Jeff Kordus and Suzette Kordus, Parents and next friend to JK, a minor child

IN THE SUPREME COURT, STATE OF WYOMING

2014 WY 146

OCTOBER TERM, A.D. 2014

November 14, 2014

JEFF KORDUS and SUZETTE
KORDUS, Parents and next friend to
JK, a minor child,

Appellants
(Plaintiffs),
S-13-0043
v.

LEIGH A. MONTES, M.D.,

Appellee
(Defendant).

Appeal from the District Court of Sweetwater County
The Honorable Nena James, Judge

Representing Appellants:

David B. Hooper and Robert A. Bundy, Hooper Law Offices, P.C., Riverton,
Wyoming. Argument by Mr. Bundy.

Representing Appellee:

W. Henry Combs, III, Murane & Bostwick, LLC, Casper, Wyoming; Meggan J.
Hathaway, Murane & Bostwick, LLC, Cheyenne, Wyoming. Argument by
Ms. Hathaway.

Before BURKE, C.J., and HILL, KITE*, VOIGT†, and DAVIS, JJ.

* Chief Justice at time of oral argument.
†
Justice Voigt retired effective January 3, 2014.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers
are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming
82002, of any typographical or other formal errors so that correction may be made before final publication in
the permanent volume.
BURKE, Chief Justice.

[¶1] This case involves a medical malpractice claim filed on behalf of J.K., a minor,
against Appellee, Leigh A. Montes, M.D. The district court dismissed the complaint,
ruling that the cause of action was barred by the two-year statute of limitations contained
in Wyo. Stat. Ann. § 1-3-107. J.K. challenges that decision in this appeal. She contends
that the statute, as applied to minors, violates the Wyoming Constitution.1 We agree and
reverse the district court’s decision.

ISSUES

[¶2] J.K. lists two issues:

1. Does Wyo. Stat. Ann. § 1-3-107, as applied to J.K., a
minor child, unconstitutionally violate her fundamental right
of access to the courts and deny her equal protection of the
laws?

2. Did the district court improperly grant Dr. Montes’s
motion to dismiss?

FACTS

[¶3] On March 19, 2007, twelve-year-old J.K. was admitted to Memorial Hospital of
Sweetwater County for appendicitis. Appellee performed an appendectomy. J.K. was
discharged the following day, but complications developed requiring additional surgery
and medical treatment. J.K. was transferred to the Primary Children’s Medical Center in
Salt Lake City, Utah, on April 5, 2007.

[¶4] Appellants filed a claim for medical malpractice with the Medical Review Panel
on November 27, 2011. Dr. Montes waived the Medical Review Panel process and on
March 8, 2012, the Medical Review Panel entered its Order of Dismissal. Appellants
filed their complaint on March 22, 2012. Appellee responded with a motion to dismiss
alleging that the claim was barred by the two-year statute of limitations in Wyo. Stat.
Ann. § 1-3-107(a)(ii). The district court granted the motion. Appellants filed a timely
appeal.

1
In cases involving the constitutionality of a statute, W.R.A.P. 7.07 requires the parties to serve copies of
their briefs on the Attorney General. The record reflects that both J.K. and Dr. Montes complied with that
requirement. The State of Wyoming did not enter an appearance in this appeal.

1
 STANDARD OF REVIEW

[¶5] The constitutionality of a statute is a question of law that we review de novo.
Baessler v. Freier, 2011 WY 125, ¶ 13, 258 P.3d 720, 725 (Wyo. 2011).

DISCUSSION

[¶6] In reviewing a constitutional challenge to a statute, we presume the statute is
constitutional, and any doubt is resolved in favor of the statute’s constitutionality. Bear
Cloud v. State, 2013 WY 18, ¶ 15, 294 P.3d 36, 41 (Wyo. 2013); Krenning v. Heart
Mountain Irrigation Dist., 2009 WY 11, ¶ 33, 200 P.3d 774, 784 (Wyo. 2009). The party
challenging the constitutionality of a statute bears the burden of proving the statute is
unconstitutional. Id. “That burden is a heavy one ‘in that the appellant must clearly and
exactly show the unconstitutionality beyond any reasonable doubt.”’ Id. (quoting
Cathcart v. Meyer, 2004 WY 49, ¶ 7, 88 P.3d 1050, 1056 (Wyo. 2004)). Courts have a
duty to uphold the constitutionality of statutes if at all possible, but it is equally
imperative that we declare legislative enactments invalid when they transgress the
Wyoming Constitution. Hoem v. State, 756 P.2d 780, 782 (Wyo. 1988).

