Synopsis: This article addresses the history and application of the medical malpractice statute of limitation, as well as some considerations for future reform.

 I. Introduction

Missouri's medical malpractice statute of limitation is in need of legislative reform. Enacted in its present version in 1976,¹ the current statute no longer provides the same protections that the original statute ensured. Over the past 20 years, the protections provided by the medical malpractice statute have been riddled by judicial decisions, including an 11-year-old decision holding one of the statute's provisions unconstitutional.² The present malpractice statute also has numerous statutory and common law exceptions. These exceptions, when paired with the statute's generous period of repose, provide an extended window of potential liability for health care professionals. Extended periods of exposure frustrate Missouri's longstanding public policy favoring limited periods of potential liability for medical providers. This article will review the legislative history of the medical malpractice statute of limitation in Section II, discuss the application of the statute in Section III, and suggest several considerations for legislative reform in Section IV.

Most states, including Missouri, have long recognized the importance of the health care profession to society. Most states have accordingly enacted special statutes of limitation for medical malpractice actions.³ By design, malpractice statutes of limitation are shorter than general statutes of limitation for other torts and claims. Since 1921, the Missouri General Assembly has maintained a statute of limitation specifically for medical negligence claims.⁴

Before 1921, the malpractice statute of limitation was five years under the general, civil statute of limitations.⁵ At that time, malpractice actions were governed by a statute of limitation encompassing "all actions."⁶ Moreover, before 1921, malpractice claims began to run not from the day the wrong was committed, but rather began on the day the damage was both "sustained and is capable of ascertainment."⁷ This varying commencement date favored plaintiffs who argued that their injuries were not readily capable of ascertainment. This commencement date also provided the means for plaintiffs to extend the medical malpractice statute beyond the stated five-year limitation period.

In 1921, the General Assembly passed a medical malpractice statute of limitation that reduced the time limitation for the commencement of malpractice actions from five years to two years.⁸ Additionally, the General Assembly fixed an earlier date of commencement for malpractice actions.⁹ General torts -- such as libel, slander, and assault -- ran for five full years, beginning when the "damage resulting therefrom is sustained and is capable of ascertainment."¹⁰ Medical negligence, however, claims had to be brought within two years of the "date of the act of neglect complained of."¹¹ These changes not only protected the medical profession with one of the shortest windows of potential liability, but also afforded the health care profession with a readily ascertainable date on which malpractice actions expire.

The medical negligence statute of limitation enjoyed several minor amendments over the next 50 years. Then, in 1976, the General Assembly enacted Senate Bill 470, part of which became the present medical malpractice statute of limitation, § 516.105.¹² This bill modified existing Missouri law in several ways. First, it removed medical negligence from the limitation statute that also governed general tort actions.¹³ Second, it added language that required actions for malpractice to be brought within two years from "the date of the occurrence of the act of neglect complained of," [emphasis added] not merely from "the date of the act of neglect complained of," as stated in the previous statute.¹⁴ Third, the statute codified exceptions to the two-year limitation period for retained foreign objects and minor plaintiffs.¹⁵ Fourth, the statute renewed a 10 year statute of repose for medical negligence claims. In short, § 516.105 made significant statutory changes in the law governing malpractice actions, changes that Missouri courts are still construing today.

The judiciary has speculated about why Missouri's General Assembly decided to favor the medical profession when defending malpractice actions. The judiciary has noted that the statute's special classification may have been designed to limit the burdens that malpractice litigation imposes on the delivery of accessible health care.¹⁶ The statute may have been implemented to reduce the expense of preserving affordable health care for the greatest number of individuals.¹⁷ It may even have been an attempt by the legislature to stem the tide of a "perceived crisis brought about by a flood of allegedly frivolous medical malpractice claims."¹⁸ Whatever the reasoning, it is clear from the legislative history that the General Assembly has long ago declared Missouri's public policy and that policy favors limited periods of potential liability for health care professionals.

