Windscheffel v. Benoit
| Decision Date | 23 February 1983 |
| Docket Number | No. 64047,64047 |
| Citation | 646 S.W.2d 354 |
| Parties | Clarence WINDSCHEFFEL, Plaintiff-Appellant, v. Hector W. BENOIT, Jr., Defendant-Respondent. |
| Court | Missouri Supreme Court |
S. Jill Weinlood, William H. Pickett, Kansas City, for plaintiff-appellant.
Reed O. Gentry, John E. Redmond, Kansas City, for defendant-respondent.
This appeal arises out of a medical malpractice action against defendant-respondent, Dr. Benoit, and the trial court's granting Benoit's motion for summary judgment based on the two year limitation statute, § 516.140, RSMo 1969 (now § 516.105, RSMo 1978). The Missouri Court of Appeals, Western District, affirmed the trial court's action, and the matter has reached this Court through the process of our granting plaintiff-appellant's motion to transfer.
Lying in the heart of this appeal is the Chapter 538 Professional Liability Review Board, its declaration of unconstitutionality by this Court in State ex rel. Cardinal Glennon Memorial Hospital v. Gaertner, 583 S.W.2d 107 (Mo. banc 1979), and this Court's effort to avoid inequities stemming from Cardinal Glennon in Knipschild v. Bellamy, 615 S.W.2d 38 (Mo. banc 1981).
The question centers on the tolling effect of the Chapter 538 procedures supplemented by the holdings of Cardinal Glennon and Knipschild.
We affirm the trial court's judgment and in so doing, and with appreciation, draw abundantly without quotation marks from the fine opinion of the Western District written by Judge Lowenstein.
First, the following chronology of events is provided as the factual prelusion:
June 23, 1975 -Operation by defendant on plaintiff
at Research Medical Center
in Kansas City
August 1, 1975 -Plaintiff released from hospital
July 1, 1976 -Plaintiff files petition against
hospital for negligent
post-operative care
January 1, 1977 -Effective date of Chapter 538
RSMo Supp. 1976. 1
April 28, 1977 -Plaintiff takes defendant's deposition
in case against Research
June 20, 1977 -Notice filed with Professional
Liability Review Board (Board)
pursuant to setting forth a claim
against defendant.
April 20, 1978 -Hearing before Board on plaintiff's
claim.
April 28, 1978 -Board finds no actionable malpractice
liability against defendant.
May 2, 1978 -Plaintiff rejects Board's finding. 2
August 18, 1978 -Plaintiff amends petition adding
defendant as a party to the cause
filed July 1, 1976.
February 13, 1979 -State ex rel. Cardinal Glennon
Memorial Hospital v. Gaertner,
583 S.W.2d 107 (Mo. banc 1979)
is decided, declaring Chapter 538
unconstitutional and the provisions
thereof invalid.
Plaintiff settled with the hospital, leaving Dr. Benoit as the only defendant. Defendant's subsequent motion for summary judgment based on the two year limitation period of § 516.140, RSMo 1969 (now § 516.105, RSMo 1978), as extended by the Chapter 538 tolling provision, was sustained by the trial court on January 9, 1981. Appeal followed.
The purpose of Chapter 538 was to provide for a board of professionals to examine malpractice claims against health care providers before any claim could be filed in court. Section 538.020 provided that the plaintiff must file notice of claim with the Board for hearing and recommendation. Giving of notice tolled the statute of limitations during the process and until the time for the parties to accept or reject the Board's findings.
State ex rel. Cardinal Glennon Memorial Hospital v. Gaertner, 583 S.W.2d 107 (Mo. banc 1979) declared Chapter 538 unconstitutional because it imposed a procedure as a precondition to access to the courts. To ameliorate the effect of Cardinal Glennon on those who had in good faith relied upon the tolling provision of § 538.020, the statutes of limitations were tolled on claims submitted to the Board between the effective date of Chapter 538 and February 28, 1979 (the date of Cardinal Glennon plus 15 days).