[¶7] In Wyoming, an “unemancipated minor, by himself, has no procedural capacity to
sue or be sued.” Dye v. Fremont County School Dist. No. 24, 820 P.2d 982, 985 (Wyo.
1991).2 Historically, tolling statutes have preserved and protected the rights of minors to
pursue a cause of action that accrued during minority. Those tolling statutes predate
statehood. The 1886 version of the tolling statute enacted by the Wyoming Territorial
Legislature provided:

If a person, entitled to bring any action mentioned in this
subdivision, except for a penalty or forfeiture, is, at the time
the cause of action accrues, within the age of twenty-one
years, insane, or imprisoned, such person may bring such
action within the respective times limited by this chapter after
such disability is removed.

1886 Wyo. Sess. Laws ch. 60, § 39.

2
Although Wyo. Stat. Ann. § 1-1-102 provides that “Every person over fourteen (14) years of age and
under the age of majority, when subject to no disability other than being a minor, may sue or be sued,” the
statute further provides that a minor plaintiff “shall sue by a next friend,” and a minor defendant “shall
appear by guardian.” Thus, while the minor may sue or be sued, he or she cannot do so acting alone.

2
[¶8] For most causes of action, those protections still exist and a minor has three years
after attaining the age of majority to file suit for injury or damages sustained while a
minor. However, the tolling statute was amended in 1976, and it now provides as
follows:

If a person entitled to bring any action except for an action
arising from error or omission in the rendering of licensed
or certified professional or health care services or for a
penalty or forfeiture, is, at the time the cause of action
accrues, a minor or subject to any other legal disability, the
person may bring the action within three (3) years after the
disability is removed or within any other statutory period of
limitation, whichever is greater.

Wyo. Stat. Ann. § 1-3-114 (LexisNexis 2013) (emphasis added). The highlighted
language was added in 1976 as part of an act “providing a shortened statute of limitations
for injuries arising from error or omission in the rendering of licensed or certified
professional or health care services.” 1976 Wyo. Sess. Laws ch. 18, Preamble. As part
of this same legislation, the legislature added a different statute of limitations governing
medical malpractice claims by minors. Wyo. Stat. Ann. § 1-3-107 provides, in relevant
part, that:

(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.

In her brief, J.K. challenges only Wyo. Stat. Ann. § 1-3-107. However, the two statutes
are inextricably linked. Our decision as to the constitutionality of Wyo. Stat. Ann. § 1-3-
107 will also determine the constitutionality of the highlighted portion of Wyo. Stat. Ann.
§ 1-3-114.

[¶9] On appeal, J.K. contends that this statute violates Article 1, Section 8 of the
Wyoming Constitution, which provides that “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.” This has been referred to as the “open courts” provision of
our state constitution. See, e.g., Mills v. Reynolds, 837 P.2d 48, 54 (Wyo. 1992);
Robinson v. Pacificorp, 10 P.3d 1133, 1136 (Wyo. 2000). She also contends that the

3
statute violates her constitutional equal protection rights.

[¶10] We will begin with J.K.’s assertion that the statute violates the open courts
provision of Wyoming’s Constitution. J.K. did not present this issue in district court, and
we generally decline to review issues raised for the first time on appeal. In re Lankford,
2013 WY 65, ¶ 28, 301 P.3d 1092, 1101 (Wyo. 2013); Jones v. State, 2006 WY 40, ¶ 7,
132 P.3d 162, 164 (Wyo. 2006). There is, however, a recognized exception for an issue
that “is of such a fundamental nature that it must be considered.” Lankford, ¶ 28, 301
P.3d at 1101. We have previously held “that the right to access to the courts is a
fundamental right pursuant to Article 1, Section 8.” Mills, 837 P.2d at 54; see also
Robinson, 10 P.3d at 1136 (“Robinson’s ‘open courts’ issue, although not raised below,
involves a fundamental right of which we will take cognizance.”); Greenwalt v. Ram
Rest. Corp., 2003 WY 77, ¶ 33, 71 P.3d 717, 728 (Wyo. 2003) (“The right to access to
the courts is a fundamental right.”). Accordingly, we will consider J.K.’s constitutional
claim despite the fact it was not raised below.3

[¶11] We have previously recognized that:

In order to establish an “open courts” violation, a litigant
must satisfy a two-part test: first, he must show that he has a
well-recognized common-law cause of action that is being
restricted; and second, he must show that the restriction is
unreasonable or arbitrary when balanced against the purpose
and basis of the statute.

