*1 McCARTHY, M.D., THE ESTATE OF DENNIS Petitioner, v. JUDICIAL
MONTANA SECOND DISTRICT COUNTY, SILVER BOW the Honorable COURT, Presiding, Whelan, John W.
Respondent. No. 98-651. Argued 1999. March 25, 1999. Submitted March
Rehearing Denied March
9, 1999.
Decided December
For Leonard J. Respondent: Haxby (argued); Haxby Somers, & Butte. GRAY Opinion
JUSTICE delivered the of the Court. originated in this application ¶ This case Court on the of the Estate (the McCarthy, Estate), of Dennis a supervisory M.D. for writ of con- trol relief from seeking the order of the Second Judicial District Court, Bow County, denying Silver the Estate’s for summary motion judgmеnt. Having control accepted supervisory and heard oral argu- ments, we reverse the order of the District Court and remand for en- try summary judgment the Estate’s favor. The before issue us whether the District Court erred in
¶2 con- cluding applied that is unconstitutional as in this case.
BACKGROUND (Best) 20,1974. prematurely August Richard Best was born McCarthy (McCarthy) Dr. an placed Dennis umbilical vein cathe- shortly ter in his birth. subsequently developed after Best problems. liver 15,1995, complaint On Best filed a August against Estаte al- McCarthy injected
leging placed that umbilical catheter —and flu- vein, hepatic thereby causing damage ids —into Best’s severe to his actions, complaint alleged McCarthy’s liver. further as well as diagnosis, his were underlying negligent, constituted mal- injuries requested practice variety and resulted which Best damages. summary judgment, asserting The Estate moved for Best’s
complaint was barred the statute of limitations forth set in § responded MCA. Best that the statute of limitatiоns was right unconstitutional because it violated his to access to courts II, guaranteed Article 16 of the Montana Constitution and his protection equal guaranteed of the laws Article of the statute, Montana Constitution. The District Court concluded that the Best, his violated constitutional both to access to laws, protection the courts and to and denied Estate’s petitioned supervisory for a writ of subsequently motion. The Estate control, concluding thаt the District erred in the stat- asserting Court summary its denying judg- ute was unconstitutional motion ment that basis.
STANDARD OF REVIEW summary ruling judgment on a mo review a district court’s We 56, M.R.Civ.R, novo, applied by Rule criteria using tion same de 276, 9, 291 Falls, v. City Ross 1998 MT ¶ that court. Great summary judgment 9, 967 our review of a Typically, ¶ ¶ moving for ruling party of whether sum entails determination *3 genuine of of material mary judgment established the absence issues Ross, 10; a matter of law. Rule judgment ¶ entitlement as fact and Here, however, 56, parties dispute the do the material M.R.Civ.R not the and, only we review whether Estate was enti consequently, facts See, Ross, law. 10. The District Court’s as a matter of judgment ¶ tled a judgment was entitled to as mat that the Estate not determination on its that the statute at issue violated ter of was based conclusion law resolution of an issue involves rights. Where the Best’s constitutional law, interpreta a court’s we review district of constitutional questions State, See v. whether it is correct. Connell tion of the law to determine 88, (1997), 491, 494, 930 280 Mont. Services Dept. Social of
DISCUSSION concluding err in that § the District Court Did in this case? as is unconstitutional summary judgment on Court for moved the District The Estate MCA, 27-2-205(2), Best’s that, language the plain under the basis was filed and his timely alleging medical complaint the motion and Estate Court denied barred. The District action is above, that the District Court party asserts erred. As stated mov- ing summary judgment has the establishing burden of entitle- judgment ment to as a matter of law. A brief discussion оf the evolu- medical malpractice tion of Montana’s statute of limitations insofar present it to the case will pertains provide helpful backdrop our review of whether the Estate met its burden here. injury At time alleged applicable ofBest’s claim limitations for a medical provided, pertinent that an
part, [ajction injury or death against physician surgeon... or based alleged such upon person’s professional negligence... оr for error or person’s practice, omission in such shall be commenced within (3) (3) years after injury years three the date of or three after the discovers, plaintiff through or diligence use of reasonable discovered, injury last, have should whichever occurs but in no (5) may case years such action be commenced after five from the injury. date of (1947). 93-2624, Furthermore, 93-2703,