The significance of the legislative history regarding the malpractice statute of limitation -- particularly, the shortened limitation period and the earlier commencement date -- is that it demonstrates a deliberate and time-honored deference to "physicians, surgeons, dentists, roentgenologists, nurses, hospitals, and sanitoriums" in "[a]ll actions . . . for damages."¹⁹ The deference given to members of the health care profession is a product of Missouri's longstanding public policy favoring the health care profession, in part because of the profession's necessary contributions to society.

The medical profession's contributions to society are as important today as they were 20 years ago. Further, the apparent reasoning behind the legislature's passage of a favorable medical limitation statute appears even more applicable today when viewed through the prism of recent mergers, consolidations, and profit-driven health care providers. The intervening years since the statute's enactment have brought significant societal developments and judicial modifications of the statute. Yet, despite these changes, the General Assembly has not revisited the medical negligence statute to ensure that the statute is fulfilling its intended purpose. Specifically, the combination of the statute's numerous exceptions, its generous period of repose, and its unconstitutional provision conflicts with Missouri's time-honored public policy of limited exposure for health care providers.

The present statute of limitation for a medical malpractice action states:

Only the General Assembly can explain why this statute of 198 words is one sentence in length. The statute is simply not an exemplar of concise draftsmanship. Any revision of this statute should begin by employing multiple sentences and paragraphs to reveal the intent of the legislature with accuracy, brevity, and clarity.

The initial question in evaluating any malpractice claim is whether the petition states a claim that falls within the language of the statute. The opening phrase of the statute is unrestricted, encompassing "all actions." But when read in its entirety, the malpractice statute reveals an unequivocal intent to make only a specified class of suits -- those brought against health care providers -- subject to the statute.²¹ The legislature limited the all-inclusive opening phrase to those actions seeking "damages for malpractice, negligence, error or mistake related to health care."²² The legislature's use of the latter, restrictive phrase evinces a desire to confine suits subject to the two-year limitation period to those causes statutorily enumerated.²³

In Arbuthnot v. DePaul Health Center,²⁴ the Missouri Court of Appeals for the Eastern District addressed whether the two-year medical negligence statute of limitation or the five-year general tort statute of limitation applied to plaintiff's negligence claim. There, the plaintiff alleged that while she was undergoing "physical therapy" at defendant's hospital, she sustained injury "alighting from a wheelchair."²⁵ The Arbuthnot court applied the two-year medical negligence statute rather than the five-year statute for ordinary negligence. Here, the plaintiff was injured by a hospital's negligence.²⁶ Noting that the malpractice statute applies to negligence related to "health care," the Eastern District emphasized that "alighting from a wheelchair" during physical therapy was a form of health care.²⁷

The purview of § 516.105 encompasses any action where a consumer or patient of health services seeks damages for injuries resulting from improper omissions or commissions on the part of a health care provider in the delivery of health care.²⁸ Accordingly, any claim by a patient for damages while under medical care will fall within the medical negligence statute regardless of the manner in which the claim is presented.²⁹

Actions for "lost chance of survival" are governed by the medical malpractice statute of limitation. Both the Southern and Eastern District Courts of Appeals have held that a cause of action for "lost chance of survival" is "a personal injury action which belongs solely to the injured party."³⁰ As a personal injury claim against a health care provider, a claim for lost chance of survival is governed by the two-year medical negligence statute of limitation rather than the three-year limitation for wrongful death, even if the death of the patient ultimately results.³¹

The medical malpractice statute of limitation does not cover malpractice actions proximately causing death. The Supreme Court of Missouri has unequivocally held that the statute of limitation applicable to an action for death, by reason of malpractice, is the three-year statute of limitation for wrongful death, rather than the two-year statute of limitation for medical malpractice cases.³² If death results, the medical negligence statute is not necessarily tolled, but superseded by the special statute of limitation for wrongful death. Just as death resulting from any other tortious act gives rise to an action for wrongful death, so too, when medical malpractice results in death, the cause of action is for wrongful death and not for the personal wrong of malpractice.³³ In short, the wrongful death statute of limitation applies to all civil death actions, including deaths attributable to medical negligence.

