Dueling decisions: the wrongful death clock clangs twice on the same day.

• Author: Lannert, Stacey Ann
• Position: NOTE

Boland v. Saint Luke's Health System, Inc., 471 S.W.3d 703 (Mo. 2015) (en banc).

1. INTRODUCTION

   "Hard cases ... are apt to introduce bad law." (1) This maxim concerning hard cases is an apt description of what may be a first in the Supreme Court of Missouri's history: dueling decisions issued on the exact same day. (2) On August 18, 2015, the court issued contradictory opinions centered on the statutory interpretation of the wrongful death statute of limitations. (3) Both cases display polar opposite outcomes to the question of whether fraudulent concealment by tortious defendants defeats meritorious claims brought beyond a three-year statute of limitations in wrongful death cases.

   Two contradictory lines of reasoning have developed in Missouri wrongful death causes of action. (4) The clashing decisions demonstrate the collision of strict interpretation and liberal construction and serve to illuminate the difficulty that dominates the issue. In Boland v. Saint Luke's Health Systems, Inc., the court applied strict construction interpretation standards to bar the plaintiffs from filing a wrongful death suit due to time limitations. (5) Conversely, the court in Beisly v. Perigo applied a liberal construction standard and injected a judicially-created common law maxim, equitable estoppel, to bar the defense of a statutory time limitation when the defendants engaged in fraudulent concealment. (6)

   Even though the contrary opinions were factually dissimilar, (7) the hearts of both cases beat identically in that the defendants allegedly employed intentional and fraudulent concealment of the facts, which made it impossible for the plaintiffs to bring their respective wrongful death suits within the statute of limitations. Both cases held that a cause of action for wrongful death was a "purely" statutory creation. (8) Both cases attempted to decipher the intent and plain language of the legislature (9) so as to untangle fraudulent concealment entwined in the hands of the wrongful death clock in order to properly determine when time started or accrued (10) and when time should freeze or toll. (11) Both cases were also closely decided by a 4-3 majority. (12) However, the Beisly decision was only made possible due to the recusal of a Supreme Court of Missouri judge and the participation of a Special Judge from the Missouri Court of Appeals for the Western District. (13) For purposes of this Note, Boland will be the focus. (14)

   Part II of this Note provides the facts and holding in Boland. Part III presents the legal background of Boland, discusses both the statutory and common law origins of wrongful death causes of action, and explores Missouri's unique history of wrongful death statutory interpretation. Part IV analyzes the rationale of the Boland court's return to the strict interpretation standard of days past. Finally, Part V discusses the ramifications of the court's decision and explores why the court should have acknowledged wrongful death claims that ascended from common law.

2. FACTS AND HOLDING

   Five people seeking treatment at a Chillicothe, Missouri hospital died in 2002. (15) The family members alleged a rogue nurse (16) employed by the hospital was responsible for the deaths. (17) The nurse, Jennifer Hall, (18) purportedly dosed the patients with lethal amounts of unneeded medication (19) and, therefore, caused the decedents' deaths. (20) A minimum of nine suspicious deaths and eighteen suspicious "codes" (21) were attributed to the nurse. (22)

   Dr. Cal Greenlaw became suspicious when a patient in the emergency room suddenly "coded" for cardiovascular collapse, and Dr. Greenlaw could not explain "the patient's unusual blood sugar/insulin events." (23) This event, combined with Dr. Greenlaw's knowledge of two previous suspicious incidents, led the doctor to voice concerns to the hospital administration twice. (24) The doctor's concerns were met with a denial of the problem, an admonishment to remain silent, and a command to abandon the issue out of fear this news would affect hospital enrollment. (25) One hospital administrator said, "We don't have a problem here, and if anyone breathes a word of this, you'll be fired." (26) The doctor disregarded the administration and gathered evidence that pointed to eighteen code blues and nine suspicious deaths that occurred while the nurse was on duty. (27) Dr. Greenlaw contacted local authorities. (28)

