Senn v. Manchester Bank of St. Louis, 583 S.W.2d 119

Senn v. Manchester Bank of St. Louis

583 S.W.2d 119

Mo.

1979

Check Treatment

Daniel LeGrand v. Doctor Udaya N. Dash, and others

Supreme Court of Missouri, En Banc.

June 19, 1979

Rehearing Denied July 17, 1979.

583 S.W.2d 107

John D. Ashcroft, Atty. Gen., Gregory F. Hoffman, Asst. Atty. Gen., Jefferson City, for intervenors.

DONNELLY, Judge.

On February 28, 1977, plaintiff Daniel LeGrand sued Doctor Udaya N. Dash, and others, for professional negligence, in the Circuit Court of the City of St. Louis.

Defendants filed motions to dismiss contending, in part, that LeGrand‘s petition should be dismissed because of his failure to comply with § 538.020, RSMo Supp.1976, which provides that “[b]efore any action seeking damages from a professional alleging malpractice, errors, omissions or other professional negligence can be filed in any court within this state, the plaintiff in the action must have complied with the provisions of sections 538.010 to 538.080 requiring a review of the claims upon which the action is based by a professional liability review board.” Plaintiff LeGrand contended Chapter 538 is unconstitutional. The trial court disagreed and sustained defendants’ motions to dismiss. LeGrand appealed to this Court.

The assertions upon which LeGrand bases his contention that Chapter 538 is unconstitutional were raised in

State ex rel. Cardinal Glennon Memorial Hospital for Children v. Gaertner, 583 S.W.2d 107 (Mo.banc 1979), No. 60485, decided concurrently herewith. In , we held Chapter 538 unconstitutional because it violates Art. I, § 14 of the Constitution of Missouri which provides “[t]hat the courts of justice shall be open to every person, and certain remedy afforded for every injury to person, property or character, and that right and justice shall be administered without sale, denial or delay.”

It was not necessary that plaintiff LeGrand comply with Chapter 538 before filing suit in the Circuit Court of the City of St. Louis. The trial court erred in dismissing his petition.

The judgment is reversed and the cause remanded.

BARDGETT, SEILER and WELLIVER, JJ., concur.

SIMEONE, J., concurs in separate concurring opinion filed.

MORGAN, C. J., dissents in separate dissenting opinion filed.

RENDLEN, J., dissents and concurs in separate dissenting opinion of MORGAN, C. J.

SIMEONE, Judge, concurring.

I concur in the opinion of DONNELLY, J., for the reasons stated in

State ex rel. Cardinal Glennon Memorial Hospital for Children v. Gaertner, 583 S.W.2d 107, No. 60485 decided concurrently herewith.

MORGAN, Chief Justice, dissenting.

I respectfully dissent for the reasons stated in my dissent now filed in

State ex rel. Cardinal Glennon Memorial Hospital for Children v. Gaertner, 583 S.W.2d 107, No. 60485.

The trial court correctly found Chapter 538 to be constitutional and the judgment entered by it should be affirmed.