The medical malpractice statute is not tolled for mentally incapacitated persons. In Wheeler v. Briggs,³⁴ a conservator brought an action for malpractice on behalf of a mentally incapacitated plaintiff nearly four years after the alleged negligent acts of the health care provider. On appeal to the Supreme Court of Missouri, the conservator argued that the plaintiff suffered from mental incapacitation. Further, he argued that § 516.170, RSMo 1994,³⁵ which tolls the statute of limitations for individuals who are minors or who are mentally incapacitated, was unconstitutional to the extent that the statute excepts from its tolling provisions actions for medical malpractice. Finding that this section does not impede a mentally incapacitated person's access to the courts, the Supreme Court of Missouri reasoned:

The Wheeler Court acknowledged that this exception may, in some cases, yield harsh results. Nevertheless, the majority concluded that such results are a legitimate legislative prerogative.³⁷

F. Two-Year Limitation is Not Commenced Upon the Discovery of Damage

The so-called "discovery rule" provides that an action does not accrue until the damage caused by a negligent act is sustained and capable of ascertainment.³⁸ In medical malpractice cases, however, Missouri courts have repeatedly rejected the "discovery rule."³⁹ As such, except in cases of retained foreign objects, malpractice actions must be brought within two years of the date of the alleged act of neglect, irrespective of when the damage is discovered.⁴⁰

In Green v. Washington University,⁴¹ the plaintiff sought application of the discovery rule in order to salvage his untimely cause of action. There, plaintiff asserted that his case should be excepted from the two-year statute because his damages were not medically capable of ascertainment during the two-year period following his medical treatment; plaintiff only discovered the alleged negligence when a kidney stone descended into his ureter more than two years after surgery.⁴² Nevertheless, the Green court held that Missouri has rejected the adoption of the discovery rule for malpractice actions, except when the action involves foreign objects left within the patient after surgery.⁴³ Therefore, even though plaintiff's damages were not medically discoverable until after the two-year limitation expired, plaintiff's claim was time-barred.⁴⁴

Missouri's medical negligence statute states, that actions are barred if not brought within two years from the negligent act, "except that a minor under the full age of ten years shall have until his twelfth birthday" to bring action.⁴⁵ This portion of the statute requiring a malpractice plaintiff under the age of 10 to commence suit by his twelfth birthday has been held unconstitutional.⁴⁶

In Strahler v. St. Luke's Hospital,⁴⁷ the Supreme Court of Missouri declared § 516.105 unconstitutional on the grounds that it violated a minor's constitutional right of access to the courts. The statutory limitation period of § 516.105 violates a minor's⁴⁸ right of access to the court system by making the minor dependant on others for the assertion of a claim. The Supreme Court of Missouri, therefore, ruled that a minor's cause of action is tolled until the minor reaches the age of majority, at which time she can bring the action on her own behalf.⁴⁹ Even though the General Assembly has never repealed the statute stating "a minor under the full age of ten years shall have until his twelfth birthday to bring action,"⁵⁰ this is not the law in Missouri and has not been the law since 1986.

Once a minor gains access to Missouri courts at the age of 18, constitutional prohibitions no longer impede the commencement of the two-year limitation.⁵¹ The two-year statute of limitation commences upon a minor's gaining access to the courts -- upon the minor's eighteenth birthday.⁵² After the plaintiff reaches the age of 20, any potential claim for injuries sustained as a minor patient is time-barred.⁵³

