*1 may suggested ceeding.” free to note It be that We take the bench and correct, “guidance” are in inequitable and to situations as need of presented. implication full of Whitehead & Kales and many interesting are There Gustafson. prior has deviated from the Court important legal questions, and in this area actions, establishing not law new known others, and which are to uncertain- law. law is judge to the common ty, tempting it is often to answer them and reason; made. I not it for this do fault doing need for so in the advance judge most of our common law is made. setting particular case. But common Benda, (Bill- supra, p. v. Gustafson law courts should strive adhere J., ings, concurring). But I would like to law, by avoiding tradition common maintain adjust- the freedom to consider answering overexpansive holdings, not newly ments and restrictions on created questions fully which not briefed have authority actions. The same which created adversary in an presented to them the actions is entitled to take to en- setting. just equitable sure treatment for all. stated, join- For the reasons without participate I did not deci- Although I ing principal opinion, agree Benda, supra, sion v. I un- Gustafson quashed. provisional rule should be Comparative derstood that the Uniform provide Fault used minimum Act was cases, comparative negligence
guidance in being adopted legis- totally
and was substituting
lation. I no warrant see
for our usual statutes of every lining, cloud a silver
Just as opinion majority may fortunate byproduct in the rule demise of recent and Ronald Row- Barbara ROWLAND Kimberlin, of State ex rel. v. Morasch wife, Plaintiffs, land, husband and which holds prohibition used writ ruling jurisdic- on purpose for the COMPANIES, INC., SKAGGS questions, purpose for the tional Defendant-Appellant, appeals. furthering interlocutory con- holding unnecessary sidered that M.D., FISCHER, Third-Party Jose decision of the matter then before Defendant-Respondent. Court, and unwise its constriction of power origi- to issue and determine Court’s No. 65192. (Mo. Const., V, Art. nal remedial writs Sec. Missouri, Supreme Court 4.1). prohi- Here the makes use of a Banc. En action to announce broad rules bition desirable, majority law which the considers March 1984. unques- trial had the though even court jurisdiction tionable render decision subjected provisional
which was to our Although agree
rule. I do not with the pronouncements
broad
opinion, that the case can and and believe resolved much narrower
should be now
grounds, I note that the writ is availa- legal purpose making pro-
ble majority
nouncements time a purpose. use
Court wants to it for *2 James, Curtis,
Danny Randy L. W. Kan- City, defendant-appellant. sas Borthwick, Bandy, Kansas James James City, third-party defendant-respondent. WELLIVER, Judge. Inc., Skaggs Companies,
Appellant (Skaggs) appeals from an order Cir County dismissing its Clay cuit filed party petition respondent Dr. Fischer. The Jose affirmed the Western District court, holding trial that the of limitations damages against § RSMo 1978 barred ordered the suit for contribution. We if and decide it as cause transferred 83.02; original appeal. Rules 83.09. We reverse. underlying from which the
The incident
20, 1978,
suit arose occurred on November
Rowland took
Barbara
drug
overdose of the
Elavil because
allegedly negligent acts and omissions
had filled Mrs.
Skaggs,
pharmacy
whose
prescription. Mrs. Rowland’s
Rowland’s
Fischer,
telephoned a
physician, Dr.
milligram capsules
prescription for 150
The doctor
Skaggs’ pharmacy.
Elavil to
Skaggs that
employee of
instructed an
milli-
to take one 150
Mrs. Rowland was
otherwise indicated.
are to RSMo 1978
unless
1. All
references
Skaggs
today in
capsule
Our decision
State ex rel.
gram
of Elavil at bedtime.
Gen-
eral Electric Co.
with 150
allegedly
prescription
filled the
gener-
establishes the
Elavil,
milligram capsules
negligent-
but
al rule
suit for
that a third
contribu-
indicating
ly placed a
on the container
label
can
tion from a
tortfeasor
be filed
capsules
twenty-five mil-
contained
suit,
during
pendency
discovering the
ligrams of Elavil. After
irrespective of the
*3
dosage,
Rowland tele-
discrepancy
Mrs.
applicable to the
tort claim.
phoned Dr. Fischer’s office and was ad-
question presented
The
case now
vised
his office assistant or nurse to
us is whether the statute of
before
limita-
twenty-five milligram cap-
take six of the
claims,
medical
tions
equal
prescribed dosage
sules so as to
her
§ 516.105,
bars third
suits for contri-
milligrams.
