SUPREME COURT OF MISSOURI

en banc

SHONDA AMBERS-PHILLIPS )

and RICHARD PHILLIPS, II, )

)

Appellants, )

)

v. ) No. SC94322

)

SSM DePAUL HEALTH CENTER, )

)

Respondent. )

APPEAL FROM THE CIRCUIT COURT OF ST. LOUIS COUNTY

The Honorable Michael T. Jamison, Judge

Opinion issued April 28, 2015

Shonda Ambers-Phillips and her husband, Richard Phillips, II, appeal the trial 

court’s dismissal with prejudice of their medical malpractice and related claims against

SSM DePaul Health Center for leaving foreign objects in her abdomen during surgery 

almost 14 years earlier.

1

 The Phillipses argue that the trial court erred in not holding that 

Missouri’s 10-year statute of repose for foreign-object medical malpractice claims was

equitably tolled until Ms. Ambers-Phillips discovered the wrong, analogizing to the 

tolling of certain statutes of limitations until the wrong has been discovered. This Court 

disagrees. While statutes of limitations are subject to equitable tolling in certain 

circumstances, statutes of repose by their nature are not. They begin to run on the date of 

 1 The Phillipses also filed their claims against Barnes-Jewish Hospital and Washington 

University in St. Louis. They later dismissed their claims against those entities. 
the allegedly tortious act and provide an absolute deadline beyond which suit may not be 

brought. To toll them disregards this basic purpose of statutes of repose—that of 

providing a final time limit beyond which suit is foreclosed. 

This Court also reaffirms its prior cases rejecting the Phillipses’ alternative

argument that statutes of repose are unconstitutional if not subject to equitable tolling. 

While the Phillipses are correct that the right to bring suit for medical malpractice is one 

protected by the right to jury trial and may not be unreasonably foreclosed, this Court 

rejects the argument that it is a fundamental right to which heightened scrutiny applies. 

The Phillipses, therefore, must show that the legislature’s decision to adopt a statute of 

repose was without rational basis. They have failed in meeting this burden. Statutes of 

limitations always have limited the time period for filing suit, and when the legislature 

extended the statute of limitations for medical malpractice by adopting a discovery rule, 

its decision also to adopt an absolute limit on the time within which the action could be 

filed was not unreasonable. Neither did it violate the prohibition against special laws or 

the guarantee of open courts. For these reasons, the judgment is affirmed.

I. FACTUAL AND PROCEDURAL HISTORY

On September 13, 1999, Ms. Ambers-Phillips was in a car accident. She 

underwent an exploratory laparotomy at SSM DePaul. Nearly 14 years later, in June 

2013, she underwent another exploratory laparotomy at a different St. Louis-area hospital

because she was having pain in her side. According to the petition, during the surgery 

her doctors found four foreign objects that had been left inside her abdomen during the 

1999 surgery. She sued SSM DePaul in 2013, alleging that it committed medical 
3

malpractice in failing to account for and remove these four foreign objects during her 

1999 laparotomy.

2

 Mr. Phillips brought a loss of consortium claim.

SSM DePaul moved to dismiss the Phillipses’ claims on numerous grounds, 

including that they were barred by section 516.105’s 10-year statute of repose for claims 

of medical negligence involving the leaving of foreign objects in the body.

3

 The trial 

court sustained SSM DePaul’s motion to dismiss with prejudice, concluding that, because 

the Phillipses filed their action 14 years after the date of the alleged negligence, section 

516.105’s statute of repose applied, making their claims time-barred and subject to 

dismissal. The trial court also determined that the Phillipses’ constitutional claims—that 

the statute violated due process, equal protection, and the Missouri Constitution’s open 

courts and special legislation provisions—failed to present a “real and substantial” 

constitutional challenge and were, in any event, not well taken. The Phillipses appeal. 

Because this case involves a challenge to the constitutional validity of section 516.105, 

appeal is directly to this Court. Mo. Const. art. V, § 3. 

II. STANDARD OF REVIEW

This Court reviews a trial court’s grant of a motion to dismiss a petition de novo.

Lynch v. Lynch, 260 S.W.3d 834, 836 (Mo. banc 2008). This Court also reviews the 

constitutional validity of a statute de novo. In re Brasch, 332 S.W.3d 115, 119 (Mo. banc 

2011). A statute is presumed to be valid, and the Court will uphold it unless it “clearly 

 2 Ms. Ambers-Phillips also pleaded a cause of action for res ipsa loquitor in leaving the 

objects in her body during the surgery. The trial court dismissed that count. 

Ms. Ambers-Phillips does not claim any independent error in that dismissal, and it is not 

further addressed.

3 All references are to RSMo Supp. 2013 unless otherwise noted.
4

and undoubtedly” conflicts with the constitution. Prokopf v. Whaley, 592 S.W.2d 819, 

824 (Mo. banc 1980). The Court “resolve[s] all doubt in favor of the [statute’s] validity.”

Westin Crown Plaza Hotel Co. v. King, 664 S.W.2d 2, 5 (Mo. banc 1984). 

