Link v. Ise, WD

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: Before DIXON; DIXON
• Citation: 716 S.W.2d 805
• Parties: Mary Edna LINK, Appellant, v. Frank H. ISE, Respondent. 37216.
• Docket Number: No. WD,WD
• Decision Date: 15 April 1986

Page 805

716 S.W.2d 805 Mary Edna LINK, Appellant,
v.
Frank H. ISE, Respondent. No. WD 37216. Missouri Court of Appeals,
Western District. April 15, 1986.
Motion for Rehearing and/or Transfer
to Supreme Court Denied
May 22, 1986.
Application to Transfer Denied
Oct. 14, 1986.

Page 806

J. Michael Murphy, Liberty, for appellant.

Pamela T. Henderson, Blackwell Sanders Matheny Weary & Lombardi, Kansas City, for respondent.

Before DIXON, J.P., and MANFORD and NUGENT, JJ.

DIXON, Judge.

The trial court dismissed plaintiff Link's malpractice action against defendant Dr. Ise with prejudice upon a finding that the plaintiff's first amended petition was barred by the statute of limitations. Plaintiff appeals from the dismissal of defendant Ise from the suit.

The first issue presented on appeal is whether the allegations made in plaintiff's first amended petition relate back to the date the original petition was filed. If there is no relation back, a second issue is posed, whether defendant Ise's absence from the state tolled the statute of limitations.

Plaintiff Link was admitted to the hospital on about July 24, 1981, by a Dr. Prather for "examination, diagnosis and medical care and treatment." At some point, Dr. Prather ordered an arterial blood sample be drawn, and at some point the sample was taken from plaintiff's right brachial artery. The punctured artery failed to seal and a hematoma formed causing plaintiff to experience pain and numbness in her right arm and hand.

Defendant Ise, an orthopedic specialist who had been consulted by plaintiff's other doctors, saw plaintiff on about July 28, 1981. When defendant Ise examined plaintiff, the hematoma had already developed. Defendant Ise "recommended only symptomatic treatment" and local heat was "administered" to plaintiff's arm. Apparently, defendant Ise had no occasion to see plaintiff again.

During subsequent and related treatment by a Dr. Williams, plaintiff's laryngeal nerve was injured. Plaintiff suffers permanent partial loss of use of her vocal cords along with some permanent injury to her arm.

Plaintiff filed suit on May 18, 1983, two and a half months before the statute would have run. The summons for defendant Ise was returned "non-est." An alias summons was issued August 18, 1983, and on August 24, 1983, defendant Ise was served in North Dakota where he was then living. In her original petition plaintiff joined defendant Ise but made only the following references to his actions:

3. The defendants T. Bryan Bownik and Newton C. McCluggage, William R. Prather, Frank H. Ise, and Robert D. Williams were physicians duly licensed by the State of Missouri to practice medicine and undertook to treat plaintiff as a

Page 807

patient in July, 1981, and at other times relevant hereto.

8. That about the same time plaintiff engaged defendant Ise, an orthopedic specialist, to provide her with expert consultation, care and treatment.

19. Defendant Ise examined plaintiff on or about July 28, 1981; he recommended only symptomatic treatment, local heat as the method of treatment, which defendants Nurses Roe administered.

On September 22, 1983, defendant Ise answered plaintiff's petition and stated that plaintiff's petition failed "to state a claim for which relief can be granted against this defendant."

Approximately one year later, on September 21, 1984, plaintiff filed an application for leave to file a first amended petition. The proposed petition did not allege any new facts as to defendant Ise, but merely repeated the general references to him stated in the original petition.

On October 24, 1984, plaintiff Link withdrew her proposed first amended petition and moved for leave to file another first amended petition, which the trial court granted. Plaintiff's first amended petition added "Count Seven," which alleged:

1. That all the General Allegations, above, are true and correct and are incorporated herein by reference.

2. That defendant Ise failed to use ordinary care and failed to use that degree of skill and learning ordinarily used under the same or similar circumstances by members of defendant Ise' [sic] profession in that he:

(A) failed timely and accurately to diagnose Plaintiff's right arm hematoma as a hematoma and as a compartmental syndrome;

(B) failed to order, prescribe, or recommend immediate surgical evacuation of the blood mass in Plaintiff's arm;

3. That as a direct result of such negligence, defendant Ise caused, or contributed to cause, all of plaintiff's damages, as described above (General Allegations 16 and 24).

WHEREFORE, Plaintiff prays judgment against defendant Ise in a fair, just and reasonable sum and for her costs.

On November 7, 1984, defendant Ise moved the court for its order to dismiss him as a party to the suit for plaintiff's failure to state a claim against him upon which relief could be granted within the two year statute of limitations as provided in § 516.105, RSMo 1978. On November 16, 1984, the court heard oral argument on defendant Ise's motion to dismiss him as a party to the suit and subsequently entered its order dismissing him as a party.

First, plaintiff asserts that the allegations made in plaintiff's first amended petition relate back to the time the original petition was filed. Section 516.105, RSMo 1978, requires that all actions against physicians be brought within two years from the date of occurrence of the act complained of. Unless the allegations in the October 1984 petition relate back to the time of filing the May 1983 petition, the October 1984 cause of action is barred by the statute of limitations.

Prior to 1973 the rule governing the relation back of amendments to a preceding petition was embodied in the common law. The cases established that an amendment which introduced a cause of action "entirely new and distinct" from that pleaded in the original petition would not relate back to the original petition if the amendment was made after the end of the period designated in the statute of limitations. Mitchell v. Health Culture Co., 349 Mo. 475, 482, 162 S.W.2d 233, 236 (1942). The tests used for determining whether...