Additionally, the tolling provision of § 516.170⁵⁴ does not, and never has, tolled a minor plaintiff's medical negligence cause of action until the age of twenty-one.⁵⁵ Much appellate ink has been spilt on this issue recently, revealing an apparent confusion among the bar. The recent appellate decisions in Miguel v. Lehman,⁵⁶ Batek v. Curators of Missouri,⁵⁷ Gleitz v. St. John's Mercy,⁵⁸ and Braswell v. Chehval⁵⁹ uniformly hold that § 516.170 specifically excludes the medical malpractice statute of limitation from the purview of § 516.170, thereby clearly indicating that § 516.170 does not toll actions governed by § 516.105.⁶⁰

Even Strahler -- the apparent initial cause of this confusion -- does not pretend to apply § 516.170 in order to toll malpractice actions.⁶¹ The Strahler majority refers to § 516.170 only for the proposition that, in the area of "personal injury suits," Missouri's statutes of limitation have been tolled for minors.⁶² Any reference to § 516.170 in the opinion is merely an example of how Missouri "traditionally" has treated minor plaintiffs in other areas of the law. The majority opinion did not hold that § 516.170 applies to toll the medical negligence statute of limitation until a minor reaches the age of 21.

Moreover, the dissent in Strahler acknowledges that the limitation period commences, not at the age of 21, as it would if § 516.170 were to apply, but at the age of 18, once the minor gains access to the courts: "I seriously doubt that this child will suddenly wake up at age 18, so that suit may be filed within the required number of years."⁶³ Clearly, the statute of limitation for a medical malpractice minor plaintiff expires two years after the minor's 18th birthday and § 516.170 does not apply to toll any actions governed by § 516.105.

More importantly, this confusion among the bar and the continuing efforts by the judiciary were essentially unnecessary. The decisions following Strahler could easily have been avoided if the legislature had accepted its responsibility to amend the unconstitutional provisions of the malpractice statute. While no fault lies with the General Assembly for passing a law later found unconstitutional, no excuse may be offered for allowing an unconstitutional provision to remain on the books for more than a decade.

While a "statute of limitation" allows the cause of action to accrue and then bars the claim if the suit is not filed within a certain period of time, a "statute of repose" eliminates the cause of action altogether after a stated period of time.⁶⁴ The practical difference between a statute of limitation and a statute of repose is that the latter cuts off every cause of action after a specified time, regardless of the time of accrual. Missouri's malpractice statute has a 10-year statute of repose, providing that "in no event shall any action . . . [be brought] . . . after the expiration of ten years from the date of the act of neglect complained of."⁶⁵

The statute's 10-year period of repose is not the kind protector of health care professionals that the General Assembly's initial two-year limitation may appear to be. This 10-year period of repose fosters the filing of otherwise stale claims premised on exceptions to the two-year statute. While no seminal appellate decision has clarified the full parameters of this portion of the statute, case law demonstrates a limited reading of the statute of repose.

In McLeran v. St. Luke's Hospital of Kansas City,⁶⁶ Judge Blackmar suggested in dicta that the malpractice statute of repose was not intended to eliminate a minor's claim, even after the expiration of 10 years.⁶⁷ Judge Blackmar reasoned that the legislature, in seeking to run the statute of limitation against infants, intended that all infants have a full two years after their tenth birthday within which to file suit.⁶⁸ Further, the 10-year statute of repose was only designed, Judge Blackmar continued, to limit the foreign object exception in the statute; it was not intended to limit the time in which an infant who suffered damage from malpractice during his or her first two years of life may file suit.⁶⁹

Despite Missouri's long declared public policy favoring limited periods of potential liability for health care providers, the health care profession remains at risk well beyond the facially apparent two-year statute of limitation. Potential claims are viable not only for the two-year window following every alleged act of neglect, but also for eight additional years until after the expiration of Missouri's 10-year statute of repose. In cases of minor plaintiffs, claims are potentially viable for 20 years. Further, the two-year statute is subject to numerous exceptions.⁷⁰ These exceptions toll the malpractice statute and permit complex litigation long after document retention policies have lapsed. These exceptions sanction actions long after the years have faded the memories and scattered the lives of those with knowledge of relevant events.