III. A STATUTE OF REPOSE IS NOT SUBJECT TO EQUITABLE TOLLING 

A. Historical Treatment of Time for Bringing Foreign Object Cases In Missouri

From 1921 until 1976, cases alleging that a foreign object was left in the body 

were subject to the general statute of limitations governing certain intentional torts and 

medical malpractice, which stated in relevant part:

Within two years: An action for libel, slander, assault, battery, false 

imprisonment or criminal conversation. All actions against physicians, 

surgeons ... hospitals ... for damages for malpractice, error, or mistake 

shall be brought within two years from the date of the act of neglect 

complained of.

4

Applying this statute to a medical malpractice case, Laughlin v. Forgrave, 432 

S.W.2d 308, 310, 313 (Mo. banc 1968), held that the statute barred the suit brought by a 

patient in 1963 against the doctors who had left a foreign object in her back during 

surgery that occurred in 1951. Laughlin rejected the patient’s argument that the statute of 

limitations should have been tolled from 1951 until her discovery of the foreign object in 

1962. Id. at 313-14. In so doing, Laughlin said her argument in favor of a discovery rule

“is appealing and has some force, so far as justice is concerned; in that respect the 

conclusion we reach is distasteful to us.” Id. at 314. Nonetheless, the plaintiff could not 

recover, for:

 4 This language was first adopted in 1921 as section 1319a, and later codified as section 

864 in 1929 and as section 1016 in 1939. Since at least 1949, the general two-year 

statute of limitations has been codified as section 516.140.
5

[T]he legislative branch of the government has determined the policy of the 

state and clearly fixed the time when the limitation period begins to run 

against actions for malpractice. This argument addressed to the court 

properly should be addressed to the General Assembly. Our function is to 

interpret the law; it is not to disregard the law as written by the General 

Assembly. 

Id. Eight years later, in 1976, the legislature took action that in part addressed the 

unfairness that had concerned this Court in Laughlin by adopting section 516.105, RSMo 

Supp. 1976. That section sets out a discovery rule for foreign object medical malpractice 

cases as part of the medical malpractice statute of limitations, stating in relevant part:

All actions against physicians, hospitals, ... and any other entity providing 

health care services and all employees of any of the foregoing acting in the 

course and scope of their employment, for damages for malpractice, 

negligence, error or mistake related to health care shall be brought within 

two years from the date of occurrence of the act of neglect complained of, 

except that ... in cases in which the act of neglect complained of [is] 

introducing and negligently permitting any foreign object to remain within 

the body of a living person, the action shall be brought within two years 

from the date of the discovery of such alleged negligence, or from the date 

on which the patient in the exercise of ordinary care should have discovered 

such alleged negligence, whichever date first occurs ....

(Emphasis added). As this Court later noted in Weiss v. Rojanasathit, 975 S.W.2d 113 

(Mo. banc 1998), by this enactment the legislature provided:

that in cases such as Laughlin, in which the act of neglect complained of is 

introducing and negligently permitting any foreign object to remain within 

the body of a living person, the statute commences to run from the date of 

discovery. Section 516.105.

Id. at 117. Under section 516.105, when the negligent act is discovered, the statute of 

limitations begins running.

The discovery rule adopted in the 1976 revision to section 516.105 was not 

unlimited, however. In a classic example of a statute of repose, its final clause provided
6

that no suit could be brought more than 10 years after the foreign object was left in the 

body, without regard to whether the negligent act had at that point been discovered:

[B]ut in no event shall any action for damages for malpractice, error, or 

mistake be commenced after the expiration of ten years from the date of the 

act of neglect complained of.

§ 516.105, RSMo Supp. 1976. 

Section 516.105 was amended in 1999, but the time limit for bringing suit in 

foreign object cases remained the same:

within two years from the date of the discovery of such alleged negligence, 

or from the date on which the patient in the exercise of ordinary care should 

have discovered such alleged negligence, whichever date first occurs; ... In 

no event shall any action for damages for malpractice, error, or mistake be 

commenced after the expiration of ten years from the date of the act of 

neglect complained of ....

§ 516.105, RSMo Supp. 1999.

5

 

B. The Statute of Repose in Section 516.105

This Court first must decide whether the Phillipses’ suit was timely brought under 

section 516.105 as written or as modified by the doctrine of equitable tolling. The 

Phillipses’ suit was filed on November 21, 2013, within two years from the date 

Ms. Amber-Phillips discovered, in June 2013, that four foreign objects had been left in 

her body. But this was not within 10 years after she alleges the foreign objects were left 

in her abdomen during her surgery at DePaul in September 1999. The Phillipses

acknowledge that this means that section 516.105’s statute of repose appears to bar their 

claims. But they argue the 10-year repose period should be equitably tolled until the day 

 5 The legislature amended other portions of section 516.105 in 2005 in regard to matters 

not relevant here.
7

Ms. Ambers-Phillips discovered the wrong. Neither the cases the Phillipses cite nor the 

other relevant Missouri cases support their tolling argument. 

In support of their argument, the Phillipses note that, when it applies, equitable 

tolling “pauses the running of, or ‘tolls,’ a statute of limitations when a litigant has 

pursued his rights diligently but some extraordinary circumstance prevents him from 

bringing a timely action.” Lozano v. Montoya Alvarez, 134 S. Ct. 1224, 1231-32 (2014). 

