                IN THE SUPREME COURT, STATE OF WYOMING

                                      2014 WY 146

                                                      OCTOBER TERM, A.D. 2014

                                                           November 14, 2014


JEFF KORDUS and SUZETTE
KORDUS, Parents and next friend to
JK, a minor child,

Appellants
(Plaintiffs),
                                                     S-13-0043
v.

LEIGH A. MONTES, M.D.,

Appellee
(Defendant).


                  Appeal from the District Court of Sweetwater County
                          The Honorable Nena James, Judge


Representing Appellants:

        David B. Hooper and Robert A. Bundy, Hooper Law Offices, P.C., Riverton,
        Wyoming. Argument by Mr. Bundy.

Representing Appellee:

       W. Henry Combs, III, Murane & Bostwick, LLC, Casper, Wyoming; Meggan J.
       Hathaway, Murane & Bostwick, LLC, Cheyenne, Wyoming. Argument by
       Ms. Hathaway.

Before BURKE, C.J., and HILL, KITE*, VOIGT†, and DAVIS, JJ.

* Chief Justice at time of oral argument.
†
  Justice Voigt retired effective January 3, 2014.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers
are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming
82002, of any typographical or other formal errors so that correction may be made before final publication in
the permanent volume.
BURKE, Chief Justice.

[¶1] This case involves a medical malpractice claim filed on behalf of J.K., a minor,
against Appellee, Leigh A. Montes, M.D. The district court dismissed the complaint,
ruling that the cause of action was barred by the two-year statute of limitations contained
in Wyo. Stat. Ann. § 1-3-107. J.K. challenges that decision in this appeal. She contends
that the statute, as applied to minors, violates the Wyoming Constitution.1 We agree and
reverse the district court’s decision.

                                                 ISSUES

[¶2]    J.K. lists two issues:

                1. Does Wyo. Stat. Ann. § 1-3-107, as applied to J.K., a
                minor child, unconstitutionally violate her fundamental right
                of access to the courts and deny her equal protection of the
                laws?

                2. Did the district court improperly grant Dr. Montes’s
                motion to dismiss?

                                                  FACTS

[¶3] On March 19, 2007, twelve-year-old J.K. was admitted to Memorial Hospital of
Sweetwater County for appendicitis. Appellee performed an appendectomy. J.K. was
discharged the following day, but complications developed requiring additional surgery
and medical treatment. J.K. was transferred to the Primary Children’s Medical Center in
Salt Lake City, Utah, on April 5, 2007.

[¶4] Appellants filed a claim for medical malpractice with the Medical Review Panel
on November 27, 2011. Dr. Montes waived the Medical Review Panel process and on
March 8, 2012, the Medical Review Panel entered its Order of Dismissal. Appellants
filed their complaint on March 22, 2012. Appellee responded with a motion to dismiss
alleging that the claim was barred by the two-year statute of limitations in Wyo. Stat.
Ann. § 1-3-107(a)(ii). The district court granted the motion. Appellants filed a timely
appeal.



1
  In cases involving the constitutionality of a statute, W.R.A.P. 7.07 requires the parties to serve copies of
their briefs on the Attorney General. The record reflects that both J.K. and Dr. Montes complied with that
requirement. The State of Wyoming did not enter an appearance in this appeal.




                                                      1
                                    STANDARD OF REVIEW

[¶5] The constitutionality of a statute is a question of law that we review de novo.
Baessler v. Freier, 2011 WY 125, ¶ 13, 258 P.3d 720, 725 (Wyo. 2011).

                                            DISCUSSION

[¶6] In reviewing a constitutional challenge to a statute, we presume the statute is
constitutional, and any doubt is resolved in favor of the statute’s constitutionality. Bear
Cloud v. State, 2013 WY 18, ¶ 15, 294 P.3d 36, 41 (Wyo. 2013); Krenning v. Heart
Mountain Irrigation Dist., 2009 WY 11, ¶ 33, 200 P.3d 774, 784 (Wyo. 2009). The party
challenging the constitutionality of a statute bears the burden of proving the statute is
unconstitutional. Id. “That burden is a heavy one ‘in that the appellant must clearly and
exactly show the unconstitutionality beyond any reasonable doubt.”’ Id. (quoting
Cathcart v. Meyer, 2004 WY 49, ¶ 7, 88 P.3d 1050, 1056 (Wyo. 2004)). Courts have a
duty to uphold the constitutionality of statutes if at all possible, but it is equally
imperative that we declare legislative enactments invalid when they transgress the
Wyoming Constitution. Hoem v. State, 756 P.2d 780, 782 (Wyo. 1988).

