Estate of Hegarty v. Beauchaine

• Decision Date: 30 October 2001
• Docket Number: No. 00-2144.,00-2144.
• Citation: 249 Wis.2d 142,638 N.W.2d 355,2001 WI App 300
• Parties: ESTATE OF Sarah M. HEGARTY, deceased, by Jeremiah J. Hegarty, Special Administrator, and Jeremiah J. Hegarty and Mary D. Hegarty, Plaintiffs-Appellants, MILWAUKEE COUNTY, Involuntary-Plaintiff, v. Angela BEAUCHAINE, M.D., Ernest Stremski, M.D., Children's Hospital of Wisconsin, Inc., a Wisconsin hospital corporation, OHIC Insurance Company, a foreign insurance corporation, and The Medical College of Wisconsin, Inc., a Wisconsin corporation, Defendants, MEDICAL COLLEGE OF WISCONSIN AFFILIATED HOSPITALS, INC., a Wisconsin corporation, Defendant-Respondent, PHYSICIANS INSURANCE COMPANY OF WISCONSIN, INC., a Wisconsin insurance corporation, Defendant, Mary Jo ZIMMER, M.D., Fireman's Fund Insurance Company and Wisconsin Patients Compensation Fund, Defendants-Respondents.
• Court: Wisconsin Court of Appeals

249 Wis.2d 142

2001 WI App 300

638 N.W.2d 355

ESTATE OF Sarah M. HEGARTY, deceased, by Jeremiah J. Hegarty, Special Administrator, and Jeremiah J. Hegarty and Mary D. Hegarty, Plaintiffs-Appellants,¹

MILWAUKEE COUNTY, Involuntary-Plaintiff, v. Angela BEAUCHAINE, M.D., Ernest Stremski, M.D., Children's Hospital of Wisconsin, Inc., a Wisconsin hospital corporation, OHIC Insurance Company, a foreign insurance corporation, and The Medical College of Wisconsin, Inc., a Wisconsin corporation, Defendants, MEDICAL COLLEGE OF WISCONSIN AFFILIATED HOSPITALS, INC., a Wisconsin corporation, Defendant-Respondent,¹ PHYSICIANS INSURANCE COMPANY OF WISCONSIN, INC., a Wisconsin insurance corporation, Defendant, Mary Jo ZIMMER, M.D., Fireman's Fund Insurance Company and Wisconsin Patients Compensation Fund, Defendants-Respondents.

No. 00-2144.

Court of Appeals of Wisconsin.

Oral argument September 4, 2001.

Decided October 30, 2001.

On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of William M. Cannon, Edward E. Robinson, and Sarah E. Frink of Cannon & Dunphy, S.C., of Brookfield, with oral argument by William M. Cannon.

On behalf of the defendant-respondent Medical College of Wisconsin Affiliated Hospitals, Inc., the cause was submitted on the brief of Joseph M. Fasi, II and Peter F. Mullaney of Peterson, Johnson & Murray, S.C., of Milwaukee, with oral argument by Peter F. Mullaney.

On behalf of the defendants-respondents Mary Jo Zimmer, M.D., and Fireman's Fund Insurance Company, the cause was submitted on the brief of Samuel J. Leib, Douglas S. Knott and Mark D. Malloy of Leib & Katt, S.C., of Milwaukee, with oral argument by Samuel J. Leib.

Before Fine, Schudson and Curley, JJ.

¶ 1. CURLEY, J.

The estate of Sarah Hegarty and her parents, Jeremiah and Mary Hegarty, appeal from two separate orders of the circuit court granting summary judgment and dismissing all negligence claims against defendants, Mary Jo Zimmer, M.D., the Medical College of Wisconsin Affiliated Hospitals (Affiliated Hospitals), and their respective liability insurance carriers. Five issues are raised on appeal: (1) whether the plaintiffs waived their statute of limitations argument; (2) whether WIS. STAT. § 893.55² is the controlling statute of limitations for wrongful death actions caused by medical malpractice; (3) whether the amended complaint adding Dr. Zimmer as a defendant relates back to the date of filing of the original complaint; (4) whether the plaintiffs discovered, or in the exercise of reasonable diligence should have discovered, what they believe was Dr. Zimmer's negligence in causing their daughter's death; and (5) whether Affiliated Hospitals is vicariously liable for the actions of its employee based on the doctrine of respondeat superior.

¶ 2. We conclude that because the wrongful death claims are based on medical malpractice, the trial court correctly applied the medical malpractice statute of limitations, found in WIS. STAT. § 893.55. We also conclude that because plaintiffs' addition of Dr. Zimmer to the medical malpractice action was not based on Dr. Zimmer's mistaken identity, the amended complaint does not relate back to the original complaint. Further, we determine that because a genuine issue exists as to a number of material facts, and reasonable conflicting inferences can be drawn from the undisputed facts, summary judgment was inappropriate and a trial is necessary to resolve: (1) whether Dr. Beauchaine was a servant of the Medical College of Wisconsin Affiliated Hospitals; and (2) whether Dr. Beauchaine was a borrowed employee. Therefore, this opinion is the decision of the court regarding: (1) the statute of limitations issue; (2) the relation back doctrine; and (3) Affiliated Hospitals' respondeat superior liability. However, with respect to the Hegartys' discovery of Dr. Zimmer's role in Sarah's injury, Judge Fine's opinion is the decision of the court on the discovery issue.

I. BACKGROUND.

¶ 3. In 1992, Sarah Hegarty (Sarah), then age twelve, became a patient of pediatrician Mary Jo Zimmer, M.D. (Dr. Zimmer). When Sarah began developing abdominal pain in 1995, she consulted with Dr. Zimmer. Dr. Zimmer referred Sarah to a pediatric gastroenterologist at Children's Hospital, who diagnosed her with irritable bowel syndrome.

