*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 316 S.W.2d 594 41[9] 5,1975, Hospital also filed the February (Mo. 1958); banc Allen Hawkins v. Cab plaintiff-ap- interrogatory same directed Company, (Mo. 457 S.W.2d 942[3-5] 20,1975, plaintiff-ap- pellant. February On App.1970); Johnson, Gridley v. interrogato- pellant these replied both of (Mo.1972). 479[2] ries in same the name and did not include In generally Missouri the cases have held in- Dr. witnesses he Boniuk as one of the treating that a party’s examining phy- 18, 1975, Dr. call. March tended to On personal sician in a injury pre- action is Boles Answers” “Supplemental filed sumptively party. more to that available interrogatories plaintiff-appellant’s v. Bollinger, Stotler supra, Richardson might he a witness named Dr. Boniuk as Wendel, (Mo.1966). 401 S.W.2d 459[10] testify previously call who would believe, however, proper We that in a case stated. may this presumption inapplicable be held record, did Dr. Boniuk According to the by reason of the shown circumstances parents that not inform evidence. following by RLF his blindness was caused We malpractice have here case They examination. seeking damages treating physician from a they diagnosis first learned alleged performance signed form saw an insurance claim professional of his plain duties toward the fib- “retrolental that had the words Boniuk tiff-appellant. The witness whose absence roplasia” May, 1970. written on it in subject was the was associated comment injury personal action typical defendant-respondent with the Dr. Boles in *6 has connec- plaintiff’s personal no physician Hospital Group the Barnes and was on the tion the defendant whatsoever with staff of the defendant-respondent, St. Louis plaintiff or by said case and was chosen Hospital. plaintiff-appel Children’s When physician plaintiff by the to said referred Hospital lant was re-admitted to the plaintiff, and initially by selected said he was under care examining physi- treating interest of of both Dr. Boles and Dr. Boniuk. The with- patient cian with the particularly lies evidence was not shows Dr. Boniuk entering the any out extraneous interests by parents plaintiff-appel selected of here, presented picture. facts Under the rather, they lant independently; were re however, the evidence we conclude they ferred to Dr. Boniuk had seen existed to show that sufficient Kolker, ophthalmologist Dr. in the another Boles relationship between Dr. enough of a complex, they Barnes had been whom reasonably and Dr. Boniuk “as would fact, by referred Dr. Boles. which Another expected personal interest to affect his significant resolving we believe is plaintiff- litigation” of the the outcome issue, listing is the of Dr. Boniuk Dr. sus- been appellant’s objection should supplemental Boles’ counsel in his answers tained. days prior interrogatories filed six situation is anal- may believe that this as a who We also trial witness “defendant call” employee ogous holding an concerning to those cases testify and who would “retro- employer. more to an plain of witness is available fibroplasia lental and the condition 540 Desloge Hospital, v. Firmin importance tiff.” in Goodman This assumes added Al- (Mo.App.1976). January view of the fact that on S.W.2d 913[10] ap- though plaintiff-appellant’s now Boniuk We consider employee was not an upon the judgment entered peal from the Dr. Boles nor he did collo- defendant-respon- sustaining of trial court’s borate rendering withDr. Boles in medical Hospital’s motion dent St. Louis Children’s services to plaintiff-appellant and was grounds judgment on the summary closely tied the defendant-respondent beneficiary of the Hospital was the Hospital. testimony Unfavorable relative immunity. doctrine of to either plaintiff- Dr. Boles’ treatment of appellant filed physician or to another has Defendant-respondent associated ap- with the Hospital a motion to dismiss would have same jurisdic- peal for lack as to consequences adverse might befall an in this motion grounds as stated tion. The employee contrary who testified in- to the plaintiff-appellant are the failure terests of employer. his Dr. Boniuk’s fail- rehearing or reconsidera- file a motion for report ure to plaintiff-ap- entry of the days after tion within fifteen pellant diagnosis and to discuss with 10, 1975, and summary judgment on March possible them its causes is indicative of judgment final for therefore the became some part fully reticence on his advise April purpose appeal them of the problems medical involved in (30) expiration thirty days after their son’s case. and the summary judgment, entry of the The court in Gridley, supra, recognized judgment appeal notice of from that that it is say not reasonable to that where a not filed patient claim, malpractice makes a all doc- July 1975. must, tors he or she ipso sees thereafter right appeal purely stat facto, produced as witnesses or else the governs utory. 