States neighboring Missouri have a shorter statute of repose. Presumably, both Kansas and Illinois labor under the same burdens and disruptions that malpractice litigation imposes on the delivery of accessible health care. Presumably, both Kansas and Illinois also share Missouri's goal of preserving affordable health care for the greatest number of individuals in light of a perceived health care crisis. But, while Kansas,⁷¹ Illinois,⁷² and Missouri⁷³ all have two-year medical negligence statutes of limitation, only Missouri has a 10-year statute of repose.⁷⁴ Both Kansas⁷⁵ and Illinois⁷⁶ have enacted a four-year statute of repose, eliminating altogether any malpractice suit commenced after four years from the date of the alleged act of neglect. Missouri health care providers, meanwhile, are subject to potential liability for 10 full years, or longer.

When Missouri's General Assembly revisits § 516.105, the legislature should follow the lead of neighboring states and reduce the malpractice statute of repose from 10 years to four years. In that way, Missouri's health care professionals will similarly enjoy the protection available to health care providers in neighboring states.

At least 22 states, including Missouri, have adopted discovery rules in cases involving foreign objects.⁷⁷ When a foreign object is left in the body, a medical malpractice action must be brought either within two years from the date of the discovery, or from the date on which the patient, in the exercise of ordinary care, should have discovered such negligence, whichever date occurs first (subject to the statutory provision that no action may be commenced after 10 years from the date of the act of neglect complained of).⁷⁸

To come within the tolling provision of the foreign object exception, plaintiff must plead that defendant introduced a foreign object into the body and defendant negligently permitted that foreign object to remain within the body.⁷⁹ This situation is distinguished from the intentional implantation of a medical device, although the procedure itself is performed in a negligent manner. Negligence of the latter type (the intentional implant of a prosthetic hip, for example) does not fall within the tolling provision of § 516.105.⁸⁰ The negligent performance of a surgical implantation procedure is still subject to the general two-year limitation period. It is only when a foreign object is introduced and negligently permitted to remain in the body (a surgical sponge, for example) that the "foreign object" tolling provision applies.⁸¹

These interpretations and nuances of the foreign body exception were based upon statutory language and developed by judicial decisions over the years. These decisions appear to be based on solid legal reasoning and to be in accord with the trends in other states. Such statutory language and judicial reasoning should not be abandoned during any amendment or revision of the statute.

The "continuing care" exception tolls commencement of the malpractice statute's two-year limitation period. Under this common law exception, the statute does not begin to run against a plaintiff until the physician ceases to treat the injury caused by the act of neglect.⁸² It appears that this exception is only intended to apply where the treatment is continuing and of such nature as to charge the physician with the duty of "continuing care and treatment" that is essential to recovery.⁸³

In Kamerick v Dorman,⁸⁴ the Missouri Court of Appeals for the Western District refused to apply the continuing care exception to save plaintiff's medical malpractice action. In that case, plaintiff alleged that the physician failed to timely diagnose cloacogenic carcinoma.⁸⁵ The Kamerick court noted that the last contact with the physician was within the two-year limitation, but only involved a telephone conversation concerning plaintiff's continued complaints about the physician's "diagnosis that [plaintiff] had hemorrhoids." The Kamerick court declined to hold that a telephone call such as the one made by plaintiff was "medical care, services, or treatment" sufficient to trigger an extension of the statute of limitations.⁸⁶

The legislature should codify the continuing care exception because of the frequency of its use and the imprecision of its application. The parameters of this common law rule remain undefined. The statute of limitation should not be tolled by every contact with the physician concerning any ailment. To be logically and historically consistent, the statute of limitation should begin to run once the physician ceases to treat the injury caused by the act of neglect. The legislature should ensure that the "continuing care" exception is only available to toll the statute for actual medical "treatment"for the "injury" that was causally related to the "act of neglect complained of."⁸⁷

