*1 Christopher HILL, minor, by Shawn through Hill, Ronald D. father friend, Plaintiff-Appellant,
and next BOLES, D.,
C. Read M. Louis St.
Children’s
Defendants-Respondents.
No. 60788.
Supreme Missouri, Court of
En Banc.
June *2 defendants, Read Boles and
behalf of C. Hospital. Because Louis Children’s St. we the trial court have determined prejudicial to committed errors which were rights, we reverse plaintiff-appellant’s directions. and remand with Plaintiff-appellant’s Petition Amended Boles and the St. charged both Dr. C. Read negligence in Children’s with Louis of mi- the medical care and treatment nor, Christopher specifi- More Hill. Shawn defendant-respondents cally, administering negligently ox- charged patient in ygen while he was a to minor Boles, the care of Dr. under fib- causing him retrolental to suffer from RLF, roplasia, eye dis- hereinafter called ease, causing in the minor’s total blindness sight eye so right eye and in left loss simple light that its vision was limited First Plaintiff-appellant’s perception. he alleged that suffered Amended Petition mental, pain and physical emotional $1,000,000.00 damages. for prayed Amended Peti- Plaintiff-appellant’s First 25, July filed 1974. The cause tion was on Smith, Thurman, Nixon, Lee Robert 1971, 14, and be- instituted on was Howald, Smith, Bowles, Hillsboro, Weber & July consider- tween that date and plaintiff-appellant. for parties, discovery employed able Dixon, defendant-re- Eugene Buckley, K. and on November Evans & St. Louis, for sum- defendant-respondent spondent Hospital filed motion for St. Louis its that there Hospital. judgment ground mary Children’s any material genuine issue as to was no Banta, Lee, George J. Doris E. Barnard & defense pertaining fact to the Baer, Louis, defendant-respondent St. for its paragraph 10 of immunity alleged in Boles. Separate Answer February Amended Petition. On PER CURIAM. for motion defendant-respondent Hospital’s This case was transferred this court and taken summary judgment was heard opinion Ap- Court of the Missouri March and on under submission District, peals, upon application Eastern Hospital’s mo- the trial court sustained defendants-respondents. The cause has summary judgment. tion for argued been here. This further briefed remaining defend- against cause appeals court has concluded court Boles, came on ant-respondent, Read C. J., opinion by Kelly, and we there- is correct jury, tried trial on March adopt quota- fore use of same without defendant-respondent verdict and a tion marks as follows: 3, 1975. April Boles returned Hill, Ronald D. father and next friend 1975, plaintiff- Thereafter, Hill, April Christopher plaintiff-appellant, Shawn to set aside motion appeal appellant filed his brings judgment jury verdict City judgment entered Circuit Court of the Louis St. bloodstream, and a a throat culture defendant-respondent favor Boles and Dr. Greenwood grant him a new were ordered. trial as to said defendant- bloodculture to a respondent separate due prescribed Boles also a mo- sodium bicarbonate also Throughout acidity. tion to set aside in finding entered blood of low receiving the defendant-respondent Hospital favor of Christopher was also this time 50%, a summary judgment on its motion for and oxygen approximately rate of at a *3 defendant-respon- for a new trial as to said than higher percentage significantly 30, 1975, plaintiff- dent. June atmosphere. On both normally found in the to 21% appellant’s on motions were overruled and p. 9:30 arrived at around Boles Defendant July a appeal notice of from both of observing plaintiff, m. and examined judgments these was filed to this court. isolette, receiving fluids in an the child was The evidence The at trial was as follows: inserted through which had been catheter a 19,1969 plaintiff was May born on in Wash- He found County Hospital. Washington at Potosí, ington County Hospital, Memorial distress, mani- respiratory was in child Missouri, approximately prior two months rate, breathing fested increased by an expected 10, delivery July to the date the abdo- movement of grunting, increased 1969, projected by delivering physi- wall, men, which was as well as chest cian, Kirby Christopher Dr. was Turner. entire in, covering the sinking a bruise twins, the second of a set of fraternal head, cyanosis. The first and moderate first born having shortly died after deliv- per- to 50 oxygen was 40 written order for ery. He by was examined Dr. and Turner 20, 1969, one cent, May on between issued hospital his general record indicates morning m., a and and later that two a. good, including vision, condition was but “less prescribing: order second written shortly delivery baby after showed cyanotic” oxygen unless per than 40 cent symptoms distress, respiratory which in- This remained put was effect. order into cyanosis (a skin) cluded bluish color of the 24, 1969. May m. effect 7:30 a. grunting. prescribed and Dr. Turner then 20, 1969 to May Dr. returned on Boles oxygen for Christopher, which he received had he still child and found examine the being placed type a incubator x-ray taken The respiratory distress. called an isolete. pneumonia