Strahler v. St. Luke's Hospital

STRAHLER, Appellant, Carol HOSPITAL, al.,

ST. LUKE’S et

Respondents.

No. 66789. Missouri,

Supreme Court of

En Banc.

Feb.

Rehearing Denied March Stites, Holliger, Ronald R. Ronald as J. Section 516.105 is follows: Actions (medical providers health City, appellant. Kansas for care malpractice.) against physi- actions —All McMullen, Foster, Larry L. Robin V. cians, hospitals, dentists, registered or City, respondents. Kansas for nurses, practical optometrists, licensed podiatrists, pharmacists, chiropractors, BILLINGS, Judge. therapists, any professional physical and entity providing other health care servic- challenges This appeal constitutional- employees any all of of the fore- es and ity malpractice of Missouri’s medical stat- acting going scope and of the course limitations, 516.105, ute of RSMo § damages employment, for for mal- applies as it We ordered the minors. negligence, practice, error or mistake re- opin- prior case transferred this Court brought lated to health shall be care ion appeals the court of because of the years date occur- within two from the of V, issue. Mo. art. of, complained neglect rence of the act of plain- dismissal 10. We reverse the § except full that a minor2 under the petition tiffs and remand the case for fur- twelfth years of ten shall have until his proceedings. ther action, bring except birthday to 23,1982, September plaintiff A. On Carol neglect in cases the act of com- which Strahler, old, years filed a then nineteen introducing plained negligently of its petition damages in single count for foreign object remain permitting any County. Plain- Circuit of Jackson living person, body of a within petition alleged tiff’s that when she was a years brought two action shall be within minor, year old defendant Dr. San- fifteen discovery of such from the date other had dow and four named defendants alleged date on negligence, or from the provided negligent careless and her with patient in the exercise of ordi- which as a direct and medical treatment and that nary care should have discovered proximate negligence, result of defendants’ alleged negligence, first whichever date complete amputation she suffered the' occurs, action any but in no event shall right leg her above the knee. error, damages malpractice, mistake be commenced after the expira; Defendants moved to dismiss the action years date the act tion of ten from the ground plaintiff’s on the common law complained neglect of. 516.105, cause of action was barred § kind RSMo because a suit Although plaintiff propounded has brought years arguments,3 within two from the must number of constitutional complained wrong challenge of actionable date of the that she raises dispositive bring 516.105, plaintiff suit until four constitutionality did RSMo § years alleged malpractice. Plain- mandate of Mo. after the is that Const, it violates the guarantees to appeals tiff from the trial court’s order § “that the courts of every her Missouri citizen dismissing medical every person, and justice shall be against defendant Dr. Sandow.1 Co., generally, Elevator were named in Evans Farmers 1. The four other defendants who petition have reached settlement with S.W.2d 593 longer parties plaintiff no this action. are has advanced state and federal 3.Plaintiff also minor, infant, in connection In Missouri process arguments equal protection and due action, is commencement of a civil with the 516.105, theory that RSMo § well as the any person who has not attained the defined as age special or local law violation of constitutes 507.115, eighteen years. Section RSMo of our state constitution. Our article And, injuries sustains due when minor challenge to disposition plaintiffs acquires negligence, he his own to another’s Const., elimi- RSMo under Mo. action, sepa- independent common law cause necessity reaching merits of nates the any parents may distinct from his rate and points. these other constitutional negligent acquire acts. See from the tortfeasor’s remedy every extinguishes certain afforded for effectively her common law person....” practical opportunity to seek le- gal injuries through redress for sustained begin analysis by pointing We out alleged negligent defendant’s although our federal Constitution is an Defendant, however, argues treatment. important frequently relied 516.105, RSMo does not con- § rights, source of individual our state Con Const, I, travene art. because § personal stitution is also a reservoir of years plaintiff, age who was fifteen at rights and liberties—some which are not alleged malpractice, the time of the could enumerated in or accorded protection by bring have recruited next to a friend suit I, our federal Constitution. Article section and was thus to institute an in able action provision in is our state one Consti her grants own under Missouri law. people tution which to the Mis express guarantee souri an constitutional Missouri, person In a who is under the not enumerated our federal Constitution. legal disability capac- still minority lacks Co., Logan But see v. Zimmerman Brush ity institute, right, to in his own civil 422, 102 455 U.S. S.Ct. 71 L.Ed.2d 265 Royston, lawsuit. See v. Scott 223 Mo. Connecticut, v. Boddie 401 U.S. 568, 123 S.W. 454 see g.,e Martin (1971). 91 S.Ct. 28 L.Ed.2d 113 Martin, 539 (Mo.App.1976) S.W.2d 756 rel. State ex Cardinal Me Glennon (an support award child made Hospital Gaertner, morial parent custodial for the benefit of children (Mo. 1979), banc we found Missouri’s minority legal who because of lack status statutorily Liability mandated Professional bring directly). 52.02(a) suit Rule re- Board, 538.010-.080, Review RSMo §§ quires that “civil actions ... minors be Const, I, violative Mo. art. 14§ prosecuted only by duly commenced and it imposed unduly because an burdensome appointed guardian ... or a next friend precondition a litigant’s right of access him_” appointed princi- for This legal to the courts. ex State rel. Cardinal ple statutory is also codified form and is Gaertner, Glennon v. 583 S.W.2d at 110. 507.110-.120, found at RSMo 1978. §§ holding Our simply Cardinal Glennon Const, principle reaffirmed the that Mo. suggests Defendant that Rule I, part art. 14 ais of this organic State’s § 52.02(c)serves to relieve a minor is at who give law and that it was intended to consti legal years least fourteen protection litigant’s tutional ability minority. disability contrary, To the gain access to Missouri’s gen courts. See 52.02(c)provides only Rule that in the case DeMay erally, Liberty Co., Foundry older, ap of a minor who is fourteen 327 Mo. see also pointment of a next friend can made Co., ex Refining rel. National persons without notice to the whom with Seehorn, 344 Mo. 127 S.W.2d 418 resides, the minor and it can be accom language contained in Mo. plished application to without formal Const, simply advisory is not however, minor, court. The must still have gives express nature: pro agrees writing a next friend who litigant’s right tection our access to This Rule serve as such. system. court simply does not imbue a minor iswho Here, 516.105, plaintiff years legal fourteen old contends that least with the ca 1978—in pacity necessary RSMo violation of Mo. to maintain a action civil unconstitutionally right.4 and* in his devitalizes own § 14— Parents, 52.02(m) 4. Defendant also cites Rule In Concerned we determined plaintiffs’ comply decision in Concerned Parents v. Caruthersville the minor failure to with governing appointment School District our rules aof next 1977), authority proposi- proved additional friend to be harmless under Rule 52.- 02(m) appellant tion was free to initiate own her because it was shown that the minors’ year adequately protected. law suit as a fifteen old minor. had been We interests although provi- escape tentially negligent It should not notice that health care present year added). case involves a fifteen old (emphasis der. minor, 1978, applies with RSMo Andrews, Tolling Statutes in Medi- Infant ripe past force all minors old Malpractice cal Cases: State Constitu- age of think conten- ten.5 We defendant’s Medicine, Legal Challenges, 5 J. tional plaintiff tion that should not now be heard complain because she was free to “initi- fact of the matter that for plainly ignores her ate own suit” the disa- opportunity pursue most minors the childhood, bilities fa- and limitations injuries common law cause system relationships, milial and our malpractice is one sustained from medical place upon years a minor of tender —who diligence inextricably that is linked to the understanding if of the com- any has little parents to willingness of their act in a plexities legal system. our of responsible timely When manner. many value-laden issues to which involving controversy very faced with a gives eloquently controversy this rise were issues, legal Supreme similar the Texas put sharp by into relief a distilled and that “it is neither Court concluded reason writing in a of commentator recent edition upon rely parents, nor to who able realistic Legal the Journal of Medicine: minors, may may who themselves be or legislatures reacted the 1970’s concern, ignorant, lethargic, lack to or perceived malprac- to a crisis medical malpractice action within bring a lawsuit by enacting types of tice insurance these Votteler, provided....” the time Sax provisions. provi- limitations While such (Tex.1983). In this go in allevi- sions no doubt some distance connection, equally we think it is unreason ating problems malpractice insur- the minor, parents a whose fail expect able to they so providers, ers and health care do timely legal rights, his to inde to vindicate only high a Their is to at cost. effect willing to pendently out another adult seek minors bar the suits of expecta next an serve as a friend. Such regard validity without their ignore family tion would the realities or the that the minors are claims fact youth. unit and the limitations of failing timely wholly innocent to restric- similarly case involved a The Sax pursue their claims. Such a result tive, identical, malprac- though not penalize unfairly to the blame- seems against ran po- period6 tice limitations minor to the less in order though plaintiffs, read as follows: the not formal- 6. The Texas statute note that adult law, guardians ly appointed, the any. were the natural Notwithstanding no claim other parties hospital plaintiffs person and were also real a against minor or covered parties liability to professional the com- insurance cov- policy interest. We also instructed practice ering person Par- licensed to medicine ply with the rule remand. Concerned ents, 52.02(m) provides podiatry to anethe- or or certified administer supra, at n. Rule 3. hospital under state or licensed appoint sia this the failure to a next friend Law, Licensing Hospital as amend- proceeding the Texas if it is render a invalid will not 4437f, Statutes), (Art. Civil Vernon’s Texas ed were that the interests of the minor determined express implied con- or whether for breach protected. Application adequately of this rule tort, compensation for or a medical tract gaining entry contemplates the a minor hospitalization case, however, be com- treatment the present the courtroom. is within unless the action filed two menced years application mi- no because the rule would have complained the or the tort breach getting inside the was barred ever nor from date the medical treatment that or from the doors. courthouse hospitalization subject of claim or the the the completed, the which the claim is made note that under 5. In this connection we years 516.105, except age of six un that minors under operation of RSMo minors eighth birthday in which years have until their after shall full of ten have until two der the behalf, file filed on their birthday this or have to file an action of tenth Except provided, this section Hospital as herein St. claim. applies McLeran v. Luke’s kind. See minority regardless persons to all City, S.W.2d Kansas legal disability. 