When a defendant leaves Missouri and does not return to the state to reside, the malpractice statute of limitation cannot expire under any circumstances.⁸⁸ The tolling statute, § 516.200, provides:

The application of this statute reveals its discordancy. In Genrich v. Williams,⁹⁰ plaintiff filed suit against a physician-in-training, commonly known as "residents" in teaching hospitals, who attended the alleged negligent performance, a hysterectomy. After the surgery, but before the expiration of the two-year statute of limitation, the physician moved from Missouri to Louisiana. Plaintiff dismissed her first cause of action without prejudice before obtaining service of process. Then, plaintiff re-filed her cause of action against the physician within the time allowed by the Savings statute.⁹¹ The second action was filed nine years and five months after the hysterectomy.⁹² In the second action, the plaintiff finally obtained service on the physician. On appeal, the Genrich court held that since the physician removed himself from the state and did not return to Missouri to reside, the malpractice statute of limitation ceased to run and plaintiff's claim was not barred by the malpractice statute of limitation.⁹³

Section 516.200 dates back to the late 1800s. The policy considerations behind this statute were that a plaintiff should not lose her right of action by the bar of the statute of limitation when a defendant flees from the state to avoid legal process.⁹⁴ In today's world, however, service of process is simply not as difficult as it may have been in the nineteenth century. Service of process today is readily available by mail on residents and non-residents alike, with any additional costs assessed against the defendant if that defendant does not consent to service within 30 days.⁹⁵

Abundant information is readily available to health care consumers and plaintiffs alike, particularly due to the information revolution and the pervasive spread of managed care conglomerates. The policy considerations behind this statute are no longer met by the indefinite tolling of statutes of limitation when a resident leaves the state. The merits of this statute should be reconsidered and debated by the legislature in light of these significant societal changes.

The deference given to members of the health care profession in the form of a shortened window of potential liability is a product of Missouri's longstanding public policy. Missouri courts have noted that this deference may have been given in part to reduce the uncertainty and the expense of providing affordable health care for the greatest number of citizens.⁹⁶ But Missouri's present medical malpractice statute of limitation no longer provides the original protections which it is supposed to provide. Missouri's present malpractice statute is, in part, unconstitutional. It is riddled by numerous statutory and common law exceptions. Its intended policy considerations have been impeded by a 10-year period of repose -- a period of repose which is more than twice as long as those in neighboring states. Despite these developments, Missouri's General Assembly has yet to revisit this statute. Because of these changes, it is time for the General Assembly to revisit the medical negligence statute to ensure that the statute's historical protections available for Missouri's health care providers.

1 Compare, § 516.105, RSMo 1976 and § 516.105, RSMo 1994.

2 See, Strahler v. St. Luke's Hosp., 706 S.W.2d 7, 10 (Mo. banc 1986), holding § 516.105 unconstitutional to the extent that it precluded the claim of a 19-year-old for medical malpractice that occurred when she was a 15-year-old minor.

3 Strahler, 706 S.W.2d at 10.

4 Laughlin v. Forgrave, 432 S.W.2d 308, 312 (Mo. banc 1968).

5 Laughlin, 432 S.W.2d at 312.

6 74 Laws of Missouri (1848-49).

7 Laughlin, 432 S.W.2d at 312-13.

8 Laughlin, 432 S.W.2d at 312.

9 Id.

10 Id.

11 Id. at 313.

12 Section 516.105, RSMo 1976; Lough v. Rolla Women's Clinic, 866 S.W.2d 851, 857 (Mo. banc 1993) (Smith, Special Judge, dissenting).

13 Compare, § 516.140, RSMo 1969 and § 516.105, RSMo 1976.

14 The added language does not appear to make any substantive change in the date of commencement of the limitation period, but may have been intended to reinforce the clear legislative directive that the two-year period begins to run from the date of the "occurrence of the act" of neglect. Lough, 866 S.W.2d at 857.

