dissenting.
I am unable to agree with my colleagues that Wollen v. DePaul Health Center, 828 S.W.2d 681 (Mo. banc 1992) forecloses a wrongful death remedy for the survivors of the decedent.
It is to be noted that this is a judgment on the pleadings. We must therefore accept as true the allegations of plaintiffs’ petition. The petition says:
32. As a direct and proximate result of the professional carelessness and negligence of the Defendants, and each of them, Decedent Ralph V. Morton, Jr.’s preexisting condition of AIDS was aggravated and allowed to worsen, his death was hastened, and said professional carelessness and negligence was a substantial factor that directly caused his premature death from bilateral pneumonia probably due to pneumo eystis carinii and renal failure; and but for the professional carelessness and negli*18gence of the defendants, and each of them, decedent Ralph V. Morton, Jr. would have lived substantially longer, therefore, plaintiff Ralph V. Morton, Sr., and plaintiff Delores Morton have sustained the following damages:
(a) They have lost the aid, companionship, instruction, guidance, counsel, comfort, affection, love and support of their son for a substantial period of time; and,
(b) They incurred expenses for their son’s funeral.
(Emphasis ours.)
The petition further alleges, in a separate count:
2. As a direct and proximate result of the professional carelessness and negligence of the Defendants, and each of them, Plaintiff’s decedent, Ralph V. Morton, Jr., sustained the following serious, progressive, and permanent injuries prior to his death:
(a) He suffered tremendous pain of body and mind, and anxiety, nervousness and sleeplessness;
(b) He sustained substantial medical bills; and
(c) He underwent a great deal of physical and mental pain and suffering. (Emphasis ours.)
Contrast these allegations with the Wollen petition, where it was alleged that (using the Court’s language, 828 S.W.2d at 682):
“If Mr. Wollen had been correctly diagnosed, and given appropriate treatment, he would have ‘had a thirty percent (30%) chance of survival and cure.’ ”
The court went ahead to say, 828 S.W.2d at 683:
“In this case, appellant can only allege that ... the negligence of the respondents might have contributed to the death of Mr. Wollen. In these circumstances, the petition fails to allege facts that indicate that respondents’ negligence was a substantial factor in causing the death of Mr. Wollen.”
People with AIDS are known to live comfortably and productively with the HIV virus for many years. If the negligent failure to diagnose AIDS results in death’s coming on apace, and unresisted, and robs the patient of many years of life — not merely a brief extension of life — it must surely be said that the early death resulted from the alleged negligence.
We do not know what the plaintiffs might have proved. We cannot judicially know what the decedent’s prospects were at the time his AIDS should have been identified and was not. That can be shown only by expert testimony.
To use a more familiar example, one can imagine a person stricken with a fatal cancer. However, remission of the disease can be medically induced, and the patient restored to a condition of clinical health, which normally continues over a period of months or years with maintenance therapy, even though the underlying condition continues uncured and ultimately causes death. In such a case, the negligent failure to timely diagnose the cancer, by reason of which the door is closed to medically induced remission, and by reason of which the patient quickly declines and dies, is a cause of the patient’s death. I do not think Wollen deals with this kind of case.
I would reverse and remand for further proceedings. The evidence upon a full record might bring the case within the Wollen case. But it might not.