State ex rel. Sperandio v. Clymer

Decision Date06 February 1978
Docket NumberNo. KCD,R,No. 8,8,KCD
Citation563 S.W.2d 88
PartiesSTATE of Missouri ex rel. Lawrence SPERANDIO, Relator, v. Honorable Lewis W. CLYMER, Judge, 16th Judicial Circuit, Jackson CountyCircuit Court, Divisionespondent. 29573.
CourtMissouri Court of Appeals

John C. Milholland, Harrisonville, E. J. Murphy, Butler, for relator.

Morris, Larson, King, Stamper & Bold, Roy A. Larson, Steven G. Emerson, Kansas City, for respondent.

Before WASSERSTROM, P. J., and SHANGLER, DIXON, PRITCHARD, SOMERVILLE, and TURNAGE, JJ.

PRITCHARD, Judge.

ORIGINAL PROCEEDING IN MANDAMUS

The issue involves the propriety of respondent's order dismissing relator's claim against William H. Snead, M.D., a defendant in the underlying action for medical malpractice, upon the ground that it was barred by the two-year statute of limitations. The alternative writ of mandamus issued herein recites that it appears from the petition for the writ that Dr. Snead is liable for conspiratorial concealment of relator's condition and injuries, by reason of which the five-year statute of limitations (after discovery) applies as to the action against him rather than the two-year statute of limitations for actions brought in medical malpractice.

The resolution of the issue requires an examination of Count II of relator's petition for damages, as it involves defendant Snead. But first, there must be a general statement of the allegations of Count I of that petition as to other defendants.

Defendants Michael and Yancey are licensed physicians and orthopedic surgeons in Springfield, Missouri. On or about September 12, 1967, relator, Sperandio, consulted them about a problem in his hips, a deformity as advised, resulting in a congenital condition of subluxation of the femoral heads. Michael and Yancey subsequently advised and performed surgery (December 2, 1967) upon Sperandio, after consultation with a Dr. Pemberton in Salt Lake City, Utah, who had devised a procedure to treat children of 12 to 14 years for the congenital subluxation and dislocation of the hip. Neither Michael nor Yancey knew what the modification was of the Pemberton Procedure for its performance on adults, and no such adult operation had ever been performed in Springfield, Missouri, all of which was wrongfully and intentionally concealed from Sperandio, and that he did not give consent to experimentation upon his person, and that the operation was performed without his informed consent and without his consent. Because the required modifications of the Pemberton Procedure were not made, Michael and Yancey negligently caused themselves to exert excessive force on Sperandio's left acetabulum, fractured it, replaced a fractured part with a screw which was bent by excessive force, and were unable to move the roof of the acetabulum the required distance to remedy the subluxation as a direct and proximate result of failure to modify the surgical technique. Beside the basic malpractice particulars pleaded, Sperandio set forth that Michael and Yancey actively concealed the facts from him, and his family physician, and affirmatively falsely represented to him that his left hip bones had been moved to a proper position and that the intended result of surgery in the position of the hip bones had been achieved.

In the interim, and after consulting his family physician and an orthopedist in Joplin, Missouri (from whom it is alleged that Michael and Yancey withheld critical information of the surgery and its outcome), Sperandio went to the University of Missouri Medical Center for resistive exercises and physiotherapy and had progressed to the point that he was ready to be admitted for desirable corrective surgery. It is at this point, according to the pleadings, that Snead enters the picture. On December 9, 1968, Sperandio sought Snead's advice and counsel concerning his disabling condition and impending surgery at UMMC and Snead advised him to continue treatment at UMMC, and to follow the advice of physicians there.

As to the Count II claim asserted against Snead, it is further alleged that he, knowing that surgical intervention in Sperandio's hip joint would lay open to direct visual inspection the malpositioned fragments of his acetabulum, and reveal the extent of the damage which had occurred to his hip on the December 2, 1967, surgery, Snead joined in the conspiracy to conceal from Sperandio the condition of his hip and to prevent him from promptly receiving further remedial care which would reveal the true condition. Snead wrote a letter to UMMC on December 9, 1968, in which he warned that Sperandio had litigation in mind, "well-knowing and intending thereby to foreclose the chances of plaintiff's immediate access to the then-planned and...

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1 cases
  • Breeden v. Hueser, WD 68069.
    • United States
    • Missouri Court of Appeals
    • June 30, 2008
    ...(Mo. banc 1984) (two-year limitation does not apply to actions for contribution between health care providers); State ex rel. Sperandio v. Clymer, 563 S.W.2d 88 (Mo.App.1978). This court, in State ex rel. Sperandio v. Clymer, examined a fraud claim against a physician with respect to the ap......

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