file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-651_(12-09-99)_Opinion.htm
No. 98-651
IN THE SUPREME COURT OF THE STATE OF MONTANA
1999 MT 309
297 Mont. 212
994 P.2d 1090
THE ESTATE OF DENNIS McCARTHY, M.D.,
Petitioner,
v.
MONTANA SECOND JUDICIAL DISTRICT
COURT, SILVERBOW COUNTY, the Honorable
John W. Whelan, Presiding,
Respondent.
ORIGINAL PROCEEDING: Supervisory Control
COUNSEL OF RECORD:
For Petitioner:
Larry E. Riley, Lucy T. France (argued); Garlington, Lohn & Robinson,
Missoula, Montana
For Respondent:
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-651_(12-09-99)_Opinion.htm (1 of 18)4/10/2007 10:06:43 AM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-651_(12-09-99)_Opinion.htm
Leonard J. Haxby (argued); Haxby & Somers, Butte, Montana
Argued: March 23, 1999
Submitted: March 25, 1999
Decided: December 9, 1999
Filed:
__________________________________________
Clerk
Justice Karla M. Gray delivered the Opinion of the Court.
¶1 This case originated in this Court on the application of the Estate of Dennis McCarthy, M.D.
(the Estate), for a writ of supervisory control seeking relief from the order of the Second Judicial
District Court, Silver Bow County, denying the Estate's motion for summary judgment. Having
accepted supervisory control and heard oral arguments, we reverse the order of the District Court
and remand for entry of summary judgment in the Estate's favor.
¶2 The issue before us is whether the District Court erred in concluding that § 27-2-205(2),
MCA, is unconstitutional as applied in this case.
BACKGROUND
¶3 Richard Best (Best) was born prematurely on August 20, 1974. Dr. Dennis McCarthy
(McCarthy) placed an umbilical vein catheter in Best shortly after his birth. Best subsequently
developed liver problems.
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-651_(12-09-99)_Opinion.htm (2 of 18)4/10/2007 10:06:43 AM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-651_(12-09-99)_Opinion.htm
¶4 On August 15, 1995, Best filed a complaint against the Estate alleging that McCarthy placed
the umbilical catheter--and injected fluids--into Best's hepatic vein, thereby causing severe
damage to his liver. The complaint further alleged that McCarthy's actions, as well as his
underlying diagnosis, were negligent, constituted medical malpractice and resulted in injuries for
which Best requested a variety of damages.
¶5 The Estate moved for summary judgment, asserting that Best's complaint was barred by the
statute of limitations set forth in § 27-2-205(2), MCA. Best responded that the statute of
limitations was unconstitutional because it violated his right to access to the courts guaranteed by
Article II, § 16 of the Montana Constitution and his right to equal protection of the laws
guaranteed by Article II, § 4 of the Montana Constitution. The District Court concluded that the
statute, as applied to Best, violated his constitutional rights both to access to the courts and to
equal protection of the laws, and denied the Estate's motion. The Estate subsequently petitioned
for a writ of supervisory control, asserting that the District Court erred in concluding the statute
was unconstitutional and in denying its motion for summary judgment on that basis.
STANDARD OF REVIEW
¶6 We review a district court's ruling on a summary judgment motion de novo, using the same
Rule 56, M.R.Civ.P., criteria applied by that court. Ross v. City of Great Falls, 1998 MT 276, ¶
9, 291 Mont. 377, ¶ 9, 967 P.2d 1103, ¶ 9. Typically, our review of a summary judgment ruling
entails a determination of whether the party moving for summary judgment established the absence
of genuine issues of material fact and entitlement to judgment as a matter of law. Ross, ¶ 10; Rule
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-651_(12-09-99)_Opinion.htm (3 of 18)4/10/2007 10:06:43 AM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-651_(12-09-99)_Opinion.htm
56, M.R.Civ.P. Here, however, the parties do not dispute the material facts and, consequently,
we review only whether the Estate was entitled to judgment as a matter of law. See, Ross, ¶ 10.