They note that Missouri has recognized the concept of equitable tolling can be applied to 

statutes of limitations when it is unfair to hold the plaintiff’s claim was barred. See 

Rolwing v. Nestle Holdings, Inc., 437 S.W.3d 180, 184 (Mo. banc 2014). Similarly, in 

Ross v. Kansas City General Hospital & Medical Center, 608 S.W.2d 397 (Mo. banc 

1980), this Court explained the fairness principles that supported the legislature’s 

adoption of a discovery rule in section 516.105 in regard to the statute of limitations in 

foreign object cases, stating:

One reason why the legislature acted may have been that the legislature 

considered it particularly unfair that a claimant in whom a foreign object 

has been left should be barred by the statute of limitations even before there 

was any discovery of the foreign object, as happened to plaintiff in 

[Laughlin v. Forgrave, 432 S.W.2d 308 (Mo. 1968)]. Or the legislature 

might have believed it was proper to measure from the time of discovery in 

the foreign object cases rather than from the time of the act of neglect,

because there is less likely to be as great a problem with stale evidence 

when a foreign object is left in the body than in the other types of 

malpractice cases.

Id. at 399. Combining these principles, the Phillipses argue that the same fairness 

concerns should be applied here and compel “the intervention of equitable tolling of the 

statute of repose.” 
8

While the Phillipses are correct that this Court’s prior cases have recognized the 

fairness of adopting a discovery rule and of equitable tolling in regard to the statute of 

limitations, they fail to note that these cases have emphasized that it is up to the 

legislature to determine whether to adopt a discovery rule or equitable tolling in a 

particular case because “a ‘statute of limitations may be suspended or tolled only by 

specific disabilities or exceptions enacted by the legislature and the courts are not 

empowered to extend those exceptions.’” Rolwing, 437 S.W.3d at 184, quoting Shelter 

Mut. Ins. Co. v. Dir. of Revenue, 107 S.W.3d 919, 923 (Mo. banc 2003); see also Ross, 

608 S.W.2d at 399.

The Phillipses’ argument also fails to consider the philosophical and conceptual 

differences between statutes of limitations and statutes of repose. Equitable tolling is a 

term almost universally used in the context of statutes of limitations. This is because, 

unlike statutes of limitations, statutes of repose “by their nature reimpose on some 

plaintiffs the hardship of having a claim extinguished before it is discovered, or perhaps 

before it even exists.” W. Page Keeton et al., Prosser & Keeton on the Law of Torts § 30, 

at 168 (5th ed. 1984). The United States Supreme Court itself recently has explained 

why these differences between statutes of limitations and statutes of repose make the 

latter incompatible with equitable tolling, stating: 

Statutes of repose, on the other hand, generally may not be tolled, even in 

cases of extraordinary circumstances beyond a plaintiff's control. ... 

Equitable tolling is applicable to statutes of limitations because their main 

thrust is to encourage the plaintiff to “pursu[e] his rights diligently,” and 

when an “extraordinary circumstance prevents him from bringing a timely 

action,” the restriction imposed by the statute of limitations does not further 

the statute's purpose. [Lozano, 134 S. Ct. at 1231–32]. But a statute of 
9

repose is a judgment that defendants should “be free from liability after the 

legislatively determined period of time, beyond which the liability will no 

longer exist and will not be tolled for any reason.” C.J.S. § 7, at 24. 

CTS Corp. v. Waldburger, 134 S. Ct. 2175, 2183 (2014).6

 

Although not using the term “equitable tolling,” this Court applied these concepts 

in rejecting an argument that a 10-year statute of repose in a construction case was 

unreasonable because it cut off the plaintiffs’ cause of action before it arose, stating;

Plaintiffs’ argument [citing to statute of limitations cases] proves too much; 

it fails to distinguish the basic difference between a statute of limitations 

and a statute of repose. A statute of limitations allows the cause of action 

to accrue and then cuts off the claim if suit is not filed within a certain 

period of time. A statute of repose eliminates the cause of action altogether 

after a certain period of time following a specified event; in this instance, 

the completion of construction. More importantly, the cause of action is 

eliminated before the plaintiffs’ injury and thus before plaintiffs’ cause of 

action accrues.

Blaske v. Smith & Entzeroth, Inc., 821 S.W.2d 822, 834 (Mo. banc 1991). 

Rather than discuss or attempt to distinguish Blaske, the Phillipses instead ask this 

Court to look at dicta in the decision of the New Jersey Supreme Court in R.A.C. v. P.J.S, 

Jr., 927 A.2d 97 (N.J. 2007). Even under New Jersey law, however, R.A.C. recognized 

 6 Even more basically, the Phillipses do not address how long after discovery of the 

wrongful act a plaintiff would have before the statute of repose took effect, but from the 

context it seems they would argue that the full statutory period of limitations would then 

have to run before the statute of repose would bar suit – certainly no lesser time period is 

suggested and to select one would be arbitrary. But that would effectively write the 

statute of repose out section 516.105, for that statute already gives a plaintiff two years 

from the time of discovery of the wrong in which to file suit. That is, under the 

Phillipses’ reading, if the statute of repose language were removed from the statute, the 

result would be the same as if it remained in the statute, for in either case a plaintiff 

would have two years from the time of discovery of the wrong. “[T]his Court will not 

interpret the statute in a way that renders some phrases mere surplusage.” Farish v. 