1985). or other minors, who under Texas 52.02(a) law lacked the courts. See Rule 507.110. capacity bring their own lawsuits.7 The right aspect That of access is “an Supreme Texas Court held statute right petition government explic ... ran afoul of the state’s constitutional due itly preserved in the constitution Missou provision. clause and courts ri.” State ex rel. Me Cardinal Glennon employed The court a test that balanced Gaertner, Hosp. morial at S.W.2d litigant’s right to redress and the ex- right tent to which this had been burdened Recognizing that a minor lacks legislative purpose of the stat- legal capacity bring an action in his own ute employed by method legis- right as well as gen the difficulties which lature to reach the ends desired. After erally ability surround a minor’s to vindi applying test, Supreme Texas cate, initiative, his rights, own his arbitrary held statute to be an applicable statutes of limitations per legislative and unreasonable exercise of sonal have traditionally suits been power pertains minors because the tolled for minors. Section RSMo “effectively statute abolishes a minor’s Cum.Supp.1984. prosecution ac of an bring a well-established common guardian aby tion an next friend is law cause of action without providing minor; option available to failure of Votteler, alternative.” reasonable Sax bring next friend to mi during not, however, nority destroy does the cause case, Turning to the present fully we action, generally Nor speaking. for that appreciate legislative the purpose intended running matter does the aof statute 516.105, by we RSMo are un- § technically “destroy” limitations a minor willing being to denominate it illegit- as plaintiff’s right of action: it merely bars imate, we think the employed but method the maintenance of the action and leaves by the any escalating battle injured party the remedy. without a See economic social costs connected with Dixon, generally, Herrman v. malpractice litigation medical exacts far Thus, (Mo.App.1956). general the toll high price too from plaintiffs minor like ing provisions preserve 516.170 the § Carol Strahler and all other minors similar- cause of action a minor safeguard for ly plaintiffs situated. For minor like Carol guaranteed the minor’s constitutionally Strahler, the by legisla- cure selected the right of access to the par courts—even if prove ture would pernicious no less than ents, guardians having custody or others it disease was intended to remedy. a child the child’s fail requirement that by actions “[c]ivil rights. minors prosecuted be commenced and only duly appointed guardian statutory period, of such limitation minor (emphasis added), minors, ...” applied acts as right an violates their impediment to a minor’s access to the access to our courts8 under Mo. (Vernon 1975) (1983) Texas Ins.Code Hosp., Ann. 5.82 6 Ohio St.3d N.E.2d 1337 1977). (repealed (statute declared unconstitutional under state equal protection analysis). only jurisdiction 7. Texas is not the which has defendant, According malpractice held a the result we reach state medical limitations stat- today Laughlin our is foreclosed decision in applied ute unconstitutional as to minors. See (Mo.1968). Div., Forgrave, Our Magma Copper, Barrio v. San Manuel however, Laughlin, speak (1984) (statute decision in does Ariz. 692 P.2d 280 unconsti- present issues in the raised case—because tutional under Arizona’s state constitutional Laughlin guarantee against in we decided medical abolition of the fundamental malpractice at right damages statute limitations in force by way to recover of a common 516.140, time, action); Maurer, § RSMo was not tolled law Carson 120 N.H. complained damage (1980) (statute until the of was discovered. 424 A.2d 825 state violates consti- protection tution because it contravenes In re- the course of decision we also principles); unquestioned right legisla- Schwan Riverside Methodist affirmed the BLACKMAR, guarantee DONNELLY and WEL- and renders vacant the § LIVER, JJ., separate opinions in dissent this constitutional contained filed. in no uncertain “that declares terms justice every the courts of shall ROBERTSON, Judge, concurring. person, remedy afforded for certain ” I result reached concur every person.... To injury to the extent principal opinion. deprives minor medical Assembly, In General Sec- 78th own claimants to assert their Session, adopted Regular three laws ond dependent individually, makes them claims of medical designed to address the issue on the actions others to assert provided malpractice. H.C.S.S.C.S.S.B. claims, and works a forfeiture of those authority in the State Board additional years, claims if not asserted within two Registration Healing Arts for the provisions of 516.105 are too severe an licensing discipline physicians. awith minors' state constitu- interference 334.100, RSMo H.C.S.S.S.S.C.S. tionally right of access to the enumerated professional liability re- S.B. 471 created a justified by the state’s interest courts to be designed view to mediate claims of board remedying perceived malprac- prior filing professional malpractice tice crisis. Chapter of an action the circuit court. society great pride in the fact takes Our 470 im- RSMo 1978. C.C.S.S.C.S.S.B. ready the law remains forever alia, special posed, statute of inter rights minors. “jealously guard” malpractice which is limitations for medical 516.105, arbitrarily RSMo 1978 Section litigation. in the before this Court instant unreasonably rights denies them a set of Me ex rel. Cardinal Glennon providing any adequate without substitute Gaertner, Hospital Children morial We course of action for them to follow. 1979), this Court per- as it consider RSMo Chapter provisions struck down minors, statutory to aberration tains legislation violated ground on the that that which runs afoul our state Constitution to guarantee of access our constitutional accordingly constitutionally we hold it 14. courts. infirm. Court stated: judgment is case reversed is said right to the courts of access to the circuit court for further remanded DeMay Magna Charta. to to trace back proceedings.9 Co. 327 Mo. Foundry v. Liberty (1931). It has aspect of the be an been held to HIGGINS, J., C.J., RENDLEN, con- in government contained petition the cur. States United First Amendment Motor Trans J., separate ROBERTSON, in Constitution. concurs California Unlimited, Trucking port Company v. opinion filed. limitations, infirmity present in § also but we to enact statutes of ture legislature is RSMo 1978. in the same breath that noted empowered of limitations to create statute not WELLIVER, J., conjures up and The dissent of is one would be "unreasonable" —that which men of due the dual straw then knocks down infringe upon enumerated con- would an which protection. equal The dissent process right. Though opera- found the we stitutional J., DONNELLY, As third diversion. creates a particular in of limitations statute tion narrowly ruled carefully this case is we note Laughlin to be harsh and our decision distaste- guarantee in Mo. found courts under the Const, ful, plaintiff that the we nevertheless concluded concerning Questions limit- was con- how the statute failed to demonstrate recovery, “caps”, and other ing the amount case, stitutionally present how- infirm. relating minors are not statute of limitations ever, plaintiff succeeded at this task. has us in this case. before Laughlin remedy holding does not Our in 508, 510, guardians, custody 404 U.S. having S.Ct. of chil- others importantly, may depended L.Ed.2d Most it dren be preserved explicitly (2) in the rights, Constitution children’s a child of the of Missouri. age of 10 and his above able to advise any physical problems custodian Glennon, supra Cardinal at 110. might inquiry indicate a need as to This Court’s today decision is the natural possible malpractice. born, legitimate offspring of Cardinal unreasonable, assumptions While Glennon. one of the members of These are not majority legislature Cardinal and the Glennon now is entitled make them questions the wisdom of his vote in balancing interests claimants and case, Welliver, dissenting J., opinion defendants, see drafting while a statute of limi- fn. Cardinal Glennon remains the law tation. The statutes limitation on majority until a actions,1 the members of this wrongful death and on securities My Court determine otherwise. claims,2 concur- been have held to run mi- rence in precedent this case adheres to the Any then, protection, nors. must necessar- which Cardinal Glennon establishes. ily parents guardians. Any come from suggested distinction cre- between actions ground upon principal which the ated existing statute and those at com- opinion rests —access to courts—is nar- mon lacking law is constitutional sub- view, implicate, my It does row. legislative stance. The matter is one broader concerns of the due choice. protection guarantees consti- tution. The well-researched dissent of Wel- take, I In the view makes no difference liver, J., principal opinion reads the far 507.110-120, RSMo 1978 and our §§ broadly more I than do. 52.02(a) ability Rule limit the of minors to sue in their newly own names. A enacted Nor por- does this necessarily decision statute should not fail because of conflict legislature’s tend ill for the current effort previous with statutes or It should rules. revamp the law malpractice. of medical be rather assumed that the in- legislation That presently us; is not before newly statutory provi- tended the enacted judge we not now its adherence to effective, anything sions to be the exist- constitutional standards. Those who would body statutory contrary ing law the legislation attack that should great- find no notwithstanding. Conflicting provisions, er principal comfort in the opinion than then, should considered have been already exists in Cardinal Glennon.

