Sara Westbrook HARRELL, Appellant, v. TOTAL HEALTH CARE, INC., Respondent.
No. 71610.
Supreme Court of Missouri, En Banc.
Dec. 12, 1989.
Rehearing Denied Jan. 10, 1990.
781 S.W.2d 58
The failure of counsel to move to suppress evidence obtained after release of defendant‘s car to unauthorized persons was also cited for counsel‘s ineffectiveness. This claim fails because defendant did not meet her burden of proving the police violated her specific instructions for releasing the car. Defendant‘s claim of ineffectiveness due to a failure to move to suppress her prior statements also fails. A motion to suppress this evidence was submitted by defеndant‘s trial counsel but was overruled by the court. In addition, these statements were admissible to rebut defendant‘s trial testimony. The movant court found no showing of prejudice on defendant‘s remaining claims: (1) denial of a preliminary hearing and change of venue; (2) delay of trial; (3) failure to poll the jury; and (4) failure to present the entire deposition of Richard Paul Schmitt. Undеr the two prong test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the defendant must prove not only that counsel was ineffective but that she was also prejudiced by counsel‘s performance. The Court finds defendant failed to meet either burden.
Judgment affirmed.
BLACKMAR, C.J., ROBERTSON, RENDLEN, HIGGINS and COVINGTON, JJ., and NUGENT, Special Judge, concur.
HOLSTEIN, J., not participating because not a member of the Court when the case was submitted.
William Lee Yocum, Mark A. Lynch, Kansas City, for respondent.
Ronald R. McMillin, Lori J. Levine, Gerald M. Sill, Missouri Hosp. Ass‘n, Jefferson City, for amici curiae Missouri Hosp. Ass‘n and Missouri Hosp. Plan.
BLACKMAR, Chief Justice.
The plaintiff filed an action alleging damages originating in malpractice during surgery performed upon her on March 23, 1983. She advises that the case has been disposed of as to all of the defendants except Total Health Care, Inc.
Total was incorporated December 1, 1982, as a not-for-profit corporation under
Total derives its resources from dues paid by members, of which the plaintiff was one. It maintains a list of primary care physicians who have agreed by contract with it that they will provide service to Total‘s members at specified rates, to be paid by Total and not by the members seeking treatmеnt. A member must select a primary care physician from this list and must first consult that physician about medical problems. If the primary care physician determines that the services of a specialist are required, the physician may refer the member to the specialist. We will assume for present purposes that Total will pay the cost of specialist sеrvices only if the specialist is on Total‘s approved list of specialists.
The plaintiff consulted a primary care physician, who referred her to an osteopathic urological surgeon on Total‘s approved list of specialists. She seeks to impose liability on Total, first, on a claim of “corporate liability” and, second, on the аssertion that Total was negligent in the
The trial court entered summary judgment for Total and took the steps necessary to make that judgment final for purposes of appeal.1 The court of aрpeals initially affirmed but then granted a rehearing and handed down a carefully considered and helpful opinion, expressing its conclusions on most of the issues involved but concluding that it could not resolve the case because of the appellant‘s constitutional challenge to
I. Exemption
Section
A health services corporation shall not be liable for injuries resulting from neglect, misfeasance, malfeasance or malpractice on the part of any person, organization, agency or corporation rendering health services to the health services corporation‘s members and beneficiaries.
The nature of a “Health Services Corporation” is explicated in
The plaintiff argues that Total has at all times been a “Health Maintenance Organization” (HMO) rather than a “Health Services Corporation” and that there was no statutory purpose of granting any kind of an exemption from liability to HMO‘s. Missouri law did not recоgnize the Health Maintenance Organization as a form of business organization until after the plaintiff‘s claim had accrued. The HMO, initially, was a conception of federal law. Even though Total‘s certificate of authority, issued by the Division of Insurance, uses the phrase “Health Maintenance Organization,” the certificate expressly refers to compliance with
The plaintiff suggests that the Division of Insurance considered Total to be simply an HMO and did not intend to “grant” it immunity as provided in
It is next contended that this action is not one for “neglect, misfeasance, malfeasance or malpractice on the part of any person rendering health services to the health services corporation‘s members and beneficiaries.” The action, it is said, is an action аgainst Total grounded on its negligence in the selection of the surgeon who treated the plaintiff, and who is alleged to be demonstrably incompetent. The plaintiff suggests that Total had a duty to use due care in the selection of physicians, in-
This argument, if accepted, would render the immunity of
The purpose of the statutes authorizing this kind of corporation is to sanction one method of combatting the cost of health care. Just as the ancient Chinese are reputed to have paid their doctors while they remained well, a person may elect to pay fixed dues in advance so that medical services may be available without additional cost when they are needed. The legislature well might feel that these arrangements were in the public interest and that those organizations that do not operate for profit should not be burdened by the additional cost of malpractice litigation.
The plaintiff points to
The plaintiff‘s clаim necessarily requires a showing of medical malpractice. We do not believe that the exemption is lost simply because the plaintiff must establish additional elements. The legislature well might have considered that one in the position of this plaintiff has an adequate remedy against the persons actually guilty of malpractice, who are licensed physicians, and does not need an additional source of recompense from a not-for-profit corporation. It is not our office to raise any question about the wisdom of their choice.
II. The Constitutional Issue
The plaintiff argues that she cannot be denied a right of action against Total for the damage she claims and that
In judging constitutional challenges it is important for us to expound the purpose the legislature might have had in enacting
a. Open Courts
That the courts of justice shall be open to every person, and certain remedy afforded for every injury to person, property or character, and that right and justice shall be administered without sale, denial or delay.
