In its opinion issued on November 14, 2014, the Wyoming Supreme Court held that Wyoming’s two-year statute of limitations for medical malpractice claims violates the Wyoming Constitution when it is applied to medical malpractice claims of minors.
Minors in Wyoming generally have three years after attaining the age of majority to file suit for injury or damages sustained while a minor, except that a change in Wyoming law in 1976 expressly excludes an action arising from error or omission in the rendering of licensed or certified professional or health care services (“(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: . . . (ii) 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”). Wyo. Stat. Ann. § 1-3-107.
The Wyoming Supreme Court held that the statute of limitations for minors, Wyo. Stat. Ann. § 1-3-107(a)(ii), violates Article 1, Section 8 of the Wyoming Constitution (“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” – commonly referred to as the “open courts” provision 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”) also violates the Wyoming Constitution.
The Wyoming Supreme Court ‘s Analysis
The Wyoming Supreme Court stated that in order to establish an “open courts” violation, a litigant must satisfy a two-part test: (1) he must show that he has a well-recognized common-law cause of action that is being restricted and (2) he must show that the restriction is unreasonable or arbitrary when balanced against the purpose and basis of the statute.
With regard to the first part of the test, the Wyoming Supreme Court noted that Wyoming has long recognized that a minor has a common law cause of action for medical malpractice and that the minor’s exclusive remedy is to file suit, through his parents or some other guardian, seeking to recover damages for the alleged malpractice, and that a minor is deprived of the right to pursue a cause of action if the minor’s parents, guardian, or next friend fail to act in a timely manner (a minor cannot bring suit against his parents if they negligently fail to bring the claim within the statute of limitations).
With regard to the second part of the test, the Wyoming Supreme Court referenced with approval an Arizona Supreme Court case, which in turn referenced a Texas Supreme Court: “We agree with the Texas court that ‘it is neither reasonable nor realistic to rely upon parents, who may be ignorant, lethargic, or lack concern, to bring the action” … We recognize, also, that some children are without parents or have parents who do not fulfill commonly accepted parental functions. The statute makes no exceptions for children who have unconcerned parents, children in foster care, or those in institutions; it applies alike to children . . . who are normal and those who are brain injured. It applies to those with guardians and those without … 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.”
The Wyoming Supreme Court held that while the minor child in the case it was deciding has no ability to sue before reaching the age of majority, the effect of Wyo. Stat. Ann. §§ 1-3-107(a)(ii) and 1-3-114 is that she has no right to bring suit thereafter, which is not a reasonable restriction on her rights.
Source Jeff Kordus and Suzette Kordus, Parents and Next Friend to JK, a minor v. Leigh A. Montes, M.D., S-13-0043.
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