impliedly pro repealed tanto.3 BLACKMAR, Judge, dissenting. Although I doubt that a turn court would assumptions necessarily age sought Two of any pro- underlie aside a minor who issue, (1) in parents, the statute legal rights, as follows: tection of find im- and would See, Riehn, (Mo. e.g. Crane v. S.W.2d 525 lates art. of the Missouri Constitution— § 1978) (superseded by banc statute as in open provision. stated the courts least At one other Peters, State ex rel. Research Medical Center v. challenge state has considered a to a similar (Mo.App.1982)); Kausch v. Bish Rohrabaugh Wagoner, similar In law. (Mo. 1978); op, 568 S.W.2d 532 banc Edmon (1980), Ind. 413 N.E.2d the court found Hospital, sond v. Lakeside imposed two-year that lawa which statute of (all 1978) holding provisions minors to the malpractice, exception limitations for with the wrongful the former Missouri death statute age bring that minors under the of six could suit prevented bringing which minors from suit up eighth birthday, their not violation was year following more than one of a the death Indiana courts of the alive). parent parent aif of the decedent was Appellant distinguish Constitution. tries to Rohrabaugh prevent because Indiana does not Pierce, Lynch, 2. Buder v. Merrill & Fenner However, bringing minors from suit. for the Smith, (E.D.Mo.1980), F.Supp. aff'd., (8th Cir.1981). paragraph, stated in text such reasons the F.2d 690 unimportant. distinction is majority opinion 3. The § holds that is RSMo 1978 unconstitutional because it vio-