Robinson, 10 P.3d at 1137 (quoting Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 355
(Tex. 1990)). See also Greenwalt, ¶ 36, 71 P.3d at 729. In applying the first part of the
test, there is no dispute that J.K. has a well-recognized common-law cause of action.
Wyoming has long recognized that a minor has a common law cause of action for
medical malpractice. See McCoy v. Clegg, 36 Wyo. 473, 477, 257 P. 484, 485 (1927).
At issue is whether J.K.’s ability to pursue that common law cause of action is being
restricted. Dr. Montes contends that the statute does not restrict J.K.’s access to the
courts because the claim can be brought by a guardian or next friend. J.K. maintains the
contrary position. She points out that, while a minor, she cannot bring a claim on her
own behalf, and that it will be too late to pursue her cause of action once she attains
adulthood and the capacity to sue.

[¶12] Although we have not considered this precise issue in Wyoming, we have

3
Appellee concedes that the “open courts” issue involves a fundamental right that should be addressed by
this Court even though the issue was not raised below.

4
addressed a similar issue. In Dye, 820 P.2d at 983, we were presented with a challenge to
the constitutionality of the time limit for giving notice of a claim under the Wyoming
Governmental Claims Act, as that limit applied to a minor. In Dye, the district court
dismissed a minor’s cause of action because her mother, as next friend, did not provide a
notice of claim to the defendant school district within the two-year period specified in
Wyo. Stat. Ann. § 1-39-113(a). We reversed, noting that an “unemancipated minor, by
himself, has no procedural capacity to sue or be sued.” Dye, 820 P.2d at 985. Although
we recognized that claims on a minor’s behalf could be brought by a next friend, we also
observed that “a next friend may or may not volunteer.” Id. We explained:

Dye’s mother is listed on the caption of this case as her
daughter’s next friend. The mother had authority as her
general guardian to pursue this action under W.R.C.P. 17(c),
but she failed to act timely on her daughter’s behalf. Susan
Dye, as a minor, was not able to give timely notice of claim
herself. The requirement of giving notice presupposes the
existence of an individual capable of giving notice. Dye’s
mother, as next friend, was capable of giving notice but was
either unwilling to give timely notice or just failed to do so.
In the interest of justice, we cannot allow a minor, who has no
realistic ability to protect herself, to suffer loss of her claim
because of a parent’s failure to act.

When a parent fails to file a timely notice of claim
pursuant to W.S. 1-39-113(a), that parent does not adequately
represent the child. The child is powerless to protect her own
interests. We hold, therefore, that the time for filing the claim
required by the Governmental Claims Act on behalf of a
minor begins to run at the time of the appointment of a
guardian ad litem by the court pursuant to W.R.C.P. 17(c).
See W.S. 1-39-113(a)(ii). This disability for failing to file a
claim disappears upon the minor reaching the age of
majority.

Id. at 985-986 (some internal citations omitted).

[¶13] Dr. Montes attempts to distinguish our decision in Dye. According to Dr. Montes,

The distinguishing characteristic in Dye, is that the
Wyoming Governmental Claims Act provides for the
exclusive remedy against a school district or other
governmental entity. Id. at 984 (see also, W.S. 1-39-116;
Dee v. Laramie County, 666 P.2d 957, 958 (Wyo. 1983))

5
 (emphasis added). Thus, while W.S. § 21-3-129 allows an
action against a school district to the extent of its liability
insurance, such an action must be brought pursuant to the
procedures outlined in the Governmental Claims Act and
therefore, the Court recognized the need for a minority
exception to the time limits imposed for filing governmental
claims, lest there be a complete bar to filing a cause of
action with the courts.

