Sean Hodges, Appellant, v. Southeast Missouri Hospital Association and Robert Verlander, M.D., Respondent

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Western District Case Style: Sean Hodges, Appellant, v. Southeast Missouri Hospital Association and Robert Verlander, M.D., Respondent Case Number: 53214 Handdown Date: 01/06/1998 Appeal From: Jackson County Circuit Court, Hon. Jay A. Daugherty Counsel for Appellant: Daniel R. Dunham Counsel for Respondent: James A. Cochrane Opinion Summary: Sean Hodges appeals from the trial court's order dismissing his medical malpractice action against Southeast Missouri Hospital Association and Dr. Robert Velander. The trial court dismissed his petition on the basis that his claim was barred by the statute of limitations provisions of section 516.105, RSMo 1994. Mr. Hodges contends this was error because section 516.105 does not apply to his medical malpractice action since his claim accrued when he was under the age of eighteen. In the alternative, Mr. Hodges contends that even if section 516.105 applies to his action, section 516.170 tolled the statute of limitations until he was twenty-one, so his petition is not time barred. AFFIRMED. Division Three holds: (1)The trial court did not err in dismissing Mr. Hodges' petition because section 516.105 applied to his medical malpractice action. Although the Supreme Court ruled that section 516.105 is unconstitutional as applied to minors in Strahler v. St. Luke's Hospital, 706 S.W.2d 7 (Mo. banc 1986) because it unconstitutionally limited minors' right of access to the court system, its rationale does not apply to the facts of Mr. Hodges' case. Here, Mr. Hodges waited over two years after he was no longer a minor to file his petition. Once he reached the age of majority he was no longer prohibited from bringing a cause of action in his own name. Therefore, the constitutional concerns of Strahler are not invoked by applying section 516.105 to this case. (2)The tolling provisions of section 516.170 have no application to Mr. Hodges' case because his cause of

action is against his health care providers. Actions against health care providers are specifically exempted from the provisions of section 516.170. Citation: Opinion Author: Patricia Breckenridge, Judge Opinion Vote: AFFIRMED. Stith, P.J. and Hanna, JJ. concur Opinion: Sean Hodges appeals from the trial court's order dismissing his medical malpractice action against Southeast Missouri Hospital Association and Dr. Robert Velander. The trial court dismissed Mr. Hodges' petition because it believed that his claim was barred by section 516.105, RSMo 1994,(FN1) the statute of limitations for medical malpractice claims. Mr. Hodges contends that this was error because section 516.105 does not apply to his medical malpractice action since his claim accrued when he was under the age of eighteen. In the alternative, Mr. Hodges contends that even if section 516.105 applies to his action, section 516.170 tolled the statute of limitations until he was twenty-one, so his petition is not time barred. Section 516.105 is constitutionally infirm as applied to an individual whose medical malpractice cause of action accrued before the age of eighteen. This constitutional infirmity ends when the minor turns eighteen and has the ability to file suit on his own behalf. Thus, at age eighteen, the two-year period for the statute of limitations for medical malpractice in section 516.105 begins to run. Because Mr. Hodges filed his cause of action more than two years after his eighteenth birthday, section 516.105 bars his claim. The judgment dismissing his petition is affirmed. Factual and Procedural Background Mr. Hodges was born on September 30, 1974. On July 10, 1987, when he was twelve years old, Mr. Hodges' left leg was injured when he was involved in an accident which trapped his leg between a bicycle and an automobile. After this accident, Mr. Hodges was treated by Dr. Velander in the emergency room of Southeast Missouri Hospital in Cape Girardeau. Dr. Velander took x-rays of Mr. Hodges' left leg but did not x-ray his left femoral head or hip. As a result, Dr. Velander did not detect serious damage in that area of Mr. Hodges' left leg. Because of this alleged negligence, Mr. Hodges incurred significant permanent damage and will likely require an entire left hip replacement. Mr. Hodges filed a medical malpractice action against the hospital and Dr. Velander on November 8, 1995 in the Circuit Court of Cape Girardeau County. Mr. Hodges voluntarily dismissed this petition and refiled his action in the Circuit Court of Jackson County on April 22, 1996. He was twenty-one years old when the action was refiled. Subsequently, the

