Court of Appeals of Missouri, Eastern District, Northern Division
IN THE ESTATE OF: JOSEPH B. MICKELS
from the Circuit Court of Marion County Honorable John J.
LAWRENCE E. MOONEY, PRESIDING JUDGE.
Mickels appeals the trial court's denial of her
application to be appointed personal representative of her
late husband's estate so that she could pursue the claim
announced by the Missouri Supreme Court, when this case was
previously on appeal. The trial court found the application
to be untimely and barred by Section 473.020. We conclude
that the trial court should exercise its equitable powers and
consider granting Mrs. Mickels's application given the
unique facts of this case. Thus, we would reverse the trial
court and remand the cause. However, given the circumstances,
and the dearth of Missouri law on the interplay of equity and
probate's time limits, we transfer the case to the
Missouri Supreme Court.
and Procedural Background
Missouri Supreme Court described the facts and procedural
history of this case in the prior appeal. Mickels v.
Dcmrad, 486 S.W.3d 327 (Mo. banc 2016). We incorporate
and use those facts here without further attribution.
December 8, 2008, Joseph Mickels, Sr. sought medical
attention after experiencing numbness, blurred vision, and
headaches. He underwent a magnetic resonance imaging
("MRI") procedure. On December 12, 2008, Dr. Danrad
reviewed the MRI but made no diagnosis.
February 17, 2009, Mr. Mickels underwent a CT scan of his
brain after arriving at a hospital in an altered mental
state. Dr. Danrad again reviewed the results, but this time
he diagnosed Mr. Mickels with a brain tumor that was both
terminal and incurable. Despite immediate surgery, Mr.
Mickels died of this tumor on June 12, 2009.
7, 2012, the Mickels family filed a wrongful-death action
against Dr. Danrad.They presented evidence that - even though
Mr. Mickels certainly would have died of his brain tumor
without regard to Dr. Danrad*s alleged negligence - he would
not have died on June 12, 2009, had the brain tumor been
diagnosed following the initial MRI. Mr. Mickels's
treating oncologist, Dr. Carl Freter, testified that the
tumor was incurable when it was found and it would have been
incurable at the time of the original MRI. Nevertheless, Dr.
Freter opined, it was more likely than not that if the tumor
had been discovered earlier, Mr. Mickels would have lived an
additional six months on average.
Danrad moved for summary judgment on the ground that the
Mickels family had not pleaded and could not prove facts
showing that his alleged negligence resulted in Mr.
Mickels's death as required by Missouri's
wrongful-death statue, Section 537.080.1. The trial court
agreed and entered judgment dismissing the family's
Mickels family appealed, and this Court affirmed. On the
family's application, the Missouri Supreme Court
transferred the case to that Court for consideration.
Supreme Court agreed that the Mickels family could not sue
for wrongful death under Missouri's wrongful-death
statute because Mr. Mickels's death was not caused by Dr.
Danrad's alleged negligence. Mickels, 486 S.W.3d
at 329. "As alleged, Dr. Danrad's negligence
certainly injured Mr. Mickels, but it just as certainly did
not kill him. Instead, Mr. Mickels died of... an incurable,
terminal brain tumor." Id. The Supreme Court
noted that every state supreme court to address the issue had
reached the same conclusion. Id. The Supreme Court,
however, did not end its analysis and opinion there. Rather,
the Supreme Court held that Dr. Danrad's alleged
negligence, although not actionable for wrongful death, was
nevertheless actionable. Id. The Supreme Court
Dr. Danrad's alleged negligence did not cause Mr.
Mickels's death, but it surely injured him by depriving
him of the opportunity to delay his death for up to six
Id. In announcing this claim, the Supreme Court
relied on two cases from Florida, Tappan v. Florida
Medical Ctr., Inc., 488 So.2d 630 (Fla. Dist. Ct. App.
1986) and Williams v. Bay Hospital, Inc.,
471 So.2d 626 (Fla. Dist. Ct. App. 1985). In finding that the
allegations in the petition stated a cause of action for
negligence, the Missouri Supreme Court stated that Mr.
Mickels "would have been able to sue Dr. Danrad for this
negligence while he lived, and his personal representative
can bring that action under section 537.020 after his
death." Mickels, 486 S.W.3d at 329-330.
And in concluding the opinion, the Supreme Court stated that
"the allegations in the petition do state a cause of
action for negligence that would have been actionable under
section 537.020 if brought by Mr. Mickels' personal
representative." Id. at 331. Noting that in the
"furtherance of justice, " dismissal was
inappropriate "unless the appellate court is convinced
that the allegations are such that a recovery cannot be had,
" the Supreme Court vacated the judgment and remanded
the case to the trial court. Id.
remand, Ruth Mickels, Mr. Mickels's widow, filed an
application to be appointed personal representative so that
she could pursue the claim described by the Supreme Court.
The trial court denied her application, ruling simply that
the application was ...