plied authority appointments to make such at that may so suit be filed within necessary as protect required are the the of years. minor’s number Far more often, interest, argue sug- I I suspect, delayed would not the suit with the minor’s is gestion opinion strategic reasons. The principal that it is parents to damages sue for their on expect steps unrealistic to minors to take own (as, account the minor’s we rights. are further own The essen- told, parents plaintiff done) then, of this have question, tial the legisla- is whether that, gives great reason to believe may provide rights ture that these must be cases, they majority of take care to will guardians, protected parents or under protect legislature child’s interest. pain I being barred. believe that the proceed is entitled accordance with its this, legislature may possi- do appraisal greatest good bility that some minors effec- not have greatest number. We should not interfere guardians tive or alert does not raise an choice, except with its in extreme cases. significance. issue of constitutional principal A further fault in the opinion is Any may operate statute of limitations apparently that it disables the case, by barring harshly particular an enacting gov- from statute limitations claim, though apparently meritorious even any erning common law action which runs injured party protec- lacks means minority. apparently during It would not say is tion.4 It not for us to whether there possible be to have a runs in statute which It is or not a crisis. is suffi- is one, in parents cases as legislature may legitimately cient that the claim, perfectly are aware of the minor’s possibility itself with the concern exceptions when the mi- but which admits providers health will disadvan- severe show, upon reaching majority, nor can tage against if forced to defend themselves parents incapable pro- guardians were long past events. claims based (Oliver Twist). viding protection We legislature may hardship balance the unduly should be careful not to circum- against possibility defendants legislative power. scribe the plaintiffs may some lose valid claims.5 It duty uphold judgment. I legislation is our would affirm the challenges, unless unconsti- DONNELLY, Judge, dissenting. firmly I am tutionality demonstrated. here, such a demonstration unable find view, purpose my it serves no useful either under Art. 10 and 14 of the legis- question §§ of whether the address a Constitution or the due Missouri unwisely. lature has acted clause of the Fourteenth Amendment. appeal classifi- The issue on this is one of great permits majority statute minors: When the General cation between It should claimants themselves. in 1976 to Assembly amended 516.170 simply (see 516.105) because its entirety deprive not fail its of its certain minors operation perfect. (economic rights), in all counts tolling provisions did it special there- render 516.105 a law and opinion up principal conjures Ill, fore a violation of specter parents of the child are so whose 40(6)? they unsophisticated indifferent or us, I I I lapse. seriously think not. On the record before let a claim would valid say Assembly’s suddenly up cannot the General child wake doubt that this will See, ground legislature's Forgrave, that the classification was e.g., Laughlin 4. 1968), Cal.App.3d Campbell, this Court held that a 142 where reasonable. Kite v. 793, 363, (1983); of limitations Cal.Rptr. was barred the statute woman 367 Licano v. 191 though 1066, Krausnick, she did not discover then in effect even (Colo.App.1983); 663 P.2d 1068 statutory time limit. 661, until after the Rohrabaugh Wagoner, 274 413 Ind. (1980). 891 N.E.2d upheld have similar in other states Courts challenges on the statutes constitutional