If there is a distinction on that basis, we are unable to see it. In Dye, the minor’s
exclusive remedy was to bring suit pursuant to the Governmental Claims Act. As a
minor, she could only act through her parents or some other guardian. The same is true
here. In this case, J.K.’s exclusive remedy is to file suit, through her parents or some
other guardian, seeking to recover damages for the alleged malpractice. Both statutes
deprive a minor of the right to pursue a cause of action if the minor’s parents, guardian,
or next friend fail to act in a timely fashion. In both situations, the minor cannot bring
suit against her parents if they negligently fail to bring the claim within the limitations
period.4

[¶14] Dye establishes that statutes such as those at issue here restrict a minor’s access to
the courts. We must now determine if the restriction is “unreasonable or arbitrary when
balanced against the purpose and basis of the statute.” Our decision in Dye does not
resolve that question. Although a constitutional challenge was raised in Dye and the
order of dismissal was reversed, the statute at issue was never specifically declared
unconstitutional and the court did not engage in any constitutional analysis. Additionally,
and perhaps most significantly, the dispute did not involve a claim of medical
malpractice.

[¶15] Dr. Montes asserts that Wyo. Stat. Ann. § 1-3-107 was enacted in response to “a
malpractice insurance crisis.” The Wyoming legislature did not state its purpose in
enacting this statute. See 1976 Wyo. Sess. Laws ch. 18, § 1. It is widely accepted,
however, that the purpose of similar legislation in other states was “to avoid a perceived
crisis in medical malpractice insurance, and the accompanying danger of a reduction in
health services available to the public.” 71 A.L.R. 5th 307, § 2[a]. As the statute pertains
to medical malpractice claims, we believe it was meant to serve similar purposes. We
must note, however, that the Wyoming statutes at issue here are not limited to medical

4
Wyoming has long acknowledged the general rule that a child may not sue a parent in tort. See Ball v.
Ball, 73 Wyo. 29, 42, 269 P.2d 302, 305 (1954). Exceptions have been recognized for parents’ “willful
and wanton disregard of the wellbeing of a child, resulting in injury,” Oldman v. Bartshe, 480 P.2d 99,
101 (Wyo. 1971), and for negligence in the operation of a motor vehicle. Dellapenta v. Dellapenta, 838
P.2d 1153, 1154 (Wyo. 1992). Neither exception appears to be applicable here.

6
malpractice claims. They apply broadly to all causes of action “arising from … the
rendering of licensed or certified professional or health care services.” Wyo. Stat. Ann.
§§ 1-3-107, 1-3-114. The two-year statute of limitations set forth in Wyo. Stat. Ann. § 1-
3-107 has been applied in a variety of non-medical contexts. See, e.g., Ballinger v.
Thompson, 2005 WY 101, 118 P.3d 429 (Wyo. 2005) (attorney); Adelizzi v. Stratton,
2010 WY 148, 243 P.3d 563 (Wyo. 2010) (real estate agent); Bredthauer v. Christian,
Spring, Seilbach & Assocs., 824 P.2d 560 (Wyo. 1992) (surveyor). Because the claim at
issue here is a medical malpractice claim, we will limit our discussion to that profession
and will assume that the statute was intended to address a “perceived crisis in medical
malpractice insurance.”

[¶16] Although the issue presented is one of first impression for this Court, similar
statutes have been challenged on constitutional grounds in other states. Challenges have
been brought under a variety of constitutional provisions. Results vary. Some of these
decisions support J.K.’s position. Others support Dr. Montes’s. See 71 A.L.R. 5th 307.
Very few of those cases, however, apply the two-part test that we apply in Wyoming to
resolve an “open courts” constitutional challenge. The Texas Supreme Court, however,
did apply that test in Sax v. Votteler, 648 S.W.2d 661 (Tex. 1983).

[¶17] In Sax, the Texas Supreme Court considered an open courts constitutional
challenge to the two-year statute of limitations for medical malpractice claims by minors
after reaching the age of six. Id. at 663. It determined that the statute violated the Texas
Constitution. In reaching that decision, the Texas court announced and applied the same
two-part test that we have adopted in Wyoming:

We hold, therefore, that the right to bring a well-established
common law cause of action cannot be effectively abrogated
by the legislature absent a showing that the legislative basis
for the statute outweighs the denial of the constitutionally-
guaranteed right of redress. In applying this test, we consider
both the general purpose of the statute and the extent to which
the litigant’s right to redress is affected.

Id. at 665-666.5

[¶18] The court’s analysis of the second prong of the test is particularly relevant:

5
The Sax decision appears to be the source of the two-part test that we have adopted in Wyoming. We
first announced that test in Robinson, 10 P.3d 1133. In Robinson, we attributed the test to another
decision from the Texas Supreme Court, Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 355 (Tex.
1990). Moreno credits the decision in Sax for the test. Id.

