M.M.H v. J.P.C.

• Decision Date: 30 January 2001
• Citation: 42 S.W.3d 16
• Parties: (Mo.App. E.D. 2001) M.M.H. and W.M.D.H., Plaintiffs/Appellants, v. J.P.C., H.A.B., W.U. and Barnes-Jewish Hospital, Defendants/Respondents. ED77805 0
• Court: Missouri Court of Appeals

42 S.W.3d 16 (Mo.App. E.D. 2001)

M.M.H. and W.M.D.H., Plaintiffs/Appellants, v. J.P.C., H.A.B., W.U. and Barnes-Jewish Hospital, Defendants/Respondents.

ED77805

Missouri Court of Appeals Eastern District

01/30/2001

Appeal From: Circuit Court of the City of St. Louis, Hon. Michael B. Calvin

Counsel for Appellant: Michael A. Gross, David Wm. Horan, M.D. J.D., and Burton Newman

Counsel for Respondent: Robert S. Rosenthal, T. Michael Ward, Amy L. Klingeman, David M. Harris and Wendy M. Schumacher

Opinion Summary: M.M.H. (Mother) and W.M.D.H. (Father) appeal the trial court's order dismissing their claim against J.P.C. (Doctor), H.A.B. (Counselor), Washington University and Barnes-Jewish Hospital (Barnes)(collectively Defendants) as barred by section 516.105 RSMo 1994, the two-year statute of limitations for medical malpractice actions. Mother and Father argue their petition was styled as a claim for fraudulent misrepresentation and, as such, should have been construed pursuant to the five-year statute of limitations found in section 516.120.

Division Three holds: Although styled as a petition for fraudulent misrepresentation, Mother and Father's claim is based on Defendants' negligent or wrongful rendition of health care services and is therefore barred by the two-year statute of limitations set forth in section 516.105.

Lawrence G. Crahan, Judge

M.M.H. ("Mother") and W.M.D.H. ("Father") appeal the trial court's order dismissing their claim against J.P.C. ("Doctor"), H.A.B. ("Counselor"), Washington University and Barnes-Jewish Hospital ("Barnes")(collectively "Defendants") as barred by section 516.105 RSMo 1994,¹ the two-year statute of limitations for medical malpractice actions. Mother and Father argue the trial court erred in concluding their claim was barred by that statute of limitations because their petition was styled as a claim for fraudulent misrepresentation, and as such, should have been construed pursuant to the five-year statute of limitations found in section 516.120. They contend that because their petition stated a claim for fraud and was filed within five years of the date of diagnosis of their son's genetic disorder, Barnes' motion to dismiss should have been denied.

The essential facts are not in dispute. In 1986, prior to conceiving their child, E.T.H., Mother and Father obtained genetic counseling at Barnes. Two of Mother's relatives suffered from a genetic disease known as spondyloepiphyseal dysplasia tarda ("SEDT"). Mother and Father sought advice regarding the risk that any children they produced would be afflicted with this disease. They consulted with Counselor, a genetic counselor practicing in the Genetics Division of Barnes. Doctor, an obstetrician and gynecologist, was the director of this division and Washington University operated the University Medical Center that employed them both.

On April 21, 1986, Counselor and Doctor provided Mother and Father with a written report assessing the risk that they would have a child afflicted with SEDT. Relying upon the information provided, Mother and Father determined the risk to be acceptable, and conceived a child. E.T.H. was born on December 29, 1987, and suffers from SEDT.

In 1998, Mother, as guardian and next friend of E.T.H., filed a medical malpractice suit in the Circuit Court of the City of St. Louis alleging that Defendants were negligent in assessing and reporting the risk of SEDT occurring in the offspring of Mother and Father. The petition alleged that E.T.H. would not have been conceived or born if his parents had received accurate information regarding that risk. Upon Defendants' motion, this suit was dismissed with prejudice for failure to state a claim upon which relief could be granted.² This dismissal was not appealed.

In September 1999, Mother and Father filed the present action on their own behalf against Defendants. In this petition, they alleged that Defendants knew the report issued to them was false and that the actual risk that Mother would produce a child with SEDT was significantly higher than that reflected in the report. They also alleged that they had believed the information in the report to be true, that the false information was material to their decision to conceive a child, that they had relied upon the report in deciding to conceive a child, and that they would have refrained from conceiving a child if the report had stated the actual risk of SEDT affliction. Mother and Father also alleged Defendants intended for them to rely on the information and that Defendants' misconduct was intentional and outrageous. Mother and Father requested damages for their child's medical expenses and lost wages, as well as punitive damages.

Defendants again responded by filing a motion to dismiss, asserting that: 1) the claim was barred by the statute of limitations for medical malpractice actions; 2) the claim was barred by the doctrine of res judicata; 3) even if their petition properly stated a claim for fraud, it was barred by the applicable statute of limitations; and 4) the petition failed to state a claim upon which relief could be granted because it was essentially one for wrongful life with the requested damages too speculative to award as a matter of law. The trial court granted Defendants' motion to dismiss concluding that although the claim had been presented as one for fraud, the gravamen of the claim was for the negligent or wrongful rendering of health care services. Because the report was issued in 1986 and the petition against Defendants was not filed until 1999, the claim was barred by the two-year statute of limitations applicable to medical malpractice actions. Mother and Father appeal from this dismissal.

Appellate review of a trial court's order granting a motion to dismiss is de novo. Jordan v. Willens, 937 S.W.2d 291, 293 (Mo. App. 1996). A motion to dismiss should be sustained if it is clear from the face of the petition that the action is barred by the statute of limitations. Olean Assocs., Inc. v. Knights of Columbus, 5 S.W.3d 518, 521 (Mo. App. 1999). Moreover, this court may affirm the trial court's dismissal of an action on any ground...