[¶7] In Wyoming, an “unemancipated minor, by himself, has no procedural capacity to
sue or be sued.” Dye v. Fremont County School Dist. No. 24, 820 P.2d 982, 985 (Wyo.
1991).2 Historically, tolling statutes have preserved and protected the rights of minors to
pursue a cause of action that accrued during minority. Those tolling statutes predate
statehood. The 1886 version of the tolling statute enacted by the Wyoming Territorial
Legislature provided:

                If a person, entitled to bring any action mentioned in this
                subdivision, except for a penalty or forfeiture, is, at the time
                the cause of action accrues, within the age of twenty-one
                years, insane, or imprisoned, such person may bring such
                action within the respective times limited by this chapter after
                such disability is removed.

1886 Wyo. Sess. Laws ch. 60, § 39.




2
  Although Wyo. Stat. Ann. § 1-1-102 provides that “Every person over fourteen (14) years of age and
under the age of majority, when subject to no disability other than being a minor, may sue or be sued,” the
statute further provides that a minor plaintiff “shall sue by a next friend,” and a minor defendant “shall
appear by guardian.” Thus, while the minor may sue or be sued, he or she cannot do so acting alone.




                                                    2
[¶8] For most causes of action, those protections still exist and a minor has three years
after attaining the age of majority to file suit for injury or damages sustained while a
minor. However, the tolling statute was amended in 1976, and it now provides as
follows:

              If a person entitled to bring any action except for an action
              arising from error or omission in the rendering of licensed
              or certified professional or health care services or for a
              penalty or forfeiture, is, at the time the cause of action
              accrues, a minor or subject to any other legal disability, the
              person may bring the action within three (3) years after the
              disability is removed or within any other statutory period of
              limitation, whichever is greater.

Wyo. Stat. Ann. § 1-3-114 (LexisNexis 2013) (emphasis added). The highlighted
language was added in 1976 as part of an act “providing a shortened statute of limitations
for injuries arising from error or omission in the rendering of licensed or certified
professional or health care services.” 1976 Wyo. Sess. Laws ch. 18, Preamble. As part
of this same legislation, the legislature added a different statute of limitations governing
medical malpractice claims by minors. Wyo. Stat. Ann. § 1-3-107 provides, in relevant
part, that:

              (a) A cause of action arising from an act, error or omission in
              the rendering of licensed or certified professional or health
              care services shall be brought within the greater of the
              following times: . . .

                     (ii) For injury to the rights of a minor, by his eighth
                     birthday or within two (2) years of the date of the
                     alleged act, error or omission, whichever period is
                     greater.

In her brief, J.K. challenges only Wyo. Stat. Ann. § 1-3-107. However, the two statutes
are inextricably linked. Our decision as to the constitutionality of Wyo. Stat. Ann. § 1-3-
107 will also determine the constitutionality of the highlighted portion of Wyo. Stat. Ann.
§ 1-3-114.

[¶9]  On appeal, J.K. contends that this statute violates Article 1, Section 8 of the
Wyoming Constitution, which provides that “All courts shall be open and every person
for an injury done to person, reputation or property shall have justice administered
without sale, denial or delay.” This has been referred to as the “open courts” provision of
our state constitution. See, e.g., Mills v. Reynolds, 837 P.2d 48, 54 (Wyo. 1992);
Robinson v. Pacificorp, 10 P.3d 1133, 1136 (Wyo. 2000). She also contends that the


                                             3
statute violates her constitutional equal protection rights.

[¶10] We will begin with J.K.’s assertion that the statute violates the open courts
provision of Wyoming’s Constitution. J.K. did not present this issue in district court, and
we generally decline to review issues raised for the first time on appeal. In re Lankford,
2013 WY 65, ¶ 28, 301 P.3d 1092, 1101 (Wyo. 2013); Jones v. State, 2006 WY 40, ¶ 7,
132 P.3d 162, 164 (Wyo. 2006). There is, however, a recognized exception for an issue
that “is of such a fundamental nature that it must be considered.” Lankford, ¶ 28, 301
P.3d at 1101. We have previously held “that the right to access to the courts is a
fundamental right pursuant to Article 1, Section 8.” Mills, 837 P.2d at 54; see also
Robinson, 10 P.3d at 1136 (“Robinson’s ‘open courts’ issue, although not raised below,
involves a fundamental right of which we will take cognizance.”); Greenwalt v. Ram
Rest. Corp., 2003 WY 77, ¶ 33, 71 P.3d 717, 728 (Wyo. 2003) (“The right to access to
the courts is a fundamental right.”). Accordingly, we will consider J.K.’s constitutional
claim despite the fact it was not raised below.3

[¶11] We have previously recognized that:

                In order to establish an “open courts” violation, a litigant
                must satisfy a two-part test: first, he must show that he has a
                well-recognized common-law cause of action that is being
                restricted; and second, he must show that the restriction is
                unreasonable or arbitrary when balanced against the purpose
                and basis of the statute.