15 tution, (1970); Wilkes, justification.” without “rational 45 Wash.L.Rev. 453 Kras, 434, 446, United States v. 409 The in U.S. New Federalism Criminal Proce- 631, 638, (1973). 93 Burger S.Ct. 34 L.Ed.2d 626 dure: State Court Evasion of the Court, (1974); Ky.L.J. Williams, 421 62 respectfully I dissent. Processes, 24 State Constitutional Law Mary (1983); Wm. & L.Rev. 169 Vermont WELLIYER, dissenting. Judge, Jewett, (Vt.1985). 500 A.2d 233 How- respectfully I dissent. ever, seeking state courts base decisions principal opinion obvious flaw in the provisions own state constitu- lies in the with which it ease reaches its obliged tions are to conduct constitutional analysis conclusion without constitutional analysis of their own in constitutions the application without of a constitu- same fashion inquiry as test guise tional or standard. Under the under the federal constitution. Nettik- See Constitution, construing majori- our State Simmons, Theory A Towards Con- State ty legis- of this has emasculated Jurisprudence, stitutional 46 Mont.L.Rev. lature’s effort to deal mal- latest with the (1985). 261 practice escalating crisis and the crisis Const, Examination of Mo. 14§ they medical costs. This done have while indicates that section but another considering was further Votteler, due clause. Sax v. Cf. existing limitation and restriction of the 661, (Tex.1983)(court 664 held malpractice. law of action is reminis- Such “Open its Provision” was Courts era, cent the Lochner as it came to be process clause). second due known,1 when state and federal courts act- A majority of state contain constitutions super-legislatures striking ed like down language similar to that in Mo. legislation not consistent their own with origin language 14. The of this is well views. Mag- known can be traced back to the principal opinion correctly suggests Carta, chapter na 40: some instances state constitutions sell, we To no one will will none We protections offer not secured the Bill of deny delay, right justice. Rights Constitution, of the United States is in rights but it the area of of criminal language This line in the followed rights defendants and certain fundamental Magna securing Carta what is now called speech free that judges and com- Magna Carta, “due process of law.” Ch. generally urged mentators have state Chapter 40 was “intended as a death courts to into their delve own state consti- judiciary corrupt demanding blow to the provisions, pro- tutional the area of gratuities oppressive giving or with tecting expanding litigation. tort See holding pending decisions cases.” Hen Brennan, generally State Constitutions and State, 137 derson v. Ind. 36 N.E. Rights, the Protection of 90 Individual 260 generally See Knee v. Balti (1977); Howard, 489 Harv.L.Rev. State Co., Ry. more 87 Md. City Pass. A. Rights Courts and Constitutional in the (1898); 892-93 Lommen v. Minne Burger Court, Day Co., U.Va.L.Rev. apolis Light 65 Minn. Gas (1976); (1896); Liberal Trend?: State Constitu- N.W. Conley v. Woonsocket Sway, (January Inst., tions Gain A.B.A.J. Pepper, 11 R.I.147 Harrison 1986); Linde, Things Co., Willis, First First: Rediscov- & v. T.J. Tenn. 48-9 ering Rights, State’s Bills of Cadigan, U.Balt. 73 Vt. 50 A. Symposium, L.Rev. 379 Role noted constitutional scholar, Howard, Rights a Bill of in A Modern explains: State Consti- A.E. Dick Paul, Supreme tion in the The generally 1. See A. the Court: Protection of Conservative Crisis & Bench, Interests,” Rule of of Law: Attitudes Bar & 1870- Economic U.Chi.L.Rev. 324 (1976); Siegan, B. Economic Liberties and Currie, (1980); the Constitution The Constitu- King oppressions during country’s the of the in English practice Because and our unjust the exactions of officials often period. need read Black- colonial One through went unredressed failure Commentaries, 3 Blackstone 267-69 stone’s procedures legal abide and the laws of (1768), following the or Charles Dickens or realm, Magna pays special Carta at- excerpt from an eminent historian to machinery justice tention and problem English- grasp the that concerned carefully spells out where courts are to ultimately Americans: men and sit, followed, procedures what shall be Heart-breaking delays and ruinous costs be meted punishments and how can out. were the lot of suitors. Justice was dila- ** * Magna Prior Carta the courts uncertain, tory, expensive, and remote. person King followed the wherev- costly lottery: To the rich it was a seeking justice er he Persons went. poor right, a denial of ruin. certain undergo expense, had therefore profited class most its dark who pursuing delay, frustrations mysteries lawyers themselves. were King in his movements constant about might beggary A suitor be reduced indeed, plaintiff countryside; one fol- madness, his but advisers revelled King through England and lowed the lifelong of a suit and chicane and artifice five his case years France before grew forms multiplicity rich. Out of a could be heard. fees processes arose numberless Many well-paid offices. subordinate states, “To no one will We Chapter functionaries, holding super- sinecure or sell, delay, right or deny, to none will We enjoyed greater appointments, fluous justice.” This mean that liti- does not court; judges of the emoluments than the gants expect in the courts can to be suitors, again, the luckless fell simply all; it means charged fees no charge egregious of these establish- trade, justice is not an article of made, complaints they If were ments. price and its is not to determined igno- repelled promptings as the were according the market will bear. to what if of the law were rance: amendments King chapter time 40 served to John’s as innova- they resisted proposed, were abuses; eliminate at least the worst Eng- perfection of question To tions. guide standard to the administration the wis- lish was to doubt jurisprudence centuries, justice later its influence political here- ... a dom of ancestors If great. taken to mean that was expect no say could toleration. which poor to rich and courts should be England History May, T. Constitutional alike, times itself to modern commends (Holland ed.1912). Colonists were well as well. corruption in potential aware Howard, Magna Carta: Text and Commen- they includ- justice2 administration See added). (1964) (emphasis tary or state consti- ed their colonial charters McKenchnie, Magna also W. A Carta: chapters 39 provisions taken from tutions King Charter Commentary the Great Magna For the most Carta. and 40 of the (1905); Taylor, Origin H. John 459 Rights, in- Bill of part, Missouri’s English Growth of the Constitution now cludes what Thomson, (1890); Essay R. An Historical Rights Bill in accord with was drafted King John Magna on the Charta from other in earlier constitutions found Chapter the evils Despite appeared provision originally persisted states. designed remedy chapter was Ideological Florentine Political Bailyn, Ori- the Machiavellian Moment: generally B. 2. See Republic Thought El- Tradition gins Revolution R. and the Atlantic of the American lis, Pole, Representa- and Politics Crisis: Courts The Jeffersonian J.R. Political 506-52 Pocock, Young Republic J.G.A. in the

