Claypool v. Levin

• Decision Date: 09 May 1997
• Docket Number: No. 94-2457,94-2457
• Citation: 562 N.W.2d 584,209 Wis.2d 284
• Parties: Jimetta CLAYPOOL, Marvin Claypool and Jennifer Claypool, Plaintiffs-Petitioners, v. Mark R. LEVIN, M.D. and Wisconsin Patients Compensation Fund, Defendants-Respondents-Petitioners, AA Insurance Company and Columbia Hospital, Defendants, Russell Goldstein and Wisconsin Lawyers Mutual Insurance Company, Defendants-Appellants.
• Court: Wisconsin Supreme Court

Page 584

562 N.W.2d 584

209 Wis.2d 284

Jimetta CLAYPOOL, Marvin Claypool and Jennifer Claypool Plaintiffs-Petitioners, v. Mark R. LEVIN, M.D. and Wisconsin Patients Compensation Fund, Defendants-Respondents-Petitioners AA Insurance Company and Columbia Hospital, Defendants Russell Goldstein and Wisconsin Lawyers Mutual Insurance Company, Defendants-Appellants.

No. 94-2457.

Supreme Court of Wisconsin.

Argued Oct. 29, 1996.

Decided May 9, 1997.

For the plaintiffs-petitioners there were briefs by Ted M. Warshafsky, Edward E. Robinson and Warshafsky, Rotter, Tarnoff Reinhardt & Bloch, S.C., Milwaukee and oral argument by Ted M. Warshafsky.

For the defendants-respondents-petitioners there were briefs by Michael J. Pfau, Susan R. Tyndall and Hinshaw & Culbertson, Milwaukee and oral argument by Susan R. Tyndall.

For the defendants-appellants there was a brief by Terry E. Johnson, Peter F. Mullaney and Peterson, Johnson & Murray, S.C., Milwaukee and oral argument by Terry E. Johnson.

¶1 JON P. WILCOX, Justice

This case is before the court on petitions for review filed by Mrs. Jimetta Claypool, Mr. Marvin Claypool, and Ms. Jennifer Claypool (collectively the "Claypools"), and Dr. Mark Levin, M.D. The petitioners seek review of a published court of appeals decision, Claypool v. Levin, 195 Wis.2d 535, 536 N.W.2d 206 (Ct.App.1995), that reversed a circuit court judgment. The Circuit Court for Milwaukee County, William D. Gardner, Judge, granted summary judgment to Dr. Levin for the Claypools' medical malpractice claim against him on the grounds that the statute of limitations had expired. The court of appeals reversed the decision of the circuit court and remanded for further proceedings. We reverse the decision of the court of appeals.

¶2 The issue on review is when, pursuant to the medical malpractice statute of limitations, Wis. Stat. § 893.55(1)(b) (1993-94), ¹ Mrs. Claypool discovered or in the exercise of reasonable diligence should have discovered her injury. We hold that for purposes of Wis. Stat. § 893.55(1)(b) Mrs. Claypool did discover or in the exercise of reasonable diligence she should have discovered her injury at some point in March or early April of 1989. We also hold that once an injury is discovered it cannot be "undiscovered." Thus, the Claypools' claims against Dr. Levin are barred by the statute of limitations.

¶3 The material facts necessary for our determination are undisputed. On March 6, 1989, Mrs. Claypool was hospitalized on an emergency basis at Columbia Hospital. At the time she was hospitalized, she was very ill and her symptoms included vision problems. Between March 6 and April 6, 1989, she was treated by the defendant, Dr. Levin, an ophthalmologist . While Mrs. Claypool was at the hospital, Dr. Levin treated her eyes with antibiotics and an intravitreous injection. During this period, her vision deteriorated until she became permanently blind on March 8, 1989.

¶4 On April 10, 1989, four days after her release from the hospital, Mrs. Claypool and her husband retained Attorney Russell Goldstein to investigate whether her blindness was attributable to negligence of the health care providers including Dr. Levin. Goldstein had the Claypools sign a retainer agreement and medical authorizations. Goldstein subsequently obtained several pages of Mrs. Claypool's hospital records, but did not have them reviewed by an expert.

¶5 Although Goldstein failed to contact the Claypools, Mr. Claypool called him regarding the status of the case on two or three occasions between April 10, 1989, and July of 1992. On each occasion Goldstein told Mr. Claypool that he was "checking out" the case. Sometime prior to 1992, while Mr. Claypool was on jury duty at the Milwaukee County Courthouse, he encountered Goldstein and inquired about the status of the case. Goldstein advised Mr. Claypool that the doctor with whom he had consulted had concluded that there was no cause of action. Mr. Claypool subsequently relayed this information to his wife.

