Opinion
No. ED77114
Opinion Filed: December 26, 2000
APPEAL FROM THE CIRCUIT COURT OF THE CITY OF ST. LOUIS, HONORABLE MICHAEL B. CALVIN
TRANSFERRED TO THE SUPREME COURT
Michael D. Stokes, 1215 Pine Street, St. Louis, MO 63103, for appellant.
Bart C. Sullivan (Barnes) One City Center, 15th Floor, St. Louis, MO 63101, Stephen J. Potter (Washington, Sterling, Hicks) 777 Bonhomme Ave, Ste. 1810, Clayton, MO 63105; Mark A. Kinzie (Siemens) 100 S. Fourth St., Ste. 700, St. Louis, MO 63102, for respondent.
Russell, J., concurs. Teitelman, J., concurs in result with separate opinion.
James C. Uelk (Uelk) appeals from the judgment of the trial court dismissing Uelk's petition. Uelk asserts the trial court erred in granting Barnes-Jewish Hospital (Barnes) and Washington University Medical Center's (Washington University) motions to dismiss. We transfer to the Supreme Court.
For ease of understanding, Barnes and Washington University will be collectively referred to as "the hospital."
Uelk brought suit against Barnes, Washington University, and two physicians, Drs. Sterling and Hicks, for alleged medical malpractice and against Siemens Medical Systems, Inc. for product liability and negligence. Uelk claimed Barnes was negligent in the performance of a transjugular intrahepatic portosystemic shunt procedure on October 7, 1994. Even though not pled, the parties agree he returned to the hospital numerous times for treatment including a brief hospital stay and saw many doctors. There were no allegations the individual doctors named treated Uelk on his return visits to the hospital. Dr. Hicks asserted he had no involvement with Uelk after April 1995. We further note there is no primary care physician alleged directing Uelk's treatment during his subsequent hospital visits. The petition alleging medical malpractice was filed on March 30, 1999, more than four years after the procedure. Barnes and Washington University filed motions to dismiss asserting that Uelk's claims were time-barred pursuant to Section 516.105, RSMo 1994, because more than two years had elapsed from the time of the procedure in October 1994, and because the continuing care exception to the statute does not apply to health care entities. The trial court granted the motions to dismiss. The trial court also found the claims against the individual doctors were barred by the statute of limitations. The trial court granted Uelk leave to amend as to the individual doctors in order to state facts supporting the continuing care exception and Uelk failed to amend. This appeal follows.
Washington University employed the doctors that worked at Barnes.
All further statutory references are to RSMo 1994 unless otherwise indicated.
The trial court's ruling disposed of all counts except the counts against Siemens Medical Systems, Inc. For purposes of appeal, the trial court denominated its ruling a final judgment, finding no just reason for delay pursuant to Rule 74.01(b).
When reviewing the trial court's dismissal of a petition, this court determines if the facts pleaded and the inferences reasonably drawn therefrom state any ground for relief. Wheelehan v. Ducker, 996 S.W.2d 780, 781 (Mo.App.E.D. 1999). We treat all facts alleged as true and construe allegations liberally and favorably to the plaintiff.Id. If the facts pleaded and the reasonable inferences to be drawn therefrom show any ground for relief, then the petition should not be dismissed. Loven v. Davis, 783 S.W.2d 152, 154 (Mo.App.S.D. 1990). Dismissal will be affirmed if it can be sustained on any ground supported by the motion, regardless of whether the trial court relied on that ground.Shores v. Express Lending Services, Inc., 998 S.W.2d 122, 125 (Mo.App.E.D. 1999).
In his sole point, Uelk contends that his delay in filing suit should be excused under the continuing care exception to the statute of limitations, and therefore, the trial court erred in dismissing his claim. We disagree. Uelk argues the subsequent visits to the hospital qualifies as "continuing care" so as to toll the statute of limitations as to the hospital.
All actions against health care providers for damages for malpractice related to health care must be brought within two years from the date of occurrence of the act on which the claim is based. Section 516.105; RCA Mut. Ins. Co. v. Sanborn, 918 S.W.2d 893, 898 (Mo.App.S.D. 1996). However, the continuing care exception provides that the statute of limitations begins to run only when the defendant physician ceases to treat the injury caused by the alleged act of negligence. Brickey v. Concerned Care of Midwest, Inc., 988 S.W.2d 592, 597 (Mo.App.E.D. 1999). Missouri courts have consistently held that this exception applies only to individual physicians, and not to hospitals or other health care facilities. See Id.; Dunagan v. Shalom Geriatric Center, 967 S.W.2d 285, 289 (Mo.App.W.D. 1998); Shah v. Lehman, 953 S.W.2d 955, 958 (Mo.App.E.D. 1997).
The rationale for this exception to the two-year statute of limitations for physicians is explained in RCA Mut. Ins. Co., 918 S.W.2d at 893. This opinion states:
The doctor-patient relationship is in most instances a highly personal and close one, encompassing on the part of the patient a basic confidence and reliance upon the skills and judgment of the doctor with a reasonable expectation that such will be met by a deep sense of obligation and proper exercise by the doctor of his incomparable superior knowledge and the dedicated use of his best talents and judgment.RCA Mut. Ins. Co., 918 S.W.2d at 897 (citing Shaw v. Clough, 597 S.W.2d 212, 215 (Mo.App.W.D. 1980)). We further reason that unlike an individual physician, who once having undertaken a course of treatment, may not abandon the treatment until the treatment is completed or reasonable provisions for its completion are provided, a medical institution does not have any control over a particular patient and does not know whether a patient will return to the institution at a later date.