The District Court's determination that the Estate was not entitled to judgment as a matter of law
was based on its conclusion that the statute at issue violated Best's constitutional rights. Where
the resolution of an issue involves questions of constitutional law, we review a district court's
interpretation of the law to determine whether it is correct. See Connell v. State, Dept. of Social
Services (1997), 280 Mont. 491, 494, 930 P.2d 88, 90.
DISCUSSION
¶7 Did the District Court err in concluding that § 27-2-205(2), MCA, is unconstitutional as
applied in this case?
¶8 The Estate moved the District Court for summary judgment on the basis that, under the plain
language of § 27-2-205(2), MCA, Best's complaint alleging medical malpractice was not timely
filed and his action is barred. The District Court denied the motion and the Estate asserts that the
District Court erred. As stated above, the party moving for summary judgment has the burden of
establishing entitlement to judgment as a matter of law. A brief discussion of the evolution of
Montana's medical malpractice statute of limitations insofar as it pertains to the present case will
provide a helpful backdrop to our review of whether the Estate met its burden here.
¶9 At the time of Best's alleged injury in 1974, the applicable statute of limitations for a medical
malpractice claim provided, in pertinent part, that an
[a]ction for injury or death against a physician or surgeon . . . based upon such person's alleged
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-651_(12-09-99)_Opinion.htm (4 of 18)4/10/2007 10:06:43 AM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-651_(12-09-99)_Opinion.htm
professional negligence . . . or for error or omission in such person's practice, shall be commenced
within three (3) years after the date of injury or three (3) years after the plaintiff discovers, or
through the use of reasonable diligence should have discovered, the injury whichever occurs last,
but in no case may such action be commenced after five (5) years from the date of injury.
Section 93-2624, R.C.M. (1947). Furthermore, § 93-2703, R.C.M. (1947), provided that, if a
person entitled to bring an action was a minor at the time the cause of action accrued, the
applicable statute of limitations would be tolled during the period of minority. Consequently,
because Best was a minor at the time of his alleged injury, the three-year statute of limitations for
his medical malpractice action would have been tolled until he reached majority. The above
statutes subsequently were recodified at §§ 27-2-205 and 27-2-401, MCA, respectively.
¶10 In 1987, the Montana Legislature amended § 27-2-205, MCA, by adding the following
provision:
Notwithstanding the provisions of 27-2-401, in an action for death or injury of a minor who was
under the age of 4 on the date of his injury, the period of limitations in [a medical malpractice
action] begins to run when the minor reaches his eighth birthday or dies, whichever occurs first,
and the time for commencement of the action is tolled during any period during which the minor
does not reside with a parent or guardian.
Section 27-2-205(2), MCA (1987). In enacting this subsection, the Legislature expressly
provided for its retroactive application:
(1) An action referred to in 27-2-205(2) for injury or death occurring prior to October 1, 1987,
must be commenced within 2 years after the effective date of this act or within the time limits in
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-651_(12-09-99)_Opinion.htm (5 of 18)4/10/2007 10:06:43 AM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-651_(12-09-99)_Opinion.htm
27-2-205(2), whichever expires last.
(2) This act applies retroactively, within the meaning of 1-2-109, to causes of action that arose
prior to October 1, 1987
1987 Mont. Laws Ch. 499, Sec. 2.
¶11 It is undisputed that Best was under the age of four at the time of his alleged injury, the injury
occurred prior to October 1, 1987, and Best was 13 years old when the 1987 amendment to the
medical malpractice statute of limitations took effect. Thus, pursuant to the amended statute, Best
was required to bring his medical malpractice action within two years after October 1, 1987, in
other words, no later than October 1, 1989. He did not file his complaint until August 15, 1995.
Therefore, it appears--and, indeed, Best concedes--that the statute of limitations in §
27-2-205(2), MCA, bars Best's cause of action, entitling the Estate to summary judgment on that
basis.