Section R.C.M. R.C.M. (1947), that, provided person if a entitled to an action was a mi- accruеd, nor at the time the cause of action applicable statute of limitations would be tolled during period minority. Conse- quently, because Best was a minor at the time alleged injury, ofhis three-year statute of limitations for his medical malpractice action would have been tolled until he reached majority. The above statutes 27-2-401, subsequently MCA, were recodified at 27-2-205 and §§ re- spectively. 27-2-205, MCA, In the Montana amended
adding following provision: 27-2-401,
Notwithstanding provisions of in an actiоn for death injury or of a minor who was under the of4 on the date his in- jury, [a limitations be- action] dies, gins eighth birthday to run when the minor reaches his or first, occurs and the time for whichever commencement of the ac- any during period during tion is tolled which the minor does not re- parent guardian. side with a (1987). subsection, enacting
Section MCA this Legislature expressly provided application: for its retroactive
(1) 27-2-205(2) injury An action referred to in death occur- 1,1987, years to October must be commenced 2 ring prior within 216 the effective date of this act or within the time limits
after in expires whichever last. (2) 1-2-109, within applies retroactively, meaning This act to 1,1987. of action arose to October prior causes 499, Ch. Mont. Laws Sec. 2. 1987 11 under undisputed It is that Best was of four at time
¶ 1,1987, alleged injury, injury prior of his occurred to October and years old when the medical Best was 13 the 1987 amendment to mal- Thus, to practice pursuant of limitations took effect. statute statute, required Best was his medical amended words, 1,1987, years October in no action within two after other later 1,1989. August 15, complaint than He did not file his until October Therefore, indeed, appears and, it concedes —that 1995. — 27-2-205(2), MCA, cause of statute of limitations bars Best’s ac- tion, summary judgment that basis. entitling Estate to motion, however, to the Best asserted —and response Estate’s 27-2-205(2), MCA, agreed application Court District —that this violate to access to courts case would his constitutional addressing of the laws. Before the court’s conclu- grounds, those is unconstitutional sion that § briefly principles guide reviewing we set forth which us in con- stitutionality of statutes. presumed are to be constitutional. Davis v. Union Pa Statutes (citation (1997), 233, 239, 27, 937 P.2d 30 omit R. Co.
cific ted). constitutionality party challenging of a Consequently, heavy it be unconstitutional proving bears the burden of Davis, 937 P.2dat beyond “ 282 Mont. at a reasonable doubt. constitutionality possible is not whether it is con ‘The question demn, uphold legislative it is action ....’” possible but whether 240, 937 Davis, County at P.2d at 31 v.State (quoting Fallon 282 Mont. 443, 445-46, 753 338, 340). every P.2d (1988), Consequently, 231 Mont. in favor constitu must be taken of the statute’s possible presumption Davis, princi these 282 Mont. at at 31. With tionality. mind, arguments access to the regarding we address Best’s ples in protection in turn. courts
A. Access to the Courts perti- provides, 16 of the Montana Constitution Article part, nent
[cjourts
every person,
speedy remedy
justice
open
shall be
property, or character.
every injury
person,
afforded
*5
provision guarantees
right
Best contends that this
to access to the
205(2), MCA,
by
infringes
right
requir-
courts and
27-2-
ing
certain minors with medical
causes of action to file
they
that,
majority.
their actions before
reach
He asserts
under
law,
may
a
not
an
on his
her
Montana
minor
action
or
own be-
half,
parent, guardian
guardian
but rather must have a
or
ad litem
Best,
Thus, according
par-
file the action on the minor’s behalf.
if a
action,
ent
of
guardian
timely preserve
fails
the minor’s cause
of
way
accessing
the minor has no
courts on his or her own behalf
being
before
barred
the statute
limitations.
constitutionality
regarding
A determination
of a statute be
gins
analysis
particular
an
of the
involved
with
and
corre
scrutiny
apply
level of
to the
sponding
legislation. Wadsworth v.