7
 The second criterion we examine is the effect of
the restriction on the child’s right to bring his cause of
action. A child has no right to bring a cause of action on
his own unless disability has been removed. If a minor
does bring a cause of action in his own behalf, the action is
subject to being abated upon a timely plea of the defendant.
If the parents, guardians, or next friends of the child
negligently fail to take action in the child’s behalf within
the time provided by article 5.82, the child is precluded
from asserting his cause of action under that statute.
Furthermore, the child is precluded from suing his parents
on account of their negligence, due to the doctrine of
parent-child immunity. The child, therefore, is effectively
barred from any remedy if his parents fail to timely file suit.
Respondents argue that parents will adequately protect the
rights of their children. This Court, however, cannot
assume that parents will act in such a manner. It is neither
reasonable nor realistic to rely upon parents, who may
themselves be minors, or who may be ignorant, lethargic,
or lack concern, to bring a malpractice lawsuit action within
the time provided by article 5.82.

We agree with [Respondent] that both the purpose
and basis for article 5.82 are legitimate. Additionally, we
recognize that the length of time that insureds are exposed
to potential liability has a bearing on the rates that insurers
must charge. We cannot agree, however, that the means
used by the legislature to achieve this purpose, article 5.82,
section 4, are reasonable when they are weighed against the
effective abrogation of a child’s right to redress. Under the
facts in this case, [Petitioner] is forever precluded from
having her day in court to complain of an act of medical
malpractice. Furthermore, the legislature has failed to
provide her any adequate substitute to obtain redress for her
injuries.

Id. at 666-667 (internal citations omitted).

[¶19] Other courts have reached similar conclusions. As noted by the Missouri Supreme
Court:

8
 State legislatures reacted in the 1970’s to a perceived crisis in
medical malpractice insurance by enacting these types of
limitations provisions. While such provisions no doubt go
some distance in alleviating the problems of malpractice
insurers and health care providers, they do so only at a high
cost. Their effect is to bar the malpractice suits of minors
without regard to the validity of their claims or the fact that
the minors are wholly innocent in failing to timely pursue
their claims. Such a result seems to unfairly penalize the
blameless minor in order to protect the potentially negligent
health care provider. (emphasis added).

Strahler v. St. Luke’s Hosp., 706 S.W.2d 7, 10 (Mo. 1986) (quoting Andrews, Infant
Tolling Statutes in Medical Malpractice Cases: State Constitutional Challenges, 5
J. Legal Medicine, 469 (1984)).

[¶20] The Ohio Supreme Court stated:

The second inquiry to be reviewed is whether R.C.
2305.11(B) is unreasonable or arbitrary as applied to minors.
The Ohio due process or due course of law provisions require
that all courts be open to every person who is injured.
Section 16, Article I, Ohio Constitution. Yet, we believe that
upholding R.C. 2305.11(B) against minors effectively closes
the courthouse doors to them. It is beyond dispute that a
minor has no standing to sue before he or she reaches the age
of majority. Civ. R. 17(B). However, given the abrogation of
the “disabilities” tolling statute in R.C. 2305.11(B), minors
may, as in the cause sub judice, lose their rights to redress
before they reach eighteen years of age. Thus, the sum and
substance of R.C. 2305.11(B) is that a minor shall have no
standing to sue before attaining the age of majority, and no
right to bring suit thereafter. Such, in our view, is totally
unreasonable and patently arbitrary.

The usual response to this conclusion is that a minor’s
parent or guardian may sue for, and on behalf of, the child.
We find such a suggestion to be troublesome for several
reasons. First, because of the inability of many children to
recognize or articulate physical problems, parents may be
unaware that medical malpractice has occurred. Second, the
parents themselves may be minors, ignorant, lethargic, or lack
the requisite concern to bring a malpractice action within the

9
 time provided by statute. See Sax v. Votteler, 648 S.W.2d
661, 667 (Tex. 1983). Third, there may effectively be no
parent or guardian, concerned or otherwise, in the minor’s
life. For example, children in institutions, foster homes, and
wards of court or others are provided no safeguards, nor do
such minors have the requisite ability to seek redress or to
protect personal interests.

Mominee v. Scherbarth, 503 N.E.2d 717, 721-722 (Ohio 1986).