Robinson, 10 P.3d at 1137 (quoting Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 355
(Tex. 1990)). See also Greenwalt, ¶ 36, 71 P.3d at 729. In applying the first part of the
test, there is no dispute that J.K. has a well-recognized common-law cause of action.
Wyoming has long recognized that a minor has a common law cause of action for
medical malpractice. See McCoy v. Clegg, 36 Wyo. 473, 477, 257 P. 484, 485 (1927).
At issue is whether J.K.’s ability to pursue that common law cause of action is being
restricted. Dr. Montes contends that the statute does not restrict J.K.’s access to the
courts because the claim can be brought by a guardian or next friend. J.K. maintains the
contrary position. She points out that, while a minor, she cannot bring a claim on her
own behalf, and that it will be too late to pursue her cause of action once she attains
adulthood and the capacity to sue.

[¶12] Although we have not considered this precise issue in Wyoming, we have


3
  Appellee concedes that the “open courts” issue involves a fundamental right that should be addressed by
this Court even though the issue was not raised below.




                                                   4
addressed a similar issue. In Dye, 820 P.2d at 983, we were presented with a challenge to
the constitutionality of the time limit for giving notice of a claim under the Wyoming
Governmental Claims Act, as that limit applied to a minor. In Dye, the district court
dismissed a minor’s cause of action because her mother, as next friend, did not provide a
notice of claim to the defendant school district within the two-year period specified in
Wyo. Stat. Ann. § 1-39-113(a). We reversed, noting that an “unemancipated minor, by
himself, has no procedural capacity to sue or be sued.” Dye, 820 P.2d at 985. Although
we recognized that claims on a minor’s behalf could be brought by a next friend, we also
observed that “a next friend may or may not volunteer.” Id. We explained:

                      Dye’s mother is listed on the caption of this case as her
              daughter’s next friend. The mother had authority as her
              general guardian to pursue this action under W.R.C.P. 17(c),
              but she failed to act timely on her daughter’s behalf. Susan
              Dye, as a minor, was not able to give timely notice of claim
              herself. The requirement of giving notice presupposes the
              existence of an individual capable of giving notice. Dye’s
              mother, as next friend, was capable of giving notice but was
              either unwilling to give timely notice or just failed to do so.
              In the interest of justice, we cannot allow a minor, who has no
              realistic ability to protect herself, to suffer loss of her claim
              because of a parent’s failure to act.

                     When a parent fails to file a timely notice of claim
              pursuant to W.S. 1-39-113(a), that parent does not adequately
              represent the child. The child is powerless to protect her own
              interests. We hold, therefore, that the time for filing the claim
              required by the Governmental Claims Act on behalf of a
              minor begins to run at the time of the appointment of a
              guardian ad litem by the court pursuant to W.R.C.P. 17(c).
              See W.S. 1-39-113(a)(ii). This disability for failing to file a
              claim disappears upon the minor reaching the age of
              majority.

Id. at 985-986 (some internal citations omitted).

[¶13] Dr. Montes attempts to distinguish our decision in Dye. According to Dr. Montes,

              The distinguishing characteristic in Dye, is that the
              Wyoming Governmental Claims Act provides for the
              exclusive remedy against a school district or other
              governmental entity. Id. at 984 (see also, W.S. 1-39-116;
              Dee v. Laramie County, 666 P.2d 957, 958 (Wyo. 1983))


                                             5
               (emphasis added). Thus, while W.S. § 21-3-129 allows an
               action against a school district to the extent of its liability
               insurance, such an action must be brought pursuant to the
               procedures outlined in the Governmental Claims Act and
               therefore, the Court recognized the need for a minority
               exception to the time limits imposed for filing governmental
               claims, lest there be a complete bar to filing a cause of
               action with the courts.

If there is a distinction on that basis, we are unable to see it. In Dye, the minor’s
exclusive remedy was to bring suit pursuant to the Governmental Claims Act. As a
minor, she could only act through her parents or some other guardian. The same is true
here. In this case, J.K.’s exclusive remedy is to file suit, through her parents or some
other guardian, seeking to recover damages for the alleged malpractice. Both statutes
deprive a minor of the right to pursue a cause of action if the minor’s parents, guardian,
or next friend fail to act in a timely fashion. In both situations, the minor cannot bring
suit against her parents if they negligently fail to bring the claim within the limitations
period.4

[¶14] Dye establishes that statutes such as those at issue here restrict a minor’s access to
the courts. We must now determine if the restriction is “unreasonable or arbitrary when
balanced against the purpose and basis of the statute.” Our decision in Dye does not
resolve that question. Although a constitutional challenge was raised in Dye and the
order of dismissal was reversed, the statute at issue was never specifically declared
unconstitutional and the court did not engage in any constitutional analysis. Additionally,
and perhaps most significantly, the dispute did not involve a claim of medical
malpractice.

