Estate of Genrich v. Ohic Ins. Co., No. 2007AP541.

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtPatience Drake Roggensack
Citation2009 WI 67,769 N.W.2d 481
PartiesESTATE OF Robert V. GENRICH and Kathy Genrich, Plaintiffs-Appellants-Petitioners, Blue Cross Blue Shield of Massachusetts, Involuntary-Plaintiff, v. OHIC INSURANCE COMPANY; Wisconsin Injured Patients & Families Compensation Fund; Meriter Hospital, Inc.; Margaret Bjelde, R.N.; Shelly White, O.R.T.; Kimberly A. Brown, O.R.T.; David Melnick, M.D.; Brenda Satchie, M.D.; University of Wisconsin Hospital and Clinics Authority; and Dawn M. Shaw, O.R.T., Defendants-Respondents.
Decision Date07 July 2009
Docket NumberNo. 2007AP541.
769 N.W.2d 481
2009 WI 67
ESTATE OF Robert V. GENRICH and Kathy Genrich, Plaintiffs-Appellants-Petitioners,
Blue Cross Blue Shield of Massachusetts, Involuntary-Plaintiff,
v.
OHIC INSURANCE COMPANY; Wisconsin Injured Patients & Families Compensation Fund; Meriter Hospital, Inc.; Margaret Bjelde, R.N.; Shelly White, O.R.T.; Kimberly A. Brown, O.R.T.; David Melnick, M.D.; Brenda Satchie, M.D.; University of Wisconsin Hospital and Clinics Authority; and Dawn M. Shaw, O.R.T., Defendants-Respondents.
No. 2007AP541.
Supreme Court of Wisconsin.
Argued February 3, 2009.
Decided July 7, 2009.

[769 N.W.2d 483]

For the plaintiffs-appellants-petitioners there were briefs filed by Jason T. Studinski and Kammer & Studinski Chartered, Portage, and oral argument by Jason T. Studinski.

For the defendants-respondents there was a brief by David J. Pliner and Corneille Law Group, LLC, Madison, and oral argument by David J. Pliner.

An amicus curiae brief was filed by Robert L. Jaskulski, Linda M. Meagher, and Habush Habush & Rottier, S.C., Milwaukee,

[769 N.W.2d 484]

on behalf of Wisconsin Association for Justice.

¶ 1 PATIENCE DRAKE ROGGENSACK, J.


We review an unpublished decision1 of the court of appeals that affirmed a decision of the circuit court2 granting summary judgment in favor of OHIC Insurance Company and other defendants (collectively, OHIC). Our review requires us to address two issues: (1) whether the claim of the Estate of Robert V. Genrich (the estate) for "injury" to Robert Genrich (Robert) that resulted in his death and allegedly was caused by medical negligence is precluded by Wis. Stat. § 893.55(1m)(a) (2005-06)3 as untimely-filed; and (2) whether Kathy R. Genrich's (Kathy) wrongful death claim based on Robert's death accrued on the date of Robert's "injury."

¶ 2 Because we conclude that Robert suffered an "injury" for purposes of Wis. Stat. § 893.55(1m)(a) when he experienced a "physical injurious change," and that the "physical injurious change" occurred more than three years prior to the filing of the estate's claim, we conclude that the estate's claim is time-barred by § 893.55(1m)(a). We further conclude that Kathy's wrongful death claim based on Robert's death that allegedly was caused by medical negligence accrued on the same date as the estate's claim. Therefore, it, too, is precluded by § 893.55(1m)(a). Accordingly, we affirm the decision of the court of appeals that affirmed the circuit court's decision granting summary judgment in favor of OHIC.

I. BACKGROUND

¶ 3 On July 23-24, 2003, Robert underwent surgery to have an ulcer repaired. The surgery appeared to have been successfully completed. However, Robert soon developed a fever and his white blood cell count became elevated, suggesting an infection. On August 8, 2003, it was determined that a sponge had been left inside Robert's abdominal cavity at the conclusion of the surgery on July 24, 2003, and that the sponge probably was the source of the infection. That same day, a second surgery was performed and the sponge was removed. Unfortunately, in the days following the second surgery, Robert's health did not improve, and on August 11, 2003, he died from sepsis allegedly associated with the retained sponge.

¶ 4 On August 9, 2006, the estate and Kathy filed suit against the doctors and support staff involved in Robert's surgery, as well as OHIC Insurance Company and others. The estate alleged medical negligence in Robert's care and treatment, and made claims for damages. Kathy sued for wrongful death, also based on alleged medical negligence in Robert's care and treatment. OHIC moved for summary judgment, arguing that both the estate's and Kathy's claims were barred by the medical negligence statute of limitations, Wis. Stat. § 893.55(1m)(a). Section 893.55(1m) provides:

[A]n action to recover damages for injury arising from any treatment or operation performed by, or from any omission by, a person who is a health care provider,

769 N.W.2d 485

regardless of the theory on which the action is based, shall be commenced within the later of:

(a) Three years from the date of the injury, or

(b) One year from the date the injury was discovered or, in the exercise of reasonable diligence should have been discovered, except that an action may not be commenced under this paragraph more than 5 years from the date of the act or omission.4

¶ 5 The estate and Kathy countered OHIC's motion by arguing that (1) under Paul v. Skemp, 2001 WI 42, 242 Wis.2d 507, 625 N.W.2d 860, Robert's "injury" did not occur until on or after August 9, 2003, because his condition did not become irreversible until at least that date, and the claims were therefore timely, having been filed within three years of such "injury"; (2) under Miller v. Luther, 170 Wis.2d 429, 489 N.W.2d 651 (Ct.App.1992), even if the estate's survival action was time-barred, the statute of limitations on Kathy's wrongful death claim did not start to run until the date of Robert's death, August 11, 2003, and her claim was therefore timely, having been filed within three years of Robert's death; and (3) even if either or both of the claims were not timely asserted, the defendants were estopped from raising the statute of limitations because an OHIC claims adjuster had told their attorney that the claims would not expire until August 13, 2006.

