Kordus v Montes, 2014 WY 146 (A.D. 2014), reminds us that minor children are a specific class of people who are entitled to enhanced protections under the law. The facts of this case are simple. The minor patient required an appendectomy resulting in postsurgical complications that caused significant injury. The statute of limitations for filing a malpractice suit in Wyoming is 2 years, but for whatever reason, the patient’s parents did not initiate the suit until 3.5 years later. The defendant made a motion to dismiss the case based on the failure to file within the statutory period of time. The district court granted the motion. This appeal followed, claiming that the statute was unconstitutional because it denied the plaintiff her right to seek legal redress for an injury.
As a general rule in Wyoming, minors neither can be sued nor have the capacity to sue another. The first tolling statute in Wyoming was elucidated in 1886. Wyo. Sess. Laws Ch. 60, Sec. 39, stated the following.
If a person, entitled to bring any action mentioned in this subdivision, except for a penalty or forfeiture, is, at the time the cause of action accrues, within the age of twenty-one years, insane, or imprisoned, such person may bring such action within the respective times limited by this chapter after such disability is removed.
In 1976, ostensibly as a tort reform measure enacted “to avoid a perceived crisis in medical malpractice insurance and the accompanying danger of a reduction in health services available to the public,” the statute was amended, and the new law, Wyo. Stat. Ann. Sec 1-3-111, read as follows.
If a person entitled to bring any action except for an action arising from error or omission in the rendering of licensed or certified professional or health care services or for a penalty or forfeiture, is, at the time the cause of action accrues, a minor or subject to any other legal disability, the person may bring the action within three (3) years after the disability is removed or within any other statutory period of limitation, whichever is greater.
The statute went even further by adding the following clause specifically addressing minors (Sec. 1-3-107).
(a) A cause of action arising from an act, error or omission in the rendering of licensed or certified professional or health care services shall be brought within the greater of the following times:…
(b) For injury to the rights of a minor, by his eighth birthday or within two (2) years of the date of the alleged act, error or omission, whichever period is greater.
It was this part of the statute that the plaintiff claimed violated her constitutional rights under Article I, Section 8, of the Wyoming Constitution that provides “All courts shall be open and every person for an injury done to person, reputation or property shall have justice administered without sale, denial or delay.” This is known as Wyoming’s “open courts” provision.
When a plaintiff chooses to claim a violation of the open courts, the provisions of a 2-part test must be satisfied. The first is that there is “a well recognized common law cause of action that is being restricted,” and the second prong is that “the restriction is unreasonable or arbitrary when balanced against the purpose and basis of the statute.”
Noting that the plaintiff had a well-recognized common law cause of action, the real issue to be resolved was whether her ability to bring the lawsuit was being restricted as a result of the statute. Since minors have no right to sue, any such suit must be brought by the minor’s parent, guardian ad litem, or “next friend.” When that person either is unwilling or for whatever reason fails to do so and thus does not protect the minor’s rights, the courts will step in to protect the child. As the court noted in its opinion, “In the interest of justice, we cannot allow a minor, who has no realistic ability to protect herself, to suffer loss of her claim because of a parent’s failure to act.” Citing a Texas case dealing with the same issue, the court noted the following.
A child has no right to bring a cause of action on his own unless disability has been removed. If a minor does bring a cause of action in his own behalf, the action is subject to being abated upon a timely plea of the defendant. If the parents, guardians, or next friends of the child negligently fail to take action in the child’s behalf within the time provided, the child is precluded from asserting his cause of action under that statute. Furthermore, the child is precluded from suing his parents on account of their negligence, due to the doctrine of parent-child immunity. The child, therefore, is effectively barred from any remedy if his parents fail to timely file suit. Respondents argue that parents will adequately protect the rights of their children. This Court, however, cannot assume that parents will act in such a manner. It is neither reasonable nor realistic to rely upon parents, who may themselves be minors, or who may be ignorant, lethargic, or lack concern, to bring a malpractice lawsuit action within the time provided.
An Ohio court also noted the following.
Because of the inability of many children to recognize or articulate physical problems, parents may be unaware that medical malpractice has occurred…[In addition] there may effectively be no parent or guardian, concerned or otherwise, in the minor’s life. For example, children in institutions, foster homes, and wards of court or others are provided no safeguards, nor do such minors have the requisite ability to seek redress or to protect personal interests. (Cits. Omit.)
The court, having determined that the statute did indeed restrict the minor’s access to the courts, now had to determine whether the statutory restriction is “unreasonable or arbitrary when balanced against the purpose of the statute.” Citing a Maryland court decision on the same issue, the court noted the following.
