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In re Estate of Mickels

Court of Appeals of Missouri, Eastern District, Northern Division

August 22, 2017

IN THE ESTATE OF: JOSEPH B. MICKELS

         Appeal from the Circuit Court of Marion County Honorable John J. Jackson Judge.

          LAWRENCE E. MOONEY, PRESIDING JUDGE.

         Ruth 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.

         Factual and Procedural Background

         The 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.

         On 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.

         On 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.

         On June 7, 2012, the Mickels family filed a wrongful-death action against Dr. Danrad.[1]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.

         Dr. 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 petition.

         The Mickels family appealed, and this Court affirmed. On the family's application, the Missouri Supreme Court transferred the case to that Court for consideration.

         The 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 announced:

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 months.

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."[2] 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.

         On 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 ...


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