Strahler v. St. Luke's Hosp., 66789

• Citation: 706 S.W.2d 7
• Decision Date: 18 February 1986
• Docket Number: No. 66789,66789
• Parties: , 54 USLW 2450 Carol STRAHLER, Appellant, v. ST. LUKE'S HOSPITAL, et al., Respondents.
• Court: Missouri Supreme Court

Page 7

706 S.W.2d 7

62 A.L.R.4th 735, 54 USLW 2450

Carol STRAHLER, Appellant, v. ST. LUKE'S HOSPITAL, et al., Respondents.

No. 66789.

Supreme Court of Missouri,

En Banc.

Feb. 18, 1986.

Rehearing Denied March 25, 1986.

Ronald R. Holliger, Ronald J. Stites, Kansas City, for appellant.

Larry L. McMullen, Robin V. Foster, Kansas City, for respondents.

BILLINGS, Judge.

This appeal challenges the constitutionality of Missouri's medical malpractice statute of limitations, § 516.105, RSMo 1978, as it applies to minors. We ordered the case transferred to this Court prior to opinion by the court of appeals because of the constitutional issue. Mo. Const. art. V, § 10. We reverse the dismissal of plaintiff's petition and remand the case for further proceedings.

On September 23, 1982, plaintiff Carol A. Strahler, then nineteen years old, filed a single count petition for damages in the Circuit Court of Jackson County. Plaintiff's petition alleged that when she was a fifteen year old minor, defendant Dr. Sandow and four other named defendants had provided her with careless and negligent medical treatment and that as a direct and proximate result of defendants' negligence, she suffered the complete amputation of her right leg above the knee.

Defendants moved to dismiss the action on the ground that plaintiff's common law cause of action was barred by § 516.105, RSMo 1978, because a suit of this kind must be brought within two years from the date of the complained of actionable wrong and plaintiff did not bring suit until four years after the alleged malpractice. Plaintiff appeals from the trial court's order dismissing her medical malpractice action against defendant Dr. Sandow. ¹

Section 516.105 is as follows: Actions against health care providers (medical malpractice.)--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, except that a minor ² under the full age of ten years shall have until his twelfth birthday to bring action, and except that in cases in which the act of neglect complained of its introducing and negligently permitting any foreign object to remain within the body of a living person, the action shall be brought within two years from the date of the discovery of such alleged negligence, or from the date on which the patient in the exercise of ordinary care should have discovered such alleged negligence, whichever date first occurs, but in no event shall any action for damages for malpractice, error, or mistake be commenced after the expiration of ten years from the date of the act of neglect complained of.

Although plaintiff has propounded a number of constitutional arguments, ³ the dispositive challenge that she raises to the constitutionality of § 516.105, RSMo 1978, is that it violates the mandate of Mo. Const. art. I, § 14, which guarantees to every Missouri citizen "that the courts of justice shall be open to every person, and certain remedy afforded for every injury to person...."

We begin our analysis by pointing out that although our federal Constitution is an important and frequently relied upon source of individual rights, our state Constitution is also a reservoir of personal rights and liberties--some of which are not enumerated in or accorded protection by our federal Constitution. Article I, section 14 is one such provision in our state Constitution which grants to the people of Missouri an express constitutional guarantee not enumerated in our federal Constitution. But see Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982); Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971).

In State ex rel. Cardinal Glennon Memorial Hospital v. Gaertner, 583 S.W.2d 107 (Mo. banc 1979), we found Missouri's statutorily mandated Professional Liability Review Board, §§ 538.010-.080, RSMo 1978, violative of Mo. Const. art. I, § 14 because it imposed an unduly burdensome precondition on a litigant's right of access to the courts. State ex rel. Cardinal Glennon v. Gaertner, 583 S.W.2d at 110. Our holding in Cardinal Glennon simply reaffirmed the principle that Mo. Const. art. I, § 14 is a part of this State's organic law and that it was intended to give constitutional protection to a litigant's ability to gain access to Missouri's courts. See generally, DeMay v. Liberty Foundry Co., 327 Mo. 495, 37 S.W.2d 640 (1931); see also State ex rel. National Refining Co., v. Seehorn, 344 Mo. 547, 127 S.W.2d 418 (1939). The language contained in Mo. Const. art. I, § 14 is not simply advisory in nature: it gives express constitutional protection to a litigant's right of access to our court system.

