Smith v. Tang , 926 S.W.2d 716 ( 1996 )

CRANE, Chief Judge.

Plaintiff, personal representative of her father’s estate, filed an action on June 2, 1995 against defendant physician seeking damages for medical malpractice for lost chance of survival as a result of defendant’s treatment of plaintiffs father who died on October 8, 1991. The trial court granted defendant’s motion for summary judgment on the ground that the action was barred by the two-year medical malpractice statute of limitations. For her sole point on appeal plaintiff contends that the trial court erred in granting summary judgment because her 1994 appointment as personal representative “related back” to her father’s death, thus making her a “duly-appointed personal representative” on October 7, 1993 when she filed a petition in her individual capacity for lost chance of survival. We affirm on the ground that plaintiffs 1995 petition was barred by the statute of limitations.

The decedent, Harry Pyle Boyd, entered Salem Memorial Hospital on October 7, 1991 at 8:35 p.m. and died at 1:55 a.m. on October 8, 1991. On October 5, 1993 his daughter, Harriet Smith, filed a wrongful death action against T.C. Tang, M.D. and Salem Memorial District Hospital in the Circuit Court of Dent County.¹ On October 7, 1993 Harriet Smith filed an amended petition against T.C. Tang, M.D. and Salem Memorial District Hospital seeking damages under § 537.020 RSMo 1986, the survivorship statute, for medical malpractice resulting in a lost chance of survival. Smith named herself individually in the caption. In the petition she alleged that she filed “both in her individual capacity as the surviving daughter of Harry Pyle Boyd, and in her capacity as the prospective personal representative of the estate of the Decedent, Harry Pyle Boyd.” (emphasis added). The defendant hospital filed a motion to dismiss which was sustained by stipulation. On November 5, 1993 defendant Tang moved to dismiss the petition based on Smith’s lack of standing in that Smith was not a personal representative. The trial court denied the motion and defendant Tang subsequently petitioned for a writ of prohibition.

On April 27, 1995, the Southern District issued a permanent order of prohibition on the ground that Smith had filed a lost chance of survival action under the survivorship statute which was required to be brought by the personal representative, Wollen v. DePaul Health Ctr., 828 S.W.2d 681, 686 (Mo. banc 1992), or a plaintiff ad litem, § 537.021 RSMo (Cum.Supp.1993), and that she had “no standing to bring this action in her individual capacity as the decedent’s daughter.” State ex rel. Tang v. Steelman, 897 S.W.2d 202, 203 (Mo.App.1995). It directed the trial court “to proceed no further upon the First Amended Petition, except to enter an order dismissing same.” Id. On May 22, 1995 the trial court entered its order dismissing the first amended petition.

On January 25, 1994 Smith was appointed personal representative of her father’s estate. By this time the two-year medical malpractice statute of limitations had run.

On June 2, 1995 Smith, in her capacity as personal representative, filed a petition for damages for lost chance of survival under the survivorship statute naming Tang as the sole defendant. The cause was transferred on a change of venue motion to the Circuit Court of Washington County in this district. Tang filed a motion for summary judgment on the ground that the action was barred by the two-year medical malpractice statute of limitations, § 516.105 RSMo 1994. The trial court sustained defendant’s motion and dismissed plaintiffs petition with prejudice because “Harriet Smith as the Personal Representative of the Estate of Harry Pyle Boyd, Deceased, did not, prior to the expiration of the period of time prescribed by Section 516.105, file a lawsuit.”

For her sole point relied on, Smith asserts that the October 7, 1993 lost chance of survival action was timely filed within the two-year medical malpractice statute of limitations and that her subsequent appointment as personal representative “related back” to include that filing, so that she had in fact filed as a “duly-appointed personal representative” on October 7, 1993. We disagree.

Smith bases her claim of relation back on a common law doctrine under which the subsequent appointment of a person as administrator of an estate relates back to the death of the testator and validates all acts of the administrator which would have been lawful and authorized if the administrator had been earlier appointed. This doctrine was described in dicta in Dockery v. Sparks, 170 Mo.App. 651, 157 S.W. 365 (K.C.App.1913). It relates to the administrator’s liability for paying claims filed against the estate prior to appointment. It does not give an administrator retroactive standing in a previously filed and dismissed court action so as to avoid the statute of limitations. These matters are controlled by statutes and rules of procedure. A personal or real action filed after the limitations period may be saved by application of the savings statute, § 516.230 RSMo 1994. In addition an amendment filed after the limitations period may relate back to the original pleading pursuant to Rule 55.33(c).

In the argument portion of her brief, Smith asserts that the savings statute applies to her 1995 filing. Issues not encompassed by the point relied on and raised only in the argument portion of the brief are not preserved for review. Chancellor Dev. Co. v. Brand, 896 S.W.2d 672, 678 (Mo.App.1995). Nevertheless, in our discretion, we will review this claim on its merits.