287,
1165, 1173.
(1996),
302, 911
State
275 Mont.
P.2d
review
We
constitutionality of
one
recognized
statutes undеr
of three
levels of
scrutiny
scrutiny,
scrutiny
middle-tier
and the rational basis
—strict
Davis,
241-42,
test.
¶ test here. A statute is constitutional under the rational if objective basis test of the legitimate statute is and bears a relationship rational to the classifi Davis, 242, 937 legislature. cation used at P.2d at 32 (citation omitted). According legislative history, Legislature to the
amended in 1987 to address regarding concerns insurance medical escalating premiums correspond- in ing Hearings increases the cost of medical care. See on H.B. 344 Be- (1987). Committee, Judiсiary fore 50th the Senate purpose period the amendment was to shorten the limitation for minors actions of certain for more allow certainty predictability the assessment risk insurance Judiciary H.B. 344 Before the providers. Hearings Senate Com- (Mar. 1987). 18, mittee, No. Pt. A Under the Legislature, 50th Ex. tolling provision statute of limitations and the the limitations prior they majority, providers until reach health care period from potentially resulting insurers could be at risk for lаwsuits their nearly during infancy years. As a injuries incurred result exposure, charged insurance carriers increas- this extended high generate guar- in order to sufficient reserves to ingly premiums liability from such lawsuits could be covered. Hear- any antee that Committee, Judiciary Legis- 50th on H.B. 344 Before the Senate ings (Mar. 18,1987). lature, No. C This escalation in insurance Ex. Pt. rates, turn, either providers increasing resulted health care ceasing certain Hear- provide of medicаl services or services. costs Committee, Judiciary Legis- 344 Before the Senate 50th ings on H.B. *6 (Feb. 1987). lature, Ex. B by amending these concerns the Legislature responded It statute of limitations for certain situations. injuries only actions for incurred be-
tailored the amendment affect four, age range the af- which was considered most age tween birth 344 fecting coverage. Hearings of insurance H.B. Before the costs Committee, 4,No. A Judiciary Legislature, 50th Ex. Pt. the Senate (Mаr. 18,1987). Furthermore, the that the limi- Legislature provided age eight, pro- the minors be tolled until period tations those injuries by testified that most incurred of the amendment ponents the the minor by the of four are discovered time age minors under 344 Before the Senate Judi- age eight. Hearings the H.B. reaches (Mar. 1987). Committee, Thus, the ciary Legislature, p. 50th length liability exposure of potential amendment reduced most injuries providing while still a sufficient of time for such and acted injuries upon. to be discovered health care Ensuring availability affordability services, of medical insur reducing as well as costs See, ance, legislative objectives. e.g., Linder v. Smith legitimate are 20, 26, 629 Furthermore, (1981), 1187, 1190. clas injured birth between sification created —minors only minors whose narrowly defined to affect those four —is liability ex extended greatest regarding raise concerns injuries malpractice. We conclude that classification for medical рosure leg 27-2-205(2), MCA, rationally legitimate to a related and, therefore, basis test. passes rational objective islative In support argument of his that § violates Ar- ticle 16 of the Constitution, Best relies on several cases jurisdictions from other holding that similar medical malpractice statutes of limitation pertaining minors violated state constitu- (Mo. tional access to court provisions. See Strahler v.St. Hosp. Luke’s 1986), 7; 706 S.W.2d Barrio v.San Manuel Div. Hosp., Magma Copper
(Ariz.
(Tex.
1984),
280;
1983),
692 P.2d
Sax v. Votteler
statute
arbitrary,
was
unreasonable
and unduly burdensome.