[¶15] Dr. Montes asserts that Wyo. Stat. Ann. § 1-3-107 was enacted in response to “a
malpractice insurance crisis.” The Wyoming legislature did not state its purpose in
enacting this statute. See 1976 Wyo. Sess. Laws ch. 18, § 1. It is widely accepted,
however, that the purpose of similar legislation in other states was “to avoid a perceived
crisis in medical malpractice insurance, and the accompanying danger of a reduction in
health services available to the public.” 71 A.L.R. 5th 307, § 2[a]. As the statute pertains
to medical malpractice claims, we believe it was meant to serve similar purposes. We
must note, however, that the Wyoming statutes at issue here are not limited to medical


4
 Wyoming has long acknowledged the general rule that a child may not sue a parent in tort. See Ball v.
Ball, 73 Wyo. 29, 42, 269 P.2d 302, 305 (1954). Exceptions have been recognized for parents’ “willful
and wanton disregard of the wellbeing of a child, resulting in injury,” Oldman v. Bartshe, 480 P.2d 99,
101 (Wyo. 1971), and for negligence in the operation of a motor vehicle. Dellapenta v. Dellapenta, 838
P.2d 1153, 1154 (Wyo. 1992). Neither exception appears to be applicable here.




                                                  6
malpractice claims. They apply broadly to all causes of action “arising from … the
rendering of licensed or certified professional or health care services.” Wyo. Stat. Ann.
§§ 1-3-107, 1-3-114. The two-year statute of limitations set forth in Wyo. Stat. Ann. § 1-
3-107 has been applied in a variety of non-medical contexts. See, e.g., Ballinger v.
Thompson, 2005 WY 101, 118 P.3d 429 (Wyo. 2005) (attorney); Adelizzi v. Stratton,
2010 WY 148, 243 P.3d 563 (Wyo. 2010) (real estate agent); Bredthauer v. Christian,
Spring, Seilbach & Assocs., 824 P.2d 560 (Wyo. 1992) (surveyor). Because the claim at
issue here is a medical malpractice claim, we will limit our discussion to that profession
and will assume that the statute was intended to address a “perceived crisis in medical
malpractice insurance.”

[¶16] Although the issue presented is one of first impression for this Court, similar
statutes have been challenged on constitutional grounds in other states. Challenges have
been brought under a variety of constitutional provisions. Results vary. Some of these
decisions support J.K.’s position. Others support Dr. Montes’s. See 71 A.L.R. 5th 307.
Very few of those cases, however, apply the two-part test that we apply in Wyoming to
resolve an “open courts” constitutional challenge. The Texas Supreme Court, however,
did apply that test in Sax v. Votteler, 648 S.W.2d 661 (Tex. 1983).

[¶17] In Sax, the Texas Supreme Court considered an open courts constitutional
challenge to the two-year statute of limitations for medical malpractice claims by minors
after reaching the age of six. Id. at 663. It determined that the statute violated the Texas
Constitution. In reaching that decision, the Texas court announced and applied the same
two-part test that we have adopted in Wyoming:

               We hold, therefore, that the right to bring a well-established
               common law cause of action cannot be effectively abrogated
               by the legislature absent a showing that the legislative basis
               for the statute outweighs the denial of the constitutionally-
               guaranteed right of redress. In applying this test, we consider
               both the general purpose of the statute and the extent to which
               the litigant’s right to redress is affected.

Id. at 665-666.5

[¶18] The court’s analysis of the second prong of the test is particularly relevant:



5
  The Sax decision appears to be the source of the two-part test that we have adopted in Wyoming. We
first announced that test in Robinson, 10 P.3d 1133. In Robinson, we attributed the test to another
decision from the Texas Supreme Court, Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 355 (Tex.
1990). Moreno credits the decision in Sax for the test. Id.




