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Asmus v. Capital Region Family Practice-McCarty Clinic9/30/2003
Richard Asmus appeals the trial court's dismissal of his medical malpractice claim against Capital Region Family Practice, et al., the denial of his motion to amend the petition to remedy its deficiency, and the denial of his motion to reconsider. For the reasons stated below, we reverse the judgment of the trial court.
Factual Background
In July of 1999, Plaintiff Richard Asmus brought a medical malpractice lawsuit against four physicians and two healthcare facilities (collectively " Defendants"). Plaintiff's petition alleged, in part, that he suffered a severe decubitus ulcer on his lower back and buttocks as a result of the Defendants' negligence while hospitalized in July of 1997.
Prior to filing his lawsuit, Plaintiff filed for voluntary bankruptcy under Chapter 7 in February of 1999. Plaintiff did not disclose on his schedule of assets that he had an unliquidated potential claim he intended to pursue against the health care providers.
Plaintiff's bankruptcy became final on May 14, 1999, when he received a complete discharge of his debts, which consisted almost entirely of medical expenses owed to a hospital that is not a party to this lawsuit. Shortly before Plaintiff was discharged in bankruptcy, the personal injury attorneys Plaintiff had engaged declined to represent him further as to his malpractice claim. Plaintiff then contacted different attorneys about representing him on this claim. The new attorneys, who continue to represent Plaintiff, were unaware that the unliquidated personal injury action was not listed and exempted from the bankruptcy estate.
This lawsuit was originally filed on July 21, 1999, just before the two-year limitations period was due to expire. In November of that year, Plaintiff dismissed the lawsuit without prejudice. He re-filed the lawsuit on November 9, 2000, taking advantage of Missouri's one-year savings statute.
In his answers to interrogatories, filed on March 13, 2001, Plaintiff acknowledged that he had been discharged in bankruptcy in 1999. At Plaintiff's deposition on November 6, 2001, Plaintiff acknowledged that while still in the hospital in 1997, he formed the belief that he may have a medical negligence claim. Thus, he agreed that he formed the intention to sue the hospital nearly two years before he filed for bankruptcy.
On January 16, 2002, three of the Defendants filed a motion to dismiss, contending that the Plaintiff lacked standing to bring the cause of action in that the cause of action properly belonged to the bankruptcy estate. Defendants maintained that the proper party to prosecute a personal injury claim owned by the estate is the bankruptcy trustee. A fourth Defendant filed for summary judgment on the same grounds in February, followed closely by the final Defendant's motion to dismiss for the same reason.
Shortly after the motions to dismiss were filed, Plaintiff moved to reopen his bankruptcy case in order to amend the schedules to include the unliquidated personal injury action and to have it exempted. Plaintiff also at that time moved the circuit court to amend the medical malpractice petition to add the bankruptcy trustee as a plaintiff. Plaintiff's motions were filed while the defendants' motions to dismiss were pending.
Plaintiff's bankruptcy estate was re-opened on April 17, 2002. Plaintiff filed amended schedules that listed this cause of action, and Plaintiff moved to exempt the claim as an unliquidated personal injury claim. In the meantime, while his motion to exempt the personal injury claim was still pending in bankruptcy court, on May 20, 2002, the trial court granted Defendants' motions, treating them all as
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