¶6 Sometime more than three years after Mrs. Claypool was treated by Dr. Levin, Mr. Claypool was asked by a co-worker about his wife's condition. When Mr. Claypool responded that she had lost her vision, the co-worker recommended that the Claypools contact the Warshafsky law firm. In the summer of 1993, Mrs. Claypool contacted attorneys from the Warshafsky law firm who subsequently advised her that she did have a viable medical malpractice claim against Dr. Levin. ¶7 Four and one half years after Dr. Levin's last treatment of Mrs. Claypool, on October 14, 1993, the Claypools, now represented by the Warshafsky law firm, commenced this lawsuit alleging that both Dr. Levin and Goldstein were negligent. The plaintiffs sought recovery from Dr. Levin if the statute of limitations had not expired, or, in the alternative, from Goldstein if the statute of limitations had expired.

¶8 Dr. Levin subsequently filed a motion for summary judgment asserting that the Claypools' claims were time barred under Wis. Stat. § 893.55(1). Goldstein opposed the motion asserting that any failure on his part to exercise due diligence should not be imputed to the Claypools. In granting Dr. Levin's motion for summary judgment, the trial court concluded:

The only issue before this Court involves the discovery rule. It is Goldstein's position that discovery did not occur until the attorneys subsequently retained by the Claypools advised the Claypools that they had a viable claim for medical negligence. This position flies in the face of reason, common sense and the law. This court concludes that the undisputed facts can lead to but one reasonable inference, that is, in the exercise of reasonable diligence plaintiffs should have discovered the probable cause of the injury within a reasonably short period of time after the injury. The injury was immediately known and the potentially responsible health care providers were known almost immediately after the injury. Counsel was retained within weeks of the injury to conduct an investigation regarding the potential cause or causes of the injury.

¶9 Goldstein appealed and the court of appeals reversed. In addressing the conclusion of the circuit court, the court of appeals stated:

Thus, the trial court's conclusion that "the only reasonable inference" is that the Claypools "possessed sufficient information within a relatively short span of time from the injury to form an objective belief that Dr. Levin's treatment was the cause of the injury" was an accurate expression of the Claypools' understanding at the point at which they presented their case to Goldstein. That, however, does not logically end the analysis because the Claypools' "discovery" as a matter of law was not necessarily locked in time by their initial belief given the subsequent events. To conclude otherwise would be to ignore the "ordinary person" standard of Borello and require the claimant "to take extraordinary steps to secure a full medical analysis" beyond whatever counsel has obtained.

Claypool, 195 Wis.2d at 551-52, 536 N.W.2d 206, citing Borello v. U.S. Oil Co., 130 Wis.2d 397, 414, 388 N.W.2d 140 (1986). The court of appeals went on to hold that although Dr. Levin was not entitled to summary judgment, there was not sufficient evidence to conclude that, as a matter of law, the Claypools did not discover their cause of action until they received advice from the Warshafsky law firm.

¶10 This court must now determine whether it was appropriate for the trial court to grant Dr. Levin's motion for summary judgment. We review a grant of summary judgment by applying the same standards used by the circuit court. Verdoljak v. Mosinee Paper Corp., 200 Wis.2d 624, 630, 547 N.W.2d 602 (1996). These standards are set forth in Wis. Stat. 802.08(2). Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Linville v. City of Janesville, 184 Wis.2d 705, 714, 516 N.W.2d 427 (1994). Whether Dr. Levin is entitled to summary judgment depends upon whether the Claypools' claims against Dr. Levin are barred by the statute of limitations.

¶11 The relevant statute of limitations, Wis. Stat. § 893.55(1), provides that claims against health care providers must be brought within three years from the date of injury or within one year from the date that the injury was discovered or in the exercise of reasonable diligence the injury should have been discovered. The summons and complaint in this case were filed on October 14, 1993. As Dr. Levin's treatment of Mrs. Claypool occurred in March and April of 1989, the Claypools' claim was not brought within three years of the date of injury. Thus, whether the claims against Dr. Levin are barred by the statute of limitations depends upon whether Mrs. Claypool either discovered or in the exercise of reasonable diligence should have discovered the injury at sometime before October 14, 1992.

¶12 We must first determine what constituted discovery for purposes of Wis. Stat. § 893.55(1). In making this determination, we must look both at the language of the statute and at relevant case law. Goldstein argues that this court's decision in Borello and the definition of the discovery rule detailed in that case control the outcome of the present case. To adequately address this contention, we must consider the history of the discovery rule in Wisconsin.

¶13 Prior to 1983, this court consistently declined to adopt the discovery rule on the basis that such a change in the law should be enacted by the legislature. See Peterson v. Roloff, 57 Wis.2d 1, 203 N.W.2d 699 (1973); Olson v. St. Croix Valley Memorial Hospital, 55 Wis.2d 628, 201 N.W.2d 63 (1972); Holifield v. Setco Industries, Inc., 42 Wis.2d 750, 168 N.W.2d 177 (1969); McCluskey v. Thranow, 31 Wis.2d 245, 142 N.W.2d 787 (1966); Reistad v. Manz, 11 Wis.2d 155, 105 N.W.2d 324 (1960). The facts of McCluskey are...