hospital and Dr. Velander filed a motion to dismiss Mr. Hodges' petition for failure to state a claim upon which relief could be granted. In their motion, the hospital and Dr. Velander contended that Mr. Hodges' medical malpractice action was barred by the time limitation provisions of section 516.105 because he did not file his petition within two years of his eighteenth birthday, when his legal disability of minority ended. The trial court agreed and granted the motion to dismiss. Mr. Hodges filed a timely appeal in this court. Standard of Review On appellate review of the trial court's dismissal of a petition, "the pleading is granted its broadest intendment, all facts alleged are treated as true, and it is construed favorably to the plaintiff to determine whether the averments invoke substantive principles of law which entitle the plaintiff to relief." Farm Bureau Town & Country Ins. v. Angoff, 909 S.W.2d 348, 351 (Mo. banc 1995). A motion to dismiss is properly sustained and will be affirmed on appeal if it clearly appears from the petition that the cause of action is barred by the applicable statute of limitations. Braswell v. Chehval, 935 S.W.2d 53, 54 (Mo. App. 1996). Legal Analysis As his first point on appeal, Mr. Hodges contends that the trial court erred by dismissing his petition because section 516.105 does not govern his medical malpractice action. Mr. Hodges premises his argument on the Missouri Supreme Court's decision in Strahler v. St. Luke's Hospital, 706 S.W.2d 7 (Mo. banc 1986). He notes that the Strahler court held section 516.105 unconstitutional as applied to persons who are under the age of eighteen when their causes of action for medical malpractice accrued. Since Mr. Hodges was a minor at the time of his injury, he claims that the Strahler decision renders section 516.105 inapplicable to him. Mr. Hodges' cause of action for medical malpractice against his health care providers accrued in July of 1987, when he was twelve years old. Generally, a two-year statute of limitations governs actions against health care providers. Section 516.105. The statute provides an exception to the two-year period allowing minors under ten until their twelfth birthday to file malpractice actions. Specifically, section 516.105 reads: All actions against physicians, hospitals, dentists, registered or licensed practical nurses, optometrists, podiatrists, pharmacists, chiropractors, professional physical therapists, and any other entity providing health care services and all employees of any of the foregoing acting in the course and scope of their employment, 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, except that a minor under the full age of ten years shall have until his twelfth birthday to bring action, and except that in

cases in which the act of neglect complained of is(FN2) introducing and negligently permitting any foreign object to remain within the body of a living person, the action shall be brought within two years from the date of the discovery of such alleged negligence, or from the date on which the patient in the exercise of ordinary care should have discovered such alleged negligence, whichever date first occurs, but in no event shall any action for damages for malpractice, error, or mistake be commenced after the expiration of ten years from the date of the act of neglect complained of. The Missouri Supreme Court struck down the application of section 516.105 to minors in Strahler, 706 S.W.2d at

1. In Strahler, the plaintiff was fifteen years old when she suffered the complete amputation of her right leg above the

knee due to the defendant doctor's negligence. Id. at 8. The plaintiff brought a medical malpractice action against the doctor and hospital when she was nineteen years old. Id. The trial court sustained the defendants' motion to dismiss the plaintiff's claim because it was not brought within the two-year statute of limitations found in section 516.105. Id. On appeal, the plaintiff argued that the trial court erred in its dismissal because the application of section 516.105 to minors unconstitutionally violated minors' right of access to our courts under Mo. Const. art. I, section 14. Id. at 8-9. The plaintiff averred that section 516.105 effectively extinguished "her common law right and practical opportunity to seek legal redress for injuries sustained through defendant's alleged negligent medical treatment." Id. at 9. In response, the defendants argued that section 516.105 did not contravene the open courts provision of the Missouri Constitution because the plaintiff could have had a next friend initiate her lawsuit within the applicable time period. Id. The Missouri Supreme Court agreed with the plaintiff and found that section 516.105 violated a minor's right of access to our courts as guaranteed by the Missouri Constitution. The Supreme Court reasoned that the statute of limitations applicable to tort actions has traditionally been statutorily tolled for minors because they do not have the legal capacity to bring a personal injury action and are disadvantaged by their youth in attempting to pursue their legal rights. Strahler, 706 S.W.2d at 11. Although it recognized that the legislature was attempting to deal with a perceived medical malpractice crisis when it passed section 516.105, the court felt that, for minors, "the cure selected by the legislature would prove no less pernicious than the disease it was intended to remedy." Id. Essentially, the court found that minors' right of access to the courts was greater than society's need to battle the escalating economic and social costs connected with medical malpractice litigation. Id. And, the court was unwilling to force minors to depend on third parties to vindicate their legal rights. Id. at 11-12. Based upon this reasoning, the court held: To the extent that it deprives minor medical malpractice claimants the right to assert their own claims individually, makes them dependent on the actions of others to assert their claims, and works a forfeiture

