dissenting.
I am of the opinion that the circuit court erred in depriving the plaintiff personal representative of the opportunity to prosecute a claim for lost chance of survival. I would reverse and remand for further consistent proceedings. Although I have no quarrel with the facts as stated in the court’s opinion, clarity requires a restatement to better demonstrate my analysis.
The deceased, Harry Pyle Boyd, was taken to Salem Memorial Hospital on October 7, 1991 and died in the early morning hours of October 8. On October 5, 1993 his daughter, Harriet Smith, filed an action for wrongful death under § 537.080 RSMo (Cum.Supp. 1991) in the Circuit Court of Dent County. She, as his daughter, was perfectly entitled to file this suit in her own name, without joining any other party. Fitzpatrick v. Hannibal Regional Hosp., 922 S.W.2d 840 (Mo.App.1996). Her filing was within both the two-year statute of limitations for medical malpractice actions (§ 516.105 RSMo 1986) and the three year statute governing wrongful death actions (§ 537.080 RSMo (Cum.Supp.1991)). The defendant, therefore, is quite wrong in arguing that the initial proceeding was “void,” and that “no valid action was ever instituted against [the defendant].”
Under the holdings of Koerper & Co. v. Unitel Int'l, Inc., 739 S.W.2d 705 (Mo. banc 1987) and Wells v. Stinson, Mag & Fizzell, 739 S.W.2d 706 (Mo. banc 1987) an amended petition declaring on the “conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading” relates back to the filing of the original petition in determining the application of the statute of limitations, even though it alleges additional facts or “changes the cause of action.” See Rule 55.33(c). By reason of this filing the defendant had notice that his medical procedures were being called into question, and, contrary to the defendant’s argument, he had no “vested right” to a dismissal under the statute of limitations until the suit against him, and any refiling permitted by § 516.230 RSMo had been finally disposed of. Such cases as Briggs v. Cohen, 603 S.W.2d 20 (Mo.App.1980) are distinguishable because here the plaintiff, as a surviving daughter, had the legal capacity to file the action she first filed.
Just two days later the plaintiff filed a first amended petition in which she sought to recover not for wrongful death but rather for lost chance of survival under the doctrine of Wollen v. DePaul Health Ctr., 828 S.W.2d 681 (Mo. banc 1992). If wrongful death is relied upon the required proof of causation is stricter than that required in a lost chance of survival case. Under Wollen, however, the *721plaintiff daughter lacked standing to sue because a claim for lost chance of survival is not a wrongful death action but rather an action belonging to the personal representative of the deceased for the benefit of the legal successors. The then recently amended § 537.021 RSMo, a procedural statute applicable to this case, provided the options of seeking appointment of a personal representative or of a plaintiff ad litem to prosecute the claim. By the holding of Wollen there would be no obstacle to the substitution of a personal representative or plaintiff ad litem for the individual plaintiff, and this is so even though an initial action would be barred by the two-year statute of limitations for malpractice actions. Thus the discussion in the briefs as to whether the letters “relate back” is not pertinent.
The initial plaintiff could have simplified matters greatly for everyone if she had simply sought to have herself appointed plaintiff ad litem, which could have been accomplished by an ex parte order. She chose, however, to apply for letters of administration as personal representative, and did not complete the application process prior to the second anniversary of her father’s death. In her first amended petition she described herself as “prospective personal representative.” Even after she obtained her letters she made no application to file a second amended petition, but rather resisted a motion to dismiss, after which the defendant sought and obtained an absolute writ of prohibition from the Southern District of the Missouri Court of Appeals. State ex rel. Tang v. Steelman, 897 S.W.2d 202 (Mo.App.1995).
The Southern District noted that Ms. Smith had no authority to maintain a diminished opportunity for survival claim in her own name. It observed that “although ... Plaintiff apparently was named personal representative of the decedent’s estate, no amended petition reciting this fact was sought or filed.” It therefore prohibited the respondent judge from taking any action on the first amended petition except to dismiss it. The court expressly disclaimed any purpose of holding that the petition could not be amended to substitute Smith as personal representative, pointing out that Wollen indicáis ed the possibility of such amendment, and stating that “whether an amended petition should be allowed here is not an issue before us....”
After the writ was made absolute the defendant filed a motion to dismiss. The plaintiff sought leave to file a Second Amended Petition, suing as personal representative, which she then was, rather than in her own name. The trial court sustained the motion to dismiss and did not rule on the request for leave to amend. The dismissal was necessarily without prejudice because the court did not specify otherwise. Rule 67.03. The plaintiff did not appeal.
