed a Plaintiff ad litem to pursue the lost chance of survival claim against it and by this time the two year statute of limitations had run on this claim.

In his separate motion to dismiss, Wheeler asserted that Plaintiffs Counts III and V were time barred by the running of the statute of limitations under § 516.105. The trial court's action, striking and dismissing Counts II, III, IV and V, followed.

I.

As best as we can glean from Plaintiffs' brief, they appear to assert in their first point that the statute of limitations for a claim of lost chance of survival is governed by § 537.100, the same three year statute of limitations applicable to an action for wrongful death, rather than § 516.105, the two year statute of limitations governing actions against health care providers. Additionally, Plaintiffs argue that under Rule 55.33(c) all five counts of their third amended petition relate to and arise from conduct described in their original petition. ⁴ Therefore, Plaintiffs argue that their allegations, asserting a cause of action against Defendants for lost chance of survival, should relate back to the original filing date of Plaintiffs' petition, February 4, 1992, well within the three year statute of limitations they claim applies. We disagree.

First, we determine that Rule 55.33(c) does not authorize Kenneth Caldwell, in his capacity as Plaintiff ad litem to be added as a new party claimant in the third amended petition, so as to relate a claim for lost chance of survival back to the date of the original filing of the petition for wrongful death. Second, we determine that the action for lost chance of survival must have been filed within two years of the date of the negligence or occurrence complained of.

Rule 55.33(c) does not aid Plaintiffs in this matter because it applies only to amendments changing the party against whom a claim is asserted, not to an amendment which seeks to add a party. Schultz v. Romanace, 906 S.W.2d 393, 395-96 (Mo.App.1995); Smith v. Overhead Door Corp., 859 S.W.2d 151, 152 (Mo.App.1993); see also Windscheffel v. Benoit, 646 S.W.2d 354, 356-57 (Mo. banc 1983); Shroyer v. McCarthy, 769 S.W.2d 156, 159 (Mo.App.1989).

In their third amended petition, Plaintiffs seek to add an additional party, Kenneth Caldwell, in his capacity as Plaintiff ad litem, to pursue the claim for lost chance of survival, then relate it back to the date of the original filing of the wrongful death action. Plaintiff Kenneth Caldwell, as a surviving parent in the original petition for wrongful death, and Kenneth Caldwell in his capacity as Plaintiff ad litem, pursuant to the provisions of § 537.021.1(1), RSMo Cum.Supp.1993 in the prosecution of a claim for lost chance of survival, are legally separate and distinct individuals. See State ex rel. Tang v. Steelman, 897 S.W.2d 202, 203 (Mo.App.1995); see also State ex rel. Jewish Hosp. v. Buder, 540 S.W.2d 100, 105 (Mo.App.1976); Briggs v. Cohen, 603 S.W.2d 20, 23 (Mo.App.1980). Kenneth Caldwell as Plaintiff ad litem, is in legal effect, a stranger to the action. Jewish Hospital, 540 S.W.2d at 108. Neither does it matter that Kenneth Caldwell in his individual capacity may have a beneficial interest in the cause of action asserted. Id. at 108. His attempted addition as a party plaintiff is tantamount to the filing of a new claim and Rule 55.33(c) does not authorize an amendment which states an entirely new claim. See Overhead Door, 859 S.W.2d at 152. "An amendment will relate back to the original petition so as to save the action from the statute of limitations only when the original plaintiff had the legal right to sue and stated a cause of action at the time the suit was filed." Smith v. Tang, 926 S.W.2d 716, 719 (Mo.App.1996).

Additionally, the Eastern District of this Court held in Tang that "[a] lost chance of survival action is a personal injury action which belongs solely to the injured party." Id. at 719. A personal injury action arising from a medical malpractice claim (§ 516.105) is barred after two years. Whereas, an "action for wrongful death is an action separate and distinct from the action for injuries to the decedent." Gramlich v. Travelers Ins. Co., 640 S.W.2d 180, 186 (Mo.App.1982). If death results from medical malpractice, the parties as named in § 537.080, may maintain a wrongful death action within the limitation period set out in § 537.100, Wilson v. Jackson, 823 S.W.2d 512, 513 (Mo.App.1992); Gramlich, 640 S.W.2d at 185, much in the same manner as when death resulting from any tortious act gives rise to a right of action for wrongful death rather than a personal tort. Gramlich, 640 S.W.2d at 185; Baysinger v. Hanser, 355 Mo. 1042, 199 S.W.2d 644, 647 (1947).

As Plaintiffs' claim for lost chance of survival was not filed before January 3, 1992, the attempt to assert the claim in their third amended petition filed July 27, 1994, must necessarily be barred by the running of § 516.105, the statute of limitations applicable herein. See Briggs, 603 S.W.2d at 22. We conclude, therefore, that Plaintiffs' cause of action for lost chance of survival was barred after two years from the date of the death of Marshall Caldwell.

II.

As best as we can glean from Plaintiffs' second point, they appear to argue that the trial court erred in sustaining the amended motion to strike filed by Cox Medical and the motion to dismiss filed by Wheeler...