¶12 In response to the Estate's motion, however, Best asserted--and the District Court
agreed--that application of § 27-2-205(2), MCA, in this case would violate his constitutional
rights to access to the courts and equal protection of the laws. Before addressing the court's
conclusion that § 27-2-205(2), MCA, is unconstitutional on those grounds, we briefly set forth the
principles which guide us in reviewing the constitutionality of statutes.
¶13 Statutes are presumed to be constitutional. Davis v. Union Pacific R. Co. (1997), 282
Mont. 233, 239, 937 P.2d 27, 30 (citation omitted). Consequently, a party challenging the
constitutionality of a statute bears the heavy burden of proving it to be unconstitutional beyond a
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-651_(12-09-99)_Opinion.htm (6 of 18)4/10/2007 10:06:43 AM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-651_(12-09-99)_Opinion.htm
reasonable doubt. Davis, 282 Mont. at 239, 937 P.2d at 30. " 'The question of constitutionality
is not whether it is possible to condemn, but whether it is possible to uphold the legislative action .
. . .' " Davis, 282 Mont. at 240, 937 P.2d at 31 (quoting Fallon County v. State (1988), 231
Mont. 443, 445-46, 753 P.2d 338, 340). Consequently, every possible presumption must be
taken in favor of the statute's constitutionality. Davis, 282 Mont. at 240, 937 P.2d at 31. With
these principles in mind, we address Best's arguments regarding access to the courts and equal
protection in turn.
A. Access to the Courts
¶14 Article II, § 16 of the Montana Constitution provides, in pertinent part, that
[c]ourts of justice shall be open to every person, and speedy remedy afforded for every injury of
person, property, or character.
Best contends that this provision guarantees the right to access to the courts and that §
27-2-205(2), MCA, infringes on that right by requiring certain minors with medical malpractice
causes of action to file their actions before they reach majority. He asserts that, under Montana
law, a minor may not bring an action on his or her own behalf, but rather must have a parent,
guardian or guardian ad litem file the action on the minor's behalf. Thus, according to Best, if a
parent or guardian fails to timely preserve the minor's cause of action, the minor has no way of
accessing the courts on his or her own behalf before being barred by the statute of limitations.
¶15 A determination regarding the constitutionality of a statute begins with an analysis of the
particular rights involved and the corresponding level of scrutiny to apply to the legislation.
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-651_(12-09-99)_Opinion.htm (7 of 18)4/10/2007 10:06:43 AM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-651_(12-09-99)_Opinion.htm
Wadsworth v. State (1996), 275 Mont. 287, 302, 911 P.2d 1165, 1173. We review the
constitutionality of statutes under one of three recognized levels of scrutiny--strict scrutiny,
middle-tier scrutiny and the rational basis test. Davis, 282 Mont. at 241-42, 937 P.2d at 31-32.
Strict scrutiny is the most stringent standard and it is applied when the challenged legislation
infringes on a fundamental right or discriminates against a suspect class. Davis, 282 Mont. at 241,
937 P.2d at 31. Middle-tier scrutiny is used only in limited circumstances where the right at issue
has some origin in the Montana Constitution but is not a fundamental right. Davis, 282 Mont. at
241, 937 P.2d at 31. Finally, the rational basis test is applied when the right under examination is
not fundamental and does not warrant middle-tier scrutiny. Davis, 282 Mont. at 241-42, 937
P.2d at 32.
¶16 Best concedes that the rational basis test applies here. A statute is constitutional under the
rational basis test if the objective of the statute is legitimate and bears a rational relationship to the
classification used by the legislature. Davis, 282 Mont. at 242, 937 P.2d at 32 (citation omitted).
¶17 According to the legislative history, the Montana Legislature amended § 27-2-205(2),
MCA, in 1987 to address concerns regarding escalating medical malpractice insurance premiums
and corresponding increases in the cost of medical care. See Hearings on H.B. 344 Before the
Senate Judiciary Committee, 50th Legislature (1987). The purpose of the amendment was to
shorten the limitation period for the medical malpractice actions of certain minors to allow for more
certainty and predictability in the assessment of risk by insurance providers. Hearings on H.B.
