Rowland v. Skaggs Companies, Inc.

Decision Date20 March 1984
Docket NumberNo. 65192,65192
Citation666 S.W.2d 770
PartiesBarbara ROWLAND and Ronald Rowland, husband and wife, Plaintiffs, v. SKAGGS COMPANIES, INC., Defendant-Appellant, v. Jose FISCHER, M.D., Third-Party Defendant-Respondent.
CourtMissouri Supreme Court

Danny L. Curtis, Randy W. James, Kansas City, for defendant-appellant.

James Borthwick, James Bandy, Kansas City, for third-party defendant-respondent.


Appellant Skaggs Companies, Inc., (Skaggs) appeals from an order of the Circuit Court of Clay County dismissing its third party petition for contribution filed against respondent Dr. Jose Fischer. The Western District affirmed the judgment of the trial court, holding that the two-year statute of limitations applicable to actions for damages against health care providers, § 516.105, RSMo 1978 1, barred Skaggs' suit for contribution. We ordered the cause transferred and decide it as if on original appeal. Rules 83.02; 83.09. We reverse.

The incident from which the underlying suit arose occurred on November 20, 1978, when plaintiff Barbara Rowland took an overdose of the drug Elavil because of the allegedly negligent acts and omissions of Skaggs, whose pharmacy had filled Mrs. Rowland's prescription. Mrs. Rowland's physician, Dr. Fischer, had telephoned a prescription for 150 milligram capsules of Elavil to Skaggs' pharmacy. The doctor instructed an employee of Skaggs that Mrs. Rowland was to take one 150 milligram capsule of Elavil at bedtime. Skaggs allegedly filled the prescription with 150 milligram capsules of Elavil, but negligently placed a label on the container indicating that the capsules contained twenty-five milligrams of Elavil. After discovering the discrepancy in dosage, Mrs. Rowland telephoned Dr. Fischer's office and was advised by his office assistant or nurse to take six of the twenty-five milligram capsules so as to equal her prescribed dosage of 150 milligrams. Mrs. Rowland then ingested six capsules of Elavil and sustained an overdose, requiring hospitalization and medical treatment.

Mrs. Rowland and her husband, Ronald Rowland, filed suit against Skaggs on October 24, 1980, seeking damages for personal injuries, medical expenses and loss of services resulting from the overdose. On August 14, 1981, approximately ten months after plaintiffs filed their original petition, and almost three years after Mrs. Rowland sustained the overdose, Skaggs filed a third party petition against Dr. Fischer, alleging that he, or his agent or employee, had negligently advised Mrs. Rowland to take six capsules without first verifying the accuracy of the prescription. The petition requested the court to apportion damages between Skaggs and Dr. Fischer according to their relative degree of fault in the event the jury adjudged Skaggs liable for Mrs. Rowland's injuries.

Dr. Fischer subsequently filed a motion to dismiss Skaggs' third party petition, contending that Skaggs' suit was barred by § 516.105. The circuit court sustained the motion to dismiss and entered an order dismissing Skagg's third party petition. Skaggs appealed the judgment to the Western District and the court of appeals affirmed. Citing prior decisions holding that the statute of limitations in § 516.105 was applicable to contract actions against health care providers, the Western District held that an action for contribution against a health care provider, being in the nature of an implied contract, likewise was subject to the two-year statutory limitation.

Our decision today in State ex rel. General Electric Co. v. Gaertner, 666 S.W.2d 764 (Mo. banc 1984), establishes the general rule that a third party suit for contribution from a joint tortfeasor can be filed during the pendency of the underlying suit, irrespective of the statute of limitations applicable to the underlying tort claim. The question presented in the case now before us is whether the statute of limitations governing medical malpractice claims, § 516.105, bars third party suits for contribution against health care providers that were not filed within the two-year statutory period therein provided. The statute, in pertinent part, provides:

All actions against physicians, hospitals, dentists, registered or licensed practical nurses, optometrists, podiatrists, pharmacists, chiropractors, professional physical therapists, and any other entity providing health care services and all employees of any of the foregoing acting in the course and scope of their employment, for damages for malpractice, negligence, error or mistake related to health care shall be brought within two years from the date of occurrence of the act of neglect complained of, ...

Section 516.105.

