Lough Ex Rel. Lough v. Rolla Women's Clinic, Inc. ( 1993 )

GERALD M. SMITH, Special Judge,

dissenting.

I respectfully dissent.

I do not disagree with the majority’s conclusion that within the narrow parameters of the facts before us recognition of the existence of a pre-conception tort committed against this plaintiff is warranted and proper. The medical test involved is conducted for the benefit of subsequently born children of the mother in order to treat the mother so as to prevent the very conditions that afflicted plaintiff here. The medical procedure is for the direct benefit of the as yet unconceived child, and its negligent performance will directly injure that child. The procedure is not one that is primarily for the benefit of the mother and incidentally causes injury to the unconceived child. Within those narrow confines, I believe recognition of liability by the tortfeasor to the child is justified.

I reluctantly conclude, however, that the plaintiffs cause of action here is barred by the provisions of § 516.105, RSMo 1986. Our obligation is to determine the intent of the legislature in enacting the statute involved. Some history is pertinent in that regard. That history, prior to 1968, is recounted at length in Laughlin v. Forgrave, 432 S.W.2d 308 (Mo. banc 1968) and need not be repeated at length here. This Court stated the significance of that history as follows:

The significance of this legislative history, particularly that beginning with the year 1921, is that it shows clearly a legislative intent to treat particularly with medical malpractice actions and fix a specific date when the statute of limitation shall begin to run against those actions, a date different from the date and time when the statute begins to run against other actions covered by what is now § 516.140. Prior to 1921 the limitation period for malpractice actions was five years and prior to 1919, when the General Assembly amended § 1887, RSMo 1909, the limitation period commenced to run on the date the cause of action accrued. When the proviso was added by amendment of § 1887 by the Fiftieth General Assembly in 1919 the statute of limitation (the five-year statute) in malpractice actions commenced to run on the same date as actions for libel, slander, assault, etc., that is, not “... when the wrong is done ... but when the damage resulting therefrom is sustained and is capable of ascertainment ...” However, significantly, two years later, in 1921, the next General Assembly, the Fifty-first, with knowledge fresh in its mind of what had been done at the previous session to define by the proviso specifically when a cause of action shall be deemed to accrue and the meaningful effect of that proviso upon malpractice actions, amended § 1319 by adding § 1319a to provide that such actions “... shall be brought within two years from the date of the act of neglect complained of-” The result was that beginning with the revision of 1929, when §§ 1319 and 1319a (RSMo 1919) were combined and became § 864, RSMo 1929, we had two types of action in one section, one of which (libel, assault, etc.) did not have attached to it its own specific date from which the limitation period commenced to run and one (malpractice) which did.... Again, significantly, and indicative of its intent to treat malpractice actions differently from other actions so far as the date of commencement of the running of the statute is concerned, the General Assembly, in 1945, repealed and reenacted § 1016 by adding another type of action, those by employees for the payment of unpaid minimum wages, etc., and provided that such actions shall be brought within two years after the cause accrued, but left intact and unchanged the provision that malpractice actions shall be brought within two years from the date of the act of neglect.

Id. at 312-13 (emphasis in original) (footnotes omitted).

Based upon this analysis, the Court concluded that the exceptions dealing with accrual of the cause of action premised upon sustaining damage and ascertainment of that damage (the discovery provision), found in what is now § 516.100, RSMo 1986, did not apply to malpractice actions. Laughlin, supra, at [4]. In so deciding the Court held that plaintiffs claim arising from a rubber dam left in her body during previous surgery was time barred despite the fact that she did not know and could not know the cause of her pain. Id. The Court specifically stated that the plaintiffs argument posed to the Court should be directed to the General Assembly. Id.