344 Before the Senate Judiciary Committee, 50th Legislature, Ex. No. 4, Pt. A (Mar. 18, 1987).
Under the prior statute of limitations and the provision tolling the limitations period for minors until
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-651_(12-09-99)_Opinion.htm (8 of 18)4/10/2007 10:06:43 AM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-651_(12-09-99)_Opinion.htm
they reach majority, health care providers and their insurers potentially could be at risk for lawsuits
resulting from injuries incurred during infancy for nearly 20 years. As a result of this extended
period of exposure, insurance carriers charged increasingly high premiums in order to generate
sufficient reserves to guarantee that any liability from such lawsuits could be covered. Hearings on
H.B. 344 Before the Senate Judiciary Committee, 50th Legislature, Ex. No. 4, Pt. C (Mar. 18,
1987). This escalation in insurance rates, in turn, resulted in health care providers either increasing
the costs of medical services or ceasing to provide certain services. Hearings on H.B. 344 Before
the Senate Judiciary Committee, 50th Legislature, Ex. B (Feb. 9, 1987).
¶18 The Legislature responded to these concerns by amending the medical malpractice statute of
limitations for certain situations. It tailored the amendment to affect only actions for injuries
incurred between birth and age four, which was considered the age range most affecting the costs
of insurance coverage. Hearings on H.B. 344 Before the Senate Judiciary Committee, 50th
Legislature, Ex. No. 4, Pt. A (Mar. 18, 1987). Furthermore, the Legislature provided that the
limitations period for those minors be tolled until the age of eight, as proponents of the amendment
testified that most injuries incurred by minors under the age of four are discovered by the time the
minor reaches the age of eight. Hearings on H.B. 344 Before the Senate Judiciary Committee,
50th Legislature, p. 2 (Mar. 18, 1987). Thus, the amendment reduced the length of potential
liability exposure for such injuries while still providing a sufficient period of time for most injuries to
be discovered and acted upon.
¶19 Ensuring the availability and affordability of health care services, as well as reducing the costs
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-651_(12-09-99)_Opinion.htm (9 of 18)4/10/2007 10:06:43 AM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-651_(12-09-99)_Opinion.htm
of medical malpractice insurance, are legitimate legislative objectives. See, e.g., Linder v. Smith
(1981), 193 Mont. 20, 26, 629 P.2d 1187, 1190. Furthermore, the classification created by the
Legislature--minors injured between birth and age four--is narrowly defined to affect only those
minors whose injuries raise the greatest concerns regarding extended liability exposure for medical
malpractice. We conclude that the classification of minors in § 27-2-205(2), MCA, is rationally
related to a legitimate legislative objective and, therefore, passes the rational basis test.
¶20 In support of his argument that § 27-2-205(2), MCA, violates Article II, § 16 of the
Montana Constitution, Best relies on several cases from other jurisdictions holding that similar
medical malpractice statutes of limitation pertaining to minors violated state constitutional access to
court provisions. See Strahler v. St. Luke's Hosp. (Mo. 1986), 706 S.W.2d 7; Barrio v. San
Manuel Div. Hosp., Magma Copper (Ariz. 1984), 692 P.2d 280; Sax v. Votteler (Tex. 1983),
648 S.W.2d 661. We observe, however, that the constitutionality of the statute of limitation at
issue in these cases was not reviewed under the rational basis test.
