Fojut v. Stafl, 96-1676
| Decision Date | 12 August 1997 |
| Docket Number | No. 96-1676,96-1676 |
| Citation | 569 N.W.2d 737,212 Wis.2d 827 |
| Parties | Helen FOJUT and Bruce Fojut, Plaintiffs-Appellants, v. Adolf STAFL, M.D., Medical College of Wisconsin, and Wisconsin Patients Compensation Fund, Defendants-Respondents, Milwaukee County Medical Complex, ABC Insurance Company, and DEF Insurance Company, Defendants. |
| Court | Wisconsin Court of Appeals |
On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of O'Connor & Willems, S.C. by Robert I. DuMez of Kenosha.
On behalf of the defendants-respondents Adolf Stafl, M.D. and Medical College of Wisconsin, the cause was submitted on the brief of Hinshaw & Culbertson by Michael J. Pfau of Milwaukee.
On behalf of the defendant-respondent Wisconsin Patients Compensation Fund, the cause was submitted on the brief of Schellinger & Doyle, S.C. by James M. Fergal and Linda V. Meagher of Brookfield.
Before WEDEMEYER, P.J., and FINE and CURLEY, JJ.
Helen and Bruce Fojut appeal from judgments entered dismissing their complaint against Adolf Stafl, M.D., the Medical College of Wisconsin and the Wisconsin Patients Compensation Fund. The Fojuts argue that the trial court erred in dismissing their claim on the basis that it was barred by the statute of limitations. Because the trial court did not err, we affirm.
On November 28, 1990, Helen underwent elective bilateral tubal ligation surgery, which Dr. Stafl supervised. Helen did so because she did not want to become pregnant. Sometime in March 1991, Helen became pregnant. On April 9, 1991, Helen missed her menstrual period. On April 24, 1991, Helen took a pregnancy test and discovered that she was pregnant. On April 22, 1994, the Fojuts filed their complaint alleging medical malpractice. The defendants moved to dismiss the complaint alleging that the statute of limitations had expired. The trial court granted the motion. The Fojuts now appeal.
The Fojuts argue that the three year statute of limitations began to run from the date Helen discovered she was pregnant-April 24, 1991, and therefore, the complaint was timely filed. The defendants argue that the statute of limitations began to run either from the date of the tubal ligation or the date of conception, which made the Fojuts' complaint untimely. The trial court agreed with the defendants.
The issue in this case is when the Fojuts' cause of action accrued so as to commence the running of the statute of limitations. Deciding this issue involves interpretation of § 893.55(1), STATS., the statute of limitations applicable to medical malpractice cases. Interpretation of a statute to an undisputed set of facts is a question of law that we review independently. See Bitters v. Milcut, Inc., 117 Wis.2d 48, 49, 343 N.W.2d 418, 419 (Ct.App.1983). Section 893.55(1) 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, 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.
The parties concede that paragraph (a) is applicable to this case and that the cause of action accrued on the date of injury. 1 The disputed issue involves determining the date of the injury. The parties agree that the date of the alleged negligent act was the date the surgery was performed. However, the date of the negligent act and the date of the injury in medical malpractice cases are not always one and the same. See Olson v. St. Croix Valley Mem'l Hosp., Inc., 55 Wis.2d 628, 631-32, 201 N.W.2d 63, 64 (1972).
We must determine, therefore, when the injury occurred in this case. We conclude that the date of injury was the day Helen became pregnant, which was sometime in March 1991. Accordingly, Helen had three years--until March 1994--to file a timely action. Because she did not file this suit until April 1994, the action was barred by the statute of limitations and properly dismissed.
In reaching this conclusion, we reject the defendants' contention that the date of injury was the date of the surgery. This argument was based on the Olson case. In that case, the Rh negative plaintiff erroneously received a transfusion of Rh positive blood in 1962, which allegedly impaired the plaintiff's ability to bear children. Id. at 633, 201 N.W.2d at 64. After the plaintiff was unable to deliver a healthy child, she discovered that she had been given the wrong blood in 1962 and...
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Estate of Genrich v. Ohic Ins. Co.
...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 ......
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Paul v. Skemp
...case where the malpractice and the injury have not been coincidental decided by the court of appeals, Fojut v. Stafl, 212 Wis. 2d 827, 569 N.W.2d 737 (Ct. App. 1997). In Fojut, Helen Fojut had a tubal ligation to prevent further pregnancies; subsequently, she became pregnant. Id. at 829. Th......
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Doe v. Mayo Clinic Health System-Eau Claire Clinic, Inc.
...OHIC argued that the date of injury began when Genrich first suffered a “physical injurious change,” relying on Fojut v. Stafl, 212 Wis.2d 827, 569 N.W.2d 737 (Ct.App.1997). The estate responded that Genrich's injury did not occur until his condition was irreversible—at the earliest, August......
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Doe v. Mayo Clinic Health System—Eau Claire Clinic, Inc.
...injurious change was when blood vessel ruptured ); when the negligent conduct was a failed tubal ligation, see Fojut v. Stafl, 212 Wis.2d 827, 569 N.W.2d 737 (Ct.App.1997) (physical injurious change was the moment of conception), and when a foreign object was left in the patient during surg......