In 1976, the General Assembly enacted Senate Bill 470, part of which became § 516.-105. That bill does several things. First, it creates a separate section dealing with medical malpractice, § 516.105, removing it from § 516.140, RSMo 1969, which deals with actions which must be brought within two years — libel, slander, assault, etc. Second, it requires that the action for malpractice be brought “within two years from the date of occurrence of the act of neglect complained of’, § 516.105, RSMo 1986, rather than the previous language “within two years from the date of the act of neglect complained of’, § 516.140, RSMo 1969. The language does not appear to make a substantive change in the commencement of the limitation period but apparently was intended to reinforce the clear direction that the two year period begins on the date of the “occurrence of the act” of negligence. Third, § 516.105 incorporates two exceptions to the limitations period. Apparently in response to the Laughlin decision, it engrafts a discovery period for cases arising from the “introducing and negligently permitting any foreign object to remain within the body of a living person.” § 516.105, RSMo 1986. It further allows a minor under the full age of ten until his twelfth birthday to bring the action. Id. The last clause of the statute provides that “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.” Id. This Court subsequently held unconstitutional the restriction on minors which limited them to two years after their tenth birthday to bring the suit. Strahler v. St. Luke’s Hospital, 706 S.W.2d 7 (Mo. banc 1986) [5], Fourth, the bill provides that “except as provided in § 516.105” persons under the disabilities of minority, insanity, or imprisonment could bring actions “within the respective times in §§ 516.100 to 516.370 limited after such disability is removed.” § 516.170, RSMo 1986 (emphasis added). In 1990, the disability of imprisonment was removed from § 516.170. RSMo Supp.1993.

In the case before us, more than two years elapsed between “the date of occurrence of the act of neglect complained of’ and plaintiffs conception. The question before us then is whether, in that situation, the provision of § 516.105 granting to minors an exception to the statutory period applies. The majority concludes it does. I believe it does not. I do not view the issue as whether plaintiff was in existence at the time of the act of neglect. If he came into existence within two years of that time the minor exception applies.¹ The question not addressed by the majority is whether the minor exception applies where no injured minor exists until more than two years after the act of neglect. In that context the statute is ambiguous. It could mean, as the majority holds, that the “minor exception” serves to preserve a cause of action past the limitation period “in the air” until a minor arrives to claim it. On the other hand it could mean that the “minor exception” applies only to authorize a minor sustaining damage within the two year limitation period an additional period of time determined by his legal disability to bring the action.

Exceptions to the time constraints of statutes of limitation fall into basically two categories, which for convenience I will delineate as “disabilities” and “impracticalities”. Disabilities exceptions are directed to those persons who because of their legal status are not authorized by law to pursue on their own behalf their legal remedies. Usually, that group is comprised of minors, the mentally incompetent, and, frequently, imprisoned felons. See Black’s Law Dictionary 461 (6th ed. 1990). The “impracticalities” exceptions deal with factual situations in which the injured party is prevented, for reasons beyond his control, from pursuing his remedy. These include lack of knowledge or non-discovery of the injury or the damage (§ 516.-100), removal of the defendant from the jurisdiction (§ 516.200), existence of an injunction (§ 516.260), improper acts of the defendant preventing commencement of an action (§ 516.280), fraudulent concealment of the cause of action by the defendant (§ 516.280); Miller v. Guze, 820 S.W.2d 576 (Mo.App.1991) [8, 9], and possibly others.

The exception in § 516.105 pertaining to minors is a disability exception, not an impracticalities exception. This is made abundantly clear in Strahler, supra. Therein, this Court determined that the twelve year limitation on the minority exception limited access to the courts to minors who would not reach majority within that period and was, therefore, unconstitutional. Id. at [5]. The exception is intended to furnish minors who have sustained injury from malpractice an opportunity to bring the action on their own behalf. It is not intended to engraft a “discovery” exception into the limitation statute although obviously in some situations the extended period for minors to bring suit may allow discovery of negligence and injury which would not have been otherwise discovered within the statutory period. That is simply a peripheral benefit of the exception, not the reason for its being. The only impracticality exception in § 516.105 is the one pertaining to the discovery of a foreign object negligently left in the body. Plaintiff makes no claim that exception applies to this case.