of those claims if not asserted within two years, the provisions of section 516.105 are too severe an interference with a minors' [sic] state constitutionally enumerated right of access to the courts to be justified by the state's interest in remedying a perceived medical malpractice crisis. Id. at 12. Therefore, the Supreme Court invalidated section 516.105 on constitutional grounds. The Supreme Court's ruling in Strahler did not invalidate the whole of section 516.105, however, but merely found that it was invalid "as applied to minors." Id. at 11-12. See also Miguel v. Lehman, 902 S.W.2d 327, 328 (Mo. App. 1995). In other words, the unconstitutionality of the statute was limited to its application to minors, so the statute was potentially still applicable to non-minors. The severability of the invalid application of section 516.105 from the remaining applications of the statute's provisions was recently confirmed by the Supreme Court in Batek v. Curators of University of Missouri, 920 S.W.2d 895 (Mo. banc 1996). There, the plaintiff was twenty when the alleged malpractice occurred and she did not file her suit within the two-year statute of limitations of section 516.105. The court held that her claim was time barred by section 516.105 and noted that Strahler "voided the statutory limitation period of section 516.105 only as it 'applied to minors.'" Id. at 899 n. 1. Since the plaintiff was twenty at the time her cause of action accrued, she was not a minor and, under section 507.115, could have commenced an action on her own. Id. at 898. The statute of limitations in section 516.105 began to run against her immediately. Id. The court recognized that section 516.105 acted as a bar to the adult plaintiff's cause of action, even after Strahler's partial invalidation of the statute. Id. Therefore, section 516.105 was found to be severable. In this case, Mr. Hodges was a minor when his cause of action accrued. He did not file suit for medical malpractice until he was twenty-one years of age, more than two years after he turned eighteen and was no longer a minor. The trial court sustained the motion to dismiss on the ground that Mr. Hodges' action was barred by the two-year medical malpractice statute of limitations in section 516.105. In order to determine whether the trial court correctly dismissed Mr. Hodges' petition, this court must examine the Strahler court's invalidation of section 516.105 and determine its effect on Mr. Hodges' claim. Essentially, this court must decide whether section 516.105, post-Strahler, has any application to an individual who was a minor when his medical malpractice claim accrued. The Eastern District of this court recently resolved this issue in two cases with factual situations nearly identical to this case. In Gleitz v. St. John's Mercy Medical Center, 927 S.W.2d 506 (Mo. App. 1996), the plaintiff appealed from a summary judgment entered against him in his medical malpractice action. The trial court held that the plaintiff's petition was barred by the two-year statute of limitations in section 516.105. Id. at 507. The plaintiff in Gleitz was thirteen years old at the time of his injury but he waited until he was twenty-two years old to file his medical malpractice action. Id.