Here, the entities against which Uelk brought his medical malpractice claim were a hospital and a university. Uelk made no allegations of facts in the pleading to support application of the continuing care exception as to the hospital in this case. However, as stated above, the continuing care exception has not been found applicable to hospitals and we will not apply it in this case. Therefore, the continuing care exception is not available to Uelk to toll the statute of limitations.
Uelk directs our attention to Hill v. Boles, 583 S.W.2d 141 (Mo.banc 1979) as an instance where the continuing care exception was applied in a hospital setting. We disagree. The Hill case dealt with an issue of continuing negligence and not the continuing care exception at issue here. Id. at 152.
Uelk further argues in this era of specialized health care there are no policy reasons for not applying the continuing care doctrine to hospitals providing health care. We find this is a matter for our Supreme Court or legislature to address. We are bound to follow existing precedent in interpreting the statute. The trial court did not err in dismissing Uelk's petition as it was barred by the statute of limitations. Point denied.
For the foregoing reasons, we would affirm the judgment. However, another division of this court, by a dissenting opinion pursuant to Rule 83.03, has transferred the case of Montgomery v. South County Radiologists, Inc., ED77285, to the Supreme Court. Montgomery deals with the same continuing care exception at issue here. The majority inMontgomery held that the continuing care exception may apply to health care facilities. We therefore transfer this case to the Supreme Court pursuant to Rule 83.02 because of the general interest and importance of the issue involved.
Transferred to the Supreme Court.
Russell, J., Teitelman, J., concurs in result with separate opinion.
RICHARD B. TEITELMAN, Judge Concurring Opinion
I agree with the holding of the majority opinion to the extent that it affirms the decision of the trial court, and acknowledge that the continuing care exception to the medical malpractice statute of limitations has previously been applied only to physicians. I write separately, however, to emphasize the need for the Missouri Supreme Court and/or the legislature to revisit the issue and reevaluate it in light of significant changes in the health care industry.
The first case in Missouri adopting the continuing care exception, written in 1943, determined that extending the statute of limitations in cases involving a continuous course of treatment after an original negligent occurrence was "in harmony with the apparent legislative intent" and also supported by authority from other jurisdictions.Thatcher v. De Tar, 173 S.W.2d 760, 762, 351 Mo. 603, 607 (Mo. 1943). The court held that the statute does not commence running until treatment has terminated, "where treatment is continuing and of such nature as to charge the [physician] with the duty of continuing care and treatment which is essential to recovery until the relation ceases." Id. at 762, 608, citing 41 Am. Jur. 233, par. 123. The exception has not changed since that time.
By continuing to apply this exception only to physicians, courts adhere to the antiquated notion that the doctor-patient relationship involves an isolated association between a decision-making physician and a layperson. But the days of Marcus Welby, M.D., ended long ago. Modern medicine involves other decision-making entities such as hospitals and HMOs. Courts have been slow to recognize that these institutions are an integral part of the care that a patient receives, and that such care often encompasses the "continuing care" that follows an incident of malpractice resulting in injury.
Some courts have recognized that entities other than physicians play a major role in providing health care and hold them liable for their health care decisions. For example, Pennsylvania courts have recognized a corporate negligence or corporate liability theory under which a hospital is liable if it fails to uphold the proper standard of care owed its patient. See Thompson v. Nason Hospital, 527 Pa. 330, 341, 591 A.2d 703, 708 (Pa. 1991). This theory was later expanded to include HMOs. As the court reasoned:
A great deal of today's healthcare is channeled through HMOs with the subscribers being given little or no say so in the stewardship of their care. Specifically, while these providers do not practice medicine, they do involve themselves daily in the decisions affecting their subscriber's medical care. These decisions may, among others, limit the length of hospital stays, restrict the use of specialists, prohibit or limit post hospital care, restrict access to therapy, or prevent rendering of emergency room care. While all of these efforts are for the laudatory purpose of containing health care costs, when decisions are made to limit a subscriber's access to treatment, that decision must pass the test of medical reasonableness. . . . Where the HMO is providing health care services rather than merely providing money to pay for services their conduct should be subject to scrutiny. . . . When a benefits provider, be it an insurer or a managed care organization, interjects itself into the rendering of medical decisions affecting a subscriber's care it must do so in a medically reasonable manner.Shannon, et al. v. McNulty, M.D., et al., 718 A.2d 828, 835-36 (Pa.Super.Ct. 1998).
As such, hospitals and HMOs that continue to make medical decisions along with the treating physician in cases of medical malpractice should also have a tolled statute of limitations. They, too, have a duty of continuing care and treatment that is essential to recovery. Missouri courts have rationalized that the "doctor-patient relationship is in most cases a highly personal and close one," RCA Mut. Ins. Co. v. Sanborn, 918 S.W.2d 893, 898 (Mo.App.S.D. 1996), to explain that medical institutions should not have an extended statute of limitations under the continuing care exception. In continuing to utilize this antediluvian reasoning, courts ignore the significant role played by other medical entities and overlook the fact that in many cases physicians do not make decisions alone. When a patient chooses to continue to receive treatment at a hospital or subscribe to a decision-making HMO after suffering from an incidence of alleged medical malpractice, the statute of limitations should be extended to those entities.