15 Id.

16 Batek v. Curators, Univ. of Mo., 920 S.W.2d 895, 899 (Mo. banc 1996).

17 Id.

18 Id.

19 198 Laws of Missouri § 1319(a) (1921).

20 Section 516.105, RSMo 1994.

21 Bell v. Poplar Bluff Physicians Group, Inc., 879 S.W.2d 618, 621-2 (Mo. App. S.D. 1994) (quoting, Rowland v. Skaggs Cos., Inc., 666 S.W.2d 770, 772-3 (Mo. banc 1984).

22 Bell, 879 S.W.2d at 621-22.

23 Id.

24 Arbuthnot v. DePaul Health Ctr., 891 S.W.2d 564, 565 (Mo. App. E.D. 1995).

25 Id.

26 Id.

27 Id.

28 Id.

29 Id. at 566.

30 Caldwell v. Lester E. Cox Med. Ctrs., 943 S.W.2d 5, 8 (Mo. App. S.D. 1997) and Smith v. Tang, 926 S.W.2d 716, 719 (Mo. App. E.D. 1996).

31 Id.

32 Baysinger v. Hanser, 199 S.W.2d 644, 647 (Mo. 1947).

33 Id.

34 Wheeler v Briggs, 941 S.W.2d 512, 513 (Mo. banc 1997).

35 Section 516.170, RSMo 1994, states: "Except as provided in § 516.105, if any person entitled to bring an action in sections 516.100 to 516.370 specified, at the time the cause of action accrued be either within the age of twenty-one years, or mentally incapacitated, such person shall be at liberty to bring such actions within the respective times in sections 516.100 to 516.370 limited after such disability is removed."

36 Wheeler, 941 S.W.2d at 515.

37 Id.

38 Young v. Medrano, 713 S.W.2d 553, 554 (Mo. App. E.D. 1986).

39 Laughlin, 432 S.W.2d at 313. See also Green v. Washington Univ. Medical Ctr., 761 S.W.2d 688, 690 (Mo. App. E.D. 1988); and Miller v. Duhart, 637 S.W.2d 183, 189-190 (Mo. App. E.D. 1982).

40 Young, 713 S.W.2d at 554. (Italics supplied).

41 Green, 761 S.W.2d at 690.

42 Id.

43 Id.

44 Id.

45 Braswell v. Chehval, 935 S.W.2d 53, 54 (Mo. App. E.D. 1996).

46 See, Strahler, 706 S.W.2d at 10, holding § 516.105 unconstitutional to the extent that it precluded the claim of a 19-year-old for medical malpractice that occurred when she was a 15-year-old minor.

47 Strahler, 706 S.W.2d at 11-12.

48 The legislature has defined a minor as being "any person who is under the age of eighteen years." Section 475.010(12), RSMo. Additionally, in connection with the commencement of a civil action, a minor, or infant, is defined as any person who has not attained the age of eighteen years. Section 507.115, RSMo. See Braswell, 935 S.W.2d at 54, n. 3.

49 Strahler, 706 S.W.2d at 12; Braswell, 935 S.W.2d at 54.

50 Compare, § 516.105, RSMo 1976, and § 516.105, RSMo 1994.

51 Batek, 920 S.W.2d at 898; Strahler, 706 S.W.2d at 11-12.

52 Miguel v. Lehman, 902 S.W.2d 327, 328 (Mo. App. E.D. 1995).

53 Id.

54 See footnote 39.

55 Batek, 920 S.W.2d at 898; Strahler, 706 S.W.2d at 11-12; Gleitz v. St. John's Mercy Med. Ctr., 927 S.W.2d 506, 508-9 (Mo. App. E.D. 1996); Miguel, 902 S.W.2d at 328.