The plaintiff argues that she has been denied a remedy for a right, citing Strahler v. St. Luke‘s Hospital, 706 S.W.2d 7 (Mo. banc 1986) and State ex rel. Cardinal Glennon Memorial Hospital v. Gaertner, 583 S.W.2d 107 (Mo. banc 1979).
The cited cases do not support the claim. Both deal solely with procedures. In Strahler the Court held that the legislature could not impose a limitation on the pursuit of a legal right by a minor who presumably was incapable of pursuing that right. In
The plaintiff also cites cases from other states. These are appropriate because quite a few state constitutions contain language indistinguishable from our
Oien v. City of Sioux Falls, 393 N.W.2d 286 (S.D.1986), appears to hold that the legislature cannot extend the scope of sovereign immunity. We have consistently held that our legislature has the authority to determine the agencies and political subdivisions that enjoy sovereign immunity. Winston v. Reorganized School District R-2, 636 S.W.2d 324 (Mo. banc 1982). State ex rel. Trimble v. Ryan, 745 S.W.2d 672 (Mo. banc 1988). We have also held that public hospital districts are not liable for malpractice.2
Neely v. St. Francis Hospital, 192 Kan. 716, 391 P.2d 155 (1964), would appear to limit the state‘s authority to distinguish between charitable corporations and other corporations with regard to liability to garnishment process. Noel v. Menninger Foundation, 175 Kan. 751, 267 P.2d 934 (1954), holds that the state cannot exempt charitable and nonprofit corporations from tort liability. These cases are also out of line with Missouri jurisprudence. At the time of the most recent еnactment of
In Horner v. David Distributing Co., 599 S.W.2d 100, 102 (Mo.App.1980), the court said of
This section was never intended to create rights but to protect citizens in enforcing rights reсognized by law. State ex rel. National Refining Co. v. Seehorn, 344 Mo. 547, 127 S.W.2d 418, 424 (1939); Renfrow v. Gojohn, 600 S.W.2d 77 (Mo. App.W.D.1980). Also see Schulte v. Missionaries of La Salette Corp. of Mo., 352 S.W.2d 636, 641 (Mo.1961). This constitutional provision is of no aid to plaintiffs unless their petition alleges a claim recognized by law.
Our legislature has frequently enacted immunity statutes, limiting rights of action which the common law recognizes. See, e.g.,
Section
b. Equal Protection
It is suggested that
We do not agree with the contention that the plaintiff is a member of a “suspect class,” so as to require “strict scrutiny” of any discrimination. Suspect classifications are those based on considerations such as race, religion, or similar considerations.4 Nor is the plaintiff shown to be a member of a “quasi-suspect class,” even if this concept, suggested by the plaintiff, is a viable concept. The equal protection clause must be applied on the “rational basis” analysis, which is normal for equal protectiоn cases not involving suspect classes.5
We have already mentioned the circumstances that tend to justify the legislature‘s action. These include the availability of an action against the faulty physician and the same concern against expense that underlies the authorization of Health Services Corporations. These corporations are distinctly different from hospitals, and the legislature is not obliged to treat them in the same manner.
It goes without saying, furthermore, that any discrimination that was introduced by the 1983 amendments, which took effect after the date the plaintiff‘s claim arose, cannot help the plaintiff in her challenge to the statute.
We do not discuss the plaintiff‘s equal protection citations in depth because none seems to have very much application to the case before us. In State Board of Registration v. Giffin, 651 S.W.2d 475 (Mo. banc 1983), we found no unconstitutional discrimination in allowing graduates of foreign medical schools to use the designation “M.D.,” while denying that authority to graduates of schools of osteopathic medicine. Richardson v. Carnegie Library Restaurant, Inc., 107 N.M. 688, 763 P.2d 1153 (1989), is one of several cases from other jurisdictions discussing the constitutional validity of “caps” on certain damage awards. It is not in point here, and very probably out of line with Missouri‘s authority to the extent that it suggests that there may be no distinction among different classes of injured parties based on the nature of their claims. We have consistently sanctioned a shorter statute of limitations for malpractice cаses than that which obtains in other cases. Laughlin v. Forgrave, 432 S.W.2d 308 (Mo. banc 1968).
No more persuasive is the attempt at an “equal protection” type of argument under the Missouri Constitution by branding
c. Other Constitutional Arguments
The plaintiff makes essentially the same arguments in support of a claim that the statute violates the due process clauses found in the state and federal constitutions. No authority is cited to support this phase of the claim, and we perceive no due process violation.
The argument that the statute results in an unconstitutional grant of immunity by an administrative agency is not well taken because the immunity is conferred by law.
The general assembly‘s authority is plenary, except when express constitutional provisions intervene.6 Statutes are presumed to be constitutional; one claiming otherwise has a heavy burden.7 The plaintiff has not overcome that presumption. The statute operates in an area in which
The judgment is affirmed.
ROBERTSON, J., MORGAN, Senior Judge and CRIST, Special Judge, concur.
RENDLEN, J., concurs in result.
BILLINGS, J., concurs in Part I and dissents in Part II.
HIGGINS, J., concurs in part and dissents in part in separate opinion filed.
COVINGTON, J., not sitting.
HOLSTEIN, J., not participating because not a member of the Court when the case was submitted.
HIGGINS, Judge, concurring in part and dissenting in part.
I cоncur in part I of the majority opinion because I find no case stated by plaintiff against this defendant. I dissent from part II of the opinion because I find no reason to reach the constitutional challenge.