State Ex Rel. Neal W. Holzum v. the Honorable Nancy L. Schneider

• Decision Date: 19 July 2011
• Docket Number: Nos. SC 91434,SC 91418.,s. SC 91434
• Parties: STATE of Missouri ex rel. Neal W. HOLZUM, M.D., Relator,v.The Honorable Nancy L. Schneider, Respondent.State of Missouri ex rel. BC Missouri Emergency Physicians, LLP, Scott L. Landry, M.D., and David Poggemeier, M.D., Relators,v.The Honorable Nancy L. Schneider, Respondent.
• Court: Missouri Supreme Court

342 S.W.3d 313

STATE of Missouri ex rel. Neal W. HOLZUM, M.D., Relator,
v.
The Honorable Nancy L. Schneider, Respondent.State of Missouri ex rel. BC Missouri Emergency Physicians, LLP, Scott L. Landry, M.D., and David Poggemeier, M.D., Relators,
v.
The Honorable Nancy L. Schneider, Respondent.

Nos. SC 91434

SC 91418.

Supreme Court of Missouri, En Banc.

July 19, 2011.

[342 S.W.3d 314]

Michael J. Smith and Tricia J. Mueller of Lashly & Baer PC, St. Louis, for Holzum.Terese A. Drew and Kara L. Kezios of Hinshaw & Culbertson LLP, St. Louis, for BC Emergency Physicians, Landry and Poggemeier.Mark T. McCloskey and Patricia N. McCloskey of McCloskey PC, St. Louis, for Eric Katz.Peter J. Crane and Jennifer C. Hansen of Williams, Venker & Sanders LLC, St. Louis, for Barnes–Jewish St. Peters.MICHAEL A. WOLFF, Judge.

Introduction

On the last day of the three-year limitations period, Eric Katz filed a lawsuit alleging medical malpractice in the death of his mother, Alverna Katz. The lawsuit included as named defendants John Doe, Jane Doe, and Washington University and/or Washington University Medical Center. After discovery, Eric Katz amended the petition by adding the names of Drs. Neal W. Holzum, Scott L. Landry, David Poggemeier and BC Emergency Physicians LLP, and dropping John Doe, Jane Doe and Washington University and/or Washington University Medical Center. At the time of the amendment the statute of limitations had expired. Only one defendant named within the limitations period—Barnes–Jewish St. Peters Hospital Inc. d/b/a Barnes–Jewish St. Peters Hospital—remains in the case.

The question is whether the amendment adding these physicians and their employer, BC Emergency Physicians, after the statute of limitations had run “relates back” to the timely filing date of the original petition or whether the claim against these new defendants is barred by the

[342 S.W.3d 315]

three-year statute of limitations applicable in this case.

The statute, section 537.100, requires that an action be “commenced” within the three-year limitations period.¹ But the statute does not say when an action is “commenced,” and that question can be answered only by reference to the Court's rules and case law.

The newly added defendants moved to dismiss on the ground that the action was not commenced against them within the limitations period; their motion asserted that the “Doe” and Washington University defendants named in the original petition did not meet the requirement in Rule 55.33(c) or the common law “misnomer” principle. Therefore, these parties say, the amendment adding them did not “relate back” to the date of the original filing.

The circuit court overruled the motions to dismiss, and the new defendants—Drs. Holzum, Landry, Poggemeier and BC Emergency Physicians LLP—filed petitions for writs of prohibition.²

A writ under article V, section 4.1 of the Missouri Constitution is the appropriate remedy to prevent a lower court from proceeding on an action barred by the statute of limitations. State ex rel. Hilker v. Sweeney, 877 S.W.2d 624, 626–28 (Mo. banc 1994). This Court issued its preliminary writs of prohibition. Because both writ proceedings arise from the same underlying lawsuit and raise the same issue, they are consolidated for decision. The preliminary writs are made permanent.

Factual Background

Alverna Katz went to the emergency room at Barnes–Jewish St. Peters Hospital after injuring her head during a fall on October 1 or 2, 2005, and died as a result of her injuries. Three years after her death, at 5 p.m., October 2, 2008, the attorneys for her son, Eric Katz, filed a petition against Washington University and/or Washington University Medical Center, Barnes–Jewish St. Peters Hospital, and John and Jane Doe as providers of medical services. This original petition did not name Drs. Holzum, Landry, Poggemeier and BC Emergency Physicians LLP.

In their brief, the attorneys tell the Court that the initial petition was prepared after plaintiff's counsel was contacted regarding this matter 24 minutes before the court clerk's office was to close on the last day for filing under the statute of limitations. The petition alleged that “on or about October 1 through October 2, 2005, Decedent presented herself to Defendants and through their negligent treatment died on October 2, 2005.”

The amended petition filed after discovery deleted Washington University and/or Washington University Medical Center, John Doe, and Jane Doe and added Drs. Holzum, Landry, Poggemeier and BC Emergency Physicians. According to Katz, BC Emergency Physicians LLC, Dr. Landry and Dr. Poggemeier were substituted for Jane Doe, and Dr. Holzum was substituted for John Doe. Barnes–Jewish St. Peters Hospital remained a defendant

[342 S.W.3d 316]

in the case. This second petition was filed more than two years after the first petition—and more than five years after Mrs. Katz's death.

Did the Amended Petition “Relate Back” to the Date of the First Petition?

To determine this question, the Court looks to Rule 55.33(c) and the common law principle of “misnomer.” Under either the...