State ex rel. Cardinal Glennon Memorial Hospital for Children v. Gaertner
Citation | 583 S.W.2d 107 |
Decision Date | 13 February 1979 |
Docket Number | No. 60485,60485 |
Parties | STATE ex rel. CARDINAL GLENNON MEMORIAL HOSPITAL FOR CHILDREN, Relator, v. The Honorable Carl R. GAERTNER, Judge, Respondent. |
Court | United States State Supreme Court of Missouri |
R. E. Keaney, Michael J. Pitzer, John J. Horgan, St. Louis, for relator.
Hullverson, Hullverson & Frank, Inc., John J. Frank, Stephen H. Ringkamp, St. Louis, for respondent.
John D. Ashcroft, Atty. Gen., Gregory F. Hoffman, Asst. Atty. Gen., Jefferson City, for intervenors.
This is prohibition.
Deborah Lynn Burns, a minor, and her parents, Doyle Burns and Phyllis Burns, sued Cardinal Glennon Hospital for Children, Thomas E. Veeser, M.D., G. D. Searle and Company, and six "John Doe" physicians, for professional negligence, in the Circuit Court of the City of St. Louis. Cardinal Glennon Hospital filed a Separate Motion to Dismiss alleging, in part, that plaintiffs' petition should be dismissed because of their failure to comply with Chapter 538, RSMo Supp. 1976, before filing their petition in the Circuit Court of the City of St. Louis. On November 2, 1977, the trial court overruled the Separate Motion to Dismiss and effectively held Chapter 538 unconstitutional. On December 19, 1977, this Court issued its Provisional Rule in Prohibition ordering the Honorable Carl R. Gaertner, Judge, Circuit Court of the City of St. Louis, to show cause why a writ of prohibition should not issue prohibiting him from taking further action against Cardinal Glennon Hospital. The Attorney General and the Executive Secretary of the Professional Liability Review Board Authority were given leave to intervene. If Chapter 538 is constitutional, our provisional rule should be made absolute. If Chapter 538 is unconstitutional, our provisional rule should be quashed.
Section 538.010, RSMo Supp. 1976, reads as follows:
Section 538.020, RSMo Supp. 1976, reads as follows "1. Before any action seeking damages from a professional alleging malpractice, errors, omissions or other professional negligence can be filed in any court within this state, the plaintiff in the action must have complied with the provisions of sections 538.010 to 538.080 requiring a review of the claims upon which the action is based by a professional liability review board.
Section 538.025, RSMo Supp. 1976, reads, in part, as follows:
Section 538.045, RSMo Supp. 1976, reads, in part, as follows:
Section 538.050, RSMo Supp. 1976, reads as follows:
Cases from other jurisdictions are collected in Annotation, Validity and Construction of State Statutory Provisions Relating to Limitations on Amount of Recovery in Medical Malpractice Claim and Submission of Such Claim to Pretrial Panel, 80 A.L.R.3d 583, §§ 8-16 (1977). However, we agree with Respondent that the statutes involved in these cases are so dissimilar from Chapter 538 that they "provide no real guidance to this Court in the determination of this case."
Chapter 538 establishes a Professional Liability Review Board Authority. Any person having a malpractice claim against a health care provider is required to refer the claim to the Secretary of the Authority before filing an action in court. Notice must simultaneously be sent to each party against whom a claim is asserted. The notice must be sent within the applicable two-year statute of limitations. § 516.105 The determinative challenge to Chapter 538 is that it imposes a procedure as a precondition to access to the courts. It is contended that it violates Mo.Const. Art. I, § 14 which provides that "the courts of justice shall be open to every person, and certain remedy afforded for every injury to person, property or character, and that right and justice shall be administered without sale, denial or delay."