of 150
Mrs. Rowland then in-
providers
bution
that
gested
capsules
six
of Elavil and sustained
were not filed within the
statuto-
overdose, requiring hospitalization
an
statute,
ry period
provided.
therein
medical treatment.
pertinent part, provides:
husband,
Mrs. Rowland and her
Ronald
against physicians, hospitals,
All actions
Rowland,
against Skaggs on
filed suit
Oc-
dentists, registered
practical
or licensed
24, 1980,
damages
per-
seeking
nurses,
tober
for
podiatrists,
optometrists,
phar-
macists,
injuries,
expenses
professional
sonal
and loss of
chiropractors,
phys-
medical
therapists,
entity pro-
ical
resulting
services
from the overdose. On
and all em-
viding health care services
14,1981, approximately
August
ten months
ployees
foregoing acting
petition,
plaintiffs
original
after
filed their
scope
employ-
of their
course
Mrs. Rowland
and almost three
after
ment,
damages malpractice, negli-
for
for
overdose, Skaggs
sustained the
filed a
gence,
mistake related to health
error or
Fischer,
party petition against
third
Dr.
brought
care shall
he,
alleging
agent
employee,
or his
that
of the act
from the date of occurrence
negligently
advised Mrs. Rowland to
neglect complained
...
capsules
verifying
take six
without first
Section 516.105.
peti-
accuracy
prescription.
requested
apportion
the court to
dam-
statute,
entirety,
in its
re
read
Skaggs
Dr. Fischer
ages
unequivocal legislative
ac-
intent to
veals an
specified
class of suits
cording
degree
to their relative
of fault
make
providers
health
sub
Skaggs
jury adjudged
the event the
liable
ject
provision’s two-year
injuries.
for Mrs. Rowland’s
legislature qualified the
limitations. The
subsequently
Dr.
filed motion
Fischer
opening phrase
actions”
all-inclusive
“[a]ll
party petition, con-
Skaggs’
to dismiss
damages
malprac
with the words “for
tending
that
suit was barred
tice,
mistake related to
negligence, error or
court sustained the
516.105. The circuit
use of
...”
motion to dismiss and entered
order
confine
phrase
the latter
evinces a desire to
party petition.
dismissing Skagg’s third
statutory period
subject
suits
to the short
Skaggs appealed
to the West-
§in
to those enumerated.
Cf.
appeals
ern District and the court of
af-
Co.,
v. MFA Mutual Insurance
Harrison
holding
Citing prior
firmed.
decisions
607
146
Gilo
§ the statute of limitations
516.105 was
Cory.,
Hamm-Singer
396 S.W.2d
ti v.
applicable
to contract actions
Morris,
(Mo.1965); Brown v.
365 Mo.
the Western District
946, 290
held that
contribution
an action for
plain
their
Giving the words of the statute
being in
provider,
a health care
the nature
meaning, we believe
516.-
ordinary
contract,
implied
of an
likewise was
encompasses those actions where
two-year statutory
consumer of health services seeks
resulting
improper,
injuries
related to such
injuries
from some
servic
es,
acts or
wrongful
indicating legislative
or careless
omissions on
no words
we find
part
a health care
include suits for
intent
delivery of health care to the consumer.
providers.
In the in
among health
Neurological Hospital
Asso
See Gerba
case, Skaggs seeks
stant
contribution from
ciation,
(Mo.1967);
416 S.W.2d
under the doctrine
respondent
of Missouri
National
Inc. v. Tink
Credit
Railroad Co. Whitehead & Ka
Pacific
er,
(Mo.App.1966).
1978), in
les
adjudged
plaintiffs.
the event it is
liable to
interpreted
The statute also has been
Admittedly, this form of contribution is
govern
compre
in cases where its terms
statutory right
different from the
to contri
hend the substance of the health care con
among joint judgment
bution
debtors under
appeals
sumer’s claim. As the court of
observed,
correctly
Cum.Supp.1983.
516.105has been held
Never
theless,
in cases
significant
where a consumer of
we
believe
*4
provider
health care sued a health care
statutory
contribution existed at'
§
breach of contract. See
v. Al
legislature
the time the
enacted
516.105
Barnhoff
(1931);
dridge, 327 Mo.
It makes no
Mo.1976,
by
p.
