Gerba v. Neurological Hospital Ass'n

• Decision Date: 12 June 1967
• Docket Number: No. 1,No. 52475,52475,1
• Citation: 416 S.W.2d 126
• Parties: Nancy GERBA et al., Appellants, v. NEUROLOGICAL HOSPITAL ASSOCIATION, a Corporation et al., Respondents
• Court: Missouri Supreme Court

Page 126

416 S.W.2d 126

Nancy GERBA et al., Appellants, v. NEUROLOGICAL HOSPITAL ASSOCIATION, a Corporation et al., Respondents.

No. 52475.

Supreme Court of Missouri, Division No. 1.

June 12, 1967.

Donald E. Raymond, Kansas City, for appellants, Woods, Raymond & Raymond, Kansas City, of counsel.

Jack G. Beamer, Robert J. Mann, McKenzie, Williams, Merrick, Beamer & Stubbs, Kansas City, for respondents.

HOLMAN, Presiding Judge.

In the first count of the petition plaintiff Nancy Gerba sought to recover damages in the sum of $150,000 for injuries she received while a patient in the hospital owned by defendant Neurological Hospital Association. Her husband, Pete Gerba, sought to recover a like amount, in the second count, for mdedical expenses and loss of services and consortium. A motion to dismiss plaintiffs' petition was sustained. Plaintiffs have duly appealed from the ensuing judgment.

The suit was originally filed against the hospital association, the hospital administrator, and four other individuals who were alleged to have been partners engaged in the business of operating the hospital under a contractual arrangement. The only individual defendant properly served was Dr. Albert E. Fulton and the action was apparently abandoned as to the other individual defendants. Dr. Fulton joined with Neurological in the motion to dismiss.

The petition (which was filed June 22, 1966) alleged that the hospital was operated 'for the treatment of human physical and mental illness of patients for payment of money by said patients. * * * That on or about the 25th day of June, 1961, plaintiff Nancy Gerba was suffering from a severe mental and emotional derangement and illness (which) caused said plaintiff to be likely to inflict injury upon herself and others thereby constituting a danger to her own well being as well as the well being of others, and for the treatment of such derangement and illness plaintiff was placed in the care and under the charge of defendants in the hospital aforesaid so operated by them. That defendants, acting as aforesaid, being advised that this plaintiff was suffering from such mental and emotional illness, undertook for money charged and agreed to be paid to furnish hospital facilities for the detention of plaintiff and treatment of such mental and emotional illness and did take charge of the person of plaintiff and did hold her at said hospital. That defendants knew that plaintiff Nancy Gerba was suffering from the mental and emotional illness aforesaid and knew or should have known that by reason of her said deranged condition she was likely to cause injury to herself, but that defendants carelessly and negligently failed to furnish supervision and surveillance over the person of plaintiff and permitted her to be wholly unattended and alone and without restraint thereby enabling her to inflict the severe personal injuries to herself hereinafter set forth. That as the direct result of the carelessness and negligence of the defendants aforesaid, plaintiff Nancy Gerba, while alone, unattended and unrestrained and acting under the compulsion of her mental and emotional illness aforesaid did gouge out both of her eyes thereby rendering herself totally and permanently blind.'

The motion to dismiss was based on two grounds. They were (1) that 'since said alleged acts occurred more than two years prior to the filing of this action they are barred by the Missouri Revised Statutes, § 516.140, relating to limitation of actions against physicians, surgeons, dentists, roentgenologists, nurses, hospitals and sanitariums for damages for malpractice, error or mistake' and (2) 'defendant Neurological Hospital Association of Kansas City, as a non-profit organization established for charitable, eleemosynary and teaching purposes, is immune to suits for personal injuries alleged to have been suffered by plaintiff Nancy Gerba, while a patient in defendant hospital due to the negligence of defendants' agents and servants.'

The trial court sustained the motion to dismiss on both grounds. Since we have concluded that the action is barred by the statute of limitations we will give no further consideration to the second ground of the motion.

The relevant portion of § 516.140 (statutory references are to RSMo 1959, V.A.M.S.) is that '(a)ll actions against physicians, surgeons, dentists, roentgenologists, nurses, hospitals and sanitariums for damages for malpractice, error, or mistake shall be brought within two years from the date of the act of neglect complained of.' Our task in this case is to ascertain the meaning of said section primarily as it relates to hospitals and sanitariums. It is the contention of plaintiffs that the quoted statute does not apply because this is not a malpractice action but is an action based on 'ordinary...