Ann Weiss, Plaintiff/Appellant, v. Dr. Chinda Rojanasathit, Defendant/Respondent.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Eastern District Case Style: Ann Weiss, Plaintiff/Appellant, v. Dr. Chinda Rojanasathit, Defendant/Respondent. Case Number: No. 71193 Handdown Date: 07/22/1997 Appeal From: Circuit Court of St. Louis County, Hon. Emmett M. O'Brien Counsel for Appellant: Matthew J. Padberg Counsel for Respondent: J. Thaddeus Eckenrode Opinion Summary: In this medical negligence case, patient/plaintiff appeals the trial court's grant of summary judgment in favor of doctor/defendant. The trial court granted summary judgment on the basis that the statute of limitations had expired. AFFIRMED. Division Three Holds: Patient's petition was not filed within two years from the act of neglect. Doctor established that she is "entitled to judgment as a matter of law." Rule 74.04(c)(3). Citation: Opinion Author: Stanley A. Grimm, Judge Opinion Vote: AFFIRMED. Crahan, P.J., concurs. Hoff, J., concurs in separate opinion. Opinion:

In this medical negligence case, patient/plaintiff appeals the trial court's grant of summary judgment in favor of doctor/defendant. The trial court granted summary judgment on the basis that the statute of limitations had expired. We affirm. I. Background On April 10, 1991, patient went to doctor for a routine gynecological examination. As part of the examination, doctor performed a pap smear on patient. The pap smear was sent to an independent laboratory for

analysis. Doctor told patient that she would be contacted only if the pap smear was abnormal. Sometime after April 22, 1991, doctor's office received the pap smear results. The results indicated either a cancerous or pre-cancerous condition. Doctor does not know if she reviewed the results at that time. Nevertheless, the abnormal test results should have been reported to patient and additional treatment should have been ordered. However, doctor never contacted patient regarding the pap smear results. Patient did not have another gynecological examination for almost four years. Another physician examined her on February 23, 1995. From the pap smear results, this physician discovered that patient had cancer of the endocervix. Patient was treated with chemotherapy and radiation therapy but has a decreased chance of survival from the cancer. On March 6, 1996, patient filed her petition. Doctor filed a summary judgment motion claiming that patient's cause of action was barred by section 516.105,(FN1) the applicable statute of limitations for a medical malpractice action. The trial court granted summary judgment and this appeal followed. II. Section 516.105 In her first two points, patient alleges the trial court erred in granting summary judgment. She contends "her cause of action accrued less than two years before she initiated this action" and "her petition was filed within two years of the act of neglect of the defendant." The applicable statute of limitations is section 516.105. It reads in pertinent part: "All actions against physicians . . . for damages for malpractice, negligence, error or mistake related to health care shall be brought within two years from the date of occurrence of the act of neglect complained of . . ." (emphasis added). However, when a foreign object is left in the body, the action must be brought "within two years from the date of discovery of such alleged negligence . . ." (emphasis added). Section 516.105. Patient makes two arguments contending that her cause of action is not barred by the statute of limitations. First, she argues the statute of limitations did not begin to run until the undiagnosed abnormality advanced to a cancerous condition, which she asserts occurred in March 1994. She argues that this is not an issue of discovery, but an issue of when the cause of action accrues. Until she developed cancer, patient contends, she did not have any damages and therefore did not have a cause of action. Second, patient argues that doctor's duty to notify patient of the lab results continued until the report was actually obtained by patient. Therefore, the act of neglect did not begin until 1996 when patient received her medical records.

The basic issue that must be decided for both arguments is when does a cause of action start to run under section 516.105. This issue was addressed in Laughlin v. Forgrave, 432 S.W.2d 308 (Mo.banc 1968). There, the defendant doctors operated on the plaintiff in 1951. They left a foreign body in her back during surgery. Id. at 309. The foreign body was not discovered until 1962. The court found that the statute ran from the date of the "act of neglect" and not from the time the object was discovered. Id. at 313. The court recognized that its decision was "distasteful" but found that it could not disregard the law as written by the General Assembly. Id. at 314. Eight years later, in 1976, the General Assembly repealed the applicable statute of limitations and enacted section 516.105. At that time, the provision was added permitting a cause of action for negligently permitting a foreign body to remain in a person to be brought within two years from the date of discovery, subject to some limitations. Otherwise, the two year limitation continued to commence from the date of the "act of neglect." Ross v. Kansas City Gen. Hosp. and Medical Ctr., 608 S.W.2d 397, 399 (Mo.banc 1980). The case before us is not a foreign object case. Thus, suit must be filed "within two years from the date of occurrence of the act of neglect complained of." Section 516.105. Here, the facts are similar to those in Miller v. Duhart, 637 S.W.2d 183 (Mo.App.E.D. 1982). In Miller, the defendant doctors performed a bilateral tubal ligation in 1976. In February 1980, Mrs. Miller gave birth to a child. Prior to this pregnancy and birth, the Millers had no indication that the sterilization operation was ineffective. Id. at

This court concluded that any injury the plaintiffs suffered occurred at the time of conception, not at the time of the child's birth. Id. at 188. Suit was filed in January 1981. Id. at 185. Thus, this court concluded that the action had "not been brought 'within two years from the date of the act of neglect complained of' and is barred." Id. at 188. In that case, as here, the plaintiffs argued that the limitations period should not begin to run until the tort is capable of ascertainment. We recognized that this "could be construed as a request to adopt a discovery rule in malpractice actions." Id. We held that the statute was clear and did not allow us to adopt a discovery rule. Id. at 190. The Miller case was decided fifteen years ago. We repeat what was said: However, the legislature is strongly urged to correct the inequity which the present malpractice statute creates in discovery cases other than those concerned with foreign objects. Despite arguments to the contrary, that body is the best forum with which to deal with this problem. Courts should not legislate.