child had bronchial showed the Dr. Turner transferring advised present on stated this was and Dr. Boles plaintiff Hospital, to St. Louis Children’s 23, 1969, condi- was a May 21, and 22 and arrangements and were made the de- the continuation tion which warranted fendant, Boles, Dr. pediatrician a on the were taken x-rays additional oxygen. No staff of Dr. Children’s to whom his decision Dr. Boles testified however. Turner had with pediatric referred children daily was examinations based problems past. Approximately two opened was during the isolette child birth, hours fifteen minutes after to the reacted how child determine Christopher portable in a iso- placed was “chal- procedure a called change oxygen, transported by wagon lette and station Dr. Green- During period lenging.” Hospital. St. Louis Children’s regularly exam- he also wood testified that the isolette ined outside of hospital
Plaintiff was admitted necessary p. by oxygen he 7:30 m. was examined Dr. Robert determined 23, 1969, 21, 22, because Greenwood, intern, year May a noted on first who began respiration and rapid a child premature the child was infant with res- showed respiratory distress piratory point develop signs At a syndrome. distress hospital The count, the isolette. retriculocyte (a a count from blood test removed nor does no such observations baby producing determine a chart reflects whether a challenged. the infant was high they because are reflect amount red cells by off ordered turned being destroyed), x-ray, oxygen a urinalysis, chest telephone, May glucose a measurement was in Greenwood on of how much after he stating Queeny received call a nurse office Towers whose was located in gotten she had oxygen reading. elevated Complex. Dr. Boniuk saw of the Barnes Christopher on but Throughout the time was receiv- when the Christopher uncooperative ing oxygen, readings were taken nurses eyes, so attempted to doctor examine oxygen concentration. The concen- into plans Christopher were May tration on 21st made admit ranged from a low of high 30% to a May 38%. On 22nd the on November Children’s only measurement shown was 30%. On general him under anesthesia. to examine May 23rd there readings of 30% to on November place The examination took 34%, finally readings 24th shows operation was at which time an 50%, readings 48% and 44%. These last Although the left performed eye. appear to be errors there is no because Surgical Discharge Summary, transcribed presented evidence showing oxygen contin- diag- final December listed the m., ued after 7:30 a. May *4 detachment,” “RLF, signed as retinal nosis Christopher was discharged from the hos- attending defendant physician, pital reaching on June Boles, they were Mr. and Mrs. Hill stated weight desired of 5 pounds. It was deter- the use of anything not told about RLF or plaintiff’s mined that take parents would their son oxygen. They only aware plaintiff to Dr. Turner within a month Christopher was totally was almost blind. discharge an examination. At the time of discharged on November hospital there was no indication suffered 27, 1969. from RLF. discovered plaintiff’s The first 25, 1969, July On Dr. Turner examined May, Christopher suffered from RPF Christopher anything and did not notice form when an insurance claim his reported abnormal about vision. He that, returned small, baby aside from sent to Dr. Boniuk and it was being healthy written examined fibroplasia” normal. He also the words “retrolental Christopher 1, 1969, when his October looked diagnosis. Mrs. Hill parents brought throat him in with a sore association up words and learned of upper ailment, respiratory again dis- oxygen. Upon with excessive weight. noticed no abnormalities other than sought legal assistance. covery, the Hills Christopher’s parents any not mention did en- he is Plaintiff-appellant contends that concerning eyes condition to Dr. Turner. defendant-respon- to a new trial as to titled mid-October, 1969, the Hills noticed a erred in Boles because the court dent trial “rolling, jerking movement” of Christo- objections allowing coun- overruling his pher’s eyes and they brought Christo- unfavorable argue for Boles to that an sel pher to see Dr. Boles on October failure from the inference could drawn they for his six month men- examination Dr. produce plaintiff-appellant tioned the condition to him. Dr. Boles was Under as a witness at trial. Boniuk attempt examining unsuccessful in his case, we peculiar circumstances of eyes, and referred the Hills to Dr. Allan agree. Kolker, ophthalmologist an in McMillan who Boniuk, ophthalmolo- saw November It was Dr. Isaac Hill, According to Mrs. Dr. Kolker diagnosed plaintiff-appellant’s gist, who gave diagnosis. no of Dr. The affidavit who fibroplasia retrolental condition as Kolker, however, Christopher states that surgery upon in Children’s him performed had RLF on it does but under while the minor was say diagno- he advised the Hills of this argument of Dr. Boles. The the care sis. refers argu- Boles’ counsel to a comment Dr. trial Christopher
Dr. Kolker referred second Boniuk follows: ophthalmologist Dr. Isaac ment as to that statement. object I MR. SMITH:
“.
