W. Dudley McCarter, a former president of The Missouri Bar, is a partner in the St. Louis law firm of Behr, McCarter, Neely & Gabris.
Continuing care exception did not extend two-year statute of limitations for medical negligence suit
Wolfe v. Walker, 713 S.W.3d 536 (Mo. App. W.D. 2025).
Frank and Karen Wolfe appealed the trial court’s grant of summary judgment in favor of respondents Dr. Courtnye Allyson Walker and SSM Regional Health Services. The ruling held that the Wolfes’ claims of medical negligence were barred by the two-year statute of limitations and that the statute of limitations was not tolled by the continuing care exception. The Missouri Court of Appeals-Western District affirmed.1
Section 516.105 states that all actions against physicians, hospitals, and entities providing health care services for damages for malpractice, negligence, errors, or mistakes related to health care shall be brought within two years from the date of occurrence of the negligent act.2
Wolfe’s petition was filed more than two years after he was released from Walker’s care. Wolfe relied on a nonstatutory exception to the two-year statute of limitations known as the “continuing care” exception. The exception operates to temporarily pause the commencement of the statute of limitations as long as a physician’s “treatment is continuing and of such a nature as to charge the medical man with the duty of continuing care and treatment which is essential to recovery.”3
‘“[C]ontinuing care’ only exists if a patient is actually receiving continuing treatment from the health-care provider for the condition on which the claim of negligence is based.”4 Continuing care is not established when the patient requires treatment later for complications arising from the health care provider’s negligence, or because the provider “knew or should have known of the patient’s need for further treatment.”5
In Newton v. Mercy Clinic East Communities,6 the Supreme Court of Missouri held that the continuing care exception does not apply to the continued physician-patient relationship to include care for later discovered complications. In Wolfe, “the trial court properly recognized that the uncontroverted facts Wolfe relies on fell into the category of care for later discovered complications and does not qualify as ‘continuing care’ for purposes of tolling the statute of limitations.”7
Inverse condemnation, not nuisance, is proper cause of action against municipality
Ferguson v. City of Sunrise Beach, 710 S.W.3d 620 (Mo. App. S.D. 2025).
The City of Sunrise Beach appealed, claiming the trial court erred in denying the motion on the plaintiffs’ nuisance claim for property damage because the plaintiffs’ claims for loss of use and enjoyment of real property must be asserted through an action for inverse condemnation.8 The Missouri Court of Appeals-Southern District reversed and remanded the judgment.9
The respondents alleged the city released improperly treated wastewater from the treatment plant that migrated to the creek near the respondents’ properties, which negatively impacted their properties and their “use and enjoyment” of them.10
“Inverse condemnation is the exclusive and proper remedy for an alleged nuisance or other damage caused to private property by an entity having the power of eminent domain.”11 “[N]o cause of action for nuisance exists against municipalities with condemning authority.”12
The Missouri Court of Appeals stated the respondents and trial court “misconceived the law” regarding the respondents’ claims.13
[W]here a plaintiff has from the outset misconceived the law and has chosen a mistaken legal theory to submit to the jury for redress, we may reverse the judgment … and remand the cause to allow the plaintiff to plead and to submit another theory.14
The court remanded the case to allow the respondents to amend their petition to assert claims for inverse condemnation. The court noted:
Provided the amended petition states causes of action for inverse condemnation, the case shall be allowed to proceed. If the amended petition does not state such claims for inverse condemnation, the trial court shall dismiss the claim with prejudice.15
Timely filed application for change of judge must be granted
State ex rel. Tapia v. Ankrom, 713 S.W.3d 633 (Mo. App. W.D. 2025).
Rudy Tapia and Douglas Rogers were involved in a lawsuit,16 and the case was transferred to a new venue, where Hon. Derek Ankrom was assigned as the new judge. After Ankrom denied Tapia and Rogers’ application for a change of judge, Tapia and Rogers filed a writ of prohibition asking that Ankrom be prohibited from taking any further action in the case, except to order a change of judge. The Missouri Court of Appeals- Western District made the preliminary writ of prohibition permanent.17
Ankrom was designated the trial judge on Aug. 28, 2024, and the application from Tapia and Rogers for a change of judge was filed Sept. 17, 2024, within 30 days of Ankrom’s designation.18 Since the application was served on all counsel of record, the application for a change of judge was timely.19
Rule 51.05(e) notes the judge must promptly sustain a timely application for a change of judge once presented. “Rule 51.05 grants a party the absolute right to disqualify a judge once without cause or any showing of prejudice.”20
Evidence that supports MHRA claim may support punitive damages
D.W. by and through L.W., v. Hogan Preparatory Academy, Inc., 713 S.W.3d 654 (Mo. App. W.D. 2025).