RSMo Supp. 1976. Giving the notice tolls the running of the statutes of limitations until the procedure is completed. § 538.020. The Professional Liability Review Board is empowered to hold hearings on the malpractice claim and to subpoena any record, report or other evidence deemed relevant. § 538.035. After the hearing process, the Board is to make a recommendation as to liability and damages which the parties are free to accept or reject. § 538.045. If the recommendation is rejected, an action may be filed in court. The Board's recommendation may neither be commented upon nor introduced in evidence in a subsequent court action. § 538.050. A period of six months may elapse between the time the claim is filed with the Secretary of the Authority and the time a court action may be filed.
In 1954, Article II, § 19 of the Illinois Constitution read as follows:
"Every person ought to find a certain remedy in the laws for all injuries and wrongs which he may receive in his person, property or reputation; he ought to obtain, by law, right and justice freely, and without being obliged to purchase it, completely and without denial, promptly, and without delay."
In People ex rel. Christiansen v. Connell, 2 Ill.2d 332, 118 N.E.2d 262 (1954), the Supreme Court of Illinois was confronted with a statute which required any person desiring to commence an action for divorce to file with the clerk of court a written statement of intention to file a complaint not less than sixty days or more than one year before filing the complaint. The statute provided a procedure by which a judge would attempt to induce the parties to voluntarily confer with him in an attempt at reconciliation. Enactment of the statute was motivated by concern with the increasing divorce rate. It was argued to the Court that the statute obstructed litigants' right of access to the courts without delay. It was stated that the objection was not to the length of the delay as such but rather to the fact that the delay was interposed before jurisdiction was obtained, and therefore, a litigant's right to seek immediate redress in the courts was violated. It was said that the enforced waiting period imposed by the statute not only caused a useless and arbitrary delay, but that delay, by abridging the right to file suit and have summons issued promptly, necessarily destroyed the remedies which depended on obtaining personal service on defendants.
The Supreme Court of Illinois agreed and held "that the...
To continue reading
Request your trial-
Blaske v. Smith & Entzeroth, Inc., Nos. 73588
...law. Two relatively recent Missouri cases demonstrate the meaning of this constitutional provision. In State ex rel. Cardinal Glennon Memorial Hospital v. Gaertner, 583 S.W.2d 107 (Mo. banc 1979), this Court deemed the requirement that a malpractice plaintiff submit his or her claim to the ......
-
American Bank & Trust Co. v. Community Hospital
...panel (Aldana v. Holub, supra, 381 So.2d 231, 237; Mattos v. Thompson, supra, 421 A.2d 190, 195; State, Cardinal Glennon Mem. Hosp. v. Gaertner (Mo.1979) 583 S.W.2d 107, 110; Boucher v. Sayeed, supra, 459 A.2d 87, 93-94), imposition of a monetary limitation on recovery (Carson v. Maurer (19......
-
State Farm Mut. Auto. Ins. Co. v. Broadnax
...in sections of the Magna Carta. Lankford v. Sullivan, Long & Hagerty, 416 So.2d 996, 999 (Ala.1982); State ex rel. Cardinal Glennon Mem. Hosp. v. Gaertner, 583 S.W.2d 107, 110 (Mo.1979). In a thorough and thoughtful opinion declaring a portion of a statute of repose for products liability c......
-
Hoem v. State
...unconstitutional pursuant to a substantially identical article of that state's constitution. State ex rel. Cardinal Glennon Memorial Hospital for Children v. Gaertner, Mo., 583 S.W.2d 107 (1979). See also Jiron v. Mahlab, 99 N.M. 425, 659 P.2d 311 (1983) (declaring unconstitutional a New Me......
-
Medical Malpractice as Workers' Comp: Overcoming State Constitutional Barriers to Tort Reform
...Periods Unconstitutional, 103 Dick. L. Rev. 455 (1999).60. See State ex rel. Cardinal Glennon Mem'l Hosp. for Children v. Gaertner, 583 S.W.2d 107 (Mo. 1979) (en banc); Jiron v. Mahlab, 659 P.2d 311 (N.M. 1983).61. See Mattos v. Thompson, 421 A.2d 190 (Pa. 1980). 62. Or their representative......