512.020RSMo. Section defendant argue can the inference is the the trial court may appeal who a case from missing supported doctors would not have when, re have stated and our courts the claim malpractice. if S.W.2d c. be from peatedly appeal that since an must (with specified excep judgment a final Considering totality of the circum- tions), disposed of must have the trial court portrayed stances in this we record hold requirement parties. This all issues and all prejudicial that it was permit error to coun- parties all have been that all issues and sel argue for Dr. Boles to the failure of the avoiding disposed purpose for the of is plaintiff-appellant to call Dr. Boniuk as a appeal, piecemeal presentation cases on objection witness cause over the except specifically where so authorized. Co., plaintiff-appellant, requires Mut. Ins. Bolin v. Farmers Alliance (Mo. 1977). 889[2, of the trial court be reversed and banc 3] the cause remanded for a new trial. *7 trial question The then is whether the which judgment from court entered a final Because we have determined that this perfect plaintiff-appellant required was retried, cause must be we do not reach the Hospi- days after the appeal his within 10 points other by plaintiff-appel- two raised judgment was summary for tal’s motion directed, They lant. are in the first in- on, 10, ruled March stance, sustaining objections of of Dr. Boles to transcript rebuttal evidence tendered the judgment The set forth in plaintiff-appellant overruling and to the of of recites: as March plaintiff-appellant’s objection testimony duly con- having “The heard and Court witnesses, Byrne, of Dr. one of Dr. Boles’ motion of defendant separate sidered the reports relative to certain which studies and summa- Hospital for St. Louis Children’s plaintiff-appellant filed, contends were inadmissi- heard and ry heretofore judgment 21, hearsay. February ble as venture a We would not to the Court submitted 1975, proof ad- guess problems and evidentiary upon that these same the evidence duced, sufficiently being advised would arise on a retrial. and now circumstances, concerning thereof, rights, of these premises any. and the if Under doth order judgment now that said motion and was held to be an summary the order, the hereby same is sustained. not a interlocutory judgment or and appeal would which an judgment “It is final from further the ordered Court that lie. cause be and hereby the same is reassigned to of this Division No. 1 Court Savings & Loan Age In New Federal for proceedings further thereon.” Miller, (Mo.1970), Ass’n. April 15,1975,plaintiff-appellant On motion for sum- filed the also held that a Court a judgment dismissing third-party motion to set aside favor mary judgment in Hospital upon sustaining petitioner’s judgment based claim not a final was summary lie, the Hospital’s judg- motion for it appeal from an would because which directing ment and an order all purport adjudge rights did granted a trial trial court did parties issues between the Hospital. himself and designate judgment as a final specifically On June motion overruled no order purposes appeal, 3,1975, plaintiff-appellant and on July filed among the separate trial of issues made for appeal judgment. notice of from said court, 878, 1. c. said: parties. The other long rule been held “Under the it has In Bolin v. Farmers Alliance Mut. Ins. appealable judgment a one final Co., supra, the trial had a court rendered parties and all issues disposes of all summary judgment in favor of defendant * * * are only exceptions sustained, case. The days insurer and a few later tri- separate the court ordered where has prejudice, without motion of named issues, judg- designated the als or has tripa beneficiary in accidental death insur- purposes final for ance ment or order entered policy issued the life of Alma Mae brought by appeal.” Bolin suit the heirs law a at personal representative and the of the dece- summary judg hold that We against company dent to col- insurance 1975, was not entered on March ment proceeds lect the policy insurance. would appeal judgment final from which suit, In the beneficiary the named was also lie of defendant-re deny motion summary judg- named defendant. The spondent Louis Children’s St. company ment for the insurance was en- appeal on the plaintiff-appellant’s dismiss tered on March motion timely was not grounds appeal his notice of beneficiary Marilyn Abernathy, the named filed. sustained, to dismiss as to her was without con- defendant-respondent The prejudice, April on March 1975. On correctly sus- court tends that trial 1975, plaintiffs appeal filed notice of their summary judgment motion for tained its summary judgment entered on cause of action because March a time prior to November arose judgment compa- on the insurance when the doctrine of ny’s judgment summary motion for stated: law this State still the rights “This shall not affect on this of fact genuine no issue Marilyn Abernathy.” The of defendant deposi- pleadings, by the point as evidenced held, entry court 1. c. that the id. and affidavits tions, file admissions on judgment, although it summary settled support thereof. *8 plaintiffs issue insur- between the When simply, issue then is: Stated plaintiffs company ance as to whether the arise? did the cause action judgment against in- to entitled If it insurance, is query crucial. The answer this company policy surance doc- prior be- arose did undertake resolve issues alive immunity was charitable plaintiffs Abernathy specifi- tween trine of However, arose it if cally her well in this state. recited that was not affect

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