Missouri Dep’t of Corr., 416 S.W.3d 793, 796 (Mo. banc 2013).
10

that equitable tolling usually is incompatible with a statute of repose, citing United States 

Court of Appeals decisions from the Fourth, Seventh, and Tenth Circuits. Id. at 105-06.

The court simply said that under the particular wording of its state constitution it thought 

tolling would be permissible in the extraordinary circumstance where the court believed 

that tolling was consistent with legislative intent. Id. at 108. R.A.C. did not find that to 

be the case under the facts before it and, therefore, denied tolling. Id. at 109-10.7

Similarly, here, the Phillipses cite to nothing in section 516.105 that indicates a 

legislative intent to equitably toll the statute of repose until a patient discovers a foreign 

object left in his or her body. To the contrary, the legislature specifically provided that 

claims of medical malpractice are barred by the statute of repose once 10 years have 

passed from the time of the negligent act, even if the plaintiff has not at that point 

discovered the wrong. This is a clear and specific statute of repose, and it bars the 

Phillipses’ claims.

IV. SECTION 516.105’S STATUTE OF REPOSE DOES NOT VIOLATE THE 

MISSOURI CONSTITUTION’S EQUAL PROTECTION CLAUSE OR OPEN 

COURTS PROVISION

The Phillipses alternatively argue that, if section 516.105’s statute of repose is not 

 7 R.A.C. said:

The primary consideration underlying a statute of repose is “fairness to a 

defendant,” the belief that there comes a time when the defendant “‘ought 

to be secure in his reasonable expectation that the slate has been wiped 

clean of ancient obligations ....’” Because of the deference owed to a 

legislative enactment, courts generally do not expand the limitations period 

defined by a statute of repose unless the Legislature carved out exceptions 

that permit for tolling.

927 A.2d at 105 (internal citation omitted).
11

equitably tolled, then it violates the Missouri Constitution’s equal protection clause and 

guarantee of open courts. 

The equal protection clause of the Missouri Constitution provides that “all persons 

are created equal and are entitled to equal rights and opportunity under the law.” Mo. 

Const. art. I, § 2. In considering whether a statute violates the clause, this Court first 

“determines whether the statute contains a classification that ‘operates to the 

disadvantage of some suspect class or impinges upon a fundamental right explicitly or 

implicitly protected by the Constitution.’” Glossip v. Missouri Dep’t of Transp. & 

Highway Patrol Emps. Ret. Sys., 411 S.W.3d 796, 801 (Mo. banc 2013). In most other 

instances, the statute is presumed constitutional and Missouri courts will apply a rational 

basis test under which “the statute will be [held] valid as long as it bears a reasonable 

relationship to a legitimate state purpose.” Id.; accord State v. Pike, 162 S.W.3d 464, 470 

(Mo. banc 2005).

A. Open Courts Provision is Inapplicable

The Phillipses ask this Court to apply strict scrutiny to the statute of repose at 

issue here even though they do not fall within any traditional suspect class, nor do they 

assert a right this Court previously has recognized as fundamental. They argue that an 

expansion of what constitutes a fundamental right to bring their claims is required by the 

open courts provision of the Missouri Constitution, which guarantees that “the courts of 

justice shall be open to every person, and certain remedy afforded for every injury to 

person, property or character, and that right and justice shall be administered without 

sale, denial or delay.” Mo. Const. art. I, § 14. The Phillipses argue that, because the 
12

statute of repose bars their cause of action before it even vests or accrues, it denies them 

their guaranteed right under article I, section 14 of access to the courts and a certain 

remedy for the wrong committed against them by defendant. The dissenting opinion 

agrees.

This argument misconstrues the open courts provision. It is well-settled that “[a]n 

open courts violation is established upon a showing that: (1) a party has a recognized 

cause of action; (2) ... the cause of action is being restricted; and (3) the restriction is 

arbitrary or unreasonable.” Snodgras v. Martin & Bayley, Inc., 204 S.W.3d 638, 640 

(Mo. banc 2006). In other words, as this Court held in Harrell v. Total Health Care, Inc., 

781 S.W.2d 58, 62 (Mo. banc 1989), the right of access to the courts set out in the open 

courts provision of the Missouri Constitution “means simply the right to pursue in the 

courts the causes of action the substantive law recognizes.” Artificial barriers, such as 

the requirement that one appear before a medical review board prior to filing suit, violate 

this provision for they bar a plaintiff from bringing a valid and recognized claim. State 

ex rel. Cardinal Glennon Mem’l Hosp. for Children v. Gaertner, 583 S.W.2d 107, 109-10

(Mo. banc 1979).

Statutes of repose do not bar the bringing of a valid cause of action. As this Court 

noted in Blaske in considering whether the open courts provision was violated by the 

10-year statute of repose for builders and designers set out in section 516.097, RSMo 

1986, the failure to bring suit within 10 years extinguishes the cause of action. Therefore, 

because the substantive statutory law had extinguished any right to sue at the end of 10 
13

years, the plaintiffs had no cause of action to bring by the time they discovered the wrong 

at a later point. 821 S.W.2d at 833. 