17 general During History as the State’s due the clause.3 Constitutional Territori- Const, Period, (1914). XIII, 9 (1820). al Mo.Hist.Rev. 1 gen- Mo. See art. 7 Shoemaker, erally F. The First Constitu- I, 14 Present Mo. has been Missouri, (1912). tion of 51 6 Mo.Hist.Rev. interpreted many our by occasions Shoemaker, See also A of opinions, together Sketch Missouri courts.4 The with the writ, England Origins the tion in and of the are American remedial conceived in such terms as (1966). Republic 228 properly particular griev- adapted to his own ance. language suggesting remedy 3.The that a should (1768). a 3 Blackstone Commentaries 266 Such every injury person, property be afforded for to principle any wrong, of assures “for law that or is drawn character from the ancient common law, by recognized person as such the a shall developed response law which maxim to the remedy have a obtain the to he redress which English system. writ according principles is entitled to the of law." Whenever, necessary enlarge it became the Co., 252, v. Francis Western Union Tel. 58 Minn. Court, scope King’s change of the the could be 1078, (1894). 59 N.W. 1079 See also Cheswold simply by the of effected invention a new set Const., Volunteer Fire v. Lambertson 462 A.2d forms, early development of and so the of 416, (Del.Super.Ct.1983). 422 jurisdiction King's very closely of the Court enlargement sphere the resembles of the of an 433, (1883), Campbell, 4. In Landis v. 79 Mo. 439 body by administrative of means the inven- provision only the de court held that was tion of new administrative routines. Once the signed to assure access administra formed, development was habit long future a for justice recognized wrong. tion of when the law a simple. time seemed Glanvill had de- Buchanan, 413, Quinn See also 298 v. S.W.2d royal very scribed court which had little 1957). (Mo. 417 banc State ex rel. National Cf. enlarging jurisdiction beyond interest its Seehorn, 547, Refining Co. v. Mo. 127 344 generations certain matters. Two later Brac- 418, (1939). Similarly, S.W.2d 424 Schulte ton described this same us court shows Mo., Corp. Missionaries LaSalette 352 greatly machinery; how indeed, it had its of of elaborated (Mo.1961), S.W.2d the Court observed ready Bracton was even 641 contem- “[sjection 14, I, that Art. was never intended to plate expansion an indefinite of the common rights, merely create but citizens King’s law in virtue of which Court towas enforcing recognized rights by the law variety administer a law as rich without and as its previous expound in its as discrimination.” A had wide extent case Roman law itself. The whereby rights recognized prodigious expansion concept means of such a ed on law to be was effected was the invention of new and held that it referred to law common actions action; many judicial legislative forms subject change. DeMay new forms were in- Raleigh, Co., vented Bracton's Liberty hero Foundry Brac- 327 37 Mo. S.W.2d saying ton had no hesitation in that (1931). there will suggests 645-48 Another decision many be as forms action there are cause legislature prohibits that it from encroach ought remedy action. “There to be ing upon province judiciary. of the Ex Parte wrong; every wrong perpe- if some new be French, 315 Mo. 285 S.W. 515 may trated then a new writ be invented opinion Yet another relates it.” programme. meet This was a It bold persons “means will not barred from contemplated special through sets of forms proper cases there Missouri courts in where King’s gener- which the Court would exercise jurisdiction parties venue and jurisdiction remedy every al and afford a Co., subject matter.” Collar v. Gas. Peninsular wrong. (Mo.1956). also S.W.2d See Loftus Plucknett, History T. A Concise Common Lee, (Mo.1958); S.W.2d rel. ex Law 354 Blackstone observed: Ry. Mayfield, Southern Co. principally arises from [I]t the excellence (banc 1951). S.W.2d laws; English adapt our their redress recently, this More Court discussed art. exactly injury, to the circumstances § 14 in State ex rel. Cardinal Glennon Memorial do not furnish one and the same action for Gaertner, Hospital v. wrongs, impossible different which are to be case, 1979). In that held brought description: within one the same prohibit litigant cannot from whereby every man knows what satisfaction filing his or her sub- before expect he is entitled to from courts mitting the claim to the Board. Cardinal Glen- justice, possible and as little as left in the obviously suggests application non broader judges, appoints breast whom the law any prior than cases. The administer, prescribe not to the reme- subsequent passage of time and decisions from affirm, dy. IAnd venture to that there is jurisdictions persuades Morgan, other me that J. hardly possible injury, can be offered dissenting, Judge with whom Rendlen con- another, person property either curred, accurately analyze did more the consti- injured may party for which the not find a 18 14, recognize (1976). history Angus See also Harmon v. R. § Const, Associates, 522, together Jessup

