Natalini v. Little

• Decision Date: 28 February 2006
• Docket Number: No. 26958.,26958.
• Citation: 185 S.W.3d 239
• Parties: Judy NATALINI, Joseph L. Natalini, Jr., Brian L. Natalini, Stephen L. Natalini, Mark L. Natalini, and Brenda Natalini Robinson, as Heirs of Joseph Natalini, Deceased, Plaintiffs-Appellants, v. Blake A. LITTLE, M.D., Defendant-Respondent.
• Court: Missouri Court of Appeals

185 S.W.3d 239

Judy NATALINI, Joseph L. Natalini, Jr., Brian L. Natalini, Stephen L. Natalini, Mark L. Natalini, and Brenda Natalini Robinson, as Heirs of Joseph Natalini, Deceased, Plaintiffs-Appellants, v. Blake A. LITTLE, M.D., Defendant-Respondent.

No. 26958.

Missouri Court of Appeals, Southern District, Division One.

February 28, 2006.

COPYRIGHT MATERIAL OMITTED

Fred J. Spigarelli and Thomas E. Hayes, The Spigarelli Law Firm, Pittsburg, KS, for appellants.

Charles H. Stitt and Gregory P. Forney, of Shaffer, Lombardo, Shurin, Kansas City, MO, for respondent.

GARY W. LYNCH, Judge.

Plaintiffs filed a petition seeking damages against the Defendant for the wrongful death of their decedent due to Defendant's alleged medical malpractice. Defendant raised, among other things, the affirmative defense that the Kansas statute of limitation, the application of which is required by the Missouri borrowing statute, barred Plaintiffs' claim. The trial court sustained Defendant's motion for summary judgment and entered judgment accordingly. Plaintiffs appeal this judgment, and we affirm.

1) Standard of Review

"Summary judgment is designed to permit the trial court to enter judgment, without delay, where the moving party has demonstrated, on the basis of facts as to which there is no genuine dispute, a right to judgment as a matter of law. Rule 74.04."¹ ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). "Summary judgment proceeds from an analytical predicate that, where the facts are not in dispute, a prevailing party can be determined as a matter of law." Id.

Appellate review of the grant of summary judgment is de novo. Id. "The criteria on appeal for testing the propriety of summary judgment are no different from those which should be employed by the trial court to determine the propriety of sustaining the motion initially." Id. "The propriety of summary judgment is purely an issue of law. As the trial court's judgment is founded on the record submitted and the law, an appellate court need not defer to the trial court's order granting summary judgment." Id.

A "Defending Party," as that term is used in Rule 74.04(b), may establish a right to summary judgment by showing "that there is no genuine dispute as to the existence of each of the facts necessary to support the movant's properly-pleaded affirmative defense." Id. at 381.

2) Undisputed Facts

Dr. Blake A. Little ("Defendant") resides in Jasper County, Missouri. His medical office, which is located in Joplin, Missouri, handles paper work, scheduling appointments, follow-up letters and phone calls to patients. During the relevant time periods of this case, Defendant made bi-weekly trips to Fort Scott, Kansas to provide pulmonary services to Fort Scott and Pittsburg area residents.

A pulmonary function test was performed on Joseph Natalini ("Natalini") on June 13, 1995 in Fort Scott, Kansas, at Mercy Hospital. Before the end of that month, Defendant authored a consultation report, which subsequently was mailed to Natalini's treating physician, Dr. Douglas Weddle ("Dr. Weddle"), in Fort Scott, Kansas.

Defendant treated Natalini in 1996 for lung lesions. In March of that year, Natalini underwent a CT scan at Mercy Hospital in Fort Scott, Kansas. The CT scan contrast revealed two small noncalcified pulmonary nodules in Natalini's right lung. Defendant saw Natalini at his office in Joplin, Missouri in April of 1996. That same month, Defendant wrote a letter from his office regarding following Natalini's lung lesions by CT scan monitoring. The following month, at Defendant's request, Natalini underwent a CT scan, which was performed in Fort Scott, Kansas. The CT scan revealed two small nodules in the right upper lung, as indicated by Natalini's radiology report dated May 15, 1996 from Mercy Hospital, Fort Scott, Kansas. The following November 15, 1996, a CT scan was performed.

Defendant saw Natalini at Mount Carmel Hospital in Pittsburg, Kansas on December 2, 1996 regarding recent changes as shown in his CT scan performed on November 15, 1996. At this visit, Defendant advised Natalini that he noticed a new nodule and ordered a CT scan to be performed in two months. A little less than three weeks later, Natalini telephoned Defendant at Defendant's Joplin, Missouri office and advised Defendant that he refused to have another CT scan. As a result of this refusal, Defendant, while in his Joplin, Missouri office, changed the order for a CT scan to a plain chest x-ray film. Changing the CT scan order to a plain chest x-ray was below the standard of care. Defendant failed to properly follow up with Natalini following the November 1996 CT scan. This failure to follow up was below the standard of care.