Id. at 190. The facts before us are also similar to those in Green v. Washington Univ. Medical Ctr., 761 S.W.2d 688 (Mo.App.E.D. 1988). In Green, the plaintiff had a physical examination in June 1984 and last saw the physician in September 1984. In February or March 1986, a kidney stone dislodged and the plaintiff had to have surgery in June 1986. In his August 1987 suit, the plaintiff alleged that defendant was negligent in failing to diagnose kidney stones. Id. at 689. Plaintiff argued that a cause of action did not accrue until the kidney stone dislodged from his kidney and caused damage. Id. While this was a failure to diagnose case, the plaintiff argued that his damages were delayed and that no cause of action accrued until there was a clinical manifestation of damage. Id. at 690. "This assertion approximates an espousal of the view that the limitations period should not begin to run until the tort is capable of ascertainment. Although couched in different language by plaintiff, it is tantamount to a request to adopt a discovery rule in malpractice actions." Id. We declined to do so and found that the claim was barred by the statute of limitations. In the case before us, the act of neglect was the failure to notify patient that the lab results in 1991 showed a possible cancer. There were no damages until patient developed cancer, which patient argues did not occur until after March 1994. However, under section 516.105 and prior case law, damage is not the controlling factor. The controlling fact is the "act of neglect." See section 516.105. As in the cases just discussed, patient here argues that the limitation period cannot begin to run until the tort is capable of ascertainment. In effect, this is another request to adopt a discovery rule in a malpractice action. See Green, 761 S.W.2d at 690. The decision to adopt such a rule is best left to the General Assembly. Points denied. II. Equitable Estoppel For her third point, patient alleges the trial court erred in granting the summary judgment motion because doctor "was equitably estopped from asserting the statute of limitations." She contends that doctor's "silence prevented [her] from realizing that the pap smear results were negative, which prevented [her] from timely asserting her cause of action." Patient concedes that no Missouri court has adopted this contention in a medical malpractice case. Nor does she refer us to any case where equitable estoppel has been applied in a medical malpractice case to avoid

a statute of limitations. If that principal was adopted, it would effectively eliminate section 516.105. We decline to do so and deny patient's third point. III. Unconstitutional Patient's last point alleges that section 516.105 "is unconstitutional as applied in that it violates Article I, Section 10 and Section 14 of the Missouri Constitution." She contends that the statute "would bar a cause of action which did not come into existence until the statute of limitations had expired." Patient acknowledges she did not directly raise this issue before the trial court. She asks for plain error review under Rule 84.13(c). A statute of limitations is not unconstitutional as denying due process unless the time allowed for commencement of the action and the date fixed when the statute commences to run is clearly and plainly unreasonable. Ross, 608 S.W.2d at 400. Two years from the date of the act of neglect is not unreasonable. Id. Point denied. Doctor established that she is "entitled to a judgment as a matter of law." Rule 74.04(c)(3). The trial court's judgment is affirmed. Footnotes: FN1. All statutory references are to RSMo 1994. Separate Opinion:

I write separately to emphasize the unfair result of this decision under the circumstances of this case. "Proper medical care has the power to restore, to turn a temporary tragedy into a triumph over disease and injury; negligently provided medical care has the power to destroy, to turn a temporary trauma into a permanent tragedy." Adams v. Children's Mercy Hosp., 832 S.W.2d 898, 900 (Mo. banc ) cert. denied, 506 U.S. 991 (1992). In this case, medical neglect caused by a doctor's failure to inform a patient of a readily treatable precancerous condition led to a debilitating and possibly terminal invasive cancer. Here, the applicable statute of limitations is section 516.105 RSMo 1994. It reads in pertinent part: "All actions against physicians . . . for damages for malpractice, negligence, error or mistake related to health care

shall be brought within two years from the date of occurrence of the act of neglect complained of . . . . " Id. (emphasis added). However, when a foreign object is left in the body, the action must be brought "within two years from the date of the discovery of such alleged negligence . . . ." Id.. (emphasis added). The result of the application of this statute of limitations in this case is that the patient would have had to file a lawsuit before she even knew there was neglect or that any damage had occurred. Under these circumstances, this statute of limitations in effect allows a doctor's silence to bar any claim for negligence. Gleaning from the record before us, patient did not know she had a problem because she had no clinical symptoms. In fact, the usual reason a pap smear is taken and lab analysis done, is to ascertain the existence of a precancerous condition not detected through symptoms or visual examination. Unless properly treated, a precancerous condition usually develops into a cancerous condition over a course of time. It is obvious that patient did not know and could not have known of the doctor's neglect in April 1991. This is not a case where the patient procrastinated in filing suit. It was the doctor's failure to communicate the abnormal results to patient which made it impossible for her to seek timely treatment or to pursue a cause of action. In this case of doctor nonfeasance, a two year statute of limitations denies patient due process of law because the time allowed for commencement of suit and date fixed when the statute commences to run are clearly and plainly unreasonable. Given this set of circumstances patient's fundamental and substantial rights have been affected and manifest injustice has resulted. Because I am constrained by Missouri precedent, I concur in a separate opinion to emphasize that this egregious situation calls out for correction by the legislature. 0 This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.