.
. and we come back to this mat-
proof,
ter of the burden of
which rests
Gentlemen—
THE COURT:
you these
plaintiff.
brought
Who
in-
jury be
I ask that
MR. SMITH:
other medical witnesses? The defendant.
just
Lee
disregard what Mr.
structed to
Turner,
brought
The defendant
in Dr.
said.
time,
very
who saw this child the
first
instructing
Court
THE COURT:
give you
complete story of what his
statement
the last
jury
disregard
condition was and what the mother’s con-
objection.
Lee.
I overrule
by Mr.
you
dition was.
it occur to
Would
objec-
my
I
made
haven’t
MR. SMITH:
plaintiff,
proof in
with the burden of
tion.
case,
ease,
in this
wouldn’t have
objec-
your
I understand
THE COURT:
brought
you?
Their own
evidence
tion.
community?
treating
doctor
in that
objec-
your
LEE: He understands
MR.
you
plaintiff,
Would
occur to
it as
repeating
object to his
tion and I
as
proof
in order to sustain its burden of
needless.
fibroplasia,
to the causation of retrolental
I
child,
Well,
preserved.
would not
it is
condition of this
THE COURT:
hear,
brought
you
you
him to let
let
your time.”
have saved
at,
you
testimony
look
let
listen to the
Dr. Bon-
Plaintiff-appellant
argues
Boniuk,
surgeon
care of
who took
circumstances, pecu-
not, under the
iuk was
month-after-month,
per-
this child
who
was,
witness but
to him as a
liarly available
*5
eye?
surgery
formed
on his
Would
rather,
parties,
to both
equally available
you
you
occur to
that when
have the
Boles.
available to Dr.
more
proof—
burden of
rais
that the
in Missouri is
The rule
MR. SMITH: Your Honor—
argument
negative inference in
ing of a
you'would
MR. LEE: —that
not do that?
produce a witness
failure to
party’s
from a
Please, please,
MR.
I want
to
SMITH:
availa
equally
improper if the witness
object to
that
this.
record will show
Bollinger,
v.
parties,
ble to both
Stotler
professional
Dr. Boniuk was
associate
v.
558,
Lyons
(Mo.App.1973);
S.W.2d
561[7]
Kolker,
ophthalmologist.
of Dr. Allen
346,
(Mo.App.
Taylor, 333 S.W.2d
356[9]
so,
Honor,
MR. LEE: That’s not
Your
an
judge overrules
1960),
if the trial
and
object
argument.
and I
to this kind of
prejudicial
argument
it is
objection to such
objection.
making
MR.
I am
SMITH:
123,
Schopp,
v.
400 S.W.2d
Halley
error.
Well,
object
MR. LEE:
I
to this as an
(Mo.1966).
126[4]
improper objection.
treating
This is their
right
doctor
I have a
to comment on
and
equally availa
witness is
Whether a
it.
Among
factors.
upon several
depends
ble
proceed.