                                                 7
                     The second criterion we examine is the effect of
              the restriction on the child’s right to bring his cause of
              action. A child has no right to bring a cause of action on
              his own unless disability has been removed. If a minor
              does bring a cause of action in his own behalf, the action is
              subject to being abated upon a timely plea of the defendant.
              If the parents, guardians, or next friends of the child
              negligently fail to take action in the child’s behalf within
              the time provided by article 5.82, the child is precluded
              from asserting his cause of action under that statute.
              Furthermore, the child is precluded from suing his parents
              on account of their negligence, due to the doctrine of
              parent-child immunity. The child, therefore, is effectively
              barred from any remedy if his parents fail to timely file suit.
              Respondents argue that parents will adequately protect the
              rights of their children. This Court, however, cannot
              assume that parents will act in such a manner. It is neither
              reasonable nor realistic to rely upon parents, who may
              themselves be minors, or who may be ignorant, lethargic,
              or lack concern, to bring a malpractice lawsuit action within
              the time provided by article 5.82.

                      We agree with [Respondent] that both the purpose
              and basis for article 5.82 are legitimate. Additionally, we
              recognize that the length of time that insureds are exposed
              to potential liability has a bearing on the rates that insurers
              must charge. We cannot agree, however, that the means
              used by the legislature to achieve this purpose, article 5.82,
              section 4, are reasonable when they are weighed against the
              effective abrogation of a child’s right to redress. Under the
              facts in this case, [Petitioner] is forever precluded from
              having her day in court to complain of an act of medical
              malpractice. Furthermore, the legislature has failed to
              provide her any adequate substitute to obtain redress for her
              injuries.

Id. at 666-667 (internal citations omitted).

[¶19] Other courts have reached similar conclusions. As noted by the Missouri Supreme
Court:




                                               8
            State legislatures reacted in the 1970’s to a perceived crisis in
            medical malpractice insurance by enacting these types of
            limitations provisions. While such provisions no doubt go
            some distance in alleviating the problems of malpractice
            insurers and health care providers, they do so only at a high
            cost. Their effect is to bar the malpractice suits of minors
            without regard to the validity of their claims or the fact that
            the minors are wholly innocent in failing to timely pursue
            their claims. Such a result seems to unfairly penalize the
            blameless minor in order to protect the potentially negligent
            health care provider. (emphasis added).

Strahler v. St. Luke’s Hosp., 706 S.W.2d 7, 10 (Mo. 1986) (quoting Andrews, Infant
Tolling Statutes in Medical Malpractice Cases: State Constitutional Challenges, 5
J. Legal Medicine, 469 (1984)).

[¶20] The Ohio Supreme Court stated:

                   The second inquiry to be reviewed is whether R.C.
            2305.11(B) is unreasonable or arbitrary as applied to minors.
            The Ohio due process or due course of law provisions require
            that all courts be open to every person who is injured.
            Section 16, Article I, Ohio Constitution. Yet, we believe that
            upholding R.C. 2305.11(B) against minors effectively closes
            the courthouse doors to them. It is beyond dispute that a
            minor has no standing to sue before he or she reaches the age
            of majority. Civ. R. 17(B). However, given the abrogation of
            the “disabilities” tolling statute in R.C. 2305.11(B), minors
            may, as in the cause sub judice, lose their rights to redress
            before they reach eighteen years of age. Thus, the sum and
            substance of R.C. 2305.11(B) is that a minor shall have no
            standing to sue before attaining the age of majority, and no
            right to bring suit thereafter. Such, in our view, is totally
            unreasonable and patently arbitrary.

                   The usual response to this conclusion is that a minor’s
            parent or guardian may sue for, and on behalf of, the child.
            We find such a suggestion to be troublesome for several
            reasons. First, because of the inability of many children to
            recognize or articulate physical problems, parents may be
            unaware that medical malpractice has occurred. Second, the
            parents themselves may be minors, ignorant, lethargic, or lack
            the requisite concern to bring a malpractice action within the


                                           9
             time provided by statute. See Sax v. Votteler, 648 S.W.2d
             661, 667 (Tex. 1983). Third, there may effectively be no
             parent or guardian, concerned or otherwise, in the minor’s
             life. For example, children in institutions, foster homes, and
             wards of court or others are provided no safeguards, nor do
             such minors have the requisite ability to seek redress or to
             protect personal interests.

Mominee v. Scherbarth, 503 N.E.2d 717, 721-722 (Ohio 1986).

[¶21] The Maryland Supreme Court found similar legislation unconstitutional in Piselli
v. 75th Street Medical, 808 A.2d 508, 523-524 (Md. 2002). The Court explained:

                      As earlier mentioned, Article 5 of the Maryland
             Declaration of Rights authorizes the General Assembly to
             change common law principles or principles reflected in pre-
             1776 statutes. See n.12, supra. Nevertheless, when such a
             change restricts a traditional remedy or access to the courts,
             the change “‘violates Article 19 [the “open courts” provision]
             . . . if the restriction is unreasonable.’” Dua v. Comcast
             Cable, supra, 805 A.2d at 1085, 370 Md. at 644, quoting
             Murphy v. Edmonds, supra, 325 Md. at 365, 601 A.2d at 113.
             Article 19, therefore, is a limitation upon the General
             Assembly’s authority under Article 5.