56 Miguel, 902 S.W.2d at 328.

57 Batek, 920 S.W.2d at 898.

58 Gleitz, 927 S.W.2d at 508-9.

59 Braswell, 935 S.W.2d at 54.

60 Batek, 920 S.W.2d at 898; Braswell, 935 S.W.2d at 54; Gleitz, 927 S.W.2d at 508; Miguel, 902 S.W.2d at 328.

61 Strahler, 706 S.W.2d at 11.

62 Id.

63 Id. at 14. (Blackmar, J., dissenting).

64 Blaske v. Smith & Entzeroth, Inc., 821 S.W.2d 822, 834 (Mo. banc 1991).

65 Section 516.105, RSMo 1994.

66 McLeran v. St. Luke's Hosp. of Kansas City, 687 S.W.2d 892, 893 (Mo. banc 1985).

67 Id.

68 Id.

69 Id. See also, Jepson v. Stubbs, 555 S.W.2d 307, 313 (Mo. banc 1977), wherein the court held: "[w]hereby foreign objects are permitted to remain in the body, the action must be brought within two years from the date of the discovery or the date on which the patient in the exercise of ordinary care should have discovered such negligence, (subject to the proviso that no action could be commenced after 10 years from the date of the act of neglect complained of)." [emphasis added.]

70 See Lough, 866 S.W.2d at 858. The malpractice statute has numerous exceptions that toll commencement of the two-year limitation period. These exceptions sanction suits filed well after two-years from the occurrence of the alleged act of neglect. These exceptions to the time constraints of the two year statute fall into basically two categories, "disabilities" and "impracticalities." "Disability" exceptions are directed to those plaintiffs who, because of their legal status, are not authorized by law to pursue their legal remedies on their own behalf. This group, although not inclusive, includes minors and the mentally incapacitated. "Impracticality" exceptions address factual situations in which plaintiffs are prevented from pursuing their remedy for reasons beyond their control. This group includes foreign objects, fraudulent concealment by the defendant, removal of the defendant from the jurisdiction, and others.

71 Kan. Stat. Ann. § 60-513(c) (1994); Marzolf v. Gilgore, 924 F. Supp. 127, 129 (D. Kan. 1996).

72 735 Ill. Comp. Stat., 5/13-212(a) (West 1992).

73 Section 516.105, RSMo 1994.

74 Id.

75 Kan. Stat. Ann. § 60-513(c); Marzolf, 924 F. Supp. at 129.

76 735 Ill. Comp. Stat., 5/13-212(a) (West 1992).

77 Miller v. Duhart, 637 S.W.2d 183, 190 n.2 (Mo. App. E.D. 1982); Robert A. Brazener, Annotation, When Statute of Limitations Commences to Run Against Malpractice Action Based on Leaving Foreign Substance in Patient's Body, 70 A.L.R.3d 7 (1976).

78 Jepson, 555 S.W.2d at 313.

79 Hershley v. Brown, 655 S.W.2d 671, 675-76 (Mo. App. W.D. 1983).

80 Id.

81 Id.

82 Hill v. Klontz, 909 S.W.2d 725, 726 (Mo. App. S.D. 1995).

83 Thatcher v. De Tar, 173 S.W.2d 760, 761 (Mo. 1943).

84 Kamerick v. Dorman, 907 S.W.2d 264 (Mo. App. W.D. 1995).

85 Kamerick, 907 S.W.2d at 265.

86 Kamerick, 907 S.W.2d at 266.

87 Kamerick, 907 S.W.2d at 265-6.

88 Genrich v. Williams, 869 S.W.2d 209, 212 (Mo. App. E.D. 1993).

89 § 516.200, RSMo 1994; Genrich, 869 S.W.2d at 210.

90 Genrich, 869 S.W.2d at 209.

91 Id. at 209-10.

92 Id.

93 Id. at 212.

94 Haver v. Bassett, 287 S.W.2d 342, 345 (Mo. App. W.D. 1956).

95 Mo. Court Rules 54.16

96 Batek, 920 S.W.2d at 899.

©1997, Gregory T. Mueller