¶ 6 The circuit court granted OHIC's motion, concluding that, under Fojut v. Stafl, 212 Wis.2d 827, 569 N.W.2d 737 (Ct. App.1997), Robert suffered an "injury" triggering the statute of limitations no later than August 8, 2003, when the second surgery to remove the sponge occurred. As a result, the circuit court dismissed the estate's claim, filed on August 9, 2006, as untimely under Wis. Stat. § 893.55(1m)(a).

¶ 7 The circuit court also rejected Kathy's argument that her wrongful death claim accrued on the date of Robert's death. Instead, the court concluded that Estate of Hegarty v. Beauchaine, 2001 WI App 300, 249 Wis.2d 142, 638 N.W.2d 355, had decided that Wis. Stat. § 893.55(1m)(a) was the operative statute of limitations for wrongful death claims based on medical negligence, and that those claims run from the date of the underlying "injury." As a result, because Kathy's claim was filed more than three years after Robert's "injury," her claim was time-barred by § 893.55(1m)(a).

¶ 8 Finally, the circuit court rejected the plaintiffs' estoppel argument. The court concluded that the plaintiffs' reliance on the statements of an insurance claims adjuster, in deciding not to file earlier, was not reasonable. The court of appeals affirmed the circuit court's decision for largely the same reasons expressed by the circuit court.5

¶ 9 We granted review and now affirm.

769 N.W.2d 486
II. DISCUSSION

A. Standard of Review

¶ 10 This case requires us to review the circuit court's decision granting OHIC's motion for summary judgment. We review a decision on a motion for summary judgment independently, employing the same methodology as the circuit court. Blunt v. Medtronic, Inc., 2009 WI 16, ¶ 13, 315 Wis.2d 612, 760 N.W.2d 396 (citing Acuity v. Bagadia, 2008 WI 62, ¶ 12, 310 Wis.2d 197, 750 N.W.2d 817). Resolution of the questions presented requires us to interpret and apply Wis. Stat. § 893.55(1m)(a). "The interpretation and application of a statute to an undisputed set of facts are questions of law that we review independently." McNeil v. Hansen, 2007 WI 56, ¶ 7, 300 Wis.2d 358, 731 N.W.2d 273 (citing Rocker v. USAA Cas. Ins. Co., 2006 WI 26, ¶ 23, 289 Wis.2d 294, 711 N.W.2d 634; State v. Sostre, 198 Wis.2d 409, 414, 542 N.W.2d 774 (1996)).

B. Medical Negligence

¶ 11 The estate's survival action is a claim for medical negligence asserted on Robert's behalf. The parties do not dispute, and we agree, that Wis. Stat. § 893.55(1m)(a) is the applicable statute of limitations for this claim, and that the claim accrued on the date that Robert sustained an "injury" as that term is used in the statute. Where the parties differ is with respect to the meaning of the term "injury."

¶ 12 The statute does not define "injury." However, the parties point to decisions by Wisconsin courts that purportedly support their proposed interpretations of the term. The estate and Kathy cite to our decision in Paul to argue that an injury does not occur under Wis. Stat. § 893.55(1m)(a) until the underlying condition is no longer treatable. That is, only after a medical condition has become irreversible does a claim accrue. Because Robert's condition did not become irreversible until on or after August 9, 2003, the estate argues that its claim was timely filed.

¶ 13 In Paul, we determined when an actionable "injury" based on medical negligence for misdiagnosis occurred, thereby causing the claim to accrue. Paul, 242 Wis.2d 507, ¶¶ 12-13, 625 N.W.2d 860. We concluded that the estate's claim accrued, at the latest, on the date that the decedent's undiagnosed arteriovenous malformation ruptured. Id., ¶ 45. The estate and Kathy cite the following language in Paul in support of their argument that an "injury" triggering the limitations period does not occur until the patient's condition becomes untreatable or irreversible:

That actionable injury which resulted from the alleged misdiagnosis occurred either at the time that [the arteriovenous malformation] AVM ruptured, or at the time that [the] AVM could no longer be treated. . . .

. . . .

. . . [B]ased on the information presented, the injury that resulted from the alleged misdiagnosis occurred when the rupture of the AVM in [decedent]'s brain happened . . ., or it occurred at that point . . . when, more likely than not, [decedent]'s AVM could not have been successfully treated.

Id. at ¶¶ 45, 53. In this case, the estate and Kathy contend that Robert's condition did not become untreatable until on or after August 9, 2003, resulting in the estate's medical negligence claim being timely-filed on August 9, 2006.

¶ 14 OHIC, on...

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