The principles set out in these cases apply here. The open courts guarantee applies 

only to recognized causes of action; it does not guarantee access to the courts once the 

statute of repose extinguishes the cause of action. If the Phillipses’ right to sue had

accrued prior to the time the statute of repose applied, then the open courts provision 

would be applicable and this Court would examine whether the statute unreasonably

restricted their right to bring suit. Cf. Laughlin, 432 S.W.2d at 314 (statute of limitations 

must allow reasonable time to bring suit). Similarly, if the legislature had prohibited 

recovery for personal injury, the due process principles recognized by the United States 

Supreme Court in Poindexter v. Greenhow, 114 U.S. 270, 303 (1885), and relied on by 

the dissent certainly would be implicated. But, here, the legislature provided a 

reasonable, 10-year period in which to sue. That period concluded before the Phillipses 

discovered the wrong; as a result, the Phillipses’ right to sue never accrued and, therefore,

never vested.

8

 

 8 The principal non-Missouri cases that the Phillipses argue reach a contrary result either 

involve a differently worded constitutional provision or involve a statute of limitations 

rather than a statute of repose and, therefore, are not persuasive. For example, Kenyon v. 

Hammer, 688 P.2d 961 (Ariz. 1984), involved a statute of limitations, not a statute of 

repose. It found strict scrutiny applied to medical malpractice claims under the Arizona 

Constitution’s unique “non-abrogation” clause, which protects an existing cause of action 

from abrogation by the legislature. See id. at 966-67. While this is similar to (but 

differently worded from) Missouri’s open court’s provision, Kenyon’s reasoning does not 

apply when the issue is whether the legislature can enact a statute of repose, not an 

allegedly unreasonable statute of limitations. Further, Baker v. University Physicians 

Healthcare, 296 P.3d 42, 51-52 (Ariz. 2013), recently clarified that, under the federal and 

the Arizona equal protection clauses, medical malpractice claimants are not in a suspect 
14

As discussed above, the United States Supreme Court has recognized that the 

effect of a statute of repose is to extinguish an existing cause of action, and it has applied 

such statutes. See CTS Corp., 134 S. Ct. at 2187-88. A statute of repose is not 

inconsistent with due process. The open courts provision is inapplicable to the Phillipses’ 

claim, for it applies only to causes of action that have accrued, not to one that, like that of 

Ms. Ambers-Phillips, was barred before it had a chance to arise under a statute that 

otherwise allows a reasonable period in which to bring suit.

B. Equal Protection Clause Inapplicable As Fundamental Right Not Violated

Absent the ability to rely on the open courts provision, the Phillipses are unable to 

support their argument that the right to bring a medical malpractice action is fundamental. 

To the contrary, fundamental rights normally include free speech, freedom of travel, the 

right to personal privacy, and other rights that are “objectively, deeply rooted in the 

nation’s history and tradition and implicit in the concept of ordered liberty, such that 

neither liberty nor justice would exist if they were sacrificed.” Doe v. Phillips, 194 

S.W.3d 833, 842 (Mo. banc 2006). That is why this Court previously has rejected nearly 

identical arguments that the right to sue for medical malpractice can fit within this narrow 

category of fundamental rights.

 

class, nor is the right to bring a medical malpractice action a fundamental right. 

Therefore, the court held, statutory restrictions on bringing such claims will be analyzed 

under a rational basis test. Id. at 52-53. White v. State, 661 P.2d 1272 (Mont. 1983), also 

relied on by the Phillipses, similarly has been limited; Meech v. Hillhaven West, Inc., 776 

P.2d 488, 491-92 (Mont. 1989), noted that Montana’s open courts provision allows suit 

only for recognized common law or statutory claims, and there is no independent 

fundamental right to full legal redress. 
15

For instance, in Adams ex rel. Adams v. Children’s Mercy Hospital, 832 S.W.2d 

898 (Mo. banc 1992), overruled in part by Watts v. Lester E. Cox Medical Centers, 376 

S.W.3d 633, 645-46 (Mo. banc 2012) (overruling unrelated portion of Adams approving 

statutory caps), this Court specifically rejected the argument that the open courts

provision guarantees victims of medical malpractice an unlimited time to sue.

This aspect of Adams was reaffirmed in Batek v. Curators of University of 

Missouri, 920 S.W.2d 895 (Mo. banc 1996). Batek involved a suit by a woman who had 

experienced malpractice when 20 years old. She argued that it violated equal protection 

not to toll the running of the statute of limitations as to her until she was 21 when it was 

tolled until age 21 for minors under the age of 18 who were the victims of malpractice. 

Id. at 898. In rejecting the plaintiff’s argument that strict scrutiny should be applied to 

the statute of limitations that otherwise barred her claims, the Court found that the statute 

did not “impinge upon Ms. Batek’s fundamental rights” because those rights include

“only basic liberties explicitly or implicitly guaranteed by the United States 

Constitution.” Id. at 898; see also Adams, 832 S.W.2d at 903.

