dissenting in part and concurring in part.
Among the provisions found in Missouri’s “Bill of Rights” is the following:
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, § H. I see no reason to resort to any strained construction of the above language or engage in any distillation or dilution of its words. It should mean what it says. The aim of article I, § 14 is to allow all citizens to enforce rights recognized by the law, without discrimination. Schulte v. Missionaries of La Salette Corp. of Missouri, 352 S.W.2d 636, 641 (Mo.1961). Article I, § 14 prohibits any law that arbitrarily or unreasonably bars individuals or classes of individuals from accessing our courts in order to enforce recognized causes of action for personal injury. The principal opinion’s analysis renders an important constitutional right meaningless. For that reason, I dissent from the principal opinion’s rationale although I concur, in part, with its result.
I.
Allegedly, as a result of the negligence of defendant medical care providers in recommending and performing an angiogram on June 14, 1988, Derrel Wheeler suffered a major stroke, which rendered him mentally incompetent. Over three years later, on August 6, 1991, Derrel Wheeler was declared mentally incompetent by the probate court in Lawrence County. Joann Wheeler, his wife, was appointed guardian of the person and conservator of his estate. According to the majority opinion announced today, the statute of limitations contained in § 516.105 began to run against Mr. Wheeler’s claim at the time of the allegedly negligent act, notwithstanding his mental incompetence and lack of guardianship, and would bar any medical malpractice action brought by the conservator because the two-year limitations period had run by the time of her appointment.
In so holding, the Court relies on inappo-site cases, misconstrues precedent and announces a new, strained construction of article I, § 14. The Court creates an unfounded dichotomy between those statutes that impose a legal barrier to court access and those statutes that result in an actual barrier to court access.
*516The principal opinion’s references to Adams v. Children’s Mercy Hospital, 832 S.W.2d 898 (Mo. banc 1992), Blaske v. Smith & Entzeroth, Inc., 821 S.W.2d 822 (Mo. banc 1991), and Harrell v. Total Health Care, Inc., 781 S.W.2d 58 (Mo. banc 1989), are puzzling. In each of those cases, the Court held that the legislature could change the substantive common law so as to eliminate or modify a cause of action before it accrued. That is not the issue involved here. None of the cases can be read as authorizing the erection of an arbitrary and unreasonable barrier to bringing a recognized cause of action. Indeed, in Adams, the Court made a distinction between procedural barriers, which violate article I, § 14, and changes in the substantive law, which do not violate the constitution. 832 S.W.2d at 905-06. In Blaske, the Court distinguished from its holding cases which involved “a literal and actual barring of the courts to certain” litigants. 821 S.W.2d at 833. Similarly, in Harrell, the Court excepted from its holding cases challenging the running of a statute of limitations against persons presumably incapable of pursuing their legal rights. 781 S.W.2d at 61. To the extent these cases are applicable, they do not support the principal opinion’s conclusion.
One ease that is apposite, Strahler v. St. Luke’s Hospital, 706 S.W.2d 7 (Mo. banc 1986), is misconstrued by the majority. There, the Court struck down the statutory limitation period of § 516.105 as applied to minors on the ground that it violated their constitutional right to access the courts:
The statutory limitation period, as applied to minors, violates their right of access to our courts under Mo. Const, art. I, § 14 and renders vacant the guarantee contained in this constitutional provision which declares in no uncertain terms “that the courts of justice shall be open to every person, and certain remedy afforded for every injury to person.... ” To the extent it deprives minor medical malpractice claimants the right to assert their own claims individually, makes them dependent on the action of others to assert their claims, and works a forfeiture of those claims if not asserted within two years, the provisions of § 516.105 are too severe and interference with the minors’ state constitutionally enumerated right of access to the courts to be justified by the state’s interest in remedying a perceived medical malpractice crisis.
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Section 516.105, RSMo 1978, arbitrarily and unreasonably denies [minors] a set of rights without providing an adequate substitute course of action for them to follow. We consider § 516.105, RSMo 1978, as it pertains to minors, a statutory aberration which runs afoul of our state constitution and we accordingly hold it constitutionally infirm.
706 S.W.2d at 11-12.
Here, the principal opinion incorrectly determines that “Strahler did not turn on any personal or peculiar inability of the individual claimant to bring suit, but rather on a state-imposed barrier to bring suit.” If the principal opinion is correct in asserting that the statutory barrier to minors filing suit found in §§ 507.110-.120 was “the overriding factor” to the Strahler decision, it is odd that the Court in Strahler did not say so and hold those provisions to be unconstitutional barriers to access. Rather, the Court held that the statute of limitations in § 506.105 was a violation of a child’s rights under article I, § 14.
The Strahler plurality specifically rejected the defendant’s argument that § 516.105 does not contravene article I, § 14, because plaintiff, who was over fifteen years of age at the time of the alleged malpractice, could have recruited a next friend to bring the suit. See § 507.130, RSMo 1991 (permitting a fourteen-year-old to petition for appointment of his or her own next friend). The opinion in Strahler emphasized that a minor child lacks the understanding and wherewithal necessary to prompt others to take legal action on the child’s behalf:
We think defendant’s contention that plaintiff should not now be heard to complain because she was free to “initiate her own suit” plainly ignores the disabilities and limitations that childhood, familial relationships, and our legal system place upon a minor of tender years — who has *517little if any understanding of the complexities of our legal system.
