Clark v. Erdmann, 88-1946

• Decision Date: 23 April 1991
• Docket Number: No. 88-1946,88-1946
• Parties: Ruby CLARK, Plaintiff-Appellant, v. Dr. Bruce ERDMANN and Gundersen Clinic, Ltd., Defendants-Respondents, La Crosse Lutheran Hospital, and State of Wisconsin Patient Compensation Fund, Defendants.
• Court: Wisconsin Supreme Court

Page 18

468 N.W.2d 18

161 Wis.2d 428

Ruby CLARK, Plaintiff-Appellant, v. Dr. Bruce ERDMANN and Gundersen Clinic, Ltd., Defendants-Respondents La Crosse Lutheran Hospital, and State of Wisconsin Patient Compensation Fund, Defendants.

No. 88-1946.

Supreme Court of Wisconsin.

Submitted on Briefs Jan. 25, 1991.

Decided April 23, 1991.

Pamela J. Schmelzer and Schrank & Schultz, Madison, on briefs (in Court of Appeals), for plaintiff-appellant.

Daniel T. Flaherty, Ellen M. Frantz and Johns & Flaherty, S.C., La Crosse, on brief (in Court of Appeals), for defendants-respondents.

STEINMETZ, Justice.

The primary issue is whether this action is governed by the medical malpractice statute of limitations of sec. 893.55, Stats., ¹ or, alternatively, the personal injury statute of limitations of sec. 893.54. ² Judge Michael J. Mulroy, circuit court for La Crosse county, determined sec. 893.55 to be the proper statute. Applying the statute, he proceeded to grant the defendant's motion for summary judgment. Pursuant to sec. 809.61, we accepted this case on certification from the court of appeals to determine whether sec. 893.55 is applicable and, if so, whether it calls for the granting of the summary judgment motion in this case. Our determination is in the affirmative, and so we affirm the decision of the circuit court.

Plaintiff Ruby Clark had corrective surgery performed on her right foot by defendant Dr. Bruce Erdmann, a podiatrist associated with defendant Gundersen Clinic, Ltd., in August 1981. Clark had four post-operative visits with Dr. Erdmann, two of which occurred in September 1981 and two of which occurred in October 1981. A follow-up appointment scheduled for January 1982 was cancelled by Clark. She had no further contact with Dr. Erdmann until April 1984.

Sometime subsequent to the operation, Clark began to have trouble with both of her feet, including the large toe of the foot on which Dr. Erdmann had operated. Specifically, the toe slowly began to turn inward, toward the center of the body. In this regard, Clark visited a Dr. Davey, an orthopedic surgeon, in April 1982. In December 1983, she visited a Dr. Forrette, another podiatrist. At her deposition, Clark stated that six months prior to this visit she had already considered Dr. Erdmann's 1981 surgery unsuccessful. Clark saw Dr. Forrette again in April 1984. In her own words, "Then, well I knew that the surgery was not satisfactory. I knew that by looking at it, but wasn't until June 1984 that I decided I would get another opinion."

Clark again visited Dr. Erdmann, twice in April 1984 and once in May 1984. She stated that she wanted Dr. Erdmann to see the results of his surgery. Specifically, she stated that her primary reason for going was to let Dr. Erdmann see "what a mess my foot looked like." "I told him it was way out of line," she testified. In the notes he took at the May visit, Dr. Erdmann wrote that "her right foot did well, however, today as I look at it there appears to be a slight component of varus to the digit." Dr. Erdmann suggested that Clark have surgery on the right foot at that time. These were not visits for treatment.

Clark also saw Dr. Davey again in June 1984, and she reported that Dr. Davey at that time said concerning her right foot, "Well, the damage is done." Clark had another visit with Dr. Erdmann in July 1984. In August 1984, Clark had her last visit with Dr. Erdmann. At this time, Dr. Erdmann indicated that he was planning additional surgery on Clark's right foot and that anesthesia clearance had been obtained. However, Clark chose not to proceed under Dr. Erdmann's care.

In April 1985, Clark visited a Dr. Kurland, another orthopedic surgeon. Clark stated that Dr. Kurland told her at that time that "he thought the Gundersen Clinic should see what a mess they made of this toe." ³ During the same month of April 1985, Clark again visited with specialists at the Gundersen Clinic. A Dr. Tompkins noted at this time that Clark had a "significant post-operative hallux varus deformity." In September 1985, a team of clinic personnel, not including Dr. Erdmann, performed corrective surgery on Clark's right foot. Clark knew at this time that this second operation was to repair "the mess" resulting from Dr. Erdmann's operation on her foot in 1981. She stated, "and until I saw these doctors, i.e., Kurland and Davey, and they told me all this, I knew my foot was in bad shape and surgery was not--was a failure, but I didn't realize that perhaps it was [Dr. Erdmann's] fault."

