This аction was brought by appellants Leonard A. and Carol Wheeler, the adoptive parents of Rachelle Wheeler, a minor, tо recover, on her behalf, damages for the negligence of defendant/appellee, Dr. Francis Xavier Lenski, Jr., during her birth and shortly thereafter in failing to diagnose and treat her hydrocephalic condition. Dr. Lenski was the treating physician of the natural mother at the birth of Rachelle Wheeler on June 8, 1971, and continued to treat Rachelle until September 15, 1971, when she was referred to a neurosurgeon who discovered and treated her hydrocephalus. As a result of this condition, Rachelle Wheeler suffers from spastic quadriplegia, visuаl impairment, and mental and motor retardation.
This suit was filed February 29, 1980, and the trial court held that it was barred by what is now K.S.A. 1982 Supp. 60-515(c). *409 This statute, enacted by the 1976 legislature, shortens the period of limitations for persons under eighteen years of age to an overall limitation of eight years “beyond the time of the act giving rise to the cause of action.” Negligence of Dr. Lenski prior to February 29, 1972, would not, therefore, bе actionable.
The plaintiffs have appealed asserting that the defendant/appellee waived this defense by asserting it for the first time in an amended answer filed out of time and without permission, or that K.S.A. 1982 Supp. 60-515(a) violates their rights to due process and equal prоtection of the law.
Defendant’s first answer on May 19,1980, was filed nearly two months late and did not raise the statute of limitations as a defense. On June 26, 1980, an amended answer was filed, without court approval, which first asserted the statute. The parties continued discovery until the defendаnt moved for summary judgment on November 21, 1980, and the plaintiffs then, in response, objected to the amended answer. The trial judge noted that the рlaintiffs had not requested a default judgment or filed a request to strike the amended answer but had continued discovery until the time to respond tо the motion for summary judgment. The court held that the lapse of time and the failure to object to the pleadings was a waiver by the plаintiffs of their right to object. Amendments to the pleadings are within the sound discretion of the trial court and no error will lie unless such discretion is abused.
Commercial Credit Corporation v.
Harris,
Prior to 1976, a minor or person under legal disability had one year after reaching the age of majority or the termination of disability to sue for damages. The 1976 legislature shortened this period to eight years as part of its response to the report and
*410
recommendations of a special interim committee on medical malpractice. Report on Kansas Legislative Interim Studies tо the 1976 Legislature, Part II, Special Committee on Medical Malpractice; L. 1976, ch. 254. Two other sections of this medical malpraсtice legislation have been held constitutional by the Kansas Supreme Court as having a reasonable basis in the need for doctors to procure medical malpractice insurance.
State, ex rel. Schneider v. Liggett,
“The general purpose of a statute of limitations is to encourage prompt presentation of claims. United States v. Kubrick, (1979)444 U.S. 111 ,100 S.Ct. 352 ,62 L.Ed.2d 259 . . . .
“In balancing the interests involved here, the Legislature may well have given consideration to the fact that most childrеn by the time they reach the age of six years are in a position to verbally communicate their physical complaints to pаrents or other adults having a natural sympathy with them. Such communications and the persons whom they reach may to some appreсiable degree stand surrogate for the lack of maturity and judgment of infants in this matter.”
The legislative history indicates the 1976 Kansas legislature used similar reasoning in reaching its decision to shorten the limitation for minors and other incapacitated persons. As such it had a reasonable basis for enactment of K.S.A. 1982 Supp. 60-515(a). Much of the reasoning of
Stephens v. Snyder Clinic Ass’n,
The appellants contend that because K.S.A. 1982 Supp. 60-515(a) is a general statute relating to minors and incapacitated persons, it does not deal dirеctly with a health care crisis and should therefore be subject to a more rigorous “judicial scrutiny” test rather than the “rational basis” test.
Carson v. Maurer,
Appellee’s due process argument is also without merit. When K.S.A. 60-515(a) became effective in July of 1976, Rachelle Wheeler was five years old. She still had three years in which her action could have been filed. Even if she had been eight years old, K.S.A. 1982 Supp. 60-515(c) would have allowed her action to be brought within two years. In
Milbourne v. Kelley,
“It is settled by the great weight of authority, and is no longer disputed, that it is within the power of the legislature to amend a statute of limitations either by shortening or extending the time in which an existing cause of action may be barred, provided a reasonable time is given for the commencement of an action before the bar takes effect.”
Affirmed.