¶ 4. On March 20, 1996, Sarah developed severe abdominal pain, nausea and vomiting. She was rushed to Children's Hospital's emergency room at 4:30 p.m. Sarah was initially treated by Ernest Stremski, M.D., the emergency room physician, and later by Angela Beauchaine, M.D., a first-year medical resident. Dr. Stremski admitted Sarah at 8:00 p.m.

¶ 5. Sarah's condition rapidly deteriorated. Dr. Beauchaine, who took over Sarah's care after she was admitted, was a first-year resident, not yet licensed to practice medicine. Dr. Beauchaine was enrolled in a graduate medical training program through the Medical College of Wisconsin (Medical College) and the Medical College of Wisconsin Affiliated Hospitals (Affiliated Hospitals). From the time of Sarah's admission until Dr. Zimmer arrived at 7:30 a.m. on the morning of March 21, 1996, no licensed physician saw Sarah to evaluate her condition.

¶ 6. The medical records reflect that by 6:00 a.m. on March 21, 1996, Sarah's abdomen was distended, rigid and tender. Sarah's condition became critical at 11:45 a.m.; she was resuscitated and taken to surgery at approximately 1:45 p.m. However, by that time, Sarah was diagnosed with small bowel volvulus with complete bowel infarction, meaning her small bowel had been twisted and cut off from the blood supply.

¶ 7. On March 16, 1998, after more than fifty surgical procedures related to her intestinal difficulties, Sarah died. The cost of Sarah's medical care over this two-year period reached nearly $3,000,000. On December 18, 1998, the plaintiffs filed suit setting forth survival claims on behalf of Sarah's estate and wrongful death claims on behalf of Sarah's parents. The complaint was brought against Dr. Beauchaine, Dr. Stremski, Children's Hospital, the Medical College, Affiliated Hospitals, their respective liability insurers, and the Wisconsin Patients Compensation Fund.

¶ 8. As part of a discovery request, the plaintiffs received medical records from Children's Hospital in April of 1997, but it was not until September of 1999 that the plaintiffs took the depositions of Drs. Stremski, Beauchaine and Zimmer. In their depositions, Drs. Stremski and Beauchaine stated that Dr. Zimmer had been involved in Sarah's care before arriving at the hospital on the morning of March 21, 1996. They revealed that each had spoken with Dr. Zimmer over the telephone on March 20, 1996, and that Dr. Zimmer had directed Sarah's treatment throughout the evening and into the early morning. On December 20, 1999, based on information disclosed at these depositions, the plaintiffs filed an amended complaint adding Dr. Zimmer to the lawsuit.

¶ 9. The trial court dismissed the claims against Dr. Zimmer, determining that the action was barred by the medical malpractice statute of limitations, WIS. STAT. § 893.55. The court also dismissed the claims against Affiliated Hospitals, which were based on the doctrine of respondeat superior. The trial court ruled that Affiliated Hospitals could not be held vicariously liable for Dr. Beauchaine's negligence when it had no control over the details of her work.

II. ANALYSIS.

A. Waiver and the Statute of Limitations Argument

[1, 2]

¶ 10. The Hegartys assert, for the first time on appeal, that the statute of limitations governing wrongful death actions applies to Dr. Zimmer's medical malpractice and, thus, the action was timely. Generally, this court will not review an issue raised for the first time on appeal, but this rule of judicial administration does not affect the appellate court's power to address the issue. Wirth v. Ehly, 93 Wis. 2d 433, 443-44, 287 N.W.2d 140 (1980), superseded on other grounds by WIS. STAT. § 895.52. Assuming that this issue was waived, we choose to address it for three reasons.

[3]

¶ 11. First, where a waived issue is of statewide importance or interest, we may choose to address it in the interests of judicial economy. State v. Schmaling, 198 Wis. 2d 756, 763, 543 N.W.2d 555 (Ct. App. 1995); Weichers v. Weichers, 197 Wis. 159, 162, 221 N.W. 733 (1928). We address the present issue to assure that the families of those who claim to have been injured or to have died as a result of medical malpractice have adequate notice regarding their potential claims against health care providers. Further, the question is significant because similar fact situations are likely to arise. [4]

¶ 12. Second, appellate courts may review issues raised for the first time on appeal when a question of law is presented that is not dependent on the facts as presented below. In re Graffin v. Hulett, 6 Wis. 2d 20, 27, 94 N.W.2d 127 (1959)

. The issue here concerns the application of a statute of limitations, which is a question of law, see Webb v. Ocularra Holding, Inc., 232 Wis. 2d 495, 502, 606 N.W.2d 552 (Ct. App. 1999),

overruled on other grounds by Paul v. Skemp, 2001 WI 42, 242 Wis. 2d 507, 625 N.W.2d 507, and independent from the facts in the record.

[5]

¶ 13. Third, where the parties have fully briefed the issue, as they have here, and where there are no factual disputes, the appellate courts may overlook waiver. Wirth, 93 Wis. 2d at 444. Thus, for the reasons stated, we elect to decide the statute of limitations issue.

B. Statute of Limitations

[6, 7]

¶ 14. In reviewing a trial court's grant of summary judgment, we first consider which statute of limitations applies. See Ritt v. Dental Care Assocs., 199 Wis. 2d 48, 60, 543 N.W.2d 852 (Ct. App. 1995)

. Determining which statute of limitations applies to an action is a question of law which we review de novo. Webb, 232 Wis. 2d at 502.

[8]

¶ 15. The trial court ruled that all claims brought by...