THE COURT: Let’s
factors are:
these
objection,
MR.
I make an
SMITH:
knowl-
superior means of
party’s
1. one
Your Honor?
identity of the
existence and
edge of the
witness;
may.
THE COURT: You
objection is that
My
testimony
MR. SMITH:
nature of
Dr.
very definitely
record shows
in the
expected
give
to
would be
witness
Christopher
Boles referred
to Dr. Kolker
or decla-
previous
light of his
statements
Boniuk,
there Dr.
and then—
and from
of the
rations,
facts
any,
if
about
case;
record
MR. LEE: That’s not so. The
and
to Dr.
shows that Dr. Kolker referred him
by the witness
relationship borne
.
Boniuk.
would
as the same
particular party
to a
me,
per-
Lee—
expected
MR.
Excuse
Mr.
to affect
reasonably
SMITH:
be
liti-
in the outcome
it;
interest
he
sonal
object
MR. LEE:
I
this is what
he would
gation
it natural
and make
doing throughout
this lawsuit.
has been
expected
testify
di-
plaintiff-appellant
interrogatories
in favor of the one
filed
against
party
defendant-respondents
re-
the other.
both
rected to
questing
they identify
expert
each
wit-
Chavaries v. National Life & Accident Ins.
they expected
ness
to call
trial and
Co.,
794[12,
(Mo.App.
S.W.2d
13]
testimony to
subject
state
matter
1937).
applied
These standards
been
January
On
said witness.
offered
cases, including
in a number of later
Adam
interrogatory
Dr. Boles filed a similar
Hat Stores v. Kansas City, 307 S.W.2d
directed to
(Mo.App.1957) aff’d
149 im- reliance on the liability. against after November the doctrine had probably they have by been dealt a lethal blow the decisions of munity doctrine Supreme Court of Missouri in Aber which accidents investigate past failed to nathy Mary’s, v. Sisters of 446 they St S.W.2d investigated had they would 599, (Mo. 1969) banc and Garnier v. 606[1] responsi- held might later be they known Presbyterian St. Andrew Church of St. ble therefor.” Louis, 607, (Mo. 446 S.W.2d banc 608[3] applica- reasoning equally is We believe 1969). formerly en- which to those institutions ble argument Plaintiff’s revolves around charitable the doctrine of joyed the cloak of principles applicable problems of law em- should one which immunity, and the anating application from the the statutes case. adopted in this of limitation. We are not here concerned Supreme While the Court Rather, question. a limitations we are immuni- of charitable abolished the doctrine question involving pro- confronted with a question with ty it not resolve the did spectiveness, principles and we believe the confronted, e., i. when did we are here applicable may apply of law one cause of action “arise?” at all to the other. argues that his cause Plaintiff-appellant prospective application
The doctrine of is one of three occasions: of action arose on predicated upon on a rationale of reliance rea- (1) damage and was legal principle when the resulted upon and the effect visited ascertainment; have, (2) parties quite reasonably, who re sonably capable of lied on the law they as it existed at the time plaintiff- the time of last treatment acted, but now find themselves with the defendant-respondent Hos- appellant by the “carpet” suddenly pulled from beneath continuing pital; (3) when the last of a by change them reason of the in the law. part course of acts of That problem recognized this was a plaintiff’s failing to alert the court in Abernathy when it stated that eye damage so signs possible retrospective application could result they could any signs that were observed if hardship to the institutions which had relied early treatment. have been minimized on the doctrine of immunity argument is Plaintiff-appellant’s first justice the ends of would best be 1969, the upon 516.100 RSMo. based Section by applying served prospective the decision actions, which in civil statute of limitation ly only. Subsequent cases have also fol in civil actions a cause provides Owens, lowed that line. Burns v. wrong is when the action does not “accrue” (Mo.1970); S.W.2d Bodard 306[2] and is done, damage results but when the College, Culver-Stockton 471 S.W.2d reasonably capable of ascertainment. (Mo.1971). 254[1] two mal argument relies on His second approach reasoning behind this held practice cases in which the Court Community stated in Molitor v. Kaneland malpractice cases the statute in medical Unit District No. 18 Ill.2d running until did not commence limitations (1959): N.E.2d 97-98 treating physician ceased suggest “We do not tort itself treatment that where the plaintiff, and was committed in reliance on the sub- charge such nature as continuing and of torts, e., stantive law driver i. the bus continuing duty of with the physician negligently did not drive in reliance on recovery, essential care and treatment governmental immunity, the doctrine of then, relation physician-patient but rather that school districts and other DeTar, Mo. ship Thatcher v. ceases. municipal corporations upon have relied 603, 173 (1943); National 763[3] ... In reliance on the Tinker, Associates, 401 S.W.2d Inc. v. immunity doctrine, Credit school districts have (Mo.App.1966). adequately failed to insure themselves *9 Plaintiff-appellant’s immunity. third ar- of Molitor v. alternative doctrine gument Community on when is District No. his cause of action arose Kaneland Unit Hospital that guilty supra. the of a number of