Clark did not file her complaint until February 1987. In her complaint, Clark alleged that the care and treatment she received from Dr. Erdmann was negligent and that it harmed her. The complaint indicated that the alleged negligence of Dr. Erdmann extended well beyond the date of the 1981 surgery and post-operative visits and continued up through the time of Clark's second set of visits with Dr. Erdmann in 1984. Dr. Erdmann moved for summary judgment, claiming that the action was time barred. Dr. Erdmann in effect claimed that the alleged negligent treatment by him of Clark occurred in 1981 and did not extend beyond that time. Dr. Erdmann also maintained that Clark discovered, or should have discovered, her injuries no later than 1985.

Applying sec. 893.55, Stats., the trial court granted summary judgment to Dr. Erdmann, concluding that Clark's action was time barred. The court rejected any argument by Clark that Dr. Erdmann had provided continuing negligent treatment pursuant to Tamminen v. Aetna Casualty & Surety Co., 109 Wis.2d 536, 558, 327 N.W.2d 55 (1982). The court found that Clark had not submitted evidence showing any negligent treatment occurred after the surgery and post-operative visits in 1981, i.e., when Clark started to see Dr. Erdmann again, in 1984. Thus, the court held that the action had not been filed within the three-year time limit of sec. 893.55(1)(a). The court also concluded that, as a matter of law, Clark discovered, or should have discovered, her injuries no later than April 1985. Accordingly, the court held, the action had not been filed within one year of discovery as required by sec. 893.55(1)(b). The court thus granted Dr. Erdmann's motion for summary judgment.

* * * * * *

Resolution of this controversy depends upon whether the action is governed by the medical malpractice statute of limitations set forth in sec. 893.55, Stats., or, alternatively, by sec. 893.54, which provides the statute of limitations period for injuries to the person. While either statute considered independently could be applicable, only one actually can be applied. Section 893.55 clearly is the more specific of the two statutes. Unlike sec. 893.54, it concerns itself not only with injury to the person, but also with a particular way in which the injury arises, i.e., resulting from an act or omission of a "health care provider." Thus, it is appropriate that we begin our analysis with sec. 893.55 in order to determine if its terms are met.

Whether sec. 893.55, Stats., applies here depends upon whether its use of the term "health care provider" includes podiatrists. If and only if that is the case, Dr. Erdmann is a "health care provider" and sec. 893.55 is applicable. If "health care provider" under sec. 893.55 does not include podiatrists, then sec. 893.54 instead of sec. 893.55 would be the appropriate statute. Insofar as no definition of "health care provider" under sec. 893.55 is given within ch. 893, the full meaning of the term is not immediately apparent.

In determining that the term "health care provider" includes podiatrists, the trial court referred to the fact that in 1981, when the plaintiff's injury commenced, and until July 1986, sec. 655.001(8), Stats., expressly defined "health care provider" as including podiatrists for purposes of the chapter to which it pertains. ⁴ The plaintiff agrees that sec. 655.001(8) is relevant to a determination of whether podiatrists are "health care providers" under sec. 893.55, but points out that effective July 1986 the word "podiatrists" was stricken from the definition of "health care provider" in sec. 655.001(8). The plaintiff argues, on the basis of our decision in Boggs v. Morden, 117 Wis.2d 773, 345 N.W.2d 490 (1984), that the legislative amendment to sec. 655.001(8) is to be given retroactive effect such that podiatrists are not included within the meaning of "health care providers" under sec. 893.55 for purposes of this case.

"The meaning of a statute is a question of law which we review without deference to the lower courts." Schmidt v. Employe Trust Funds Board, 153 Wis.2d 35, 41, 449 N.W.2d 268 (1990). In ascertaining a statute's meaning, our "initial inquiry is to the plain meaning of the statute." Id. If the statute is unambiguous, resort to judicial rules of interpretation and construction is not permitted; the words of the statute must be given their obvious and intended meaning. Id.

The term "health care provider" in sec. 893.55, Stats., plainly applies to anyone who professionally provides health care to others. Podiatrists do exactly that: they provide health care to others; and, like other professional health care providers, they are licensed to practice by the state medical examining board pursuant to ch. 448, Stats. ⁵ Accordingly, it is our determination that "health care provider" under sec. 893.55, includes podiatrists. Unless and until the legislature provides otherwise, we shall regard podiatrists as being "health care providers" under sec. 893.55. We note that our decision is consistent with the instruction of sec. 990.01(1), which provides that words and phrases that are not technical and other words not having a peculiar meaning in the law should be construed according to common and approved usage.

In our determination, sec. 655.001(8), Stats., is not particularly instructive to our treatment of sec. 893.55 in the instant case. Section 655.001(8) certainly...