Shelton v. St. Anthony's Medical Center

• Decision Date: 14 November 1989
• Docket Number: No. 71477,71477
• Citation: 781 S.W.2d 48
• Parties: Julia SHELTON, Appellant, v. ST. ANTHONY'S MEDICAL CENTER, et al., Respondents.
• Court: Missouri Supreme Court

Page 48

781 S.W.2d 48

58 USLW 2320

Julia SHELTON, Appellant, v. ST. ANTHONY'S MEDICAL CENTER, et al., Respondents.

No. 71477.

Supreme Court of Missouri,

En Banc.

Nov. 14, 1989.

As Modified on Denial of Rehearing Dec. 12, 1989.

Alvin A. Wolff, Jr., Michael A. Gross, St. Louis, for appellant.

Lawrence J. Hess, St. Louis, for respondents.

RENDLEN, Judge.

In plaintiff's action for medical malpractice, her claims against the separate defendants South County Radiologists, Inc. and Dr. E.W. Szoko were dismissed by the trial court for failure to state a claim upon which relief can be granted. The petition, taken as true when reviewing the order of dismissal, Stiffelman v. Abrams, 655 S.W.2d 522, 525 (Mo. banc 1983), contains the following averments.

On May 7, 1986, and September 11, 1986, plaintiff, then pregnant, was tested by ultrasound procedures performed at South County Radiologists, Inc. Defendants, however, failed to properly read and interpret these tests and to advise her that her fetus was developing without arms and had other congenital anomalies. The petition alleges that defendants failed to advise plaintiff of her options as to termination of her pregnancy, and further:

[a]s a direct and proximate result of the negligence and carelessness of the defendants, ... plaintiff was denied the right to choose whether or not to terminate her pregnancy; and as a result thereof plaintiff has incurred extraordinary expenses for medical care and treatment, special education, nursing care, physical therapy, medications, special equipment, devises (sic) and artificial limbs all in the approximate sum of $25,000.00 and will for the life of her daughter ... incur in the future similar sums in an amount not presently ascertainable; plaintiff has suffered losses including loss of consortium, the right to lead a normal life; plaintiff has also suffered and will continue to suffer from emotional distress, anxiety, and depression.

Defendants moved to dismiss on grounds that plaintiff's claim was barred by § 188.130.2, RSMo 1986, and by this Court's decision in Wilson v. Kuenzi, 751 S.W.2d 741 (Mo. banc 1988). As stated above, the trial court granted the motion to dismiss, and following affirmance in the court of appeals, we granted transfer and determine the cause as on original appeal. Mo. Const. art. V, § 10. The cause is reversed and remanded for reinstatement of the petition.

In Wilson v. Kuenzi, 751 S.W.2d 741, a three-judge plurality opinion struck down a cause of action for wrongful birth, which was defined as an action "brought by one or both of the parents of a child born as the result of some form of negligence of the defendant." Id. at 743. There, the only damage claimed was that plaintiff would have resorted to an abortion if an amniocentesis test had been performed indicating abnormalities in her child, and Judge Blackmar, concurring with the plurality, wrote that "our Court should not award damages of the kind claimed," but that the petition would have pled a malpractice claim if the element of damages had "adequately appeared." Id. at 746. Section 188.130.2, RSMo 1986, effective August 13, 1986, which provides that "[n]o person shall maintain a cause of action or receive an award of damages based on the claim that but for the negligent conduct of another, a child would have been aborted," was held not to have retrospective application to the facts in Wilson v. Kuenzi.

As § 188.130.2 became effective in the midst of plaintiff's pregnancy, we must determine when plaintiff's cause of action accrued and thus whether the statute is applicable to her claim. "A cause of action accrues at the time when its owner may legally invoke the aid of a proper tribunal to enforce his demands; when he has a present right to institute and maintain an action or suit." Brinkmann v. Common School District # 27 of Gasconade County, 238 S.W.2d 1, 5 (Mo.App.1951), aff'd, 255 S.W.2d 770 (Mo. banc 1953). Even though plaintiff claims this is a medical malpractice action for which the statute of limitations begins to run at the time of the act of neglect, see § 516.105, it appears on the face of her claim that the harm was not suffered until the child was actually born, and she therefore did not have the right to institute suit until that time. At the time the child was born, § 188.130.2 was fully effective as a bar to the extent plaintiff's claim fell within its provisions.

In determining the extent to which the statute bars plaintiff's claim, the allegations of her petition are to be liberally construed, allowing them their broadest intendment, Porter v. Crawford & Co., 611 S.W.2d 265, 266 (Mo.App.1980), see also Stiffelman v. Abrams, 655 S.W.2d at 525, and "[i]f the facts pleaded and the reasonable inferences to be drawn therefrom, looked at most favorably from the plaintiff's standpoint, show any ground upon which relief may be granted, the plaintiff has the right to proceed." Laclede Gas Co. v. Hampton Speedway Co., 520 S.W.2d 625, 630 (Mo.App.1975). Viewing the petition in this light, we hold that it states a viable claim of medical malpractice and thus should be reinstated to that extent. The petition does not merely allege that "but for the negligent conduct of another, a child would have been aborted," § 188.130.2, but asserts that:

[a]s a direct and proximate result of the negligence and carelessness of the defendants, ... plaintiff was denied the right to choose whether or not to terminate her pregnancy; and as a result thereof ... plaintiff has suffered losses including loss of consortium, the right to lead a normal life; plaintiff has also suffered and will continue to suffer from emotional distress, anxiety and depression."

The cause therefore falls within the doctrine enunciated in Aiken v. Clary, 396 S.W.2d 668, 673 (Mo.1965), and noted by Judge Higgins in dissent to Wilson v. Kuenzi, "that a doctor who fails to adhere to the standard of reasonable care is guilty of malpractice whether consisting of improper care and treatment or of failure to inform sufficiently to enable the patient to make a judgment and give informed consent with respect to treatment." 751 S.W.2d at 748.

The allegations of the petition state a breach of duty to inform the patient sufficiently to enable her to make a judgment, as well as damages flowing from such breach. Such damages are readily separable from damages arising from the possibility that but for the negligent conduct of defendants, the child would have been aborted. Plaintiff has alleged mental distress, and counsel asserts that some mental distress followed from the shock of discovering the defects in the baby at birth without being adequately advised of the deformities and prepared for this catastrophe. Therefore harm is attributable to defendants' negligence regardless of whether plaintiff would have had an abortion, and the pleading states a viable malpractice claim outside the provisions of § 188.130.2. See Young v. Stensrude, 664 S.W.2d 263, 265 (Mo.App.1984). Similarly, such damage is distinguishable from that claimed in Wilson v. Kuenzi, hence Wilson does not preclude plaintiff's action here. When the petition is liberally construed, the claims of loss of consortium and the right to lead a normal life may also be interpreted to allege some damage occurring after the birth and as a result of the shock of not being adequately informed and prepared for the birth of the deformed child, and to that extent such damages are barred neither by the statute nor by Wilson.

The judgment of the trial court is reversed and the cause remanded for reinstatement of the petition.

HIGGINS and BILLINGS, JJ., concur.

BLACKMAR, C.J., concurs in separate opinion filed.

COVINGTON, J., dissents in separate opinion filed.

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