This Court applied the reasoning of Adams and Batek to the 10-year statute of 

repose for architects, engineers, and builders at issue in Blaske under section 516.097. 

Blaske upheld the statute of repose after reaffirming that persons claiming personal injury 

or property damage due to defects in improvements on real property do not allege 

violation of a fundamental right. 821 S.W.2d at 829. The Court found that the statute of 

repose easily met the rational basis test. Id. at 829-30.
16

The Phillipses alternatively argue that, even if their right to bring suit is not 

otherwise fundamental, medical malpractice victims generally are a suspect class. But, as

this Court noted in Mahoney v. Doerhoff Surgical Services, Inc.:

[A] suspect classification is one whose purpose or effect is to create classes 

based on certain characteristic[s] that are inherently suspect in a 

constitutional sense. They are classes, such as those based upon race, 

national origin or illegitimacy, which because of historical reasons, 

“‘command extraordinary protection from the majoritarian political 

process.’”

807 S.W.2d 503, 512 (Mo. banc 1991) (internal citations and emphasis omitted). For 

these reasons, Mahoney rejected the argument that medical malpractice claimants were a 

suspect class entitled to strict scrutiny analysis. Id. Blaske similarly held that:

Neither a “suspect class” nor a “fundamental right” is at issue in this case. 

... a suspect classification is one that is inherently suspect in a 

constitutional sense. These are classes such as those based upon race, 

national origin, or illegitimacy which, because of historical reasons, need 

special protection from a political process controlled by the majority. 

Mahoney v. Doerhoff Surgical Services, 807 S.W.2d 503, 512 (Mo. banc 

1991).

Blaske, 821 S.W.2d at 829; accord Batek, 920 S.W.2d at 898 (“Further, this Court has 

previously and repeatedly rejected the argument that victims of medical malpractice are 

members of a suspect class”).9

 This Court reaffirms that medical malpractice victims do 

 9 In Crane v. Riehn, this Court rejected a similar claim that the wrongful death act 

discriminates against a decedent’s minor children and spouse when the decedent’s 

parents also survive. The Court explained how narrow the suspect class analysis is, 

stating:

It should be emphasized that the classification of those entitled to sue under 

the wrongful death statute does not involve interference with the exercise of 

a “fundamental” right nor discriminate as to classes having the “traditional 

indicia of suspectness” for equal protection considerations. The designated 

classes are “not saddled with such disabilities, or subjected to such a history 
17

not fall into a class of persons who command extraordinary protection from the 

majoritarian political process and, hence, do not constitute a suspect class.

The Phillipses argue that medical malpractice victims, nonetheless, should be 

considered a suspect class because the application of the statute of repose 

disproportionately affects the poor, disabled, and elderly because they are less likely to 

have good or frequent medical care and so are less likely to discover the foreign object 

within the 10-year repose period. Yet the Phillipses do not develop this argument by 

citing to any case holding that the elderly or poor are a suspect class in any context, much 

less in regard to their right to bring medical malpractice actions. Moreover, Ms. AmbersPhillips herself does not claim she was unable to learn of the foreign objects left in her 

body because she was poor, elderly, or disabled. This argument is of no assistance.

For these reasons, the Phillipses have failed to show that they fall within a 

traditionally suspect class or that they are burdened with disabilities or a history of 

discrimination that entitles them to extraordinary protection. Neither have they shown 

that the right of access to open courts guarantees them the right to bring suit free of the 

limitations imposed by a statute of repose. Consequently, as in Blaske, Adams, Batek and 

similar cases, this Court applies a rational basis test in determining whether the statute of 

repose contained in section 516.105 violates their equal protection rights. The rational 

 

of purposeful unequal treatment, or relegated to such a position of political 

powerlessness as to command extraordinary protection from the 

majorit[a]rian political process.” 

568 S.W.2d 525, 530 (Mo. banc 1978); see also Adams, 832 S.W.2d at 903. 
18

basis test “is offended only if the classification rests on grounds wholly irrelevant to the 

achievement of the state’s objective.” Mahoney, 807 S.W.2d at 512. Under the rational 

basis test, this Court will uphold the law if it is “rationally related to a legitimate state 

interest.” Id.; accord Batek, 920 S.W.2d at 898-99.

The Phillipses argue that the statute of repose does not pass the rational basis test 

because it arbitrarily and irrationally discriminates against certain victims of medical 

malpractice.10 If the legislature entirely eliminated the right to bring suit for medical 

malpractice, or left them an unreasonably short period in which to bring suit, their 

argument might have merit. But, here, the 10-year statute of repose reflects a reasonable 

balance struck by the legislature between the right of those injured by medical 

malpractice to discover their injuries and the concern that medical defendants should be 

free from worry about liability for past acts after a reasonable period of time. CTS Corp., 

134 S. Ct. at 2183. In that light, the statute of repose set out in section 516.105 is 

rationally related to a legitimate state interest. Accordingly, it does not violate the 

Missouri Constitution’s equal protection clause or open courts provision.