Because the Gleitz court found that Strahler tolled the time limitation provisions of section 516.105 until the age of eighteen for plaintiffs who were minors at the time of the medical malpractice injury, the court affirmed the trial court's entry of summary judgment. Id. at 508. In Braswell, 935 S.W.2d at 53, the plaintiff was fifteen years old at the time of his medical malpractice injury but waited until he was twenty years and six months old to initiate his suit. Id. at 53-54. The Braswell court expressed its belief that under Strahler, "a minor's cause of action must be tolled until she reaches the age of majority at which time she can bring the action on her own behalf." Id. at 54. Therefore, because the plaintiff did not bring his cause of action within two years after he turned eighteen, the court of appeals found that the action was barred by limitations. Id. Although this court notes that these decisions are on facts virtually identical to those here, their interpretation of the Strahler ruling is suspect. Nowhere in Strahler does the Supreme Court hold that the statute of limitations provisions of section 516.105 are tolled until the minor reaches the age of eighteen. The Strahler court found the statute unconstitutional as applied to minors, and held that a claim filed by a nineteen-year-old plaintiff who was thirteen when the claim accrued was not barred by section 516.105. It did not address the appropriate period of limitations applicable to a plaintiff who was a minor when the plaintiff's medical malpractice cause of action accrued. Although we note the misstatement of Strahler's ruling, our own analysis convinces us that the results of Braswell and Gleitz are correct. The Strahler court invalidated section 516.105 "as applied to minors." 706 S.W.2d at 11-12. In Batek, the Court found that the invalid application of section 516.105 did not render the remaining applications of the statute invalid as well. 920 S.W.2d at 898. The Court, in effect, found that the invalid application of the act was severable from the other applications of the statute. Legislative intent governs whether a statute is severable. State ex rel. Transport Manufacturing & Equipment Co. v. Bates, 224 S.W.2d 996, 1001 (Mo. banc 1949). A statute can be severed if it can be determined that the legislature would have wished the statute to be enforced with the invalid part excised. Simpson v. Kilcher, 749 S.W.2d 386, 393 (Mo. banc 1988). Severability is also appropriate when the invalid portion is a nonessential provision, it was not the inducement for the passage of the act or when the general object of the act can be achieved without the invalid part. See State ex rel. Highway Commission v. Curtis, 283 S.W.2d 458, 464 (Mo. banc 1955) and Bates, 224 S.W.2d at 1001. The Missouri Supreme Court has recognized three situations in which the doctrine of severability applies. Associated Industries v. Director of Revenue, 918 S.W.2d 780, 784 (Mo. banc 1996). They are: "1) where part, but not all, of an act is invalid as to all applications; 2) where 'the entire act is invalid to part, but not all, possible applications';

and 3) where part, but not all, of the act is invalid to part, but not all, possible applications." Id. (quoting Norman J. Singer, Sutherland Statutory Construction section 44.02 at 493-94 (5th ed. 1993)). The second situation describes the holding of Batek. The effect of the Supreme Court applying section 516.105 to persons over eighteen when their malpractice causes of action accrued was that all of section 516.105 was invalid as to part, but not all, of its applications; other applications of section 516.105 were valid. See Batek, 920 S.W.2d at 898. A statute that is "only invalid as applied in the facts of a particular case is possibly capable of valid application in another fact situation." Sutherland, supra section 2.06 at 33. Therefore, the Supreme Court's declaration in Strahler that section 516.105 is unconstitutional as applied to minors does not preclude the application of section 516.105 in other circumstances. As demonstrated by Batek, whether or not section 516.105 can be applied constitutionally depends on the circumstances of each case. Therefore, inquiry in this case must focus on the terms of the statute in question in light of the circumstances surrounding Mr. Hodges' claim. The plain and simple language of section 516.105 clearly states the legislature's intent that there be a two-year statute of limitations for medical malpractice claims. The only language of the statute concerning plaintiffs who were minors at the time their medical malpractice actions accrued was the provision that "a minor under the full age of ten years shall have until his twelfth birthday to bring action." The ruling of Strahler inherently encompassed a finding that this language of section 516.105 is unconstitutional.(FN3) With the invalidation of the phrase in section 516.105 pertaining to minors under ten, the remaining language states unequivocally that there is a two-year statute of limitations for medical negligence actions. There is no language left in the statute to indicate that the legislature intended to treat plaintiffs who were minors when their causes of action accrued differently from other plaintiffs. As a result, the terms of the statute would have governed Mr. Hodges' claim, but for the rule of Strahler. The rationale for the Strahler court's finding that section 516.105 is unconstitutional as applied to minors is the fact that minors are unable to institute a civil lawsuit in their own names. 706 S.W.2d at 12. Strahler found that to apply the statute of limitations in section 516.105 to minors "deprives minor medical malpractice claimants the right to assert their own claims individually, makes them dependent on the actions of others to assert their claims, and works a forfeiture of those claims if not asserted within two years. . . ." 706 S.W.2d at 12. The constitutional concerns articulated by Strahler are not invoked by applying section 516.105 to the particular circumstances of this case. Mr. Hodges was a minor, aged twelve, when his claim accrued. At that time he was unable to assert his claim individually, and thus was clearly among the class of persons the Strahler court intended to protect. However, when Mr. Hodges turned eighteen, he was no longer a minor. Under section 507.115, he was empowered to