The statute, read in its entirety, reveals an unequivocal legislative intent to make only a specified class of suits brought against health care providers subject to the provision's two-year statute of limitations. The legislature qualified the all-inclusive opening phrase "[a]ll actions" with the words "for damages for malpractice, negligence, error or mistake related to health care ..." The legislature's use of the latter phrase evinces a desire to confine suits subject to the short statutory period in § 516.105 to those enumerated. Cf. Harrison v. MFA Mutual Insurance Co., 607 S.W.2d 137, 146 (Mo. banc 1980); Giloti v. Hamm-Singer Corp., 396 S.W.2d 711, 713 (Mo.1965); Brown v. Morris, 365 Mo. 946, 290 S.W.2d 160, 166 (Mo. banc 1956). Giving the words of the statute their plain and ordinary meaning, we believe § 516.105 encompasses those actions where the consumer of health services seeks damages for injuries resulting from some improper, wrongful or careless acts or omissions on the part of a health care provider in the delivery of health care to the consumer. See Gerba v. Neurological Hospital Association, 416 S.W.2d 126, 127 (Mo.1967); National Credit Associates, Inc. v. Tinker, 401 S.W.2d 954, 959 (Mo.App.1966).

The statute also has been interpreted to govern in cases where its terms comprehend the substance of the health care consumer's claim. As the court of appeals correctly observed, § 516.105 has been held applicable in cases where a consumer of health care sued a health care provider for breach of contract. See Barnhoff v. Aldridge, 327 Mo. 767, 38 S.W.2d 1029 (1931); State ex rel. Sisters of St. Mary v. Campbell, 511 S.W.2d 141 (Mo.App.1974); National Credit Associates, Inc. v. Tinker, supra. Relying on these cases, along with the legislature's use of the phrase "[a]ll actions," the Western District concluded that an action for contribution against a health care provider fell within the ambit of § 516.105. We believe the court of appeals construed the holdings in these decisions too broadly. In each of the cited cases, the claim asserted against the health care provider arose from some improper or negligent act by the health care provider. The suit in each case, however, was framed as an action for breach of contract in an attempt to avoid the two-year statute of limitations in § 516.105. Looking at the substance, not the form, of the action, we ruled that the suits were to be governed by § 516.105. Properly interpreted, Barnhoff, Campbell and Tinker hold that when a health care provider is liable under both tort and contract theories, the two-year statute of limitations provided by § 516.105 cannot be circumvented by denominating the suit as one in contract.

Examination of both the statutory language and the nature of Skaggs' claim against respondent convinces us that a suit for contribution is not subject to the provisions of § 516.105. While § 516.105 clearly covers all claims brought by consumers of health care services against health care providers for injuries related to such services, we find no words indicating a legislative intent to include suits for contribution among health care providers. In the instant case, Skaggs seeks contribution from respondent under the doctrine of Missouri Pacific Railroad Co. v. Whitehead & Kales Co., 566 S.W.2d 466 (Mo. banc 1978), in the event it is adjudged liable to plaintiffs. Admittedly, this form of contribution is different from the statutory right to contribution among joint judgment debtors under § 537.060, RSMo Cum.Supp.1983. Nevertheless, we believe it is significant that the statutory action for contribution existed at the time the legislature enacted § 516.105 and that the drafters did not designate such an action for contribution as coming within the two-year limitation.

Nothing in the nature of a claim for contribution under Whitehead & Kales warrants subjecting such a claim to the statute of limitations governing suits for medical malpractice. Substantively, an action for contribution is neither grounded in tort nor reasonably related to the types of actions enumerated in § 516.105. Rather, it accrues from the existence of a joint obligation on a liability shared by tortfeasors. The right to contribution serves to rectify the unjust enrichment that occurs when one tortfeasor "discharge[s] a burden which both in law and conscience was equally the liability of another." Leflar, "Contribution and Indemnity Between Tortfeasors," 81 U.Pa.L.Rev. 130, 138 (1932). See Safeway Stores, Inc. v. City of Raytown, 633 S.W.2d 727, 730 (Mo. banc 1982); Whitehead & Kales, 566 S.W.2d at 469. We do not believe that § 516.105, so carefully drawn to protect the providers of health care against stale claims from health care consumers, was intended to deprive those same providers from fairly apportioning judgments among themselves in proportion to their degree of fault. Nor do we believe there is the same threat of stale claims in actions between health care providers that there is between consumers and providers of health care.

It makes no difference that the claim for contribution arises ancillary to a suit subject to § 516.105. By definition, a suit for contribution among tortfeasors must arise from some underlying tort action. Both...

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