Laws of
was enacted
ancillary to a suit sub-
1978
contribution arises
legislature
time the
definition,
2. At the
Sec.
By
a suit for
ject to
had no
statute it
reason to
passed this
among
must arise
tortfeasors
decisions Missouri
anticipate our
underlying tort action. Both
from some
Pacific
Kales,
v.
&
Railroad Co. Whitehead
jur-
decisions and decisions from other
our
the corol-
isdictions demonstrate that this does
independent action for contribu-
lary of an
independent
of the cause
alter the
nature
Stores,
by Safeway
tion as
Inc.
established
for contribution.
of action
See State
Raytown, 633 S.W.2d
City
v.
Electric
General
Co.
1982).
legislature
Had
at
764 at 766 and cases
I am sure that it
aware of those decisions
persuaded
cited therein. We are not
intent,
expressed
its
and have
subjecting
contemplated
expression would
no doubt as to what that
which,
arising
516.105 suits
while
have been.
setting
governed
the same factual
as a suit
statute,
substantively
are
distin-
statutory prede-
long history
guishable
from the actions for
is dis-
present
cessors
enumerated
the statute.
depth
Laughlin
v. For-
great
cussed in
In
bane
grave,
summary,
In
while the
surgeons had sewed a
operating
that case
may
have intended “to treat
during surgery
patient
dam
rubber
inside
actions,”
differently
foreign object
was not discov-
1951. The
Forgrave,
*5
surgery
performed
ered until further
(Mo. banc
we are convinced that
pleaded the
of
in 1962. The defendant
bar
limitations, relying on that
the statute of
fundamentally
from
providers are
different
§ 516.140,
portion of then
re-
those actions enumerated
reading
lating
to health
and
as
erred
We believe the trial court
follows:
held that the statute barred
surgeons,
against physicians,
All actions
party petition. We hold that a defendant in
dentists,
nurses, hospi-
roentgenologists,
underlying
gov
suit where the
action is
damages for
and sanitariums for
tals
§by
may implead a third
erned
516.105
error, or mistake shall be
during the
party defendant for contribution
the date
within two
pendency
timely
filed
suit
of,
complained
neglect
...
of the act of
in the same manner as General Electric.
provisions
plaintiff
relied on the
remanded for
The case is reversed and
providing that stat-
RSMo 1959
proceedings
opinion.
consistent with this
run,
begin
to
“...
utes of
wrong
done ... but when the
when the
DONNELLY,
HIGGINS,
and
BILLINGS
is sustained
damage resulting therefrom
JJ., concur.
capable of ascertainment....”
and is
BLACKMAR, J.,
separate
dissents
portion
held that
the
opinion filed.
special
quoted
was a
stat-
516.140
above
physicians,
to
ute of limitations
RENDLEN, C.J.,
GUNN, J., dissent
surgeons and other
separate opinion
and concur in
of BLACK-
were in irrecon-
explicit provisions
that its
MAR, J.
with
and that the
cilable conflict
BLACKMAR, Judge, dissenting.
prevailed so as to
the
special provisions
action,
though
plaintiff
could not
opinion
even
any
I doubt that
of this Court
surgeons’ neg-
possibly have discovered the
played more hob with the
limita-
ligence in time to file suit within the
in this case
intent than
argued period. The dissent
does.
§§
these,
could
read in
a firm
516.100 and 516.140
Even as to
it established
bar,
opinion
ten-year
regard
harmony,
majority
but the
was em-
without
to discovera-
phatic
unequivocal,
bility
wrong.
and it tendered to
The firmness
public
general two-year period
is also shown
to
the Court’s
position
dealing
proper application
portion
of the 1976 act
to
statutes of limitations
the situation in suits
minors. The new statute essen-
tially
which
run-
wrongdoing
was undiscoverable.
started
ning
they
age
minors as
reach the
legislative response
during
than
tolling
rather
came in 1976.
provisions
The health care
minority.
inescapable
The conclusion is
were
severed
516.140 and were in-
intended to foreclose all
section,
cluded in a new
later numbered
negli-
claims
health providers 516.105, reading as follows:
gence malpractice
years,
after two
un-
against physicians, hospi-
All actions
point
specific
less the
could
to a
tals, dentists, registered
prac-
or licensed
exception
within the four corners
nurses, optometrists, podiatrists,
tical
special
legisla-
statute. Because of the
pharmacists, chiropractors, professional
unequivocal
ture’s
response, it
physical therapists,
entity
highly irresponsible to overrule the firm
providing health care services and all
holding in Laughlin that
does
employees
the foregoing acting
not apply
encompassed
actions now
scope
employ-
course and
of their
by 516.105.