[¶21] The Maryland Supreme Court found similar legislation unconstitutional in Piselli
v. 75th Street Medical, 808 A.2d 508, 523-524 (Md. 2002). The Court explained:

As earlier mentioned, Article 5 of the Maryland
Declaration of Rights authorizes the General Assembly to
change common law principles or principles reflected in pre-
1776 statutes. See n.12, supra. Nevertheless, when such a
change restricts a traditional remedy or access to the courts,
the change “‘violates Article 19 [the “open courts” provision]
. . . if the restriction is unreasonable.’” Dua v. Comcast
Cable, supra, 805 A.2d at 1085, 370 Md. at 644, quoting
Murphy v. Edmonds, supra, 325 Md. at 365, 601 A.2d at 113.
Article 19, therefore, is a limitation upon the General
Assembly’s authority under Article 5.

The restrictions upon a minor’s remedy and access to
the courts, contained in subsections (b), (c) and (e) of § 5-109
[the statute of limitations], represent a drastic departure from
a principle which has governed minors’ causes of action for
more than 500 years. Until the recent enactment of these
subsections, periods of limitations did not begin running
against a child’s claim until the child reached the age of
majority. In our view, mandating that the three and five-year
limitations periods run against a minor’s tort claim from the
time the minor is 11 years old, or under a few circumstances
16 years old, is an unreasonable restriction upon a child’s
remedy and the child’s access to the courts.

Whichever interpretation of the discovery provision in
§ 5-109 is correct, the statute unfairly and unreasonably may
abrogate a child’s medical malpractice cause of action when
the child is not at fault. If, as the federal District Court held,
the three-year period begins running when the parents are on

10
 inquiry notice, the child’s separate and distinct cause of
action is entirely dependent upon knowledge of other persons.
Basing the running of the three-year period on the child’s
knowledge, however, places an unreasonable burden upon an
11-year old.

Moreover, a child is disabled from bringing a tort
action until he or she is 18 years old. Regardless of whose
“discovery” triggers the running of the three-year period, a
child’s action must be brought by the parents on the minor
child’s behalf. Thus, if the parents are dilatory and fail to sue
on behalf of the child, the three and five-year periods
applicable to most child medical malpractice claims will
expire, at the latest, when the child is 16 years old - two years
before the child is able to bring an action. With regard to the
very limited types of medical malpractice claims set forth in
subsection (c), when the time periods run from the age of 16,
the child could have only one year after majority to bring the
action.

This Court’s language in Johns Hopkins Hospital v.
Pepper, supra, 346 Md. at 694-695, 697 A.2d at 1365-1366,
is very apt in the case at bar. We emphasized in Pepper that,
if the parents’ failure to bring a claim before the expiration of
limitations had the effect of barring the minor child’s claim,
“the child would be twice victimized – once at the hands of
the tortfeasor, and once by parents who, for whatever reason,
failed to timely prosecute [the] claims,” 346 Md. at 695, 697
A.2d at 1366. The Court continued: “We cannot
countenance a result that would leave the only innocent
victim in such a transaction uncompensated for his or her
injuries” and that such a result was contrary to “public policy
and justice,” Ibid. To this, we need only add that barring an
injured child’s medical malpractice claim before the child is
able to bring an action is an unreasonable restriction upon the
child’s right to a remedy and access to the courts guaranteed
by Article 19 of the Maryland Declaration of Rights.

The Arizona Supreme Court also reached a similar conclusion:

Simply put, then, the ultimate question here is whether
a statute which requires a minor injured before reaching the
age of seven to sue for such injuries before reaching age ten is

11
 one which allows the minor a reasonable choice of
alternatives. Is this a reasonable regulation of the manner and
time for bringing the action?

We have held that “an infant cannot bring or defend a
legal proceeding in person.” Pintek v. Superior Court, 78
Ariz. 179, 184, 277 P.2d 265, 268 (1954). We are aware, of
course, that action can be brought on behalf of the minor by a
next friend, guardian ad litem, or general guardian. Pintek,
supra. No doubt, most claims of minors are so presented.
We are well aware that where a chance of substantial
recovery exists, there is no lack of advocates willing to
undertake appropriate procedures to find and appoint a
guardian ad litem or to obtain a “next friend” so that the
action may be brought. While the vast majority of claims on
behalf of injured minors will still be brought within a
relatively short time after the injury occurs, this all depends
upon good fortune; the minor himself is helpless, particularly
when under ten years of age. The minor possesses a right
guaranteed by the constitution, but cannot assert it unless
someone else, over whom he has no control, learns about it,
understands it, is aware of the need to take prompt action, and
in fact takes such action. . . .