On February 17, 1997, a chest x-ray was performed on Natalini, pursuant to Defendant's order, at Mercy Hospital in Fort Scott, Kansas. An x-ray report was faxed to Defendant's office in Joplin, Missouri. Defendant failed to look at this x-ray report until July 1998. This failure to review the report was below the standard of care.

In July of 1998, Defendant saw Natalini at his office in Joplin, Missouri, at which time he hospitalized Natalini for lung biopsy, which revealed the first diagnosis of lung cancer. Natalini's cancer was diagnosed in August of 1998 at St. John's Regional Medical Center in Joplin, Missouri.

Before his death, Natalini filed, prosecuted, and obtained a final judgment in a personal injury action for medical malpractice against Defendant. Natalini v. Little, 278 Kan. 140, 92 P.3d 567 (Kan.2004). This case was filed in Kansas against Defendant and Dr. Weddle. Dr. Weddle only saw Natalini as a patient in Kansas; thus, jurisdiction over Dr. Weddle could only be obtained in Kansas. Natalini filed a motion to apply Missouri law in this case, based upon the argument that Defendant's negligence allegedly occurred in Missouri. The Kansas trial court overruled this motion.

Natalini died on April 12, 2004, in the state of Kansas. Appellants, his wife and five adult children ("Plaintiffs"), survived him. Plaintiffs filed this wrongful death action against Defendant on July 13, 2004, in the Circuit Court of Jasper County, Missouri.

At all times relevant to the issues raised in this action, Natalini and his wife resided in Pittsburg, Kansas. Natalini's adult children and heirs are Kansas residents. In this wrongful death action, Plaintiffs allege the same negligent acts and omissions by Defendant and the same physical consequences to Natalini as was alleged by Natalini in his personal injury action against the Defendant.

Plaintiffs filed a Motion for Partial Summary Judgment on Liability, and Defendant filed a Motion for Summary Judgment. Defendant urged upon the trial court three grounds in support of his Motion for Summary Judgment, any one of which would support the trial court's grant of summary judgment in Defendant's favor. Those grounds were:

• Missouri's borrowing statute (§ 516.190) requires application of the Kansas statute of limitation which time-bars Plaintiff's wrongful death action;

• Kansas substantive law applies to this wrongful death action, and such law precludes a wrongful-death action based upon the same alleged negligent acts which were the basis for the decedent's personal injury judgment; and,

• If Kansas substantive law does not apply and Missouri law applies, it also precludes a wrongful death action based upon the same allegedly negligent acts which were the basis for the preceding personal injury judgment.

The trial court sustained Defendant's Motion for Summary Judgment and entered judgment dismissing Plaintiffs' petition. Plaintiffs appeal this judgment.

3) Application of § 516.190 — Missouri's Borrowing Statute

Section 516.190, commonly referred to as the "borrowing statute," provides: "Whenever a cause of action has been fully barred by the laws of the state, territory or country in which it originated, said bar shall be a complete defense to any action thereon, brought in any of the courts of this state." In this statute, the legislature has provided a choice-of-law rule to determine the applicable statute of limitation for a cause of action based upon where it "originates." Thompson by Thompson v. Crawford, 833 S.W.2d 868, 872 (Mo. banc 1992).

For the purpose of determining where a cause of action "originates," courts look to when a cause of action "accrues," as set forth in § 516.100 and have equated "originated" with "accrued," as used in that statute. Id. at 871. See also Renfroe v. Eli Lilly & Co., 686 F.2d 642, 647 n. 9 (8th Cir.1982). Section 516.100 describes "accrued" as: "the cause of action shall not be deemed to accrue when the wrong is done or the technical breach of contract or duty occurs, but when the damage resulting therefrom is sustained and is capable of ascertainment[.]" So, for the purpose of applying § 516.190, a "cause of action shall not be deemed to" originate where "the wrong is done or the technical breach of contract or duty occurs, but," where "the damage resulting therefrom is sustained and capable of ascertainment." "A cause of action accrues when and originates where damages are sustained and are capable of ascertainment." Day v. DeVries & Assocs., P.C., 98 S.W.3d 92, 95-96 (Mo. App.2003), quoting Elmore v. Owens-Illinois, Inc., 673 S.W.2d 434, 436 (Mo. banc 1984). Therefore, determination of the location where a cause of action originates involves a two-step process: first, the identification of the "damage resulting therefrom"; and, second, locating where the damage so identified was sustained and became capable of ascertainment.

a) Resulting Damages

The word "therefrom," as used in § 516.100, refers to "the wrong . . . done or the technical breach of . . . duty" in the immediately-preceding clause of that statute. More clearly then, the first step requires identifying the damage resulting from the wrong done or the technical...