Strahler,
B. Equal Protection 27-2-205(2), MCA, The District Court also concluded that § vio- equal protection lates Best’s to guaranteed ofthe laws by Article Constitution, 4 of the Montana because it treats minors with a malpractice cause of action for medical differently than minors with causes of action for other torts allowing not the statute of limita- during tions to be tolled minority. Again, of Best concedes appropriate that the level scrutiny equal for an protection analysis argues basis He that in this case is the rational test. the District that there is no correctly relationship Court determined rational be- created the statute the legislative tween the classification and above, however, goal. that the We concluded classification of injuries causes of action for be- with medical incurred to age rationally Legislature’s birth and four is related le- tween objective reducing costs in- gitimate health care premiums. surance In to conclude that urging equal us violates test, again the rational basis cites cases
protection under
several
jurisdictions which have held that similar
of limi
from other
statutes
rights
violate minors’
to
of the laws.
Car
tations
See
(N.H.
825;
1980), 424 A.2d
son v.Maurer
Schwan v.Riverside Method
(Ohio 1983),
1337; Lyons
452 N.E.2d
v.Lederle
Hosp.
ist
Laboratories
(S.D.
(Cal.
1989),
769;
County
Angeles
App.
N.W.2d
Torres v.
Los
however,
cases,
1989),
support
do not
his ar
Rptr.
257 Cal.
These
Carson,
the New
gument.
example,
inapplicable
here because
expressly
apply
refused
the rational
Hampshire Supreme Court
stringent
scrutiny
a more
middle-tier
in hold
applied
basis test
at
of limitations
issue violated minors’
ing that
statute
Carson,
A.2d
at 830-31.
protection.
Supreme
Dakota
Court
the rational
Lyons,
the South
that, although
pro-
the medical
crisis
test
held
basis
objective in
legitimate
enacting
with a
lеgislature
vided the state
issue,
at
minors of certain
of limitations
classification of
statute
objective.
rationally
Ly-
related to that
statute was
within
it
ons,
Specifically,
at 771-72.
court stated
440 N.W.2d
any
mal-
perceive
assuming
rational basis for
that medical
“fail[ed]
insti-
simply by requiring
diminish
suits be
practice claims will
Thus,
Lyons
date.”
221 (1987). Thus, Committee, Legislature, objective pro- 50th was to certainty vide for more in risk than assessment rather to reduce the Indeed, of pre- overall number claims. attempted to many possible by pinpointing only injuries serve as claims as those birth four age allowing incurred between and those until minors age to file eight of actions because most of these action causes of within that Lyons distinguishable are discovered time frame. is this basis. Schwan, similar Supreme Ohio Court also hеld a statute equal
of limitations protection, concluding violated under the ratio- nal basis test that the classification of under of age ten sufficiently objective related to the statute “it was of the and that age is the which establishes the rational majority only distinction.” Schwan, However, provided at 452 N.E.2d court no discus- legislative history virtually of the statute’s no analysis sion why light failed the basis statute rational test. In of its limited ra- tionale, simply persuasive. Schwan is not Torres, Finally, Appeals the California Court that held a provided statute which that the period limitations a medi- minor’s cal action run began to from date of alleged wrongful act, period while the limitations began for adults to run from the the discovery resulting injury, date —or mi- violated —of Torres, equal protection nors’ to of the laws. 257 Cal. at Rptr. 217. The Torres court did not address the issue us before namely, whether a providing statute that a limitations here — could run thе time a during plaintiff a is minor violates equal protec- and, result, inapplicable as Torres is to present a case. tion — Moreover, addressing by Best,
in a case the issue raised here the Cali- Appeals fornia a Court of held that a under requiring minor of six a years action within three prior eighth birthday her right or his or did not violate a minor’s protection through Camp- the laws. See Kite Black v. (Cal. 1983), 363, 366-67, App. Rptr. 191 Cal. other bell overruled on (Cal. 1986). Haines, by Young v. 718 P.2d grоunds 909 presented persuasive argument authority Best has no MCA, rationally supporting his contention that is not and, therefore, governmental objective he has legitimate related to establishing not met his burden the statute unconstitu Davis, beyond reasonable doubt. See at tional 205(2), MCA, 27-2- does not violate 30. We conclude that § P.2d at of the laws. Best’s in concluding Court erred We hold that District 27-2-205(2), MCA, is in this case. Conse unconstitutional above, required as discussed quently, *9 1989, 1, action no lаter than October bring malpractice his medical 15,1995. result, complaint August until As a he did not file his summary judgment is on the basis that Best’s Estate entitled to by statute of limitations. action is barred cause of entry granting of an order sum- Reversed remanded ¶31 mary judgment to the Estate. TURNAGE, REGNIER, JUSTICES
CHIEF JUSTICE NELSON concur. LEAPHART and dissenting.