                     The restrictions upon a minor’s remedy and access to
             the courts, contained in subsections (b), (c) and (e) of § 5-109
             [the statute of limitations], represent a drastic departure from
             a principle which has governed minors’ causes of action for
             more than 500 years. Until the recent enactment of these
             subsections, periods of limitations did not begin running
             against a child’s claim until the child reached the age of
             majority. In our view, mandating that the three and five-year
             limitations periods run against a minor’s tort claim from the
             time the minor is 11 years old, or under a few circumstances
             16 years old, is an unreasonable restriction upon a child’s
             remedy and the child’s access to the courts.

                    Whichever interpretation of the discovery provision in
             § 5-109 is correct, the statute unfairly and unreasonably may
             abrogate a child’s medical malpractice cause of action when
             the child is not at fault. If, as the federal District Court held,
             the three-year period begins running when the parents are on


                                            10
             inquiry notice, the child’s separate and distinct cause of
             action is entirely dependent upon knowledge of other persons.
             Basing the running of the three-year period on the child’s
             knowledge, however, places an unreasonable burden upon an
             11-year old.

                     Moreover, a child is disabled from bringing a tort
             action until he or she is 18 years old. Regardless of whose
             “discovery” triggers the running of the three-year period, a
             child’s action must be brought by the parents on the minor
             child’s behalf. Thus, if the parents are dilatory and fail to sue
             on behalf of the child, the three and five-year periods
             applicable to most child medical malpractice claims will
             expire, at the latest, when the child is 16 years old - two years
             before the child is able to bring an action. With regard to the
             very limited types of medical malpractice claims set forth in
             subsection (c), when the time periods run from the age of 16,
             the child could have only one year after majority to bring the
             action.

                     This Court’s language in Johns Hopkins Hospital v.
             Pepper, supra, 346 Md. at 694-695, 697 A.2d at 1365-1366,
             is very apt in the case at bar. We emphasized in Pepper that,
             if the parents’ failure to bring a claim before the expiration of
             limitations had the effect of barring the minor child’s claim,
             “the child would be twice victimized – once at the hands of
             the tortfeasor, and once by parents who, for whatever reason,
             failed to timely prosecute [the] claims,” 346 Md. at 695, 697
             A.2d at 1366.         The Court continued:         “We cannot
             countenance a result that would leave the only innocent
             victim in such a transaction uncompensated for his or her
             injuries” and that such a result was contrary to “public policy
             and justice,” Ibid. To this, we need only add that barring an
             injured child’s medical malpractice claim before the child is
             able to bring an action is an unreasonable restriction upon the
             child’s right to a remedy and access to the courts guaranteed
             by Article 19 of the Maryland Declaration of Rights.

The Arizona Supreme Court also reached a similar conclusion:

                    Simply put, then, the ultimate question here is whether
             a statute which requires a minor injured before reaching the
             age of seven to sue for such injuries before reaching age ten is


                                            11
             one which allows the minor a reasonable choice of
             alternatives. Is this a reasonable regulation of the manner and
             time for bringing the action?

                     We have held that “an infant cannot bring or defend a
             legal proceeding in person.” Pintek v. Superior Court, 78
             Ariz. 179, 184, 277 P.2d 265, 268 (1954). We are aware, of
             course, that action can be brought on behalf of the minor by a
             next friend, guardian ad litem, or general guardian. Pintek,
             supra. No doubt, most claims of minors are so presented.
             We are well aware that where a chance of substantial
             recovery exists, there is no lack of advocates willing to
             undertake appropriate procedures to find and appoint a
             guardian ad litem or to obtain a “next friend” so that the
             action may be brought. While the vast majority of claims on
             behalf of injured minors will still be brought within a
             relatively short time after the injury occurs, this all depends
             upon good fortune; the minor himself is helpless, particularly
             when under ten years of age. The minor possesses a right
             guaranteed by the constitution, but cannot assert it unless
             someone else, over whom he has no control, learns about it,
             understands it, is aware of the need to take prompt action, and
             in fact takes such action. . . .

