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Ambers-Phillips v. SSM DePaul Health Center

Supreme Court of Missouri, En Banc

April 28, 2015


Page 902


The Phillipses were represented by Jeremy A. Gogel of The Gogel Law Firm in St. Louis.

SSM DePaul was represented by Timothy C. Sansone, Rodney M. Sharp and Olivia M. Watters of Sandberg Phoenix & von Gontard PC in St. Louis.

Russell, C.J., Breckenridge, Fischer, Draper and Wilson, JJ., concur; Teitelman, J., dissents in separate opinion filed.


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Shonda Ambers-Phillips and her husband, Richard Phillips, II, appeal the trial court's dismissal with prejudice of their medical malpractice and related claims against SSM DePaul Health Center for leaving foreign objects in her abdomen

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during surgery almost 14 years earlier.[1] The Phillipses argue that the trial court erred in not holding that Missouri's 10-year statute of repose for foreign-object medical malpractice claims was equitably tolled until Ms. Ambers-Phillips discovered the wrong, analogizing to the tolling of certain statutes of limitations until the wrong has been discovered. This Court disagrees. While statutes of limitations are subject to equitable tolling in certain circumstances, statutes of repose by their nature are not. They begin to run on the date of the allegedly tortious act and provide an absolute deadline beyond which suit may not be brought. To toll them disregards this basic purpose of statutes of repose--that of providing a final time limit beyond which suit is foreclosed.

This Court also reaffirms its prior cases rejecting the Phillipses' alternative argument that statutes of repose are unconstitutional if not subject to equitable tolling. While the Phillipses are correct that the right to bring suit for medical malpractice is one protected by the right to jury trial and may not be unreasonably foreclosed, this Court rejects the argument that it is a fundamental right to which heightened scrutiny applies. The Phillipses, therefore, must show that the legislature's decision to adopt a statute of repose was without rational basis. They have failed in meeting this burden. Statutes of limitations always have limited the time period for filing suit, and when the legislature extended the statute of limitations for medical malpractice by adopting a discovery rule, its decision also to adopt an absolute limit on the time within which the action could be filed was not unreasonable. Neither did it violate the prohibition against special laws or the guarantee of open courts. For these reasons, the judgment is affirmed.


On September 13, 1999, Ms. Ambers-Phillips was in a car accident. She underwent an exploratory laparotomy at SSM DePaul. Nearly 14 years later, in June 2013, she underwent another exploratory laparotomy at a different St. Louis-area hospital because she was having pain in her side. According to the petition, during the surgery her doctors found four foreign objects that had been left inside her abdomen during the 1999 surgery. She sued SSM DePaul in 2013, alleging that it committed medical malpractice in failing to account for and remove these four foreign objects during her 1999 laparotomy.[2] Mr. Phillips brought a loss of consortium claim.

SSM DePaul moved to dismiss the Phillipses' claims on numerous grounds, including that they were barred by section 516.105's 10-year statute of repose for claims of medical negligence involving the leaving of foreign objects in the body.[3] The trial court sustained SSM DePaul's motion to dismiss with prejudice, concluding that, because the Phillipses filed their action 14 years after the date of the alleged negligence, section 516.105's statute of repose applied, making their claims time-barred and subject to dismissal. The trial court also determined that the Phillipses'

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constitutional claims--that the statute violated due process, equal protection, and the Missouri Constitution's open courts and special legislation provisions--failed to present a " real and substantial" constitutional challenge and were, in any event, not well taken. The Phillipses appeal. Because this case involves a challenge to the constitutional validity of section 516.105, appeal is directly to this Court. Mo. Const. art. V, § 3.


This Court reviews a trial court's grant of a motion to dismiss a petition de novo. Lynch v. Lynch, 260 S.W.3d 834, 836 (Mo. banc 2008). This Court also reviews the constitutional validity of a statute de novo. In re Brasch, 332 S.W.3d 115, 119 (Mo. banc 2011). A statute is presumed to be valid, and the Court will uphold it unless it " clearly and undoubtedly" conflicts with the constitution. Prokopf v. Whaley, 592 S.W.2d 819, 824 (Mo. banc 1980). The Court " resolve[s] all doubt in favor of the [statute's] validity." Westin Crown Plaza Hotel Co. v. King, 664 S.W.2d 2, 5 (Mo. banc 1984).


A. Historical Treatment of Time for Bringing Foreign Object Cases In Missouri

From 1921 until 1976, cases alleging that a foreign object was left in the body were subject to the general statute of limitations governing certain intentional torts and medical malpractice, which stated in relevant part:

Within two years: An action for libel, slander, assault, battery, false imprisonment or criminal conversation. All actions against physicians, surgeons ... hospitals ... for damages for malpractice, error, or mistake shall be brought within two years from the date of the act of neglect complained of.[4]

Applying this statute to a medical malpractice case, Laughlin v. Forgrave, 432 S.W.2d 308, 310, 313 (Mo. banc 1968), held that the statute barred the suit brought by a patient in 1963 against the doctors who had left a foreign object in her back during surgery that occurred in 1951. Laughlin rejected the patient's argument that the statute of limitations should have been tolled from 1951 until her discovery of the foreign object in 1962. Id. at 313-14. In so doing, Laughlin said her argument in favor of a discovery rule " is appealing and has some force, so far as justice is concerned; in that respect the conclusion we reach is distasteful to us." Id. at 314. Nonetheless, the plaintiff could not recover, for:

[T]he legislative branch of the government has determined the policy of the state and clearly fixed the time when the limitation period begins to run against actions for malpractice. This argument addressed to the court properly should be addressed to the General Assembly. Our function is to interpret the law; it is not to disregard the law as written by the General Assembly.

Id. Eight years later, in 1976, the legislature took action that in part addressed the unfairness that had concerned this Court in Laughlin by adopting section 516.105, RSMo Supp. 1976. That section sets out a discovery rule for foreign object medical malpractice cases as part of the medical

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malpractice statute of limitations, stating in relevant part:

All actions against physicians, hospitals, ... 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 ... in cases in which the act of neglect complained of [is] 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 ....

(Emphasis added). As this Court later noted in Weiss v. Rojanasathit, 975 S.W.2d 113 (Mo. banc 1998), by this enactment the legislature provided:

that in cases such as Laughlin, in which the act of neglect complained of is introducing and negligently permitting any foreign object to remain within the body of a living person, the statute commences to run from the date of discovery. Section 516.105.

Id. at 117. Under section 516.105, when the negligent act is discovered, the statute of limitations begins running.

The discovery rule adopted in the 1976 revision to section 516.105 was not unlimited, however. In a classic example of a statute of repose, its final clause provided that no suit could be brought more than 10 years after the foreign object was left in the body, without regard to whether the negligent act had at that point been discovered:

[B]ut in no event shall any action for damages for malpractice, error, or mistake be commenced after the expiration of ten years from the date ...

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