negligent acts which least un- continued at dispose we do however holding In so not til negligent November 1969. These question whether the trial court of the acts, according to the sustaining defendant-respondent erred in (1) are: the the in negligence Hospital of summary judgment, Hospital’s motion not explaining parents eye his the risk of yet determined have not as because we damage in oxygen the administration of of act acts alleged negligent when the premature infant, (2) a negligence the of any, the if occurred. the Hospital having by in not him examined occurred, if at argues Hospital The that ophthamalogist danger in view of the all, oxygen was administered the involved, (3) Hospital the negligence of the 19-24, e., May i. plaintiff-appellant, failing regular to examine him at inter- contends, on the other Plaintiff-appellant vals, (4) Hospital the of negligence and the hand, continuing Hospital had a that the in failing parents to advise his he had thát Dr. Boles contin- duty towards him because overexposed been oxygen. Because of and he was readmitted treating ued him these negligent the of the part acts on 16, 1969, and the on November Hospital, plaintiff-appellant that contends discharged wasn’t eyes his No- progressively deteriorated until his yet not advised of parents and his were vember when the examination 17, 1969, and blindness until November operation general under was fi- anesthetic directly either were never informed nally performed final- and his cause of Boles nor the ly eye problem. told he had an in its Hospital is correct blindness. If the hereinbefore, As we have we do stated clear, contention, opinion, that in our it is principles applicable believe the to stat- causing controlling ute problems of limitations are prior to November injuries place took here. The reasons of behind enactment abrogation of day on which pro- statutes of limitation and the rule of became doctrine the charitable spective application are not the plaintiff- same. If, hand effective. other repose correct, former are statutes of enacted and if the appellant’s contention purpose preventing of assertion be- any, extended Hospital’s negligence, if claims, DeTar, supra, 173 stale Thatcher Abernathy v. yond the effective date 761(1),whereas, S.W.2d 1.c. the doctrine a if it was Mary’s, supra, Sisters St. prospectiveness applicable to those situa- plain- contributing cause proximate or application tions where retrospective then tiff-appellant’s injuries, we are change judicial law reason of that stated opinion for reasons hereinafter interpretation impose hardship would sustaining Hos- the trial court erred in appeal one parties to the because summary judgment pital’s motion for their as it declared reliance on the law court entered the trial prior bringing about decision the cause thereon should be reversed change. Mary’s, pro- v. Sisters of St. further trial court for remanded to the supra. ceedings. the deci- Abernathy, unlike The Court in light,
Viewed in conclude we governmental immuni- Abernathy, abrogating used sions the term “arise” as date effective doctrine, delay supra, negli ty did means the time at which the orderly “(i)n that an order gent place. the decisions complained took We so of act made, adequate financial conclude, although transition be suggest we do not governmental place, planning take tort itself committed in reliance institutions) time (charitable torts, i.e., Hospi units substantive law of legisla- that the adjust practices their tal in reliance on negligently did not act