We hold that a statute which requires a minor injured
when below the age of seven to bring the action by the time
he reaches the age of ten -- regardless of his ability to do so,
and without concern for the nature of his adult caretakers --
does not provide reasonable alternatives. The statute
abolishes the action before it reasonably could be brought, in
violation of the fundamental constitutional right guaranteed
by article 18, § 6. We hold, therefore, that § 12-564(D) is
unconstitutional. The provisions of the tolling statute, A.R.S.
§ 12-502, which apply to all other actions and claims of
minors, are applicable to medical malpractice actions.

Barrio v. San Manuel Div. Hosp. for Magma Copper Co., 692 P.2d 280, 285-286 (Ariz.
1984).

[¶22] Against this backdrop, Dr. Montes directs our attention to a contrary point of view
as reflected in a decision from Virginia. In Willis v. Mullett, 561 S.E.2d 705, 707 (Va.
2002), the Virginia Supreme Court considered a comparable statute of limitations.
Mr. Willis’s medical malpractice claim arose when he was fifteen years of age. More

12
than four years later, when he was nineteen, he filed a claim against the two doctors
involved. The trial court dismissed the claim, relying on the two-year medical
malpractice statute of limitations for minors. Mr. Willis challenged the constitutionality
of that statute. Like J.K., in the case before us, he asserted that he had no right to bring
an action during his minority, and if his “next friend, negligently or otherwise, fails to file
the action within the reduced time required under the medical malpractice statute of
limitations for minors, [he] would lose his right to a jury trial.” Id. at 709.

[¶23] The court noted that Mr. Willis’s action could have been brought by a next friend
within the reduced tolling period of the statute, and Mr. Willis would not have lost his
right to a jury trial. Id. The court found it valid for the legislature “to presume that some
adult responsible for the minor’s welfare, usually a parent, would act diligently and
prudently to protect the minor’s interests.” Id. On this basis, the court concluded that the
statute did not abridge Mr. Willis’s constitutional rights. Id.

[¶24] Dr. Montes also urges us to follow the reasoning of the Massachusetts Supreme
Court in Harlfinger v. Martin, 754 N.E.2d 63 (Mass. 2001). In that case, the Court
addressed a due process and equal protection challenge to legislation providing a seven-
year statute of repose, applicable to minors, to assert a medical malpractice claim. The
court found no constitutional violation. As in Willis, the court applied the rational basis
test and concluded that there was a reasonable basis for the legislation. The court also
rejected the notion that the potential loss of a claim by a minor, whose parents failed to
assert a timely claim, should impact its analysis:

The plaintiffs point out, quite correctly, that statutes of
repose barring the claims of injured minors are more likely to
cause the loss of valuable and meritorious claims than do
such statutes barring claims by adults. Lacking either the
practical wherewithal or the legal capacity to sue on their own
behalf, children are dependent on their parents and guardians
to bring their claims of medical malpractice before those
claims become time barred. A child’s meritorious claim can
thus be lost through no fault of the injured child. The fact
that the interests of minors are at stake does not, however,
change the nature of our due process analysis. Under the
statute of repose at issue in Klein v. Catalano, [386 Mass.
701, 437 N.E.2d 514 (1982)] claims could be barred even
though the injury had not yet even occurred. Recognizing
that the statute would operate to abrogate any possible tort
remedy for persons injured more than six years after
completion of the allegedly negligent design or construction
of a building, we determined that the due process analysis
would be no different from that applied to “any other law that

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 regulates economic activity.” Id. at 712. The fact that some
minors, due to parental neglect or ignorance (not present
here) or to minors’ unawareness of the extent and gravity of
their injuries, will lose their ability to bring medical
malpractice claims does not require us to conduct our due
process analysis of this statute of repose with some
heightened level of scrutiny.

Harlfinger, 754 N.E.2d at 71-72 (footnotes omitted).

