Negligence : Wrongful Death –  Survivorship –  Personal Representative

Where a wife sought to be appointed as the personal representative for the estate of her husband seven years after his death in order to bring a negligence action based on a doctor’s alleged misdiagnosis, the denial of her application as untimely was proper because the statute requires all such applications to be filed within one year of the decedent’s death.

Equitable estoppel

Dissenting opinion by Draper, J.: “I remain dismayed by this Court’s inability to conceive of a scenario in which the circuit court could exercise its equitable power to afford an aggrieved party relief from the rigid enforcement of the statute of limitations, especially in light of this Court’s announcement in Mickels I that Ms. Mickels had a cognizable cause of action. Mickels v. Danrad, 486 S.W.3d 327, 329 (Mo. banc 2016). Hence, consistent with this Court’s holding in State ex rel. Beisly v. Perigo, 469 S.W.3d 434 (Mo. banc 2015), finding the wrongful death statute of limitations was tolled based upon equitable estoppel, and my dissenting opinion in Boland v. Saint Luke’s Health System, Inc., 471 S.W.3d 703 (Mo. banc 2015), advocating the same application of equitable estoppel to almost identical facts as Beisly, I respectfully dissent.”

Judgment is affirmed.

In the Estate of: Joseph B. Mickels (MLW No. 71346/Case No. SC96649 – 9 pages) (Supreme Court of Missouri, per curiam; Fischer, C.J., Wilson, Russell, Powell, Breckenride and Stith, JJ., concur. Draper, J., dissents in separate opinion filed) Appealed from circuit court, Marion County, Jackson, J. (Thomas K. Neill and Stephen R. Woodley, St. Louis, for Mickels) (John B. Morthland and Amy L. Ohnemus, Hannibal, for medical provider).

Read the full text of this opinion. (PDF)