Opinion handed down April 28, 2015
In June of 2013, Shonda Ambers-Phillips was experiencing pain in her side and underwent exploratory surgery.[1] Doctors discovered pieces of medical equipment that were left in her abdomen from an operation she underwent in 1999.[2] A few months later, Ambers-Phillips filed a medical malpractice claim against the medical center that employed the doctors who allegedly left the pieces of medical equipment in her abdomen.[3] The trial court sustained the defendant’s motion to dismiss, citing the ten-year statute of repose contained in a medical malpractice statute, Missouri Revised Statutes Section 516.105.[4]
The Supreme Court of Missouri affirmed, holding: (1) the statute of repose is not subject to equitable tolling;[5] (2) the statute of repose in Section 516.105 does not violate the Missouri Constitution’s Equal Protection Clause or Open Courts Provision;[6] and (3) Section 516.105 does not violate due process and is not an invalid special law.[7] This Summary will focus on the first holding regarding equitable tolling.
I. Facts and Holding
In September of 1999, Ambers-Phillips underwent surgery at SSM DePaul Health Center following a car accident.[8] In June of 2013, nearly fourteen years later, Ambers-Phillips was experiencing pain and underwent an exploratory surgery at different health center.[9] Doctors there found four pieces of medical equipment that had been left inside Ambers-Phillips’s abdomen from the 1999 surgery.[10]
Soon thereafter, Ambers-Phillips filed a medical malpractice claim against SSM DePaul for failing to remove the medical equipment from her body.[11] SSM DePaul moved to dismiss based on the ten-year statute of repose contained in Section 516.105 for medical malpractice claims “involving the leaving of foreign objects in the body.”[12] The trial court sustained the motion, finding that Ambers-Phillips filed her claim nearly four years too late, even though she was unaware of the location of the devices until after the statute of repose had passed.[13]
Ambers-Phillips appealed to the Supreme Court of Missouri, arguing that the statute of repose within Section 516.105 should be subject to the principle of equitable tolling, which would prevent the ten-year statute from running until Ambers-Phillips first discovered the negligent act.[14] Ambers-Phillips also argued that Section 516.105 violated the Equal Protection Clause, Open Courts Provision, Special Laws Provision, and Due Process Provision of the Missouri Constitution, in that the statute unjustly precluded her from bringing a claim.[15]
The Supreme Court of Missouri disagreed, holding: (1) the statute of repose is not subject to equitable tolling;[16] (2) the statute of repose in Section 516.105 does not violate the Missouri Constitution’s Equal Protection Clause or Open Courts Provision;[17] and (3) Section 516.105 does not violate due process and is not an invalid special law.[18] Judge Tietelman dissented, arguing that, as applied to Ambers-Phillips, the statute of repose unfairly denied “her right to seek a remedy for the negligent infliction of serious bodily injury.”[19]
II. Legal Background
A. Missouri’s History Regarding Foreign Object Medical Malpractice Cases
Medical malpractice alleging negligence by way of leaving foreign objects inside the body were originally subject to the same statute of limitations as all other medical negligence actions – two years from the time of the alleged negligent act.[20] The statute was amended in 1978 to permit the two-year clock to start at the time the foreign objects were discovered in the body.[21] However, the legislature also added a statute of repose, which currently states, “In no event shall any action for malpractice . . . be commenced after the expiration of ten years from the date of the act of neglect complained of . . . .”[22]
B. Statutes of Repose and Equitable Tolling
Statutes of limitations may be delayed by equitable tolling when fairness requires an extension of the period of time in which the plaintiff may file their claim.[23] However, the legislature, not the courts, has the authority to enact rules determining when a statute of limitations may be tolled.[24] Statutes of repose, on the other hand, “generally may not be tolled” because such statutes are “a judgment that the defendant should be free from liability after the legislatively determined period of time.”[25]
III. Instant Decision
The Supreme Court of Missouri initially discussed the history of medical malpractice claims involving foreign objects left inside the body, noting how unfair the original two-year-from-act statute of limitations was in the early years.[26] The court then walked through how the legislature responded to the unfairness by amending the statute of limitations so that it began running at the time the objects were discovered inside the body.[27] However, the court was quick to point out the ten-year statute of repose that was included in the newer version of the statute.[28]
The court then discussed the principle of equitable tolling and held that it does not apply to statutes of repose.[29] The court determined that it was clearly the legislature’s intent for the statute of limitations to toll to allow two years to file suit after discovery, but only within a ten-year period from the date of the alleged negligent act.[30] The court acknowledged the legislature’s “concern that medical defendants should be free from worry about liability for past acts after a reasonable period of time.”[31]
Finally, the court discussed challenges to Section 516.105 under the Missouri Constitution. The court held: (1) the statute of repose passed the rational basis test;[32] (2) persons such as Ambers-Phillips, who discover their injuries after the statute of repose has passed, are not a suspect class;[33] (3) Section 516.105 is not an invalid special law that includes less than all who are similarly situated;[34] and (4) due process is not violated because the cause of action is barred before the claim accrues.[35]
In dissent, Judge Tietelman argued that the statute of repose, as applied to Ambers-Phillips, violates the part of the Missouri Constitution that states, “The courts of justice shall be open to every person, and certain remedy afforded for every injury to person . . . .”[36] Judge Tietelman went on to state that statutes of repose are inappropriate in this type of case because they deprive a “remedy for a bodily injury that no one disputes.”
IV. Comment
This is a case where the court followed its own rules about what things it can control, and what things the legislature controls. The court rightly acknowledged the balance the legislature sought to strike between victims of a latent type of medical malpractice negligence and medical providers not wanting to be on the hook indefinitely for their mistakes. At exactly which point on that balance the legislature decided to set the tolling statute of limitations and the non-tolling statute of repose was not something for the court to change. While it may certainly appear grossly unfair for statutes of repose to take effect in a case such as Ambers-Phillips’s, the appropriate response is to change the statutory law through the legislature.
[1] Ambers-Phillips v. SSM DePaul Health Center, 459 S.W.3d 901, 904 (Mo. 2015) (en banc.).
[11] Id. Ambers-Phillips’s husband, Richard Phillips, also filed a claim for loss of consortium. Id.
[13] Id. at 904-05. The trial court also dismissed Ambers-Phillips’s constitutional claims against Section 516.105. Id.
[20] Mo. Rev. Stat. § 516.140 (1959); Laughlin v. Forgrave, 432 S.W.2d 308, 313-314 (Mo. 1968) (en banc.).
[21] Mo. Rev. Stat. § 516.105(1) (1994); Weiss v. Rojanasathit, 975 S.W.2d 113, 117 (Mo. 1998) (en banc.).
[23] Rowling v. Nestle Holdings, Inc., 437 S.W.3d 180, 184 (Mo. 2014) (en banc.).
[24] Id. “The only recognized equitable tolling principles apply when the plaintiff was prevented from timely filing suit by the defendant’s actions or other pending litigation.” Id.
[25] CTS Corp. v. Waldburger, 134 S.Ct. 2175, 2183 (2014).
[26] Ambers-Phillips v. SSM DePaul Health Center, 459 S.W.3d 901, 905.
