construing a statute providing that medical malpractice actions be brought "within two years from the date of the act of neglect complained of"
How later courts described this case
- construing a statute providing that medical malpractice actions be brought "within two years from the date of the act of neglect complained of"
- in a foreign object ease construing the previous medical malpractice statute of limitations, section 516.140, the Court rejected the plaintiffs assertion that the statute was tolled until the damage resulting from the act of neglect was discoverable
- statute of limitations must allow reasonable time to bring suit
Written by the judges who cited it.
The opinion
DISSENTING OPINION
DONNELLY, Judge.
In Foremost Dairies, Inc., v. Thomason, Mo.Sup., 384 S.W.2d 651, at 659 , this Court stated: “ * * * Where the meaning of a statute is clear there is no occasion for its construction and the courts will apply it as written. However, when the meaning is doubtful it becomes the duty of the courts to construe it. It is elementary that the primary rule to be applied in the construction of a statute is to ascertain and give effect to the legislative intent. * * ”
I believe that §§ 516.140 and 516.100 are in “pari materia,” and that we should apply a rule of statutory construction which “proceeds upon the supposition * * * [that these statutes] were governed by one spirit and policy and were intended to be consistent and harmonious in their several parts and provisions * * State ex rel. Cairo Bridge Commission v. Mitchell, 352 Mo. 1136, 1143 , 181 S.W.2d 496, 499 ; State ex rel. Smithco Transport Co. v. Public Service Commission, Mo.Sup., 316 S.W.2d 6, 12-13 ; City of St. Louis v. Carpenter, Mo.Sup., 341 S.W.2d 786, 788-789 , 87 A.L.R.2d 1219 .
I would follow said rule of construction and would conclude that the General Assembly intended that a malpractice case must be filed within two years “from the date of the act of neglect complained of” (§ 516.-140) when, but only when, the damage resulting therefrom is sustained and is capable of ascertainment (§ 516.100), on the date of the act of neglect. If, as in this case, the damage is not capable of ascertainment on the date of the act of neglect, the malpractice case must be filed within two years from the date the damage resulting therefrom is sustained and is capable of ascertainment.
Of course, this Court must apply a statute as written when its meaning is clear. Foremost Dairies, Inc. v. Thomason, supra. However, when, as here, a statute is unclear and it becomes our duty to judicially ascertain the legislative intent, we can, and must, assume the General Assembly intended a just result. Laclede Gas Company v. City of St. Louis, 363 Mo. 842, 848 , 253 S.W.2d 832, 835 ; Maryland Casualty Company v. General Electric Company, Mo.Sup., 418 S.W.2d 115, 118 .
As stated in the principal opinion, it “is obvious that plaintiff did not know and could not have known of the cause of her injury and damage or that she had a cause of action against defendants before September, 1962; she certainly could not have discovered the cause of her pain and the damage she sustained when seven doctors did not.” I would hold that plaintiff is entitled to her day in court under these circumstances.
I respectfully dissent.