151 Hospital ture he was admitted to the opportunity be afforded to consider fied that ” Jones subject general, the in . . Dr. so that by arrangement of Dr. Kolker Commission, Highway State 557 S.W.2d an anes- him under Boniuk could examine 225, 231(11) (Mo.1977), Parkway Prewitt v. dur- on or about November thetic District, School (Mo.1977), 557 S.W.2d performed was ing surgery admission which County Hospital and Wheeler v. St. Clair a de- eye for left plaintiff-appellant’s District No. (Mo.1977). no that further testified tached retina. She fact, in Abernathy, In supra, the Court right eye performed upon the operation was clearly to delay refused the effective date af- learned plaintiff-appellant, she because change in the permit the lav/ charita to in that totally blind operation, ter the was ble institutions “orderly make an transí-' operating According to the eye. Mrs. Hill give opportu tion” or to the legislature an husband, her surgeon explained her and nity to the subject. consider 446 S.W.2d would operation surgery, after this that the 606(4). c. percep- preserve light the performed be Defendant-respondent the argues eye. he had in the left tion that cause in of action arose at the time this case e., of the breach of duty, prior i. to Novem- the alleged that Plaintiff-appellant has ber when the was still doctrine failing to inform negligent was in Hospital oxy- available to the Hospital and when the eye his diffi- parents diagnosis of the his gen was plaintiff-appellant. administered to the initial which with culties commenced support Hospital In of this argument, following his immediately hospitalization refers to the affidavit of Dr. Kolker that of the from them birth and concealment plaintiff-appellant fibropla- had retrolental of his by reason symptoms to look out for sia on November prior to there- while confined exposure oxygen to excess to; that, therefore, damage clearly argu- his gather We also from the isolette. capable of prior ascertainment to November negli- position his ment that it is 10, 1969, and the cause of action “arose” of the gence negligence combined prior to the effective date of the Boles, the intern treating physician, Dr. decision. Robert employ of the in the We believe that abundantly it clear Greenwood, of the proximate was the cause plaintiff-appellant alleged that has and the sight right eye in loss his fibroplasia retrolental result was the direct which, had eye vision in the left diminished overoxygenation he of the infant while symp- to what parents been warned as May was in the isolette between for, have taken look toms to would However, we also discern place. reading from a in the brief of opposition to motion for sum- defendant’s conclude, plaintiff-ap- We further mary judgment con- deposi- of the pellant’s petition, portions tends that reason of the failure of Hill, mother, argu- his and the of Mrs. tion symp- to advise parents in court in brief the trial ment his observed, oxygen toms the excessive resolved, is a fact issue which must administered to him while confined in Hospi- e., i. whether an insid- begun isolette “had was, tal, continuing failure if such was a ious course of visual deterioration known duty plaintiff-ap- perform owed fibroplasia retrolental in the months of vi- in the loss pellant which culminated would, ahead as it progressed, cause detach- vision in yes one and diminished sion in the ment of the retinas resulting blindness.” other, could have a condition which And later in the in the trial brief filed had his been avoided lessened court, argues: surgical attempt he “a the “invidious” been advised of nature prevent made to detachment of the total of deterioration referred process Ann deposition left retina.” of Ruth Hill, mother, court. his in the trial she testi- brief
If, remand, upon discharged hospi- plaintiff-appel Plaintiff from the 26,1969 lant can tal on June and was not support adduce back evidence to *11 hospital until readmitted on November contention continuing negligence that the under for examination anesthesia of the Hospital caused or contributed to per- Dr. Boniuk. At that time Dr. Boniuk cause the loss for which he now seeks dam operation eye to formed an on the left ages, and that said continued to prevent total of the retina. detachment beyond a date November 1969 when the Only light simple perception remained immunity doctrine of was charitable abro operation that the No eye. time in left gated, opinion we the are of that cause performed eye plain- right on the because of action would be viable and would not sight eye. tiff had no in that have arisen until such the time as treat During was in Chil for time ments the disease terminated. Thatch Hospital May in and June of dren’s DeTar, supra. er the doctrine of charitable existed We judgment reverse the of the trial hospitals in that this state. Under doctrine court entered in behalf of the Louis St. Hospital such immune as Children’s Hospital Children’s and remand the cause Hence, liability from for even if ex tort. the Circuit proceedings Court for further by the oxygen cessive was administered not inconsistent with opinion. alleged, hospital