Actions for medical malpractice must be brought within two years after the plaintiff knows or should have known of the alleged malpractice. § 516.105 RSMo 1994. The savings statute, § 516.230 RSMo 1994, provides:

If any action shall have been commenced within the times respectively prescribed in sections 516.010 to 516.370, and the plaintiff therein suffer a nonsuit, ... such plaintiff may commence a new action from time to time, within one year after such nonsuit suffered....

(emphasis added).

Smith filed a survivorship action as an individual in 1993 and a second action as personal representative in 1995. Both actions sought recovery for her father’s lost chance of survival. A lost chance of survival action is a personal injury action which belongs solely to the injured party, in this case Smith’s father, Harry Pyle Boyd. Sauter v. Schnuck Markets, Inc., 803 S.W.2d 54, 55 (Mo.App.1990). At common law tort actions did not survive the death of the injured party. Id. By statute, such actions survive to the personal representative of the injured party. Id.; § 537.020 RSMo 1994. In contrast a wrongful death action belongs to the decedent’s survivors, not the decedent, and does not vest in the decedent’s estate. Sullivan v. Carlisle, 851 S.W.2d 510, 513-15 (Mo. banc 1993); § 537.080 RSMo 1994.

Smith, as personal representative, filed the survivorship action in 1995, more than three and one-half years after the alleged malpractice occurred. Although this action was filed within one year after her individual action was dismissed, the savings statute does not apply to her 1995 action because Smith as an individual and Smith as a personal representative were legally different plaintiffs. Tang, 897 S.W.2d at 203 (citing Wollen, 828 S.W.2d at 686 and State ex rel. Jewish Hosp. of St. Louis v. Buder, 540 S.W.2d 100, 105 (Mo.App.1976)). The right to commence a new action within one year of suffering a nonsuit is given only to the plaintiff in the original action. Meddis v. Wilson, 175 Mo. 126, 74 S.W. 984, 986 (Mo.1903). A new plaintiff who was not the plaintiff in the nonsuited action “manifestly is not protected by the provisions of this section of the [savings] statute.” Id. An exception arises only where the second plaintiff sues in the same right as the original plaintiff, such as a successor trustee. Id. In her capacity as personal representative of her father’s estate, Smith had not filed a suit prior to 1995, was not a party to the 1993 suit, and had not suffered a nonsuit prior to her 1995 filing. As personal representative of an estate, she is not suing in the same right as an individual survivor of the decedent. Therefore, as personal representative of an estate she is not entitled to the protection of § 516.230 RSMo 1994.

Further, even if the 1995 action is considered to be an amendment, there is no relation back under Rule 55.33(c). An amendment will relate back to the original petition so as to save the action from the statute of limitations only when the original plaintiff had the legal right to sue and stated a cause of action at the time the suit was filed. Buder, 540 S.W.2d at 107; Harting v. City of Black Jack, 768 S.W.2d 633, 636 (Mo.App.1989); Don Roth Dev. Co., Inc. v. Mo. Hwy and Transp. Comm’n, 668 S.W.2d 177, 179 (Mo.App.1984). Thus an action filed by an adult child as administrator can not relate back to an action filed by the same adult child as an individual. Buder, 540 S.W.2d at 107. Although a different statute was at issue, the rationale in Buder is directly on point.

An adult child has no right or standing, under the circumstances here, to maintain suit under the wording of the statute, and an amendment substituting an authorized and designated party cannot therefore relate back to the original petition. The breath of life cannot, by judicial hands, be instilled into a petition devoid of life.

Id. In recognizing a cause of action for lost chance of survival, Wollen held that only a personal representative could bring that action and that a survivorship action brought by an individual does not state a cause of action. Wollen, 828 S.W.2d at 686;² see also Tang, 897 S.W.2d at 208. Smith did not have standing to file the October 7, 1993 survivorship action in her personal capacity and did not state a cause of action in that pleading. Accordingly, there could be no relation back under Rule 55.33(c) of the survivorship action she filed as personal representative in 1995.

The judgment of the trial court is affirmed. Defendant’s motions to strike portions of the legal file, to strike plaintiffs brief, and to dismiss the appeal are denied. Plaintiffs motion to supplement the legal file is granted.

AHRENS, J., concurs. CHARLES B. BLACKMAR, Senior Judge, dissents in separate dissenting opinion.

1 . This petition was not included in the legal file and Smith makes no claim or argument on appeal with respect to this petition.

2 . In 1993 the legislature provided for appointment of a plaintiff ad litem to also file a survivor-ship action. However, Smith did not seek such appointment.