that this with Mo. 524 section Inc. 619 S.W.2d XIII, (Tenn.1981). (1820) Many art. courts have held that 9 constituted our then § adoption legislature may due abolish a common law process clause. After the Const, clause, action, regardless general process presence cause of the due I, 10), II, (1875)(now provision. art. art. in the of such a constitutional See 30§ § Lawrence, Dykes, form of fourteenth amendment Fire Ins. v. Hartford Constitution, supra. Goodenberger, provision United retention art. States I, concept prohibit imposing part 14 as a of our state due does not reasonable process requires limits the time must be examined within which one interpreted in in the accordance with the same seek redress court. See Phelan v. employed Hanft, 648, (Fla.Dist.Ct.App. standards and tests that are 471 So.2d 649 1985); any process analysis. Academy Imp. City due Park v. Newof Orleans, 2, (La.Ct.App.1985); 469 3 So.2d Today, majority of jurisdictions treat Marks, 499, 218 Rosnick v. Neb. 357 challenges “Open Courts under state 186, (1984). N.W.2d 191 See also Noetzel in the fashion as due Provision” same Glascow, Inc., 458, Pa.Super. 487 v. 338 process challenge.5 Fire Ins. See Hartford 1372, (1985); Gowing, A.2d 1378 v. Walsh Lawrence, Dykes, Goodenberger, v. 740 543, (R.I.1985). 494 A.2d 547 While (6th Cir.1984); 1362 F.2d Cheswold Vol up question initial of reasonableness is Co., Lamertson unteer Fire Co. v. Const. legislature, province it is still"the 416, (Del.1983); 462 A.2d 422 n. 9 Nelms v. challenged if the re courts to determine Ass’n, Georgian Manor Condominium arbitrary striction unreasonable Inc., 410, (1984); 453 330 Ga. 321 S.E.2d litigant process. thereby denies a due (La.Ct. Whitecloud, v. 455 So.2d 1279 Crier inquiry apply equally should Such an Catalano, App.1984); Klein v. 386 Mass. areas, filing statute of limitations all 701, 514, 437 519 n. 6 N.E.2d Saultz areas, similar re fees in all and all other Funk, 29, App.2d 64 Ohio 410 N.E.2d v. strictions. (1979). jurisdiction At least one has clear, therefore, chal held It seems that the that the constitutional was Const, lenged of courts and statute neither violates Mo. directed toward the action I, legislature. nor Mo. Reeves Ille Electric 647, Co., is plainly 650 unless it unreasonable.6 170 Mont. 551 P.2d Constitution, challenges access proved has be Under the United States tutional and what jurisdictions. majority embraced within the due the view of the courts is right or inter clause when fundamental merely pre- 5. Some courts and commentators generally Nation est is See Walters v. involved. knowledge sume of the intended directive — -, Survivors, al Radiation U.S. Ass’n of language proffer a this constitutional differ- (1985); Ortwein 87 L.Ed.2d 220 S.Ct. view fashioned out of whole cloth. See ent Schwab, S.Ct. 410 U.S. Bass, generally Access to Article Section 21: Kras, United States L.Ed.2d 572 Florida, (1977). 5 Fla.Stat.L.Rev. 871 Courts Connecticut, U.S. Boddie v. 401 U.S. 28 L.Ed.2d 113 S.Ct. array be no doubt that the vast 6. There should involving generally crimi issue arises cases pose statutes no serious litigation access fees. See nal defendants challenge. courts federal constitutional Federal Michelman, Supreme generally Court and recognize legislatures may routinely that state Litigation Right to Protect Access Fees: abolish, limit, recovery for com and restrict the 1153; Anriot., Rights, L.J. Ac One's 1973 Duke long no law of action as as there is mon causes Courts, (1978). More 52 L.Ed.2d 779 cess to legal right. See Hart impairment of a vested over, griev petition government for Lawrence, Dykes, Goodenberger, Fire Ins. v. ford speech guaran free ances is a first amendment Lauter, (6th Cir.1984); High 740 F.2d 1362 legis speech assuring free before tee citizens Rejects Challenge "Cap,” Fee Court California by malprac body implicated lative and is not Journal, December at 5. National Law Smith, generally See McDonald v. tice statute. must, Consequently, of neces the statute almost — -, 86 L.Ed.2d 384 105 S.Ct. U.S. analyzed sity, chal under state constitutional lenges.