Here, plaintiff contends that § 516.105, RSMo 1978--in violation of Mo. Const. art. I, § 14--unconstitutionally devitalizes and effectively extinguishes her common law right and practical opportunity to seek legal redress for injuries sustained through defendant's alleged negligent medical treatment. Defendant, however, argues that § 516.105, RSMo 1978, does not contravene Mo. Const. art. I, § 14 because plaintiff, who was fifteen years of age at the time of the alleged malpractice, could have recruited a next friend to bring suit and was thus able to institute an action in her own right under Missouri law.

In Missouri, a person who is under the legal disability of minority still lacks capacity to institute, in his own right, a civil lawsuit. See Scott v. Royston, 223 Mo. 568, 123 S.W. 454 (1909); see e.g., Martin v. Martin, 539 S.W.2d 756 (Mo.App.1976) (an award of child support is made to the custodial parent for the benefit of children who because of minority lack legal status to bring suit directly). Rule 52.02(a) requires that "civil actions by minors ... be commenced and prosecuted only by a duly appointed guardian ... or by a next friend appointed for him...." This legal principle is also codified in statutory form and is found at §§ 507.110-.120, RSMo 1978.

Defendant suggests that Rule 52.02(c) serves to relieve a minor who is at least fourteen years of age of the legal disability of minority. To the contrary, Rule 52.02(c) provides only that in the case of a minor who is fourteen or older, appointment of a next friend can be made without notice to the persons with whom the minor resides, and it can be accomplished without formal application to the court. The minor, however, must still have a next friend who agrees in writing to serve as such. This provision of Rule 52 simply does not imbue a minor who is at least fourteen years old with the legal capacity necessary to maintain a civil action in his own right. ⁴ It should not escape notice that although the present case involves a fifteen year old minor, § 516.105, RSMo 1978, applies with equal force to all minors past the ripe old age of ten. ⁵ We think defendant's contention that plaintiff should not now be heard to complain because she was free to "initiate her own suit" plainly ignores the disabilities and limitations that childhood, familial relationships, and our legal system place upon a minor of tender years--who has little if any understanding of the complexities of our legal system.

The many value-laden issues to which this controversy gives rise were eloquently distilled and put into sharp relief by a commentator writing in a recent edition of the Journal of Legal Medicine:

State legislatures reacted in the 1970's to a perceived crisis in medical malpractice insurance by enacting these types of limitations provisions. While such provisions no doubt go some distance in alleviating the problems of malpractice insurers and health care providers, they do so only at a high cost. Their effect is to bar the malpractice suits of minors without regard to the validity of their claims or the fact that the minors are wholly innocent in failing to timely pursue their claims. Such a result seems to unfairly penalize the blameless minor in order to protect the potentially negligent health care provider. (emphasis added).

Andrews, Infant Tolling Statutes in Medical Malpractice Cases: State Constitutional Challenges, 5 J. Legal Medicine, 469 (1984).

The fact of the matter is that for most minors the opportunity to pursue a common law cause of action for injuries sustained from medical malpractice is one that is inextricably linked to the diligence and willingness of their parents to act in a responsible and timely manner. When faced with a controversy involving very similar legal issues, the Texas Supreme Court concluded that "it is neither reasonable nor realistic to rely upon parents, who may themselves be minors, or who may be ignorant, lethargic, or lack concern, to bring a malpractice lawsuit action within the time provided...." Sax v. Votteler, 648 S.W.2d 661, 667 (Tex.1983). In this connection, we think it is equally unreasonable to expect a minor, whose parents fail to timely vindicate his legal rights, to independently seek out another adult willing to serve as a next friend. Such an expectation would ignore the realities of the family unit and the limitations of youth.

The Sax case involved a similarly restrictive, though not identical, medical malpractice limitations period ⁶ which ran against minors, who under Texas law lacked the capacity to bring their own lawsuits. ⁷ The Texas Supreme Court held that the statute ran afoul of the state's constitutional due process clause and open courts provision. The court employed a test that balanced the litigant's right to redress and the extent to which this right had been burdened against the...