¶21 In Strahler, the Missouri Supreme Court held that, although the legislative purpose of the
statute was legitimate, that purpose did not justify the severe interference on minors' access to the
courts; the statute was arbitrary, unreasonable and unduly burdensome. Strahler, 706 S.W.2d at
11-12. The Arizona Supreme Court expressly refused to apply the rational basis test in reviewing
the state's medical malpractice statute of limitations because the open courts provision in
Arizona's constitution contains an express and fundamental right to recover damages for
negligence. Barrio, 692 P.2d at 283. Finally, in Sax, the Texas Supreme Court held that, to
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-651_(12-09-99)_Opinion.htm (10 of 18)4/10/2007 10:06:43 AM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-651_(12-09-99)_Opinion.htm
establish the statute of limitations did not impermissibly infringe on a minor's rights under the
state's open courts constitutional provision, the state must show that the legislative basis for the
statute outweighed the denial of the constitutional right. Sax, 648 S.W.2d at 665-66. In contrast,
the rational basis test applicable to our review of Montana's statute requires only that the
classification created by the statute bear a rational relationship to a legitimate legislative purpose.
Therefore, the cases cited by Best holding similar medical malpractice statutes of limitation
unconstitutional under more stringent standards of review are not persuasive.
¶22 We conclude that § 27-2-205(2), MCA, does not violate Article II, § 16 of the Montana
Constitution.
B. Equal Protection
¶23 The District Court also concluded that § 27-2-205(2), MCA, violates Best's right to equal
protection of the laws guaranteed by Article II, § 4 of the Montana Constitution, because it treats
minors with a cause of action for medical malpractice differently than minors with causes of action
for other torts by not allowing the statute of limitations to be tolled during the period of minority.
Again, Best concedes that the appropriate level of scrutiny for an equal protection analysis in this
case is the rational basis test. He argues that the District Court correctly determined that there is
no rational relationship between the classification created by the statute and the legislative goal.
We concluded above, however, that the classification of minors with medical malpractice causes
of action for injuries incurred between birth and age four is rationally related to the Legislature's
legitimate objective of reducing health care costs and malpractice insurance premiums.
¶24 In urging us to conclude that § 27-2-205(2), MCA, violates equal protection under the
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-651_(12-09-99)_Opinion.htm (11 of 18)4/10/2007 10:06:43 AM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-651_(12-09-99)_Opinion.htm
rational basis test, Best again cites several cases from other jurisdictions which have held that
similar statutes of limitations violate minors' rights to equal protection of the laws. See Carson v.
Maurer (N.H. 1980), 424 A.2d 825; Schwan v. Riverside Methodist Hosp. (Ohio 1983), 452
N.E.2d 1337; Lyons v. Lederle Laboratories (S.D. 1989), 440 N.W.2d 769; Torres v. County
of Los Angeles (Cal. App. 1989), 257 Cal. Rptr. 211. These cases, however, do not support his
argument. Carson, for example, is inapplicable here because the New Hampshire Supreme Court
expressly refused to apply the rational basis test and applied a more stringent middle-tier scrutiny
in holding that the statute of limitations at issue violated minors' rights to equal protection. Carson,
424 A.2d at 830-31.
¶25 In Lyons, the South Dakota Supreme Court applied the rational basis test and held that,
although the medical malpractice crisis provided the state legislature with a legitimate objective in
enacting the statute of limitations at issue, the classification of minors of certain age within the
statute was not rationally related to that objective. Lyons, 440 N.W.2d at 771-72. Specifically,
the court stated that it "fail[ed] to perceive any rational basis for assuming that medical malpractice
claims will diminish simply by requiring that suits be instituted at an earlier date." Lyons, 440
N.W.2d at 771. Thus, the Lyons court perceived that the legislative objective in enacting the
statute of limitations as it pertained to minors was to reduce the number of medical malpractice
cases filed by plaintiffs who were minors at the time of their injury. This is not the same objective
sought by the Montana Legislature in amending § 27-2-205(2), MCA.
