Weiss v. Rojanasathit

• Decision Date: 25 August 1998
• Docket Number: No. 80304,80304
• Parties: Ann WEISS, Appellant, v. Dr. Chinda ROJANASATHIT, Respondent.
• Court: Missouri Supreme Court

Page 113

975 S.W.2d 113

Ann WEISS, Appellant, v. Dr. Chinda ROJANASATHIT, Respondent.

No. 80304.

Supreme Court of Missouri,

En Banc.

Aug. 25, 1998.

Matthew J. Padberg, James P. Leonard, St. Louis, for appellant.

J. Thaddeus Eckenrode, St. Louis, for respondent.

PRICE, Judge.

This is a medical malpractice action brought by Ann Weiss against Chinda Rojanasathit, M.D. The trial court granted summary judgment in favor of Dr. Rojanasathit on the ground that the action was barred by section 516.105, RSMo 1994. The court of appeals affirmed, then transferred the case to this Court, finding the case to be one of general interest and importance. The judgment is affirmed.

I.

On April 10, 1991, Dr. Rojanasathit performed a routine gynecological examination on Ms. Weiss. Results of the clinical examination were normal. Because Dr. Rojanasathit did not have the equipment to interpret the Pap smear, she sent it to an independent laboratory for analysis. Dr. Rojanasathit informed Ms. Weiss that she would not be contacted if the results of the Pap smear were within normal limits. Ms. Weiss was also instructed to return to Dr. Rojanasathit's office in three months. Sometime after April 22, 1991, the results of the Pap smear were sent to the doctor's office. The results were abnormal, indicating either a cancerous or a pre-cancerous condition.

Under routine office procedure, the office staff reviews the lab results. If the results are abnormal, they are given to Dr. Rojanasathit for review. Dr. Rojanasathit then contacts the patient. In the present case, Doctor Rojanasathit did not contact Ms. Weiss regarding the Pap smear results. Nor did Ms. Weiss return to Dr. Rojanasathit's office in three months or contact Dr. Rojanasathit again except to request her medical records late in 1995 or early in 1996.

On February 23, 1995, Dr. Raul Perez, performed another gynecological examination on Ms. Weiss. Pap smear results revealed that Ms. Weiss had developed Stage IIb cancer of the endocervix.

On March 6, 1996, Ms. Weiss filed an action for medical malpractice against Dr. Rojanasathit. The petition alleges that Dr. Rojanasathit failed to inform Ms. Weiss of the abnormal Pap smear results, failed to perform further diagnostic testing following the abnormal Pap smear, failed to treat Ms. Weiss's condition, and failed to refer Ms. Weiss to an appropriate specialist. The trial court sustained Dr. Rojanasathit's motion for summary judgment on the ground that the action was barred by the two-year statute of limitations set out in section 516.105, RSMo 1994.

II.

The question of law before this Court is whether section 516.105 bars Ms. Weiss's medical malpractice action. Section 516.105 provides in pertinent part:

All actions against physicians ... 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 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 [sic] 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. (Emphasis added).

To place Ms. Weiss's appeal in context, a review of the history of section 516.105 is helpful. Prior to 1976, the medical malpractice limitation statute was section 516.140, RSMo 1969 (original version enacted in 1921 as section 1319a). Section 516.140 provided that medical malpractice actions must be brought within two years from the date of the "act of neglect complained of." Section 516.140, RSMo 1969.

In 1968, in Laughlin v. Forgrave, 432 S.W.2d 308 (Mo. banc 1968), this Court strictly interpreted section 516.140. The plaintiff brought a medical malpractice action in 1963 claiming damages for a negligent act - leaving a foreign object in the patient's back during surgery - that occurred in 1951. Acknowledging that the injury caused by the surgery was not, and could not have been, discovered until 1962, this Court held nevertheless that the statute of limitations commenced to run from the date of the act of neglect, not from the time of discovery of the act of neglect. In rejecting the argument that this Court should adopt a discovery rule, this Court noted:

This argument is appealing and has some force, so far as justice is concerned; in that respect the conclusion we reach is distasteful to us. But, the legislative branch of the government has determined the policy of the state and clearly fixed the time when the limitation period begins to run against actions for malpractice. This argument addressed to the court properly should be addressed to the General Assembly. Our function is to interpret the law; it is not to disregard the law as written by the General Assembly. Id.at 314.