pursue his legal rights in his own name without the assistance of a third party.(FN4) See Batek, 920 S.W.2d at 898. The Strahler court's concerns regarding the statute's interference with a minor's "state constitutionally enumerated right of access to the courts" no longer applied to Mr. Hodges when he turned eighteen. At that time, Mr. Hodges was not operating under the legal disability of minority, and did not need the protection Strahler provided minors by invalidating section 516.105 as it applies to them. Mr. Hodges waited until he was twenty-one years old to file suit. When he filed, he had had the ability to initiate suit against his health care providers for a period in excess of the two-year statute of limitations. "When challenging the constitutionality of a statute, it is incumbent upon the challenger to show that in its operation the statute is unconstitutional to him in his situation. Sutherland, supra section 45.11 at 19 (5th ed. Supp. 1997). Mr. Hodges has not shown how the operation of section 516.105 was unconstitutional to him after he turned eighteen. Under the particular facts of this case, Strahler's judicial invalidation of part, but not all, possible applications of section 516.105 does not prevent the application of section 516.105 to Mr. Hodges' claim. The two-year statute of limitation in section 516.105 began to run when Mr. Hodges turned eighteen. The provisions of section 516.105 would bar his claim. In his second point, Mr. Hodges argues that even if section 516.105 applies to his medical malpractice cause of action, section 516.170 tolls its operation and grants him until the age of twenty-one before the two-year statute of limitations in section 516.105 begins running. Unfortunately for Mr. Hodges, his reliance on section 516.170 is misplaced because his claim is against his health care providers. Again, section 516.105 governs claims against physicians, hospitals and other health care providers. Claims against health care providers are exempted from the tolling provisions of section 516.170: Except as provided in section 516.105, if any person entitled to bring an action in sections 516.100 to 516.370 specified, at the time of the cause of action accrued be either within the age of twenty-one years, or mentally incapacitated, such persons 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. (emphasis added). The plain language of this statute clearly indicates that malpractice claims under section 516.105 are exempted from the tolling provision of section 516.170. Batek, 920 S.W.2d at 898. This court has already determined that Mr. Hodges' claim is governed by section 516.105. Therefore, section 516.170 has no application to Mr. Hodges' medical malpractice action.

At the time of his eighteenth birthday, on September 30, 1992, the statute of limitations began running, giving Mr. Hodges until September 30, 1994 in which to file his medical malpractice action under the two-year statute of limitations for medical malpractice actions in section 516.105. Mr. Hodges filed the instant lawsuit on November 8, 1995, over a year after the two year time period expired. Because Mr. Hodges failed to file his claim within the two years allowed by section 516.105, his claim is time barred. The judgment of the trial court dismissing Mr. Hodges' cause of action is affirmed. Footnotes: FN1.All statutory references are to the Revised Statutes of Missouri 1994, unless otherwise indicated. FN2.As Judge Crow noted in Crawford v. Fenton, 701 S.W.2d 772, 774 n. 2 (1985): This word ("is") appears as "its" instead of "is" in the version of section 516.105 appearing in RSMo Supp. 1976. The version quoted above in this opinion, in which the word appears as "is," is the version in Bill 470, Laws 1976, p. 767. Obviously, the version in RSMo. Supp. 1976 is a misprint. The error in RSMo Supp. 1976 was carried forward, uncorrected, in RSMo 1978. The error continues to be carried forward in RSMo 1994, the current version of the statute. FN3.This finding of invalidity would require an analysis of severability under situation one of Sutherland, supra section 44.02 at 494, where part, but not all, of an act is invalid as to all applications. Nevertheless, Strahler's express holding was much broader in that the Court found that the entirety of the statue was invalid in its application to minors, so the statute's severability is determined on that basis. FN4.Under section 507.115, A[a]ll persons of the age of eighteen years or older, not otherwise disqualified, may commence, prosecute, or defend any action in his own name as the real party in interest. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.