¶26 As discussed above, the Montana Legislature sought to reduce the costs of medical
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-651_(12-09-99)_Opinion.htm (12 of 18)4/10/2007 10:06:43 AM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-651_(12-09-99)_Opinion.htm
malpractice insurance by reducing the time period in which certain actions must be filed, thereby
reducing the uncertainty of potential future losses which had increased insurance premiums. See
Hearings on H.B. 344 Before the Senate Judiciary Committee, 50th Legislature, (1987). Thus,
the objective was to provide for more certainty in risk assessment rather than to reduce the overall
number of claims. Indeed, the Legislature attempted to preserve as many claims as possible by
pinpointing only those injuries incurred between birth and age four and allowing those minors until
the age of eight to file actions because most of these causes of action are discovered within that
time frame. Lyons is distinguishable on this basis.
¶27 In Schwan, the Ohio Supreme Court also held a similar statute of limitations violated equal
protection, concluding under the rational basis test that the classification of minors under the age of
ten was not sufficiently related to the objective of the statute and that "it is the age of majority
which establishes the only rational distinction." Schwan, 452 N.E.2d at 1339. However, the
court provided no discussion of the statute's legislative history and virtually no analysis of why the
statute failed the rational basis test. In light of its limited rationale, Schwan simply is not
persuasive.
¶28 Finally, in Torres, the California Court of Appeals held that a statute which provided that the
limitations period on a minor's medical malpractice action began to run from the date of the
alleged wrongful act, while the limitations period for adults began to run from the date--or the
discovery--of the resulting injury, violated minors' rights to equal protection of the laws. Torres,
257 Cal. Rptr. at 217. The Torres court did not address the issue before us here--namely,
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-651_(12-09-99)_Opinion.htm (13 of 18)4/10/2007 10:06:43 AM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-651_(12-09-99)_Opinion.htm
whether a statute providing that a limitations period could run during the time a plaintiff is a minor
violates equal protection--and, as a result, Torres is inapplicable to the present case. Moreover,
in a case addressing the issue raised here by Best, the California Court of Appeals held that a
statute requiring a minor under the age of six to bring a medical malpractice action within three
years or prior to his or her eighth birthday did not violate a minor's right to equal protection of the
laws. See Kite by and through Black v. Campbell (Cal. App. 1983), 191 Cal. Rptr. 363,
366-67, overruled on other grounds by Young v. Haines, 718 P.2d 909 (Cal. 1986).
¶29 Best has presented no persuasive argument or authority supporting his contention that §
27-2-205(2), MCA, is not rationally related to a legitimate governmental objective and, therefore,
he has not met his burden of establishing that the statute is unconstitutional beyond a reasonable
doubt. See Davis, 282 Mont. at 239, 937 P.2d at 30. We conclude that § 27-2-205(2), MCA,
does not violate Best's right to equal protection of the laws.
¶30 We hold that the District Court erred in concluding that § 27-2-205(2), MCA, is
unconstitutional as applied in this case. Consequently, as discussed above, § 27-2-205(2), MCA,
required Best to bring his medical malpractice action no later than October 1, 1989, and he did
not file his complaint until August 15, 1995. As a result, the Estate is entitled to summary
judgment on the basis that Best's cause of action is barred by the statute of limitations.
¶31 Reversed and remanded for entry of an order granting summary judgment to the Estate.
/S/ KARLA M. GRAY
We concur:
/S/ J. A. TURNAGE
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-651_(12-09-99)_Opinion.htm (14 of 18)4/10/2007 10:06:43 AM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-651_(12-09-99)_Opinion.htm
/S/ JIM REGNIER
/S/ W. WILLIAM LEAPHART
/S/ JAMES C. NELSON
Justice William E. Hunt, Sr., dissenting.
¶32 The legislature amended § 27-2-205, MCA, in 1987, limiting minors' access to courts in
medical malpractice cases in response to a perceived medical malpractice crisis in the State of
Montana. The gist of this "crisis" was that Montana's insurance rate's were too high and there
was supposedly an enormous increase in physicians carrying no insurance. The question the
legislature's amendment raises is, if a minor has no standing to bring his own claim, and the statute
of limitations runs before he attains the age of majority, when is he to bring a claim on his own
behalf?