In 1976, the legislature repealed section 516.140 and enacted the present medical malpractice limitations statute, section 516.105. Section 516.105 provides that in cases such as Laughlin, in which the act of neglect complained of is introducing and negligently permitting any foreign object to remain within the body of a living person, the statute commences to run from the date of discovery. Section 516.105. For all other cases, however, section 516.105 contains language almost identical to its predecessor, section 516.140. Medical malpractice actions must "be brought within two years from the date of the occurrence of the act of neglect complained of." Section 516.105. See Miller v. Duhart, 637 S.W.2d 183, 188 (Mo.App.1982) (finding that section 516.105 barred an action for wrongful birth of a child born after allegedly negligent performance of a bilateral tubal ligation because action was not brought within two years from the date of the sterilization operation); see also Green v. Washington Univ. Med.Ctr., 761 S.W.2d 688, 690 (Mo.App.1988) (finding that section 516.105 barred a claim for failure to diagnose a condition that existed at the time of the physical examination because it was not brought within two years of the examination). Section 516.105, including the "foreign object" exception, has survived equal protection, due process, right of privacy and special law challenges. Ross v. Kansas City Gen. Hosp. and Med. Ctr., 608 S.W.2d 397, 398-99 (Mo. banc 1980). In an attempt to circumvent the bar of section 516.105, Ms. Weiss puts forth four arguments.

III.

Ms. Weiss first maintains that the language of section 516.105 stating that "all actions for damages for malpractice shall be brought within two years from the date of occurrence of the act of neglect complained of" requires not only that the negligent act occur before the statute commences running, but also that damages must have been sustained. She contends that because she had no "damages" until March of 1994 when the pre-cancerous condition allegedly developed into a cancerous condition, the statute of limitations began to run in March of 1994.

Ms. Weiss reads "damages" in section 516.105 in a vacuum, in disregard of the remainder of the phrase in which the word "damages" is used. The statute provides, "[A]ll actions... for damages... shall be brought within two years from the date of occurrence of the act of neglect complained of ..." Section 516.105; see Laughlin, 432 S.W.2d at 310 (in a foreign object case construing the previous medical malpractice statute of limitations, section 516.140, the Court rejected the plaintiff's assertion that the statute was tolled until the damage resulting from the act of neglect was discoverable); see also Green, 761 S.W.2d at 688-689 (rejecting plaintiff's assertion that no ascertainable damage, and therefore no cause of action accrued until there was a clinical manifestation of damage from the failure to diagnose plaintiff's condition); Sanders v. H. Nouri, M.D., Inc., 688 S.W.2d 24, 26 (Mo.App.1985) (finding that section 516.105 barred claim for wrongful conception because the limitations period began to run on the date of the failed sterilization procedure, not the date on which the child was conceived, or the date on which the pregnancy was discovered). Plainly stated, Ms. Weiss has an action for damages resulting from medical malpractice. Section 516.105 requires that the action "be brought within two years from the date of occurrence of the act of neglect complained of." Id. The word "damages" specifies the type of action subject to the time limitation in section 516.105; it does not alter the plain and unequivocal limitation in the statute that such actions be brought within two years from the date of the act of neglect.

Ms. Weiss cites in support of her theory only one Missouri medical malpractice case, Maddox v. Truman Med. Ctr., Inc., 727 S.W.2d 152 (Mo.App.1987). In Maddox,the court of appeals found that the statute of limitations did not begin to run when the doctor misdiagnosed plaintiff's tissue as cancerous, but ran from the time of the unnecessary surgery performed as a result of the misdiagnosis. Id. at 153. The Maddox court, however, did not determine that damages were necessary before the statute of limitations would commence to run. Rather, the court examined the plaintiff's petition to determine whether the act of neglect complained of in the petition was for unnecessary surgery or the misdiagnosis of cancerous tissue. Id. If Maddox is read to say that the statute of limitations does not commence until damages are discovered, it disregards the plain language of section 516.105...