706 S.W.2d at 10. Critical to the decision there was the Court’s determination that the minor’s ability under state law to have a next friend appointed to bring suit on the child’s behalf did not provide meaningful access to the courts because the law made minors dependent upon the actions of others to assert their rights. Id. at 10-12.
The dissenting opinion of Judge Welliver in Strahler sheds additional light on the history of the open courts provision and his view of the role of the court in determining whether a statute violates the provisions of article I, § 14. While he was no friend of vague notions of “substantive” due process, he made clear his belief that article I, § 14 is in the nature of a specific “due process” clause that requires judicial review of statutes charged with violating its provisions. There, Judge Welliver said:
While the initial question of reasonableness is up to the legislature, it is still the province of the courts to determine if the challenged restriction is arbitrary and unreasonable and thereby denies a litigant due process.
Id. at 18 (Welliver, J., dissenting). Judge Welliver concluded that because parents and guardians could bring the suit and are presumed to look after the child’s best interests, that was sufficient to satisfy the requirement that there be a “certain remedy afforded” for a legal wrong. Id. at 19. Likewise, Judge Blaekmar and Judge Donnelly, in their dissenting opinions, indicated that a “reasonableness” analysis was appropriate. Id. at 13 (Blaekmar, J., dissenting); Id. at 14-15 (Don-nelly, J., dissenting).
An application of the rationale of Strahler, whether one relies on the principal opinion or on the dissenting opinions, to the facts of the present case clearly leads to the conclusion that this Court should strike down §§ 516.105 and 516.170 to the extent they allow a limitation period to run against a mentally incompetent medical malpractice victim not represented by a court-appointed conservator. If it is wholly unreasonable and arbitrary to bar an action by one who lacks capacity due to minority, particularly when the minor is both mentally and physically capable of applying for his or her own appointment of a next friend, it is equally arbitrary and unreasonable to bar a recognized legal action due to mental incompetency.
The majority rests its decision on an insignificant and incorrect distinction that, unlike minors, mentally incapacitated persons, though admittedly incapable of initiating a legal action, are not specifically prohibited by statute from bringing an action on their own behalf. The principal opinion provides no explanation for how any meaningful access to courts in medical malpractice cases is provided by merely the technical legal ability of a mentally incapacitated person, who may very well be suffering from the last stages of Alzheimer’s Disease, be profoundly retarded, or even in a persistent vegetative state, to prosecute an action on his or her own behalf.
I conclude that article I, § 14 of the Missouri Constitution bars the running of the two-year statute of limitations on medical malpractice actions against a mentally incapacitated plaintiff for whom no conservator or guardian has been appointed as it unreasonably and arbitrarily deprives such persons of any meaningful access to courts and effectively denies them a “certain remedy” for a legally recognized cause of action.
II.
This conclusion, however, is not dispositive because the effect of appointment of a conservator, a matter that was not raised in Strahler, must be considered. A conservator is “one appointed by a court to have the care and custody of the estate of a minor or disabled person.” § 175.010(3), RSMo 1994. A conservator is under a duty to act in the interest of the disabled person. § 475.130.1, RSMo 1994- In that regard, the “conservator of the estate shall prosecute and defend all actions instituted on behalf of or against the proteetee[.]” § 475.130.4- Read together, these statutory provisions give a conservator not only the authority, but the duty to prosecute actions on behalf of the protectee, including the duty to file a lawsuit when the protectee is the victim of intentional or negligent malpractice by a healthcare provider.
*518The impediment faced by a mentally incapacitated person represented by a conservator is not unreasonable when balanced against the state’s interest in providing a statute of limitations to.protect medical care providers from tort liability based on stale evidence and to provide them with a period of repose after which they can rest easy with the comfort that they can no longer be sued. The protectee of a conservator is not dependent upon the moral obligation of another to protect his or her rights, but is represented by someone who is legally obligated to protect those rights. In short, when a conservator is appointed, the mentally incapacitated person is given sufficient access to the courts, allowing the statute of limitations to run. Under the majority’s analysis, a malp-racticing healthcare provider who sometimes is the best or only person in a position to know whether the patient is incapacitated is actually rewarded for discouraging appointment of a conservator who would be legally obligated to look after the patient’s interests.
III.
Today’s opinion is an unfounded departure from this Court’s prior decisions that provide a clear constitutional right to access to courts and to a “certain remedy” for recognized legal wrongs. The principal opinion disregards precedent by refusing to subject the statutes to any reasonableness analysis. The majority concedes its result is harsh, but looks to the legislature to repair the damage. However, history and the constitution teach that it is the courts which must be vigilant to protect the individual rights of those who are least capable of taking care of themselves. I include in that group not only children, as this Court recognized in Strahler, but also retarded and other mentally disabled adults who have been the victims of medical malpractice.