¶33 A statute limiting non-fundamental rights must pass the rational basis test, and I fail to see
how a statute limiting minors from pursuing valid claims against potentially negligent medical
professionals is reasonably related to the legislature's purported intent of reducing the cost of
medical malpractice premiums.
¶34 I agree with the District Court that the result of the legislature's amendments is that §
27-2-205(2), MCA, violates equal protection as guaranteed by Article II, Section 4, of the
Montana Constitution. The minor statute of limitations treats minor victims of medical negligence
differently than adult victims of the same negligent act as well as treating them differently than minor
victims of other torts. Sections 27-2-205, 401, MCA. Other jurisdictions have found that such
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-651_(12-09-99)_Opinion.htm (15 of 18)4/10/2007 10:06:43 AM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-651_(12-09-99)_Opinion.htm
statutory provisions violate equal protection.
¶35 The South Dakota Supreme Court found that "an arbitrary classification of minors who
have medical malpractice claims as opposed to minors with any other kind of tort claims" violated
minors' constitutional rights because there was no "rational basis for assuming that medical
malpractice claims will diminish simply by requiring that suits be instituted at an earlier date".
Lyons v. Lederle Labs., (S.D. 1989) 440 N.W. 2d 769, 771.
¶36 The majority attempts to distinguish the Lyons decision on the basis that the intent of South
Dakota's statute is different from Montana's. They assert that the intent behind the South Dakota
law was to reduce the number of malpractice claims filed by plaintiffs who were minors at the time
of their injury, while the Montana Legislature's intent was to "reduce the costs of medical
malpractice insurance by reducing the time period in which certain actions must be filed, thereby
reducing the uncertainty or potential future losses which had increased insurance premiums." Such
a distinction is an act of hair splitting.
¶37 The overall intent of both statutes was to reduce the number of malpractice claims and
therefore reduce the cost of malpractice insurance. There is no rational relationship for treating
certain minors differently than other minors, or differently than adults in the same situation, as a
means to lower malpractice insurance premiums. The discrimination is simply not rationally related
to such a goal. The number of valid claims by minors barred by the statute seems hardly significant
enough to reduce the overall cost of malpractice insurance.
¶38 The California Court of appeals struck down a statute similar to those of Montana and
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-651_(12-09-99)_Opinion.htm (16 of 18)4/10/2007 10:06:43 AM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-651_(12-09-99)_Opinion.htm
South Dakota, stating:
[s]uch a classification 'must be reasonable, not arbitrary, and must rest upon some ground of
difference having a fair and substantial relation to the object of the legislation, so that all persons
similarly circumstanced shall be treated alike.'. . . The fact that such discrimination against minors
would bar some meritorious claims and thereby reduce total malpractice liability is not enough to
justify it. If claims are reduced in an arbitrary manner, the classification scheme denies equal
protection of the law.
Torres v. County of Los Angeles (Cal.Ct.App. 1989), 257 Cal. Rptr. 211, 217 (citation
omitted). Again, the majority attempts to distinguish the court's holding in Torres. They insist that
the decision is not persuasive because Torres addressed a statute allowing the limitations period
on a minor's medical malpractice claim to run from the date of the alleged wrongful act, while the
limitations period for an adult ran from the date, or the discovery, of the injury. In contrast, the
Montana statue allows the limitation period to run during the time a plaintiff is a minor. The
difference is academic. Both statutes in question treat minors differently than adults in the same
situation, namely when they are victims of medical malpractice, and therefore violate minors' rights
to equal protection.
¶39 The District Court could find no rational basis for treating children differently under the
statute of limitations and found the statute unconstitutional. I would hold the same.
/S/ WILLIAM E. HUNT, SR.
Justice Terry N. Trieweiler joins in the foregoing dissent.
/S/ TERRY N. TRIEWEILER
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-651_(12-09-99)_Opinion.htm (17 of 18)4/10/2007 10:06:43 AM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-651_(12-09-99)_Opinion.htm
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-651_(12-09-99)_Opinion.htm (18 of 18)4/10/2007 10:06:43 AM