Hospital as Children’s immu therefor. liable Such BARDGETT, MORGAN, J., and C. SEIL- nity in continued exist SIMEONE, JJ., ER and concur. in court the doctrine Missouri abolished the cases of Aber November in FINCH, Judge, sepa- in Senior dissents nathy Marys, 446 S.W.2d v. Sisters of St. dissenting opinion rate filed. (Mo. An 1969) v. St. banc and Garnier Louis, RENDLEN, JJ., DONNELLY and drew of St. Presbyterian dis- Church 1969). cases separate dissenting (Mo. sent and in Those opin- concur S.W.2d 607 banc only. FINCH, prospectively ion of the doctrine Judge. abolished Senior Thereafter, recovery against there could J., WELLIVER, be- participating only to causes as previously those immune cause not a member court when 10, 1969. arising after November action cause was submitted. opinion recognizes that principal only prospectively doctrine abolished FINCH, Judge, dissenting. Senior speaks permit- Abernathy when I respectfully portion dissent from arising ting recovery in action causes principal opinion which reverses after it has reference November favor of in St. Louis Children’s act negligent causes of action wherein for and remands the case a new sought recovery for which occurred plaintiff’s trial on claim against hospi- However, having so November tal. pro- opinion then recognized, principal petition Plaintiff’s asserts that excessive erred to hold that the trial court ceeds amounts' of oxygen were administered be- summary judgment in favor entering May tween dates of 19 and recovery against hospital theory that 1969, while plaintiff patient was a in Chil- doc- by the Hospital was barred Children’s dren’s of Dr. under the care Boles. immunity. so holds trine It of charitable result, says plaintiff, As a he suffered retro- plaintiff’s contention basis lental total fibroplasia caused blind- continuing to advise hospital duty had plaintiff’s right ness in eye and loss plaintiff’s parents as a result “ sight eye except simple all left for ‘had oxygen excessive administered light perception. Recovery therefor deterio- begun of visual an insidious course sought fibroplasia hospi- from both the doctor and the retrolental ration known as would, tal. ahead which in months for hospital and the progressed, against both the doctor cause detachment of the retinas ” would be loss. The result resulting plaintiff’s all of blindness.’ Under such theo- recovery hospital ry permit hospital continuing duty had a of time during period damages incurred plaintiff’s to so advise adminis- beginning oxygen when was first jury and if the finds that it breach- question without May, tered duty ed that and such breach caused or immunity made the doctrine of charitable plaintiff’s damage, contributed cause liability. hospital immune from then can against recover Children’s Hospital. hospital could Under resulting from damages only liable *12 I cannot concur in such a conclusion. In failing Novem- alleged act of on negligent place imposes first it duty a on the plaintiff’s parents. ber to advise hospital which is unrealistic which and of Only damages occurring after breach hospital should By holding, not have. its 11,1969, recov- would be duty on November principal opinion hospital thrusts the duty to continuing a theory erable. A physician-patient middle of the relation- hospi- liability of the advise cannot result ship theory hospital, that the as well injury things tal for which occurred and doctor, as the duty plain- had a to examine hos- during which a time when the resulted tiff and ascertain his condition and the like- liability. pital such was immune from ly progress of his condition and advise so intend. On Clearly, did not plaintiff’s parents thereof. It cites no case to au- contrary, clearly it was intended which imposed has such a duty. We should flowing only damages recovery thorize for People do so now. are admitted to occurring subsequent to No- things hospitals patients as of a doctor. He exam- vember 1969. patient ines and prescribes advises the and damage plaintiff’s It is that all of obvious the treatment to be administered. The hos- In Oc- occurred before November 1969. pital diagnose patients’ does not ailments or back parents brought him plaintiff’s tober give prescribe them medical advice or treat- to Dr. plaintiff He referred to Dr. Boles. ment. To prac- do so would constitute the Kolker, on ophthalmologist. He found hospitals tice of medicine and are not au- had plaintiff then thorized to things. do those referred fibroplasia. Dr. Kolker retrolental theory Absent this right recovery of a Boniuk, ophthalmol- plaintiff to Dr. another continuing duty based on a hospital attempted unsuccessfully on ogist, who to diagnose plaintiff’s and advise as He then sched- plaintiff. examine date to to his likely progress condition and and the an- plaintiff under uled an examination act, need for them to there is no basis for After the esthesia for November recovery against hospital. All of the examination, operated plain- Dr. Boniuk hospital plaintiff acts of the of which com- eye. plaintiff that date tiff’s left On plains plaintiff occurred while was in the only light right eye and had blind hospital June, and 1969. The doc- eye. left Thus it is evi- perception in the effect, trine immunity, of charitable then in eyes had damage plaintiff’s dent that the prevents recovery therefor. 