                    We hold that a statute which requires a minor injured
             when below the age of seven to bring the action by the time
             he reaches the age of ten -- regardless of his ability to do so,
             and without concern for the nature of his adult caretakers --
             does not provide reasonable alternatives.          The statute
             abolishes the action before it reasonably could be brought, in
             violation of the fundamental constitutional right guaranteed
             by article 18, § 6. We hold, therefore, that § 12-564(D) is
             unconstitutional. The provisions of the tolling statute, A.R.S.
             § 12-502, which apply to all other actions and claims of
             minors, are applicable to medical malpractice actions.

Barrio v. San Manuel Div. Hosp. for Magma Copper Co., 692 P.2d 280, 285-286 (Ariz.
1984).

[¶22] Against this backdrop, Dr. Montes directs our attention to a contrary point of view
as reflected in a decision from Virginia. In Willis v. Mullett, 561 S.E.2d 705, 707 (Va.
2002), the Virginia Supreme Court considered a comparable statute of limitations.
Mr. Willis’s medical malpractice claim arose when he was fifteen years of age. More


                                           12
than four years later, when he was nineteen, he filed a claim against the two doctors
involved. The trial court dismissed the claim, relying on the two-year medical
malpractice statute of limitations for minors. Mr. Willis challenged the constitutionality
of that statute. Like J.K., in the case before us, he asserted that he had no right to bring
an action during his minority, and if his “next friend, negligently or otherwise, fails to file
the action within the reduced time required under the medical malpractice statute of
limitations for minors, [he] would lose his right to a jury trial.” Id. at 709.

[¶23] The court noted that Mr. Willis’s action could have been brought by a next friend
within the reduced tolling period of the statute, and Mr. Willis would not have lost his
right to a jury trial. Id. The court found it valid for the legislature “to presume that some
adult responsible for the minor’s welfare, usually a parent, would act diligently and
prudently to protect the minor’s interests.” Id. On this basis, the court concluded that the
statute did not abridge Mr. Willis’s constitutional rights. Id.

[¶24] Dr. Montes also urges us to follow the reasoning of the Massachusetts Supreme
Court in Harlfinger v. Martin, 754 N.E.2d 63 (Mass. 2001). In that case, the Court
addressed a due process and equal protection challenge to legislation providing a seven-
year statute of repose, applicable to minors, to assert a medical malpractice claim. The
court found no constitutional violation. As in Willis, the court applied the rational basis
test and concluded that there was a reasonable basis for the legislation. The court also
rejected the notion that the potential loss of a claim by a minor, whose parents failed to
assert a timely claim, should impact its analysis:

                     The plaintiffs point out, quite correctly, that statutes of
              repose barring the claims of injured minors are more likely to
              cause the loss of valuable and meritorious claims than do
              such statutes barring claims by adults. Lacking either the
              practical wherewithal or the legal capacity to sue on their own
              behalf, children are dependent on their parents and guardians
              to bring their claims of medical malpractice before those
              claims become time barred. A child’s meritorious claim can
              thus be lost through no fault of the injured child. The fact
              that the interests of minors are at stake does not, however,
              change the nature of our due process analysis. Under the
              statute of repose at issue in Klein v. Catalano, [386 Mass.
              701, 437 N.E.2d 514 (1982)] claims could be barred even
              though the injury had not yet even occurred. Recognizing
              that the statute would operate to abrogate any possible tort
              remedy for persons injured more than six years after
              completion of the allegedly negligent design or construction
              of a building, we determined that the due process analysis
              would be no different from that applied to “any other law that


                                              13
             regulates economic activity.” Id. at 712. The fact that some
             minors, due to parental neglect or ignorance (not present
             here) or to minors’ unawareness of the extent and gravity of
             their injuries, will lose their ability to bring medical
             malpractice claims does not require us to conduct our due
             process analysis of this statute of repose with some
             heightened level of scrutiny.

Harlfinger, 754 N.E.2d at 71-72 (footnotes omitted).

[¶25] As we mentioned previously, there is a split of authority in jurisdictions regarding
the constitutionality of statutes limiting a minor’s right to assert a medical malpractice
claim. The cases cited above illustrate the approaches that courts have taken in
addressing this issue. None of those decisions are binding on this Court, all come from
jurisdictions that have constitutional and statutory provisions that are not identical to
those from Wyoming, and not all of the constitutional challenges asserted are “open
courts” challenges. On balance, however, we are convinced that the reasoning and
analysis exemplified by Sax and its progeny best reflect the approach that should be taken
in Wyoming. We reach that conclusion for several reasons.

