I left off a couple years ago thinking that probate issues in personal injury cases were pretty much settled and routine…and then along came Mickels v. Danrad. This case has a long and complicated procedural history, enough to warrant a few read throughs. Here’s the gist:
December 8, 2008, Mr. Mickels is having terrible symptoms: headaches, blurred vision, numbness. He goes to the doctor, gets an MRI, and Dr. Danrad reviewed the MRI, but didn’t make any diagnosis. Fast forward a couple months to February 2009. Mr. Mickels is still having problems, gets a CT scan, and is diagnosed with a terminal brain tumor. He had surgery, but to no avail. He died on June 12, 2009.
Just shy of three years later, June 7, 2012, some of the family members of Mr. Mickels filed a wrongful death action against Dr. Danrad, arguing that if he had diagnosed this tumor back in December 2008, he might have lived six extra months. They brought their cause of action under RSMo. 537.080. The court dismissed, agreeing with Dr. Danrad that this wasn’t a wrongful death action – they didn’t show that failure to diagnose sooner was the cause of death, because the incurable terminal brain tumor is what killed Mr. Mickels.
Mr. Mickels’ family appealed. The Missouri Supreme Court agreed that Dr. Danrad’s negligence harmed Mr. Mickels, but that this negligence wasn’t a wrongful death action. Instead, it was a negligence action. Because the family’s complaint had made those allegations but hadn’t specifically stated a negligence or personal injury action, the Missouri Supreme Court remanded the case, instructing the Plaintiffs to amend to include a cause of action under RSMo. 537.020 for a survival action. The Court explained that survival actions are those that belong to the decedent at the time of death such as claims for personal injuries. By contrast, wrongful death actions belong directly to the heirs, not to the decedent. Because of this, the Court noted that Mr. Mickels’ “personal representative can bring [a survival action] under section 537.020 after his death.”
The Missouri Supreme Court cited to numerous Florida cases in support of its decision, noting that, “no cause of action dies with a person. All causes of action survive and may be commenced, prosecuted, and defended in the name of the person prescribed by law.” They found that the Florida case law applying Florida’s survival statute “does not differ materially from section 537.020[.]”
So far, so good, right? Wrong.
So the Mickels family, under the apparent instruction of the Missouri Supreme Court, go to the probate court and try to open an estate under RSMo. 537.020 and 537.021…the same statute many probate attorneys in Missouri have been utilizing for years to open an estate more than one year after the date of death, but within the statute of limitations for a survival or personal injury action on behalf of decedent. This time, though, the probate court denies the application to open the probate estate, citing RSMo. 473.020. This statute does not allow for an intestate estate (i.e., an estate where there is no will) to be opened more than one year beyond the date of death. Yet again, the Mickels appeal.
The Court of Appeals first addresses RSMo. 537.021, the exception everyone knows and has relied on. There, an estate may be opened and a personal representative appointed when the cause of action is a “lost chance of survival.” Not a personal injury case. A lost chance of survival case. Period. The Supreme Court had not found that Mickels had a lost chance of survival case, but a personal injury action. So RSMo. 537.021 was inapplicable. However, the Appeals court noted that probate court has equitable power to ensure justice in probate matters. The court then distinguished the rigid application of the one year statute of limitations in probate cases where creditors attempt to open an estate (and thus diminish the estate) versus the situation in Mickels, where the estate is being opened for the sole purpose of increasing or enhancing the estate. The Mickels case did not involve a claim against the estate but instead a claim on behalf of the estate. Then, the Court of Appeals punts…they cannot find precedent on the issue of whether the probate court will use its equitable power to waive the one year statute of limitations for opening an estate for the purpose of pursuing a claim on behalf of the estate. Mickels asked, “will equity witness the Supreme Court announce a new cause of action in the underlying case, yet stand idly by while Ms. Mickels is barred from pursuing that new claim?” The Court of Appeals said no, but thought the Supreme Court should answer that question and sent it up for review.
And as of the writing of this post, there is no certainty here…RSMo. 537.021 doesn’t apply. Will equity? Will 537.021 be extended to cover personal injury actions and lost chance of survival actions? Will “survival action” include all possible causes of action that could have belonged to decedent under the umbrella of 537.021? Or will some new solution, narrow and limited to just the Mickels facts be announced? In the meantime, what is a plaintiff’s personal injury attorney to do?
First, the situation is precarious. Yes, 537.021 has allowed the appointment of a plaintiff ad litem in lieu of a personal representative. But these Mickels cases make it clear that 537.021 is currently only being construed as applicable to lost chance of survival cases. Period. So two problems arise: (1) 537.021 doesn’t apply to a personal injury or other negligence action and (2) Plaintiff ad litems cannot receive funds on behalf of a deceased personal injury plaintiff, only a personal representative of an estate, so if 537.021 doesn’t apply to those causes of action, then there is tension between a longer survival statute of limitations and the one year statute of limitations for opening an estate.
Is there a solution? Well you can try and appoint a plaintiff ad litem, and hope that it sails through. If that doesn’t work, maybe a determination of heirship can assign the rights of the deceased plaintiff to the heirs…but a determination of heirship won’t result in the appointment of a fiduciary.
In the meantime, the Missouri Supreme Court may have some explaining to do. Stay tuned.