Repose, Foreign Object, and Constitution

Ambers-Phillips v. SSM DePaul Health Center, — S.W.3d — (Mo. 2015), 2015 WL 1926012

In 2003, a patient discovered that a surgeon left four foreign objects in her abdomen back in 1999. The patient’s suit against the surgeon was extinguished by Missouri’s 10-year repose provision for medical malpractice suits. This provision is strict and cannot be tolled on because “To toll [it] disregards this basic purpose of statutes of repose—that of providing a final time limit beyond which suit is foreclosed.”

The Missouri Supreme Court, by a 6:1 majority, found no unconstitutionality in this result despite the fact that “it was practically impossible for [the patient] to discover that foreign objects had been left in her body until well after a 10–year period of repose.”