The plaintiff, rather, filed another action, this time in her capacity as personal representative. The case was taken to Washington County on change of venue, and thus came within the scope of our appellate jurisdiction. The Circuit Court of Washington County sustained the defendant’s motion for summary judgment, finding that there were no genuine issues of fact and that the action was barred by the two-year statute of limitations for malpractice actions, § 516.105 RSMo. This appeal followed.
Under Wollen, the proposed amended petition tendered to the Circuit Court of Dent County was appropriate. The court would not have violated any of the terms of the writ of prohibition if it had granted leave to file it. If a petition fails to state a claim, the trial court should ordinarily allow amendment rather than dismissing the petition. Rule 55.33(a). Thus the Dent County court appears to have committed a clear abuse of discretion in failing to allow the filing of the proposed Second Amended Petition.
The plaintiff, however, did not seek relief from the dismissal in Dent County, but rather elected to file a second action, relying on the “savings statute,” § 516.230 RSMo. I do not believe that it is necessary to hold, as the principal opinion does, that the plaintiff is precluded from relying on that statute simply because her initial petition was filed in a different capacity. Section 516.230 recognizes that a plaintiff may sometimes be turned out of court because of procedural mistakes and seeks to provide a chance to make correction. Wollen clearly authorizes *722amendments to change the capacity of the plaintiff. It would be consistent to allow refiling. The court’s opinion correctly points out that “Smith as an individual and Smith as personal representative were legally different plaintiffs, ...” but it does not necessarily follow that the plaintiff may not rely on § 516.230. Pre-Wollen cases are no longer reliable as authority.
The plaintiff personal representative should not be barred because she chose to refile rather than appealing the dismissal in Dent County and challenging the effective denial of leave to amend. At the time she made her choice substantial authority supported the proposition that a dismissal without prejudice did not give rise to an appeal-able order, because the plaintiff could correct the situation by filing a new action. See Fitzpatrick, 922 S.W.2d 840.
The plaintiff made a reasonable choice under the state of the authorities. The holding of the principal opinion that “as personal representative, plaintiff has never suffered a nonsuit” is unduly technical, inconsistent with the purpose of § 516.230, and not required by any controlling authority. The plaintiff had sought to sue as personal representative in the dismissed suit, and so was effectively nonsuited in that capacity. This should be adequate to permit the refiling.
I consider the defendant’s argument that the letters of administration are “void” because they do not recite on their face that the plaintiffs authority as personal representative is limited by the terms of § 537.021-1(1) to be utterly frivolous. There is no requirement that the letters recite the limitation of authority. The statutes effect the limitation. The application disclosed the purpose for which the letters were sought. The form of letters is determined by the issuing court.
The result I urge does not violate any substantial right of the defendant. He was properly notified of the claims against him within the two-year period of limitation. The delay in bringing the case to fruition is unfortunate, but, in my experience, not unusual for malpractice actions. If the action is dismissed on procedural grounds the defendant will have a windfall in being relieved of a claim timely filed without consideration of the merits.
I would not bar the plaintiff because she neglected the opportunity to seek appointment as plaintiff ad litem, inasmuch as Wol-len clearly contemplates the substitution of a personal representative for a wrongful death plaintiff, even after the statute of limitations would have barred an initial action. Wollen may not have provided a clear roadmap. Hindsight might also suggest that the plaintiff, as soon as she obtained her letters, should have sought to file a second amended petition, declaring in her capacity as personal representative. I do not believe that the plaintiff is guilty of such delicts as to overcome the normal rule that cases should be decided on the merits rather than on procedural grounds whenever possible.
The cases cited in the principal opinion for the proposition that an appointment may not “relate back” so as to preclude the bar of the statute of limitations were decided before the expansion of the concept of relation back as enunciated in the Koerper and Wells cases cited above and before the recognition by Wollen of a kind of claim for relief not previously established in Missouri. The claims for wrongful death on account of malpractice and for diminished chance of survival depend on the same facts. By the logic of the principal opinion a plaintiff might file a wrongful death suit and then be precluded from amending if the two-year statute of limitations expired before the amendment was made. This is an undesirable situation not compelled by statutory language or by controlling precedent. The court should not relieve the defendant of a challenge to his treatment when timely notice was given.
I would reverse the judgment of dismissal and remand for further consistent proceedings. I hope that, however this case is eventually decided, this opinion will be helpful to future litigants in enabling them to avoid pitfalls.