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06/21/83 SHELLEY HERSHLEY AND ROY HERSHLEY v.

June 21, 1983

SHELLEY HERSHLEY AND ROY HERSHLEY, PLAINTIFFS/APPELLANTS,
v.
MERLIN D. BROWN, DEFENDANT/RESPONDENT.



From the Circuit Court of Buchanan County; Civil Appeal; Judge Fred E. Schoenlaub.

Before Wasserstrom, P.j., Turnage, Clark, JJ.

The opinion of the court was delivered by: Turnage

Shelley and Roy Hershley filed an action against Dr. Merlin Brown and Richard Wolfe Medical Instruments. The trial court sustained the defendants' motion to dismiss the claim on grounds that Missouri does not recognize actions for wrongful conception, and that the action was barred by limitations. The Hershleys appealed, claiming that because this case involved a foreign object, it was not time barred, that the statute of limitations was tolled because of Dr. Brown's fraudulent concealment, and that Missouri recognizes wrongful conception *fn1 claims. Affirmed in part and reversed in part.

The circumstances which gave rise to this case began in 1977, when the petition alleges that Shelley Hershley and her husband, Roy Hershley, consulted with Dr. Merlin Brown regarding the possibility of Mrs. Hershley's undergoing a tubal ligation to become sterile. Dr. Brown allegedly informed the Hershleys that he would perform a bilateral tubal ligation by burning, cauterizing, or otherwise removing portions of Mrs. Hershley's fallopian tubes.

The petition alleges that Dr. Brown performed a surgical sterilization procedure on Mrs. Hershley on December 27, 1977, and that in October of 1980, Mrs. Hershley conceived a child by her husband. The child came to term in July of 1981. *fn2 The petition further alleges that not until after Mrs. Hershley had conceived did she and her husband become aware of the fact that rather than burning, cauterizing, or otherwise removing portions of Mrs. Hershley's tubes, Dr. Brown had performed the sterilization procedure by inserting a tubal ring instrument manufactured and distributed by Richard Wolfe Medical Instruments.

In October of 1981, Mr. and Mrs. Hershley filed suit against Dr. Brown and Richard Wolfe Medical Instruments. Their petition contained counts by both Mr. and Mrs. Hershley alleging strict liability, negligent installation of a foreign object, and fraudulent misrepresentation and concealment of a battery. The defendants moved to dismiss the case on the ground that it failed to state a claim upon which relief could be granted, and that the claim was barred by the statute of limitation set forth in § 516. 105 RSMo 1978. *fn3 The trial court granted these motions.

The scope of review in appeals from the granting of a motion to dismiss a petition for failure to state a claim upon which relief can be granted is well settled. The petition is to be construed favorably to the plaintiffs, giving them the benefit of every reasonable and fair intendment in view of the facts alleged. Ingalls v. Neufeld, 487 S.W.2d 52, 54[4] (Mo. App. 1972). If the facts pleaded and all reasonable inferences to be drawn therefrom, viewed most favorably from the plaintiff's point of view, show any ground for relief, the plaintiff's petition should not be dismissed for failure to state a claim. Burckhardt v. General American Life Insurance Company, 534 S.W.2d 57, 63[5] (Mo. App. 1975).

Appellate courts should be reluctant to construe the law on the basis of the allegations of the pleadings alone. Attempts to do so are only theoretical exercises, in that the evidence in the case is, as of that time, unknown. Engleman v. City of Dearborn, 544 S.W.2d 265, 268[3] (Mo. App. 1976). Thus, if the plaintiff's petition alleges and invokes principles of substantive law which may entitle him to relief, the motion to dismiss is not to be granted. Ingalls v. Neufeld, 487 S.W.2d at 54[4].

The first count of the petition alleges that both Richard Wolfe Medical Instruments and Dr. Brown should be held strictly liable for the unsuccessful sterilization of Mrs. Hershley, because the Wolfe ring was defective. At the oral argument of this appeal, the Hershley's counsel announced that they were dismissing their appeal on their claim against Richard Wolfe Medical Instruments. Thus, the appeal from the dismissal of this court hinges on the applicability of the strict liability doctrine to physicians.

While no Missouri case has addressed this issue, leading cases from other jurisdictions have held that physicians may not be held liable under this theory. One such case is Hoven v. Kelble, 256 N.W.2d 379 (Wisc. 1977). There, the court ruled that a physician was not liable for injuries suffered by a patient in the course of a lung biopsy.

One theory advanced by the plaintiff was that the physician was strictly liable for allegedly defective medical services rendered. Noting that it had found no decision of any court applying the strict liability doctrine to the rendition of professional medical services, the Hoven court affirmed the trial court's sustaining of demurrers to the strict liability cause of action, offering the following support for its decision:

Medical services are an absolute necessity to society, and they must be readily available to the people. It is said that strict liability will inevitably increase the cost for medical services, which might make them beyond the means of many consumers, and that imposition of strict liability might hamper progress in developing new medicines and medical techniques.

256 N.W.2d at 391.

Another leading case which discusses the applicability of the strict liability doctrine to physicians is Carmichael v. Reitz, 95 Cal. Rptr. 381 (Cal. App. 1971), which held that the treating physician was not liable under a theory of strict liability in tort for pulmonary embolisms and thrombophlebitis allegedly suffered by the plaintiff as the result of a drug which the physician prescribed. The Carmichael court stated that if an injury results ...


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