Hogan Preparatory Academy, Inc. and Douglas Bliss, a former teacher, appealed from a judgment in favor of D.W., a former student, for compensatory and punitive damages on her claim against Hogan for sex discrimination under the Missouri Human Rights Act and her claim against Bliss for battery. The Missouri Court of Appeals-Western District affirmed the judgment.21
A case for punitive damages requires clear and convincing proof the defendant intentionally acted by wanton, willful, or outrageous act, or by reckless disregard for an act’s consequences from which evil motive is inferred.22 “The defendant must have intentionally committed a wrongful act without just cause or excuse.”23
Hogan claimed D.W. failed to make a submissible case for punitive damages because there was no clear and convincing evidence of Hogan’s evil motive, outrageous conduct, or reckless indifference to D.W.’s rights. However a plaintiff may show discriminatory conduct supporting punitive damages by circumstantial evidence.24 D.W.’s “evidence in support of her MHRA claim may also meet her burden for submitting punitive damages to the jury.”25
The rationale for allowing the jury to make reasonable inferences in determining liability for punitive damages is the same as that for the substantive claim: [defendants] may act to prevent the development of direct evidence and a clear evidentiary trail of discriminatory intent is rare.26
Hogan noted the jury did not award punitive damages against Bliss as reflecting on the sufficiency of the evidence. The court rejected Hogan’s “novel argument that a jury’s verdict as to the employee on a punitive damages claim controls the issue of submissibility of a punitive damages claim against the employer.”27
The court found that the jury could have declined to award punitive damages for a variety of reasons. “We decline to find that the trial court erred in submitting the issue of punitive damages against Hogan to the jury simply because the jury did not award punitive damages against Bliss.”28
From the evidence adduced at trial and the reasonable inferences therefrom, a jury could have inferred that Hogan engaged in outrageous conduct either through intentional wrongful acts or through the reckless disregard of D.W.’s rights. Because this is not a case involving the “complete absence of probative facts to support the jury’s conclusion” as to punitive damages, we decline to reverse the jury’s verdict.29
Endnotes
1 Wolfe v. Walker, 713 S.W.3d 536 (Mo. App. W.D. 2025).
2 RSMo § 516.105.1.
3 Thatcher v. De Tar, 351 Mo. 603, 173 S.W.2d 760, 762 (Mo. 1943).
4 Tiemann v. SSM Regional Health Services, 632 S.W.3d 833 (Mo. App. W.D. 2021).
5 Id.
6 Id.
7 Wolfe, 713 S.W.3d at 546.
8 Ferguson v. City of Sunrise Beach, 710 S.W.3d 620 (Mo. App. S.D. 2025).
9 Id.
10 Id. at 622.
11 Id. at 625, quoting Basham v. City of Cuba, 257 S.W.3d at 650, 653 (Mo. App. S.D. 2008) (holding “[i]nverse condemnation is the exclusive remedy when private property is damaged by a nuisance operated an entity having the power of eminent domain”).
12 George Ward Builders, Inc. v. City of Lee’s Summit, 157 S.W.3d 644, 648 (Mo. App. W.D. 2004).
13 Ferguson, 710 S.W.3d at 629.
14 George Ward Builders, Inc., 157 S.W.3d at 651 (quoting Blaine v. J.E. Jones Constr. Co., 841 S.W.2d 703, 710 (Mo. App. E.D. 1992)).
15 Ferguson, 710 S.W.3d at 630.
16 State ex rel. Tapia v. Ankrom, 713 S.W.3d 633 (Mo. App. W.D. 2025).
17 Id.
18 Tapia, 713 S.W.3d at 640.
19 Id.
20 State ex rel. Manion v. Elliot, 305 S.W.3d 462, 464 (Mo. banc 2010); see also State ex rel. Hutchinson v. Manansala, 674 S.W.3d 811, 813 (Mo. App. 2023); Worth v. Roden, 646 S.W.3d 308, 310 (Mo. App. 2022).
21 D.W. v. Hogan Preparatory Academy, Inc., 713 S.W.3d 654 (Mo. App. W.D. 2025).
22 Brovont v. KS-1 Med. Servs., P.A., 622 S.W.3d 671, 699 (Mo. App. W.D. 2020).
23 Id.
24 Holmes v. Kansas City Mo. Bd. Of Police Comm’rs ex rel. Its Members, 364 S.W.3d 615, 629 (Mo. App. W.D. 2012).
25 Id.; see also Baldridge v. Kansas City Pub. Schs., 552 S.W.3d 699, 712-13 (Mo. App. W.D. 2018) (evidence used to support a claim of harassment can be considered in connection with a claim of punitive damages).
26 Holmes, 364 S.W.3d at 629.
27 Hogan, 713 S.W.3d at 665.
28 D.W., 713 S.W.3d at 666.
29 Id. at 667, citing Anslinger v. Christian Hosp. NENW, 687 S.W.3d 180, 183 (Mo. App. E.D. 2024).