IQ Laughlin Forgrave, resentative” have until the should minor’s 1968), ABA, general eighth birthday to commence a stated the suit. that, Report rule of the Commission Medical I, therefore, Liability. Professional cannot legislative govern- branch of the [t]he unreasonable, believe that it is from a con power ment has the to enact statutes of legislature for perspective, stitutional power limitations inherent in and is expect protect to that others a minor’s will power to fix the date when stat- Indeed, areas, rights. all almost the law ute commences to run. of limi- Statutes guardians expects parents will look tations are favorites and of law will protect after and Ab the child’s interest. denying held unconstitutional as presence right, sent the of a fundamental due process unless the time allowed for parents expected are and allowed to exer commencement the action and the date decision-making authority cise broad over fixed when the statute commences run Baird, their 443 children. See Bellotti v. clearly plainly are unreasonable. 622, 3035, U.S. 99 61 797 S.Ct. L.Ed.2d Forgrave, supra, Laughlin v. at 314. See 584, J.R., 442 Parham v. 602- U.S. Mines, also v. Casey Caccarelli Canadian 03, 2493, 99 S.Ct. 101 61 L.Ed.2d Ltd., 548, Cir.1985). (3d F.2d 757 555 This statute, therefore, pass should consti already upheld general has two analy process tutional muster under a due year statute of limitations for claim sis. against a provider. health care Ross v. principal opinion’s on reliance some City Hospital Kansas Gen. & Medical jurisdictions minority of the is view Center, 1980); 608 S.W.2d 397 misplaced. applied The Arizona court Laughlin Forgrave, supra. v. The in- analysis spe strict of a scrutiny because then, quiry, should turn it whether is provision cific creating a fun apply unreasonable to this same rule to damages neg damental to recover for minors over the of ten. ligence; analysis led the court strike legislature It is not unreasonable for the general down state’s statute of limita expect or require that protect others tion as applied and the one to minors. See balancing interests a minor. When Hosp., Barrio v. San Manuel Div. Magma need assure providers health care 692 280 Copper, 143 Ariz. P.2d potentially insurers that stale claims Hammer, Kenyon v. 142Ariz. 688 P.2d brought will not be twenty some ten to reasoning That court’s years alleged malpractice after the require that Laughlin would we overrule needs minors who are victims of Forgrave, supra, v. and strike down all malpractice, ours is not the The same be true 516.105. would under presumed parents, guardi Maurer, reasoning Carson ans or others would a minor’s (1980), N.H. A.2d 825 wherein the rights.7 majority “A of states have abrogating court invalidated a statute changed their statutes limitation as discovery applying rule the statute minors, longer these apply permitting no limitations to minors because the chal suit during minority to be lenged satisfy classifications failed to brought by claimants they when reach ma scrutiny pro middle-tier under an Danzón, jority.” Frequency P. analysis. reasoning adopted tection Severity Malpractice Medical Claims court, holding analysis the Texas that the (1982). Most of these states to some ex governed by two-step balancing test proposal tent ABA clauses, followed the which rec under its two due state’s applying require ommended the statute of limita would also that we overrule Laugh except Nelson, (Tex. rep Neagle tions to minors that a “minor’s lin. 685 S.W.2d 11 barred; rather, accurately 7. The is not a traditional statute of the statute is more specifies period a time repose. limitations which after statute described as a which an accrued cause of becomes 1983); Wagner, 79 1985); Krusen, Anderson v. Ill.2d Nelson (Tex.1984); Votteler, Sax Ill.Dec. 402 N.E.2d (Tex.1983). Gafford, 692 Desemo v. Wagoner, 274 Rohrabaugh v. Ind. Cf. (Tex.App.1985). might be S.W.2d 571 It (1980); McCarroll v. Doc N.E.2d balancing major factor in the noted (Okl. Hospital, 664 P.2d 382 tors Gen. employed test that under Texas Sax 1983). It is not the function of this Court law their own suit minors not initiate or not there exists a to determine whether any attempts subject do are so or a medical cost crisis. crisis Keith, The Tex generally abatement. See questions legislative fact These are Im Liability and Insurance as Medical people of this state decide via their Analysis provement Survey Act—A legislature. Nor do I believe that was History, Its Construction and Constitution distinguish for the irrational (1984); The Law ally, Baylor 36 L.Rev. 265 over under minors ten minors between Malpractice, 22 Houston of Texas Medical legislature may ten. The have determined Comment, (1985); v. Sax Vot L.Rev. 8§ is ten and older a minor old Supreme Court Pre teler: The Texas enough the result of to become aware of Legisla Strong for the Medicine scribes malpractice capable of any medical ture, 295 21 Houston L.Rev. communicating physical complaints their argues that the statute Appellant also Rohrabaugh parents or others. See It rights equal protection. violates her supra, 413 N.E.2d at 895. Wagoner, v. challenged classifi is well settled that such an access to This case does not involve a fundamen which neither burden cations question question. The is sole the courts implicate suspect class will tal nor of limitations or not the statute whether rationally is upheld if the classification muster when legislature meets interest. set legitimate state related equal Registration Giffen, light v. 651 of due Bd. examined (Mo. 1983). I believe jurisdictions 479 banc majority S.W.2d protection. minors who are that the classification of provisions are constitutional say that such provider tort victims of health care recognize the reason- too should and we tortfeasors who are victims of other minors legisla- taken of the action ableness legitimate state rationally is related to the aspect of this significant The most ture. malpractice controlling insur interest precedential effect case lies the future Redish, Legis generally ance costs.8 See apply If it is unconstitutional to the case. Malpractice Response to the Medical lative of limitation to actions a statute Implica Insurance Crisis: Constitutional why is it not also unconstitu- malpractice, tion, v. 759 Brubaker 55 Tex.L.Rev. attempt to limit the amount tional to (10th Cir.1984); Cavanaugh, 741 F.2d 318 cap on the recovery place amount 152, 157- F.Supp. Limberg, Hargett malpractice actions?9 in medical recovery 1984); (D.Utah Fite Reese Rankin of limitations unconstitu- If this statute (Ala. 160-61 Hospital, 403 So.2d Mem. courts, it limits access tional because 1981); & Trust Co. American Bank relat- why statutes limitations are all 359, 204 Hospital, 36 Cal.3d Community for the same ing to unconstitutional minors 671, 678, 683 P.2d 670 Cal.Rptr. reason. Cal.App.3d Campbell, 142 Kite v. University Randolph David Smith Licano Cal.Rptr. 366-67 Faculty, writing for the (Colo.App. Vanderbilt Law Krausnick, 663 P.2d Cal.Rptr. Hospital, Community munity 671, Cal.3d & Co. v. American Bank Trust In 677 n. 10 n. 683 P.2d and 3 that 23 states Hospital, the court observed pro passing similar federal circuits respects, has stated that the Court other malpractice challenges involving statutes tection damages. Fire will not examine the amount constitutionality upheld of such classi have Corp., Redevelopment stone v. Crown Center Co. v. Com Bank & Trust American fications. 1985). Oklahoma Law article Review an enti-

tled, “Battling Receding A Tort Frontier:

Constitutional Malprac- Attacks on Medical Laws,”

tice suggests:

Central to judicial this trend of reversals discovery tort reform laws is the

rediscovery of state constitutional inter-

pretation by judges. state court In stark

terms, remedial laws

undermine many a tradition that state judges

court personal inju- hold dear: the

ry plaintiff’s lawyer. suit and the Be- factors, person-

cause these successful

al tort law reform must come

through legislation. federal Reliance on legislation very

state misplaced. much

Smith, A Battling Receding Tort Fron-

tier: Constitutional Attacks Medical Laws,

Malpractice 38 Okl.L.Rev.

I judgment. would affirm the Missouri, Respondent,

STATE of ALEXANDER, Appellant.

Max Leon

No. 67326.

Supreme Missouri,

En Banc.

Feb.

Rehearing Denied March

Case Details

Case Name: Strahler v. St. Luke's Hospital

Court Name: Supreme Court of Missouri

Date Published: Feb 18, 1986

Citation: 706 S.W.2d 7

Docket Number: 66789

Court Abbreviation: Mo.