JUSTICE HUNT MCA, 1987, 27-2-205, limiting mi- legislature The amended § ¶32 malpractice response in medical cases to a nors’ access to courts gist The crisis in the State Montana. malpractice medical perceived high thаt Montana’s insurance rates were too this “crisis” was physicians carrying increase in no an enormous supposedly there was is, if a legislature’s amendment raises question The insurance. claim, and the statute of limi- standing bring no his own has minor maj ority, is he he when runs before attains tations his own behalf? claim on pass must the ra- limiting non-fundamental A statute test, limiting how a statute minors from and I fail see
tional basis negligent profes- against potentially valid claims pursuing reasonаbly legislature’s purported to the intent of related sionals is malpractice premiums. the cost of medical reducing legislature’s Court that result of the agree I with District violates as is that amendments 4, The Section of the Montana Constitution. Article guaranteed negligence victims of medical limitations treats minor minor statute of act negligent of the same as well differently than adult victims minor victims of other torts. Sections differently than treating them 27-2-205, jurisdictions found that suсh statu- have MCA. Other tory provisions equal protection. violate arbitrary that “an Court found Supreme The South Dakota op- claims as malpractice who have medical of minors
classification minors’ of tort claims” violated any with other kind to minors posed no “rational basis for assum- there was rights because constitutional ing malpractice simply that medical claims will diminish by requir- Labs., ing that be at an Lyons suits instituted earlier date”. Lederle v. 1989) (S.D. 440 N.W. 2d majority attempts to distinguish Lyons
¶36 The decision on the basis the intent South Dakota’s statute different is from They Montana’s. assert that the intent behind South Dakota law fi] was to the number of malpractice by plaintiffs reduce claims ed who injury, were minors at the time their while the Legisla- ture’s was intent to “reduce costs of medical malpractice insur- by reducing ance the time in which certain actions must be filed, thereby reducing uncertainty or potential future losses insurance which had inсreased premiums.” Such a distinction is an splitting. act of hair overall of both The intent statutes was to reduce the number of claims and therefore reduce the cost of in- relationship
surance. There is no rational for treating certain minors minors, differently than differently other than adults the same situation, as a means to lower premiums. insurance The simply discrimination not rationally goal. related to such number of valid claims minors barred hardly statute seems significant enough to reduce the overall cost of malpractice insur- *10 ance. appeals The California Court of struck down a statute similar to Dakota, stating;
those of Montana and South reasonable, arbitrary, [s]uch a classification ‘must be not and must upon ground having rest some difference fair and substantial object legislation, relation of the so that all persons similarly circumstanced shall be treated alike.’... The fact such discrim- against inаtion minors would bar some meritorious claims and malpractice liability thereby enough justify reduce total is not it. manner, in arbitrary If claims are reduced an the classification denies law. scheme of the Angeles 1989), County (Cal.Ct.App. Rptr. Torres v. Los Cal. (citation omitted). Again, the majority attempts distinguish holding They is per- the court’s Torres. insist decision allowing suasive because Torres addressed a statute the limitations minor’s medical claim to run from the date period on a act, wrongful period while the limitations for an adult ran alleged contrast, date, discovery, injury. from or the of the limitation during plaintiff to run the time statute allows question statutes in treat is academic. Both a minor. The difference situation, namely when differently than adults the same and therefore violate minors’ malpractice, of medical are victims they protection. treating chil- find no rational basis Court could District and found the stat- under the statute of limitations differently dren I would hold the same. unconstitutional. ute joins foregoing dissent. TRIE WEILER JUSTICE