V. SECTION 516.105 IS NOT AN INVALID SPECIAL LAW

The Missouri Constitution mandates that the legislature “shall not pass any local 

or special law ... for limitation of civil actions.” Mo. Const. art. III, § 40(6). The 

 10 The Phillipses also assert that their claims fall within the limited class of claims to 

which the courts give intermediate scrutiny. In a small number of cases involving quasisuspect classes (such as those concerning gender discrimination) a court will apply 

intermediate scrutiny. See, e.g., Glossip, 411 S.W.3d at 802. The Phillipses cite no 

principles of Missouri law that would support application of intermediate scrutiny to 

medical malpractice victims, and that argument also is rejected.
19

Phillipses argue that the statute of repose at issue here is a special law because it applies 

only to malpractice victims who have foreign objects left in their body.

This Court has defined special laws as those that “include[] less than all who are 

similarly situated ..., but a law is not special if it applies to all of a given class alike and 

the classification is made on a reasonable basis.” Blaske, 821 S.W.2d at 831 (internal 

quotation marks omitted). This test for whether a law is a special law is similar to the test 

for determining whether a law violates the equal protection clause: if a classification is 

made on a reasonable basis or applies to all in a given class, then it is not an improper 

special law. See id. at 831-32.

In Batek, this Court rejected a similar “special law” objection to a statute of 

limitations for medical malpractice claims that began to run at age 18 years for persons 

who were 18 years or older at the time of the tortious conduct, but which began to run 

only at age 21 years for those who were younger than age 18 years at the time of the 

wrong. Ms. Batek was 20 years old at the time of the tort. This Court held that:

A “special law” is a law that “includes less than all who are similarly 

situated ... but a law is not special if it applies to all of a given class alike 

and the classification is made on a reasonable basis.” “[T]he test of a 

special law is the appropriateness of its provisions to the objects that it 

excludes. It is not, therefore, what a law includes, that makes it special, but 

what it excludes.”

Contrary to Ms. Batek’s assertion, section 516.170 does not 

impermissibly exclude or separately classify any member of a given group. 

... There are valid reasons for the general assembly to have provided for a 

different time for the commencement of the limitations period for plaintiffs 

in medical malpractice cases.

920 S.W.2d at 899 (internal citation omitted). 
20

Similarly, Blaske rejected the argument that a statute of repose designated for 

building designers and builders was an invalid special law. 821 S.W.2d at 832. It held 

that, whether one considered designers and builders to be in a different class than other 

tort defendants or whether one considered them to be in the same class but reasonably 

treated differently, the result was the same—because the legislature had a reasonable 

basis to distinguish between designers and builders as compared to owners and 

materialmen, the statute was not an invalid special law. Id.

Similarly, here, as noted earlier, the legislature had a reasonable basis to impose a 

10-year statute of repose when they adopted a discovery rule for medical malpractice 

actions involving foreign objects. The question for this Court is not whether it believes 

that not adopting a statute of repose would be better or fairer, but whether adoption of the 

repose period for foreign object suits draws a distinction without rational basis. It was 

not irrational for the legislature to balance a victim’s right to discover his or her injury 

with a defendant’s right to closure and to determine that 10 years was the outside limit for 

discovery of a cause of action for leaving a foreign object in a patient’s body.

VI. DUE PROCESS IS NOT VIOLATED 

The Phillipses lastly allege that the statute of repose in section 516.105 violates the 

provision of the Missouri Constitution guaranteeing that “no person shall be deprived of 

life, liberty or property without due process of law.” Mo. Const. art. I, § 10. In effect, 

they argue that the section 516.105 violates the due process clause because an individual 

has a vested property interest in a cause of action that has arisen that cannot be divested 

by a statute of repose before the person has discovered the foreign object’s existence and 
21

has had the opportunity to file suit. This argument confuses statutes of limitations with 

statutes of repose. As discussed earlier, while a statute of limitation allows a cause of 

action to accrue and then blocks the claim if the suit is not filed within a legislatively 

determined time period, a statute of repose “eliminates the cause of action altogether after 

a certain period of time following a specified event,” with the specified event in this case 

being the alleged medical malpractice. Blaske, 821 S.W.2d at 834. Therefore, “the cause 

of action is eliminated before the plaintiffs’ injury and thus before plaintiffs’ cause of 

action accrues.” Id. (emphasis added). As Blaske recognized, because the plaintiff’s 

claim is barred by the statute of repose before the claim accrues, the plaintiff never 

acquires a vested property right to which due process could apply. Id. For these reasons, 

the statute of repose in section 516.105 did not violate the Phillipses’ due process rights.

VII. CONCLUSION

For the reasons stated above, the judgment is affirmed.

_________________________________

 LAURA DENVIR STITH, JUDGE

Russell, C.J., Breckenridge, Fischer, Draper and 

Wilson, JJ., concur; Teitelman, J., dissents in 

separate opinion filed.
 

