The flag: Medical malpractice statute of limitations, at-will employment, and more

W. Dudley McCarter, a former president of The Missouri Bar, is a partner in the St. Louis law firm of Behr, McCarter, Neely & Gabris.

MEDICAL MALPRACTICE STATUTE OF LIMITATIONS WAS NOT EXTENDED BY CONTINUING CARE 
Templeton v. Orth, 2024 WL 340946 (Mo. banc 2024). 

In Templeton v. Orth,¹ Dane Templeton appealed the circuit court’s judgment sustaining a motion for summary judgment in favor of Dr. Charles Orth and Orthopedic Surgeons Inc. (collectively, “Dr. Orth”), arguing there were genuine issues of material fact as to whether his medical malpractice action was timely. Templeton stated his action was within the statute because the continuing care doctrine applied to toll the two-year statute of limitations. The Supreme Court of Missouri affirmed the circuit court’s judgment.² 

In this case, Templeton met with Dr. Michael Tilley and received an alternative plan from Tilley. Templeton decided to follow Tilley’s plan by discontinuing the antibiotics Orth prescribed without further consultation with Orth. Based on these actions, “the only reasonable interference is that Templeton intended to terminate the physician/patient relationship with Dr. Orth at that time.”³

“Templeton did not merely fail to make and keep follow up appointments. Instead, he actively pursued an alternative treatment plan and – without consulting Dr. Orth – chose to follow that alternative approach and stop taking the antibiotics Dr. Orth had prescribed … When Templeton took these actions, he terminated his continuing care relationship with Dr. Orth regardless of whether a ‘reasonable time’ had passed since Templeton’s last appointment.”⁴

Under Missouri law, medical malpractice suits must be brought within two years of the date of the alleged act of negligence, with one exception being the common law doctrine – also referred to as the continuing care exception.⁵ Since “the undisputed facts show Templeton ended his physician/patient relationship with Dr. Orth before October 9, 2016,” and Templeton did not file his suit until Oct. 9, 2018, the Court found Dr. Orth was entitled to judgment since Templeton’s suit is barred by the two-year statute of limitations in § 516.105.⁶

ARBITRATION WAS WAIVED BY PARTY THAT ENGAGED IN SUBSTANTIAL LITIGATION 
GFS II, LLC v. Carson, 2023 WL 8588316 (Mo. App. W.D. 2023). 

GFS II, LLC (“Gateway”) filed suit against Janelle Carson alleging that Carson had defaulted on a loan which financed her purchase of a used car from a Gateway affiliate. Carson counterclaimed, alleging that Gateway violated federal and state statutes by selling her a defective vehicle and by charging her $1,800 for an extended warranty. After two years of litigation, Gateway moved to compel arbitration. The circuit court denied Gateway’s motion, finding that it had waived its rights to compel arbitration by engaging in substantial litigation. Gateway appealed, and the Missouri Court of Appeals-Western District affirmed the judgment in GFS II, LLC v. Carson.⁷ The court stated its pre-Morgan decisions in Ford Motor Credit Co. v. Jones⁸ and TD Auto Finance, LLC v. Bedrosian⁹ “should no longer be followed, to the extent they hold that a claim of waiver of the right to arbitration, based on active participation in litigation, must be submitted to an arbitrator under a generic delegation clause.”¹⁰ Despite the fact that an arbitration agreement generally submits issues of “enforceability” or “arbitrability” to the arbitrator, claims of waiver-by-litigation are decided by the circuit court.¹¹

"Turning to the merits, the circuit court’s conclusion that Gateway waived its right to compel arbitration, by engaging in more than two years of litigation, is amply justified. Missouri has long recognized that parties may waive the right to arbitration. ‘Waiver results from a party’s substantial participation in litigation to a point inconsistent with an intent to arbitrate[.]’¹² 

“'The function of arbitration is to be a speedy, efficient and less expensive alternative to court litigation.' Gateway’s conduct in this case – engaging in extensive litigation of Carson’s counterclaims for more than a year – is the antithesis of seeking a streamlined, expeditious arbitral resolution."¹³

AT-WILL EMPLOYEE WAS NOT ENTITLED TO BE PAID FOR UNUSED VACATION DAYS 
Frensley v. DataFile Technologies, LLC, 681 S.W.3d 238 (Mo. App. W.D. 2023). 