Subsequently, State ex rel. Knipschild v. Bellamy, 615 S.W.2d 38 (Mo. banc 1981), was decided which considered three consolidated cases that did not fit within the scheme of Cardinal Glennon. Knipschild extended the tolling aegis of Cardinal Glennon to all litigants who had submitted claims to the Board during the apparent validity of Chapter 538 (January 1, 1977 through February 28, 1979). The Knipschild decision ruled that the three claims filed with the Board were tolled for the entire 26 months that Chapter 538 existed rather than by the specific application of the tolling provision of § 538.020. Of the three cases considered in Knipschild, one involved an act of malpractice alleged to have occurred prior to the effective date of Chapter 538, January 1, 1977, while the others involved acts of malpractice alleged to have occurred after that date. All three cases had been submitted to the Board for review prior to February 28, 1979, but none had been acted upon by the Board before Chapter 538 was ruled unconstitutional.
The gravamen of plaintiff's appeal is that his case falls within the protection of Knipschild. There is, however, a substantial difference between the facts in Knipschild and those in plaintiff's case. The three claims considered in Knipschild were all pending when Cardinal Glennon was decided. Had Chapter 538 not been ruled invalid and the Board been given the opportunity to rule on the claims, the claimants in Knipschild might still have been able to file their actions in circuit court in the times remaining in the period of limitations. Cardinal Glennon, however, placed them in a "procedural limbo," and only upon the supplement to Cardinal Glennon, issued on March 13, 1979, did the claimants know that the period of limitation on their claims was tolled. Even then, the claimants did not know what period would be tolled, and it required Knipschild to decree a 26 month tolling period for those whose claims that were pending at the time Chapter 538 was declared unconstitutional.
None of the inequities perceived in Knipschild exists in this case. Plaintiff alleged that the act of malpractice occurred on June 23, 1975. But he waited until June 20, 1977 to file his notice of claim with the Board created on January 1, 1977. Thus, at the time that the Board made and plaintiff rejected its recommendation, he had only three days in which to file his circuit court action under the then viable Chapter 538 processes. No petition was filed, however, until August 18, 1978--three and one half months after his rejection of the Board's recommendation.
It is, thus, manifest that the facts of Knipschild bear substantial differences from those in plaintiff's case which preclude its having any salutary effect for plaintiff. All three claims considered in Knipschild were pending when Chapter 538 was declared unconstitutional, whereas in this case both the Board and the plaintiff had acted before Chapter 538 was declared unconstitutional. Unlike the claimants in Knipschild, plaintiff was in no procedural limbo between May 2, 1978, when he rejected the Board's finding, and August 18, 1978, when he amended his petition of July 1, 1976, to add defendant; for Cardinal Glennon did not issue until February 13, 1979. Based on the facts of this case, therefore, the two year statute of limitations period was tolled only from June 20, 1977 through May 2, 1978, because this was the only...
To continue reading
Request your trial
-
Thompson v. Brown & Williamson Tobacco Corp.
...their argument discuss the applicability of Rule 55.33(c) to the addition of party defendants, not party plaintiffs. See, Windscheffel v. Benoit, 646 S.W.2d 354, 357 (Mo. banc 1983) (Rule 55.33(c) inapplicable where plaintiff seeks to add a defendant, not change defendant, as rule is "a rem......
-
Ki Beom Kim v. Dyna Flex, Ltd.
..."made a mistake in selecting the proper party to sue," and must add and serve process on the new defendant. Windscheffel v. Benoit , 646 S.W.2d 354, 357 (Mo. 1983) ; see also Guerrero v. Cox Operating, LLC , No. 18-6679, 2018 WL 4484461, at *3 (E.D. La. Sept. 19, 2018). When a party must be......
-
Gibbs Cattle Co. v. Bixler
...with Kraly v. Vannewkirk, 69 Ohio St.3d 627, 635 N.E.2d 323 (1994); Ray v. Alexandria Mall, 434 So.2d 1083 (La.1983); Windscheffel v. Benoit, 646 S.W.2d 354 (Mo.1983); and Gause v. Smithers, 384 S.C. 130, 681 S.E.2d 607 (S.C.App.2009). 40.Erdman Co., supra note 38. 41.Id. at *10. 42.6A Char......
-
Wong v. Wells Fargo Bank N.A.
...or should have known that, but for a mistake in identity, the borrowers would bring an action against them. See Windscheffel v. Benoit, 646 S.W.2d 354, 357 (Mo.1983) (en banc) (explaining that a pleading only relates back if the plaintiff “made a mistake in selecting the proper party to sue......