11, 1969. already by November occurred agree Even if I hospitals could support In of the decision to reverse diagnose, should have duty this new con- opinion cites and relies principal remand the principal opinion sult and advise which the DeTar, 351 Mo. on Thatcher imposes, prin- I still could not concur in the (1943). involving That is a case S.W.2d 760 if, cipal opinion. It seems to hold of a statute interpretation application remand, hospital there is that the evidence liability In such a situation of limitations. continuing duty breached this to advise by negligence damages exists for caused plaintiff’s parents, jiiry may and the finds that which limitations but for a statute of such breach caused or contributed to cause right recovery. If the statute bar the liability sought, recovery pre-existing loss for which is tolled the limitations is contrast, where, as jury may return to exist. a verdict continues here, all those decisions to now pre-existing immunity such as chari- consistent injuries recover for prospectively, table is abolished allow Therefore, and accrued pre-existing liability. damages there is which occurred no prospective prior abolition in con- to November cannot result tinuation a pre-existing liability. There hand, If, my interpretation on the other Hence, principles was none. applicable opinion is incorrect language controlling. statutes of limitations are only permit recovery it is intended to page recognizes opinion any damage the evidence principal shown applica- principles such are not as a 150 that resulted after November have that, However, pro- having advise and warn done result of a failure to ble. language then the v. November cite Thatcher page 152 to ceeds on DeTar, as to opinion should be clarified so supra, authority supporting re- possible It clearly explicitly mand so state. of the case for determination as to hospital ruling so that neither possible recovery from the for the state such any doubt damages loss for nor counsel will sought. are In so trial court “If, remand, means. It holding opinion says, upon what the Court is presently as it make that clear can adduce evidence to doesn’t plaintiff’s support it is obvious from continuing written and contention that *13 opinion after the negligence brief filed in this Court caused con- written Appeals had been tributed to for which he now the Court cause loss language interpret damages, seeks does so and that said will on retrial to a seek beyond continued date damages to have occurred all shown when doctrine of charitable immu- recover was admin- abrogated, oxygen the time nity opinion are of the after we May of 1969. that his cause of action would be viable and istered in as would not arisen until such time stated, I hereinabove For the reasons terminated, treatments for disease of Chil- in favor affirm the would DeTar, supra.” Thatcher v. remanding reversing dren’s Boles. against Dr. only am retrial I not certain that I know what that I that on says statement means. think authority of Thatcher the accrual
right postponed after No- to sue was
vember and that such situa- plain- recovery
tion can all occurring damages, just any
tiff’s abolished on No- WORKERS, NO. 1 LOCAL ELECTRICAL vember 1969. UNION, Respondent, CREDIT correct, princi my interpretation If v. pal opinion contrary this Court to what FUND, TRUST IBEW-NECA HOLIDAY in Abernathy prospective appli held about Garnishee-Appellant, cation the doctrine. abolition of subsequent cases decided holding its Gamier Court reiterated Chisholm, Defendant. Gordon J. prospective application, reference 61018. No. refusing to extend the abro benefit Missouri, Supreme Court pending gation already to other cases Banc. En v. Cul the doctrine was abolished. Bodard (Mo. 253 College, ver-Stockton 471 S.W.2d June 1971); Owens, Burns 303 S.W.2d July Rehearing Denied (Mo.1970). Bliley, also Swinford v. See (Mo.1974); v. General Varnal Center, Hospital and Medical 502 S.W.2d (Mo.1973). in completely It would