SUPREME COURT OF MISSOURI

en banc

SHONDA AMBERS-PHILLIPS )

and RICHARD PHILLIPS, II, )

)

Appellants, )

)

v. ) No. SC94322

)

SSM DePAUL HEALTH CENTER, )

)

Respondent. )

DISSENTING OPINION

The principal opinion holds that the legislature is free to extinguish Ms. AmbersPhillips’ cause of action for the negligent infliction of bodily injury even when, as in this 

case, it was practically impossible for her to discover that foreign objects had been left in 

her body until well after a 10-year period of repose. While the Missouri Constitution 

vests the General Assembly with expansive legislative authority, the people of Missouri 

also expressly reserved their right to seek a “certain remedy” for their injuries. As 

applied to Ms. Ambers-Phillips, practical effect of the 10-year statute of repose is nothing 

short of the outright abrogation of her right to seek a remedy for the negligent infliction 

of serious bodily injury. For these reasons, I respectfully dissent. 
2

The principal opinion reasons, consistent with prior case law, that article I, section 

14 does not guarantee access to the courts once a statute of repose extinguishes the cause 

of action. In other words, article I, section 14 provides no substantive limitation on the 

legislature’s authority to extinguish Ms. Ambers-Phillips’ cause of action for the 

negligent infliction of bodily injury. This rationale is, as the principal opinion notes, 

supported by this Court’s jurisprudence. This rationale is not, however, compelled by the 

text of article I, section 14, which provides: 

That the courts of justice shall be open to every person, and certain 

remedy afforded for every injury to person, property or character, and 

that right and justice shall be administered without sale, denial or 

delay.

For purposes of this case, the operative clause is that there shall be “certain remedy 

afforded for every injury to person ....” While this Court has held that article I, section 14 

limits legislative authority to arbitrarily or unreasonably bar individuals or classes of 

individuals from accessing the courts to enforce recognized causes of action for personal 

injury, Kilmer v. Mun, 17 S.W.3d 545, 549 (Mo. banc 2000), this Court has not 

recognized that the text of the “certain remedy” clause positively guarantees a right to a 

remedy. The legislative prerogative to enact statutes dealing with specific policy 

concerns is consistent with and not unduly hampered by recognizing that the people of 

Missouri, by including the “certain remedy” clause in their Constitution, expressly 

reserved their right to some form of an adequate legal remedy for bodily injury.
3

In addition to the text of article I, section 14, the nature of the open courts 

provision supports the conclusion that there is some substance behind it. This Court has 

characterized article I, section 14 as a “second due process clause to the state 

constitution.” Goodrum v. Asplundh Tree Expert Co., 824 S.W.2d 6, 10 (Mo. banc 

1992). The due process clause has both a procedural and substantive component. Doe v. 

Phillips, 194 S.W.3d 833, 842 (Mo. banc 2006). Under a due process analysis, “[n]o one 

would contend that a law of a State, forbidding all redress by actions at law for injuries to 

property, would be upheld in the courts of the United States, for that would be to deprive 

one of his property without due process of law.” Poindexter v. Greenhow, 114 U.S. 270, 

303, 5 S.Ct. 903 (1885). If the state cannot deny a remedy for injuries to property, then 

surely it cannot deny a remedy for a negligently inflicted bodily injury without violating 

the specific constitutional right to a “certain remedy” for “every injury to person.” 

Finally, the existence of a substantive component within the certain remedy clause 

is confirmed by the case law from other states with constitutional provisions similar to 

Missouri's open courts provision. At least 39 state constitutions have a similar open 

courts provision. David Schuman, The Right to a Remedy, 65 Temp. L. Rev. 1197, 1201 

(1992). Many of these states “apparently recognize the doctrine of a substitute remedy, 

or quid pro quo, to justify legislative change.” Thomas R. Phillips, The Right to a 

Constitutional Remedy, 78 N.Y.U. L. Rev. 1309, 1335 (2003). The requirement of an 

adequate substitute remedy recognizes that a meaningful state constitutional guarantee of 

a certain remedy for bodily injury must include some minimal substantive guarantee of a 

reasonably accessible legal remedy for bodily injuries. Therefore, consistent with the text 
4

and nature of the article I, section 14 right to a remedy clause, I would hold that the 

Missouri Constitution requires the provision of an adequate substitute remedy when a 

statute has the effect of extinguishing an injured person’s right to a “certain remedy” for 

negligently inflicted bodily injury.

While there may be perfectly good reasons to adopt statutes of repose in some 

cases, the facts of this case illustrate the problem of redefining individual constitutional 

rights according to political whim. This is not a case about defective building design, an 

inaccurate real estate survey or questionable legal advice. This is not a case about a 

purely financial loss in which the parties are better off by writing it off. This is not a case 

where the passage of time raises doubts about how Ms. Ambers-Phillips was injured. 

Instead, this is a case about the violation of bodily integrity and the right to have some 

practically available remedy for a bodily injury that no one disputes. If the legislature 

can take that away, then the textual guarantee of a “certain remedy afforded for every 

injury to person” is not an individual constitutional right but is, instead, a privilege 

subject to legislative repeal. 

I would hold that the 10-year statute of repose in section 516.105 is 

unconstitutional as applied to Ms. Ambers-Phillips because the statute bars her from 

asserting a recognized cause of action for bodily injury before she possibly could have 
5

discovered her injury. The judgment should be reversed and the case remanded to permit 

Ms. Ambers-Phillips to exercise her constitutional right to seek a remedy for her injury.

_________________________________

RICHARD B. TEITELMAN, JUDGE