[¶25] As we mentioned previously, there is a split of authority in jurisdictions regarding
the constitutionality of statutes limiting a minor’s right to assert a medical malpractice
claim. The cases cited above illustrate the approaches that courts have taken in
addressing this issue. None of those decisions are binding on this Court, all come from
jurisdictions that have constitutional and statutory provisions that are not identical to
those from Wyoming, and not all of the constitutional challenges asserted are “open
courts” challenges. On balance, however, we are convinced that the reasoning and
analysis exemplified by Sax and its progeny best reflect the approach that should be taken
in Wyoming. We reach that conclusion for several reasons.

[¶26] First, in Sax, the Texas Supreme Court applied the identical test that our precedent
requires us to apply in addressing a constitutional challenge based upon Article 1, Section
8, Wyoming’s “open courts” constitutional provision. In contrast, the courts in Willis and
Harlfinger addressed due process and equal protection challenges. In Harlfinger, the
court recognized that states addressing an open courts challenge have reached a different
result. See Id., 754 N.E.2d at 70-71. In Willis, the court opted not to address decisions
from other jurisdictions reaching a different result. Id., 561 S.E.2d at 710 n.3 (“Willis
relies upon a number of cases in other jurisdictions to support his primary and other
contentions. We do not discuss them because they were generally decided under
constitutional and statutory provisions differing from those involved in this case.”).

[¶27] Second, the Harlfinger and Willis decisions were based, in large measure, upon
their conclusion that the legislature was entitled to assume that the rights of children
would be protected by their parents and guardians. That conclusion would appear to be at
odds with the decision we reached in Dye.

Dye’s mother, as next friend, was capable of giving notice but
was either unwilling to give timely notice or just failed to do
so. In the interest of justice, we cannot allow a minor, who
has no realistic ability to protect herself, to suffer loss of her
claim because of a parent’s failure to act.

Id., 820 P.2d at 985. Additionally, we are persuaded by the reasoning of those courts

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rejecting that assumption. The Arizona Supreme Court summed it up well:

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.” Sax, supra, at
667. 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.

A foster mother may be honestly dedicated to hot
meals and clean linen and emotional support and quail
at the thought of embarking upon several years of legal
battle for a member of her changeable brood. 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.

Barrio, 692 P.2d at 286 (emphasis in original).

[¶28] Finally, and perhaps most significantly, a determination that the challenged
statutes are constitutional is difficult, if not impossible, to square with our precedent. We
have discussed our decision in Dye at great length. The impact to the minor here is
identical to the impact to the minor in Dye. In Dye, we preserved the minor’s right to
pursue a cause of action. Reaching a different result here would be inconsistent with
Dye.

[¶29] In Hoem, we reviewed a statute that required medical malpractice claims to be
submitted to a medical review panel before being filed in court. We found the statute
unconstitutional on equal protection grounds. Id., 756 P.2d at 784. In his concurring
opinion, Justice Thomas indicated that he would also “declare the statute to be
unconstitutional under Art. 1, § 8.” Id. The statute at issue in Hoem “delay[ed], for a
minimum of 120 days, the right of the claimant to file a civil action, and there is no limit
upon the period to which the proceeding may be extended for good cause.” Id., 756 P.2d
at 785. The restriction on J.K.’s access to court is far more severe. While J.K. 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. This is not a
reasonable restriction on her rights. As stated in Sax:

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 We agree . . . that both the purpose and basis for [the medical
malpractice statute of limitations for minors] are
legitimate. . . . We cannot agree, however, that the means
used by the legislature to achieve this purpose . . . are
reasonable when they are weighed against the effective
abrogation of a child’s right to redress. Under the facts in this
case, Lori Beth Sax is forever precluded from having her day
in court to complain of an act of medical malpractice.
Furthermore, the legislature has failed to provide her any
adequate substitute to obtain redress for her injuries. See,
e.g., Middleton v. Texas Power & Light Co., 108 Tex. 96, 185
S.W. 556 (1916).

Id., 648 S.W.2d at 667.

[¶30] We therefore hold that the statute of limitations for minors, Wyo. Stat. Ann. § 1-3-
107(a)(ii), violates Article 1, Section 8 of the Wyoming Constitution. We also hold that
the exception now 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” – is also constitutionally infirm. In light of this holding, it is unnecessary to
address J.K.’s equal protection argument.

[¶31] Because the district court relied on an unconstitutional statute, it improperly
granted Dr. Montes’s motion to dismiss J.K.’s claim. That order is reversed, and this
matter is remanded to the district court for further proceedings consistent with this
opinion.

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