ment,
damages malpractice,
negli-
The citations of such cases as
gence, error or
Barnhoff
mistake related to health
v. Aldridge, 327 Mo.
sence of What legis- assuming Mary- reason is there for State ex Contractors, treating Heights any purpose White- land Inc. lature Concrete Ferriss, liberally than & Kales claimants more head pro- prevailing of health care The view seems to be that a it treated the customers plaintiff may settle with tortfeasor viders? way such a to bar an action for contribu- as principal opinion gains absolutely The settling litigant. Mil- nothing by arguing holland, by to: Sequel “The Settlement the 1976 act took no to include “the (1982). 31 J.Mo.B. 559 Covenant Sue?” among right to contribution authorities, this is Under state judgment 537.060” within debtors firm, entirely give effect to a order to two-year course it bar of 516.105. Of special limitations. statute of steps! took no such There was no need to. judgment my opinion concurring As result A could not obtain a shows, by rule” provider, joint “general a or established oth- erwise, if the action Electric Co. Ga- were barred rel. General ertner, 1984) of limitations. Unless statute the necessities of that goes beyond there is a the health care far so, case, Even provider, statutory right is no to con- and is therefore dictum. there ap- “general appropriately rule” is not tribution. involving a a statute of plied special to case appellant reliance places strong not to extension limitations which is v. Travelers Insurance Gramlich of limitations are. as other statutes (Mo.App.1982). The case does logic in help simply is the statements not it. It holds that when Nor there alleged principal opinion death follows: have caused limitations, wrongful death those actions encompasses prevails Cum.Supp.1983 of health services where the consumer provisions over con- injuries resulting damages for seeks special test there was between two stat- care- improper, wrongful or some utes, general a part of a less acts omissions on the problem special delivery one. The case involved until that did not surface health care to the consumer.... was in- for death actions “qualifica- finds year creased from one to three. Before refer- opening language tion” broad firmly that time the death limitation phrase, “for ring to “all actions” applied to defeat claims which could error negligence, the terms such statutes as barred to health care.” or mistake related *7 1978, negligence. qualification is to purpose of obvious reason to that the There would be no hold- related to health distinguish actions exclusivity feature of death statute was related, as, for exam- from actions not destroyed simply the statute was because patient slipped and fell on ple, if a lengthened. physician’s office. newly of waxed floor contribution, Neurological Hospital Asso- right newly recog- Gerba v. Cf. 126, (Mo.1967). Kales, ciation, nized & is unlimit- Whitehead “for an action present ed. The careful mistake negligence, error or disruptive Thus interfa- apply way. sug- related to care.” It is idle immunity milial remains. Kendall v. purpose Sears, Co., legislature gest & Roebuck 1982). distinguishing an action com- of The ban the workers damages. an action for precludes recovery of contribution and pensation statutes earlier, it had no plaintiffs employer. As had been demonstrated from the contribution knowing way person posi- that a appellant
tion of this
would be able to file
rel.
STATE Missouri ex
James Edward
an action
contribution under the fact
FOLTZ, Individually
behalf of
presented by
situation
this record.
situated,
persons similarly
the class of
(Appellant),
open up
long
extremely
period
limitation
in some
Discovery
cases.
of a defect in a medicinal
AHR,
Department
Paul R.
Director
product might
delayed
for as much as 20
of Mental Health of the
of Mis-
State
years,
See,
e.g.,
the DES cases.
Bi-
Carnahan,
souri and Mel
Treasurer of
571,
Lilly
chler v. Eli
55 N.Y.2d
Missouri,
Ray
State
S.
(1982)
450 N.Y.S.2d
Even if we assume that the defendant’s
claim for physician “undiscoverable,” until it was sued on plaintiff, has exclud-
ed undiscoverable 516.- involving cases “foreign ob-
ject.” majority, rather than suggesting why
fanciful reasons party the third is not compass
frankly admit that it has chosen to disre-
gard that section in the interest of further-
ing newly recognized action for contri- willing
bution. am not to enhance the extent, right
new to this and would affirm judgment dismissing the third
petition.