concurring.
The defendants filed a motion to dismiss for failure to state a claim. This motion is sustainable only if we can say that the well-pleaded facts disclose no possible basis for recovery.
In Ray v. Dunn, 753 S.W.2d 652 (Mo.App.1988), it is said:
When a petition is attacked by a motion to dismiss for failure to state a claim, the mere conclusions of the pleader are not admitted. The facts alleged, however, are taken to be true and the pleader is entitled to all favorable inferences fairly deducible therefrom. If such facts and such inferences, viewed most favorably from plaintiff’s standpoint, show any ground for relief, the petition should not be dismissed.
Id. at 654 (emphasis added).
The plaintiff cannot be put out of court because of deficiencies in the pleading of damages, unless it can be said that none of the damages alleged could be legally recovered. It is not the office of a motion to dismiss to probe the specific damage allegations. 71 C.J.S., Pleading, § 458. This can be done by a motion to strike or by objection to evidence. It is indeed arguable that the statement of facts demonstrating a legal wrong is sufficient to survive a motion to dismiss, without the necessity for any specification of damages.
The charges of negligence in the amended petition are much more precise than in Wilson v. Kuenzi, 751 S.W.2d 741 (Mo. *51banc 1988). There the only complaint was about failure to advise the patient of the availability of a procedure available for the detection of hereditary defects in fetuses. Recovery by the plaintiff depended on a series of speculations. Here it is distinctly charged that the defendant physicians were negligent in the interpretation of “ultra sounds,” and in their failure to advise the plaintiff of the presence of structural abnormalities in the child she was carrying. The alleged malpractice is pinpointed. My separate concurrence in Wilson v. Kuenzi was based on a judicial admission that the only damages sought were based on the assertion that the plaintiff would have procured an abortion if she had known about the defects in the fetus. Id. at 746. Here there is no such admission.
It perhaps would have been better if the plaintiff had filed an amended petition following the decision in Wilson v. Kuenzi on April 19, 1988, and after my separate concurrence was filed on May 17, 1988. But, since the governing law was in a state of flux while the motion was under submission, I would not hold the absence of an amendment too strongly against the plaintiff, when the petition which was dismissed stated distinct acts of malpractice.
It will be up to the plaintiff, if challenged, to segregate the admissible damage evidence from the inadmissible. There are also problems about how the jury is to be informed of the restrictions on damages under § 188.130.2, RSMo 1986. But it would not be appropriate to comment on these problems with the case in its present posture.
I concur in the reversal and remand.