A 12-year-old girl admitted to a hospital for appendicitis and a doctor performed an appendectomy. The girl was discharged the following day, but complications developed requiring additional surgery and medical treatment. Over two weeks after she was admitted to the hospital, the girl was transferred to another hospital.
Over four years after she was treated at the first hospital for appendicitis, the girl filed a claim for medical malpractice with the medical review panel. The doctor waived the medical review panel process and the medical review panel entered its order of dismissal. The girl filed her complaint over five years after she was admitted to the first hospital. The doctor responded with a motion to dismiss. The Sweetwater County District Court dismissed the complaint ruling that the cause was barred by the applicable two-year statute of limitations.
The girl appealed arguing for the first time that the statute of limitations violated Article 1, Section 8 of the Wyoming Constitution, which provided that “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 has been referred to as the “open courts” provision of the Wyoming Constitution
The Supreme Court of Wyoming reversed and remanded. The court held that it would consider the unpreserved open courts challenge to the statute of limitations and whether the application of the two-year statute of limitations to the juvenile patient's case violated her fundamental right of access to the courts.
The court would consider the unpreserved open courts challenge to the statute of limitations. The court may review issues raised for the first time on appeal where the issue is of such a fundamental nature that must be considered. The right to access the court is a fundamental right. Therefore the court determined that it would consider the claim on appeal that the application of the two-year statute of limitations to a minor child's medical malpractice action violated her fundamental right of access to the courts under the open courts provision of the Wyoming Constitution, even though the minor child failed to raise the issue at trial.
The application of the two-year statute of limitations to the juvenile patient's case violated her fundamental right of access to courts. The court held that, in order to establish an open courts violation, a litigant must satisfy a two-part test: first, the litigant must show a well-recognized common-law cause of action that is being restricted; and second, the litigant must show that the restriction is unreasonable or arbitrary when balanced against the purpose and basis of the statute. The girl showed that she had a well-recognized common-law cause of action for medical malpractice. The girl showed that the medical malpractice statute of limitation as applied to minors was unreasonable when balanced against its purpose: to address a “perceived crisis in medical malpractice insurance.” The court followed the reasoning stated by the Texas Supreme Court in Sax v. Votteler, 648 S.W.2d 661 (Tex.1983). The court reasoned that a child has no right to bring a cause of action on his or her own unless the disability has been removed. If a minor does bring a cause of action in his or her own behalf, the action is subject to being abated upon the 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 statute of limitations, the child is precluded from asserting a cause of action under that statute. Furthermore, the child is precluded from suing his or her parents on account of their negligence, due to the doctrine of parent-child immunity. The child, therefore, is effectively barred from any remedy if the parents fail to timely file suit. The court held that the statute of limitations for minors, Wyo. Stat. Ann. § 1–3–107(a)(ii), violated Article 1, Section 8 of the Wyoming Constitution, and that the exception contained in Wyo. Stat. Ann. § 1–3–114—“except for an action arising from error or omission in the rendering of licensed or certified professional or health care services”—was also constitutionally infirm.
The Supreme Court of Wyoming reversed the trial court’s dismissal of the complaint on the ground that the cause was barred by the applicable two-year statute of limitations, and remanded the action.
See: Kordus v. Montes, 2014 WL 6065940, 2014 WY 146 (Wyo., November 14, 2014) (not designated for publication).