The trial court found that Christopher Frensley became an at-will employee at DataFile and that the at-will employment doctrine applies to claims for unpaid compensation. Frensley appealed and the Missouri Court of Appeals-Western District affirmed the judgment in Frensley v. DataFile Technologies, LLC.¹⁴ 

Employment at-will is when “an employment relationship in which the employer and employee have the right to terminate employment at any time for any reason, or no reason at all.”¹⁵ “To establish a claim for breach of contract, the party asserting the claim must establish the existence of a contract, the rights and obligations imposed by the contract, a breach, and damages.”¹⁶ “Employment-at-will is not a legally enforceable employment relationship because it is terminable at will of either party, on a moment-by-moment basis.”¹⁷

“Typically, [a]n essential element to an employment contract is a statement of duration ... Alternatively, if there is not a specific duration expressed, the contract must be one that places limits on the employer’s rights to discharge at will ... One cannot have an employment contract without either an expressed duration or some specified limitations on discharge.”¹⁸

“[T]he only legally enforceable promise created out of at-will employment is the employer’s promise, whether express or implied, to pay the employee for the work performed by the employee.”¹⁹ 

The court found that “Frensley did not establish the existence of a contract requiring DataFile to pay him for accrued, unused paid time off.”²⁰ 

FOLD IN FLOOR MAT WAS NOT OPEN AND OBVIOUS AS A MATTER OF LAW 
Anslinger v. Christian Hosp. Northeast-Northwest, 2024 WL 235608 (Mo. App. E.D. 2023). 

At trial, a photograph was admitted depicting the Christian Hospital Northeast-Northwest vestibule before Patricia Anslinger entered, which showed a slight fold at the point where two of the floor mats converged. Shortly later, Anslinger tripped and fell on the fold as she walked through the hospital vestibule. While responding to questioning on cross-examination, Anslinger stated she couldn’t see the fold in the mat because she was not “looking straight down,” and further agreed with opposing counsel that had she been looking down, she would have seen the fold in the mat because it was “open and obvious.”²¹ 

The jury returned a verdict attributing 65% of the fault to the hospital and 35% to Anslinger. The jury assessed the total damages at $150,000, resulting in an award of $97,500 in damages in favor of Anslinger. The hospital appealed, and the Missouri Court of Appeals-Eastern District affirmed the verdict.²² 

“Prior Missouri holdings demonstrate that simply because a defendant presents evidence indicating a plaintiff could have seen an unobscured dangerous condition does not mean the condition is necessarily open and obvious as a matter of law. Moreover, whether an invitee fails to keep a careful lookout and notice potentially dangerous conditions, either obscured or openly visible, is a question for the finder of fact to answer at trial when allocating fault under Missouri’s comparative fault principles.”²³

The jury must also consider the obviousness of the dangerous condition when evaluating comparative fault.²⁴ In this case, the jury decided Anslinger was 35% at fault for the trip and fall due partly to Anslinger not keeping a careful lookout for dangers and noticing the fold in the floor mat.²⁵ “Plaintiff should not have reasonably been expected to discover the condition of the floor mat which she tripped upon and recognize its potential danger,” the court ruled.²⁶

Endnotes

1 2024 WL 340946 (Mo. banc 2024).

2 Id.

3 Templeton, 2024 WL 340946 at 3.

4 Id. at 4.

5 Rev. Mo. Stat. § 516.105.1.

6 Id. at 5.

7 2023 WL 8588316 (Mo. App. W.D. 2023).

8 549 S.W.3d 14, 24 (Mo. App. W.D. 2018).

9 609 S.W.3d 763, 770-71 (Mo. App. E.D. 2020).

10 2023 WL 8588316 at 9.

11 Lopez v. GMT Auto Sales, Inc., 656 S.W.3d 315, 327-28 (Mo. E.D. 2022).

12 2023 WL 8588316 at 10 (quoting Lopez, 656 S.W.3d at 327).

13 2023 WL 8588316 at 12 (quoting Estate of Sanderfur v. Greenway, 898 S.W.2d 667, 669 (Mo. App. W.D. 1995)).

14 681 S.W.3d 238 (Mo. App. W.D. 2023).

15 Am. Fedn. of State, Cnty. And Mun. Employees, AFL-CIO, Counsel 61 v. State, 653 S.W.3d 111, 122 (Mo. banc 2022).

16 Scheck Indus. Corp. v. Tarlton Corp., 435 S.W.3d 705, 723 (Mo. App. E.D. 2014).

17 Morrow v. Hallmark Cards, Inc., 273 S.W.3d 15, 26 (Mo. App. W.D. 2008) (emphasis in original).

18 Id.

19 Id. at 26.

20 Frensley, 681 S.W.3d at 243; See also, e.g., Kaskowitz v. Commerce Magazine, Inc., 793 S.W.2d 628, 630 (Mo. App. E.D. 1990).

21 Anslinger v. Christian Hosp. Northeast-Northwest, 2024 WL 235608, 1 (Mo. App. E.D. 2023).

22 Id.

23 Id. at 5 (citing Bartel v. Central Markets, Inc., 896 S.W.2d 746, 747-48 (Mo. App. E.D. 1995); Lacy v. Wright, 199 S.W.3d 780, 784 (Mo. App. E.D. 2006); Morrison v. St. Lukes Health Corp., 929 S.W.2d 898, 905 (Mo. App. E.D. 1996)). 

24 Morrison, 929 S.W.2d at 905.

25 Anslinger, 2024 WL 235608 at 5.

26 Id. at 6 (citing Harris v. Niehaus, 857 S.W.2d 222, 226 (Mo. banc 1993)).