   Aleta Boyd, a registered nurse and the hospital's internal risk manager, detected a "dramatic increase in code blue events and deaths" in March 2002. (29) Boyd began an investigation after she suspected patients were intentionally injected with unnecessary insulin. (30) Boyd determined Hall was the perpetrator and reported the findings to both the director of nursing and the hospital's administrator. (31) Similar to Dr. Greenlaw's experiences, Boyd was met with a directive to remain quiet. However, like Dr. Greenlaw, Boyd continued to investigate. (32) Boyd uncovered "approximately 15 patients who either coded or died under suspicious circumstances," and Hall attended to each patient. (33) Boyd and other concerned nurses threatened to alert the media if the hospital "failed to stop Hall." (34)

   In May 2002, Hall was suspended and eventually fired after yet another patient expired under suspicious conditions. (35) A post-suspension investigation of Hall's locker revealed a bottle of insulin, even though Hall could not give a legitimate explanation for the insulin's presence. (36) After Hall's termination, the suspicious codes and deaths stopped. (37)

   An independent investigation was conducted by the Joint Commission on Accreditation of Healthcare Organizations and concluded a number of "sentinel" events occurred during 2002. (38) The Supreme Court of Missouri defined a "sentinel" event as "an unexpected occurrence involving death or serious physical or psychological injury, or the risk thereof." (39) Healthcare providers must report notice of sentinel events to patients and their families. (40) However, the families of the deceased reported they were not notified of the sentinel events suspected in connection with the deaths, despite the hospital's duty to do so, until shortly before their petitions were filed in 2010. (41)

   The families filed separate petitions for damages under the wrongful death statute, Missouri Revised Statutes Section 537.080. (42) The hospital argued the claims were time-barred by Missouri Revised Statutes Section 537.100, (43) the three-year wrongful death statute of limitations, and the hospital filed motions for judgment on the pleadings. (44) The trial court granted summary judgment for the hospital because the claims were filed eight years after the deaths, five years past the statute of limitations. (45)

   On joint appeal, the families of the deceased (46) contended that the trial court erred by granting judgment on the pleadings in favor of the hospital because the wrongful death statute of limitations time-bar should not have been applicable due to the hospital's fraudulent concealment. (47) The families argued two main points concerning why the statute of limitations did not apply in this case; both points centered on the inability to ascertain a cause of action for wrongful death because the families were unaware that tortious conduct, instead of natural causes, contributed to the deaths. (48) First, the families argued that the hospital's fraudulent concealment (49) stopped the clock or "tolled" the statute of limitations. (50) Second, the families argued that due to fraudulent concealment, the cause of action for wrongful death did not accrue at the time of death, but rather began when "the causes of death became evident or reasonably ascertainable." (51)

   The Missouri Court of Appeals for the Western District reversed the judgment on the pleadings and remanded for further proceedings. (52) The appellate court reasoned "tolling" could not apply due to the legislature's creation of a special time limitation. (53) However, the court concluded that "accrual" could apply, (54) because the legislature did not define "accrue," and therefore, "accrual" was open for judicial interpretation. (55) The court declined to apply the strict interpretation standard, but rather applied liberal construction as set forth by the Supreme Court of Missouri's directive in O 'Grady v. Brown - that "in order to promote the purpose and objectives of the Wrongful Death Act, the Act shall not be strictly construed." (56) The appellate court held the legislative time limitation in Section 537.100 did not accrue until, by reasonable diligence, a cause of action for wrongful death could be ascertained. (57)

   The Supreme Court of Missouri granted transfer of this case. (58) The court affirmed the orders of the trial courts for judgment on the pleadings in favor of the hospital. (59) The court held that the wrongful death claim accrued at the time of death, not eight years later when the cause of death was reasonably ascertained, (60) and that common law maxims for fraudulent concealment, such as equitable estoppel, were not appropriate to toll statutory time-bar creations. (61) The court further held that accrual should be interpreted under the strict interpretation standard set forth in a case from 1952, Frazee v. Partney. (62) The strict interpretation standard required the court to "construe the cold, clear words of the statute" and refrain from judicial enlargement of the time limitation set forth by the statute. (63)

3. LEGAL BACKGROUND

   Missouri has applied two lines of interpretation to wrongful death causes of action. The standard used significantly impacts the outcome of the wrongful death statute of limitations analysis. One line reflects the harshness of the strict interpretation standard, while the liberal construction line alleviates the severity of possible injustices through the application of judicially-created common law maxims of estoppel. (64)...