If the parents’ failure to bring a claim before the expiration of limitations had the effect of barring the minor child’s claim, “the child would be twice victimized—once at the hands of the tortfeasor, and once by parents who, for whatever reason, failed to timely prosecute [the] claims. We cannot countenance a result that would leave the only innocent victim in such a transaction uncompensated for his or her injuries” and that such a result was contrary to public policy and justice. To this, we need only add that barring an injured child’s medical malpractice claim before the child is able to bring an action is an unreasonable restriction upon the child’s right to a remedy and access to the courts. (Cit. Omit)
To be fair, the court noted that some jurisdictions have held a contrary opinion to the one decided here and have found, based on various legal principles, that shortened statutes of limitations do not infringe upon a minor’s rights to access the courts. The court cited several holdings and the legal reasoning for deciding them as they did. However, in the end, it returned to the holding in the Texas case, noting the following.
A foster mother may be honestly dedicated to hot meals and clean linen and emotional support and quail at the thought of embarking upon several years of legal battle for a member of her changeable brood. As to parents themselves, some are lazy or frightened or ignorant or religiously opposed to legal redress. Still, they have their remedy available to them if they choose to use it. A child does not.
…We agree that both the purpose and basis for [the medical malpractice statute of limitations for minors] are legitimate…We cannot agree, however, that the means used by the legislature to achieve this purpose…are reasonable when they are weighed against the effective abrogation of a child’s right to redress. Under the facts in this case, [the plaintiff] is forever precluded from having her day in court to complain of an act of medical malpractice. Furthermore, the legislature has failed to provide her any adequate substitute to obtain redress for her injuries. (Cits. Omit.)
The court of appeals reversed the district court’s ruling and found for the plaintiff, thus allowing her suit to proceed.
Okay, I’m sure that at the end of the day, if something terrible happened to any one of us, and our children were in the custody of another and injured as a result of malpractice, we would want them to be able to have their day in court. Well, most of us would, anyway. But how does this affect us in the daily practice of orthodontics?
Obviously, we treat children, and just as obviously some of us will commit malpractice (we’re not all perfect). Remember, we didn’t do it on purpose; it was an error, a mistake. This case shows that the window of opportunity for a potential plaintiff to bring a suit against us has just been propped open for an extended period of time. Therefore, we must preserve the patient’s records for a longer time.
What else does it mean? Well, suppose you did something you shouldn’t have done or you didn’t do something you should have done; in short, you breached the standard of care. The patient was injured to whatever degree. The patient’s parents just want their money back so they can go elsewhere and get their child’s treatment completed by someone else. You may think you are being held up, but let’s assume for the moment that deep down inside, you recognize that yes, maybe you did screw up a little bit.
Okay, you are willing to return the money. But you’re smart. You’ve been told that you don’t refund any money unless the parents sign a release absolving you from any liability. They sign. You cut a check. All is right with the world, right? Wrong. The release is not binding on the minor child. The parents may not be acting in the best interest of the child. They may just be taking the easy way out. Maybe the injury is more severe than anyone realizes, and the extent of the injury won’t be realized for years to come. Think anterior root resorption and eventual loss of 4 anterior teeth. The only way a release becomes binding on a minor child is to have it signed by a judge in a court of competent jurisdiction, either a surrogate’s court or a family court. This “ensures” that the child’s rights have been protected. The bottom line is that as a society we recognize the vulnerable position of minors, and that is why laws that restrict their rights will have to go through significant scrutiny if they are to pass muster. We must realize that we have an additional responsibility, too. What I’m going to say next may rub some of you the wrong way because it goes against what some of you believe and what you have been taught.
Orthodontics is for the most part elective. Nobody needs straight teeth and a pretty smile; the operative word is “need.” I don’t want to argue the social and psychological benefits; I agree with you, but the word is “need.” Altered function? No problem, there is a need. Good, now we can move on.
Because it is elective, we have a heightened responsibility to protect those we minister to, particularly minors who for the most part have no control over being in our offices. Do you really want to discuss this? By all means, let’s go have a drink and discuss it.
Because of this heightened responsibility, when we are faced with a clinical problem that has several solutions, we had better think long and hard about which road we recommend to the child’s caregiver. One approach may be more classical, yet it may carry a greater risk. Think root resorption and periodontal problems associated with bringing in an ugly impacted canine. Then there are the alternative or nontraditional means of addressing the problem. These approaches carry much less risk but often have esthetic compromises. Think canine extraction and premolar substitution.
My point is that many clinical scenarios offer both a traditional means of resolution and an alternative one. Both have pluses and minuses. It’s easy for us to say that we will lay out both and let the parent decide, but I go back to my original premise. This is a child to whom we have a heightened responsibility. We need to take the long view. What will look best 10, 20, or 50 years down the road? How will we best protect the long-term interests of this child?
I’m not telling you that I have the answers. Well, I have my answers, my values, my interpretation of where I stand on this point, and what I think I owe the patient. I only ask that as a fellow professional and a colleague, you should reassess your perspective after deciding whether you owe a child something extra.
Just remember, at the end of the day, when night closes in earlier and earlier, when your days become numbered, you will want someone to have a heightened responsibility toward you if you no longer can protect yourself.