[¶26] First, in Sax, the Texas Supreme Court applied the identical test that our precedent
requires us to apply in addressing a constitutional challenge based upon Article 1, Section
8, Wyoming’s “open courts” constitutional provision. In contrast, the courts in Willis and
Harlfinger addressed due process and equal protection challenges. In Harlfinger, the
court recognized that states addressing an open courts challenge have reached a different
result. See Id., 754 N.E.2d at 70-71. In Willis, the court opted not to address decisions
from other jurisdictions reaching a different result. Id., 561 S.E.2d at 710 n.3 (“Willis
relies upon a number of cases in other jurisdictions to support his primary and other
contentions. We do not discuss them because they were generally decided under
constitutional and statutory provisions differing from those involved in this case.”).

[¶27] Second, the Harlfinger and Willis decisions were based, in large measure, upon
their conclusion that the legislature was entitled to assume that the rights of children
would be protected by their parents and guardians. That conclusion would appear to be at
odds with the decision we reached in Dye.

             Dye’s mother, as next friend, was capable of giving notice but
             was either unwilling to give timely notice or just failed to do
             so. In the interest of justice, we cannot allow a minor, who
             has no realistic ability to protect herself, to suffer loss of her
             claim because of a parent’s failure to act.

Id., 820 P.2d at 985. Additionally, we are persuaded by the reasoning of those courts


                                            14
rejecting that assumption. The Arizona Supreme Court summed it up well:

              We agree with the Texas court that “it is neither reasonable
              nor realistic to rely upon parents, who may be ignorant,
              lethargic, or lack concern, to bring the action.” Sax, supra, at
              667. We recognize, also, that some children are without
              parents or have parents who do not fulfill commonly accepted
              parental functions. The statute makes no exceptions for
              children who have unconcerned parents, children in foster
              care, or those in institutions; it applies alike to children . . .
              who are normal and those who are brain injured. It applies to
              those with guardians and those without.

                     A foster mother may be honestly dedicated to hot
                     meals and clean linen and emotional support and quail
                     at the thought of embarking upon several years of legal
                     battle for a member of her changeable brood. As to
                     parents themselves, some are lazy or frightened or
                     ignorant or religiously opposed to legal redress. Still,
                     they have their remedy available to them if they
                     choose to use it. A child does not.

Barrio, 692 P.2d at 286 (emphasis in original).

[¶28] Finally, and perhaps most significantly, a determination that the challenged
statutes are constitutional is difficult, if not impossible, to square with our precedent. We
have discussed our decision in Dye at great length. The impact to the minor here is
identical to the impact to the minor in Dye. In Dye, we preserved the minor’s right to
pursue a cause of action. Reaching a different result here would be inconsistent with
Dye.

[¶29] In Hoem, we reviewed a statute that required medical malpractice claims to be
submitted to a medical review panel before being filed in court. We found the statute
unconstitutional on equal protection grounds. Id., 756 P.2d at 784. In his concurring
opinion, Justice Thomas indicated that he would also “declare the statute to be
unconstitutional under Art. 1, § 8.” Id. The statute at issue in Hoem “delay[ed], for a
minimum of 120 days, the right of the claimant to file a civil action, and there is no limit
upon the period to which the proceeding may be extended for good cause.” Id., 756 P.2d
at 785. The restriction on J.K.’s access to court is far more severe. While J.K. has no
ability to sue before reaching the age of majority, the effect of Wyo. Stat. Ann. §§ 1-3-
107(a)(ii) and 1-3-114 is that she has no right to bring suit thereafter. This is not a
reasonable restriction on her rights. As stated in Sax:



                                             15
              We agree . . . that both the purpose and basis for [the medical
              malpractice statute of limitations for minors] are
              legitimate. . . . We cannot agree, however, that the means
              used by the legislature to achieve this purpose . . . are
              reasonable when they are weighed against the effective
              abrogation of a child’s right to redress. Under the facts in this
              case, Lori Beth Sax is forever precluded from having her day
              in court to complain of an act of medical malpractice.
              Furthermore, the legislature has failed to provide her any
              adequate substitute to obtain redress for her injuries. See,
              e.g., Middleton v. Texas Power & Light Co., 108 Tex. 96, 185
              S.W. 556 (1916).

Id., 648 S.W.2d at 667.

[¶30] We therefore hold that the statute of limitations for minors, Wyo. Stat. Ann. § 1-3-
107(a)(ii), violates Article 1, Section 8 of the Wyoming Constitution. We also hold that
the exception now contained in Wyo. Stat. Ann. § 1-3-114 – “except for an action arising
from error or omission in the rendering of licensed or certified professional or health care
services” – is also constitutionally infirm. In light of this holding, it is unnecessary to
address J.K.’s equal protection argument.

[¶31] Because the district court relied on an unconstitutional statute, it improperly
granted Dr. Montes’s motion to dismiss J.K.’s claim. That order is reversed, and this
matter is remanded to the district court for further proceedings consistent with this
opinion.




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