Section 516.105 is something of an anomaly. In many respects it more closely resembles a statute of repose than a true statute of limitations. See Francis E. McGovern, The Variety, Policy and Constitutionality of Product Liability Statutes of Repose, 30 Am. U.L.Rev. 579 (1981) [l.c. 587, 1st para.].² Dating the beginning of the statutory period from the date of the “occurrence” rather than from the date of “accrual” of the cause of action strongly suggests a statute of repose. See § 516.097, RSMo 1986; Blaske v. Smith & Entzeroth, Inc., 821 S.W.2d 822 (Mo. banc 1991). The two year period, however, is short for a statute of repose although not necessarily for one involving medical malpractice. See McGovern, supra, at 632. The minors exception and foreign object exception appear to be exceptions more usually associated with a statute of limitations, not a statute of repose. Further, the ten year limitation at the end of the statute is on its face clearly a statute of repose. Resolution of the precise terminology to be applied to § 516.105 is not necessary in my opinion to determine the issue before us.

It is apparent that the General Assembly, dating back to at least 1921, has found it important to limit narrowly the time constraints in medical malpractice cases. The 1976 revision of § 516.105 was one of three bills passed in that session to address the issue of medical malpractice. See Strahler, supra, (Robertson, J., concurring). All were designed to reduce the incidence of malpractice suits. Section 516.105 must be viewed in the context of that legislation. It is not our prerogative to evaluate the wisdom of the legislative determination that the public interest warrants restriction of such litigation and prompt filing of such suits as are filed. That was the apparent thrust of the enacts ment of § 516.105 and the related legislation. See James Bartimus, et al., Protecting Plaintiff’s Rights in the Medical Malpractice “Crisis”, 53 U.M.K.C.L.Rev. 27, 32-35 (1984). The ten year restriction on discovery of foreign objects in the body and the attempt to reduce the time for minors to bring suit to twelve years evidence that intent. Elimination of the mental incompetency and felon disabilities is further evidence. I believe the fact situation now before us must be viewed within the context of the legislative attempts to regulate the number and timeliness of malpractice actions.

Neither Walker v. Rinck, 604 N.E.2d 591 (Ind.1992), nor Bergstreser v. Mitchell, 577 F.2d 22 (8 Cir.1978), upon which the majority rely, discusses the statutes involved in terms of the history of their enactment. Both assume that regardless of the time elapsing between the act of neglect and the conception of the plaintiff the statutory exception applies. What they assume is, in fact, the issue before us. I find neither case instructive nor persuasive on that issue.

During the two year period after the occurrence plaintiff had not been conceived and therefore could sustain no damage, and no cause of action existed. He was not under any legal disability for disability connotes existence, which plaintiff did not have. Black’s, supra, at 461; Webster’s Third International Dictionary at 642 (14th ed. 1961). He incurred no legal disability until after the time established in § 516.105 had passed. Prior to reaching a status of disability the time specified in the statute had expired and with it plaintiffs after arising cause of action.³ It is presumptively possible, although admittedly remote, that, given the number of years during which a woman is capable of child-bearing, the cause of action here could be brought, under the majority reasoning, fifty or more years after “the date of the occurrence of the act of neglect complained of’. I am unable to conclude that § 516.105 was intended by the General Assembly to allow time frames of that magnitude. The plaintiff was not the patient nor even the fetus of the patient at the time of the act of neglect. The General Assembly could consider it reasonable to expect a medical provider to take precautions to be able to defend a claim where the existence of the plaintiff becomes known within two years and nine months after the act of neglect but unreasonable to expect such precautions for some indeterminate time thereafter. The statute operates unfairly to this plaintiff and achieves a truly unjust result. But it operates with equal injustice on adults who suffer from undiscovered malpractice consequences. The General Assembly has made the determination that such injustice is outweighed by the benefits to the public health and weal from restriction of malpractice litigation. We are bound by that determination.

I would affirm the judgment of the trial court.

1 . For purposes of this case, I accept the proposition that "existence” begins at the moment of conception.

2 . In that article, l.c. 632, 634, the author considers the Missouri malpractice statute as containing both a two year and a ten year statute of repose. A statute of repose may bar a cause of action before it ever accrues, Id. 585, or before injury occurs. Id. 586.

3 . Section 516.270, RSMo 1986, provides that "No person shall avail himself of any disability herein enumerated, unless such disability existed at the time his right of action or of entry accrued.” While it is questionable that this section applies to medical malpractice it is further indication that the statutory intent is to protect persons suffering from a legal disability which prevents their access to court.