Paul v. Skemp

• Decision Date: 03 May 2001
• Docket Number: No. 99-1810.,99-1810.
• Citation: 242 Wis.2d 507,2001 WI 42,625 N.W.2d 860
• Parties: Joseph J. PAUL, Judith E. Paul, and The Estate of Jennifer Jo Paul, Plaintiffs-Appellants-Petitioners, v. Frederick C. SKEMP, Jr., M.D., ABC Insurance Company, Virginia A. Updegraff, M.D., DEF Insurance Company, Skemp Clinic, Ltd., and GEH Insurance Company, Defendants-Respondents, WISCONSIN PATIENTS COMPENSATION FUND, Defendant.
• Court: Wisconsin Supreme Court

242 Wis.2d 507

2001 WI 42

625 N.W.2d 860

Joseph J. PAUL, Judith E. Paul, and The Estate of Jennifer Jo Paul, Plaintiffs-Appellants-Petitioners, v. Frederick C. SKEMP, Jr., M.D., ABC Insurance Company, Virginia A. Updegraff, M.D., DEF Insurance Company, Skemp Clinic, Ltd., and GEH Insurance Company, Defendants-Respondents, WISCONSIN PATIENTS COMPENSATION FUND, Defendant.

No. 99-1810.

Supreme Court of Wisconsin.

Oral argument February 28, 2001.

Decided May 3, 2001.

For the plaintiffs-appellants-petitioners there were briefs by James R. Koby and Parke O'Flaherty, Ltd., La Crosse, and oral argument by James R. Koby.

For the defendants-respondents there was a brief by Virginia L. Newcomb, Patrick S. Nolan and Borgelt, Powell, Peterson & Frauen, S.C., Madison, and oral argument by Virginia L. Newcomb.

An amicus curiae brief was filed by Edward E. Robinson and Cannon & Dunphy, S.C., Brookfield, on behalf of the Wisconsin Academy of Trial Lawyers.

¶ 1. N. PATRICK CROOKS, J

The issue in this case is whether the statute of limitations for medical malpractice claims in Wis. Stat. § 893.55 (1995-96)¹ bars this action. Joseph J. and Judith E. Paul, and the Estate of Jennifer Jo Paul (collectively the "Pauls") brought this action in La Crosse County Circuit Court against Dr. Frederick Skemp, Dr. Virginia Updegraff and the Skemp Clinic (collectively "Skemp"). The Pauls claim that Skemp misdiagnosed the cause of recurring headaches Jennifer suffered, and that the misdiagnosis resulted in the rupture of a malformed blood vessel in Jennifer's brain which subsequently caused her death. The circuit court, Judge John A. Damon presiding, concluded that the statute of limitations started running at the time of the last alleged misdiagnosis, when Jennifer last complained to Skemp about headaches; and that the Pauls' action was filed after that limitation period had run. The court of appeals agreed, and affirmed the circuit court. Paul v. Skemp, No. 99-1810, unpublished slip op. (Wis. Ct. App. June 8, 2000).

¶ 2. The Pauls contend here, as they have before the circuit court and court of appeals, that what triggered the statute of limitations was not the alleged misdiagnosis, but the injury that resulted from that misdiagnosis, the rupture of the blood vessel. We agree with the Pauls. A misdiagnosis may be a negligent omission, but it is not, in and of itself, an injury. The Pauls' claim for medical malpractice did not, and could not, accrue until Jennifer suffered an injury. Accordingly, because this action was filed within the limitations period triggered by Jennifer's injury, it is timely, and summary judgment in favor of defendants was improper. We thus reverse the decision of the court of appeals and remand the case to the circuit court for further proceedings.

I

¶ 3. Jennifer Paul was 19 years old when she died. She first complained to the Skemp Clinic about headaches when she was 9 years old, in 1984. Over the next ten years, Jennifer complained about headaches at least one dozen times. She sometimes complained that vomiting or nausea accompanied the headaches, and sometimes complained about dizzy spells.

¶ 4. On November 20, 1994, Jennifer saw Dr. Skemp and indicated that she had suffered from headaches for some time. Dr. Skemp concluded, as others at Skemp had over the past 10 years, that Jennifer's headaches were probably sinus related. A month later, on December 20, 1994, Jennifer saw Dr. Updegraff and complained of "persistent headaches and dizzy spells over the past year," as well as frequent nausea. (R. at 8:63.) Dr. Updegraff also concluded that Jennifer may have been suffering from a sinus problem.

¶ 5. Jennifer's last visit to the Skemp Clinic was on March 17, 1995. She saw Dr. Theodor Habel, and according to the medical records, complained only of a sore throat. The morning of May 22, 1995, Jennifer was taken to an emergency room. There, it was found that an arteriovenous malformation ("AVM") in Jennifer's right cerebellum had ruptured, causing extensive hemorrhaging. Jennifer died on May 23, 1995.

¶ 6. On March 16, 1998, the Pauls filed a complaint against the Skemp defendants.² The complaint alleges that the defendants failed to diagnose the AVM and misdiagnosed the cause of Jennifer's headaches. In the complaint, Joseph J. and Judith E. Paul, Jennifer's parents, seek damages for the loss of society and companionship. The Pauls also seek survivor damages; and the Estate of Jennifer Jo Paul seeks damages for the fear, pain and suffering allegedly suffered by Jennifer prior to her death.

¶ 7. Skemp moved for summary judgment, contending that the lawsuit was not timely filed. The circuit court agreed, granted summary judgment, and dismissed the action. The Pauls appealed. The court of appeals affirmed, and this court granted the Pauls' petition for review.

II

[1]

¶ 8. This court reviews summary judgment decisions by employing the same methodology used by the circuit court in deciding motions for summary judgment. First, the court reviews the pleadings to determine whether a claim has been stated, and if so, whether there are disputed issues. Tamminen v. Aetna Cas. & Sur. Co., 109 Wis. 2d 536, 550, 327 N.W.2d 55 (1982). There is no dispute that the Pauls have stated a claim for negligence and that there are disputed issues regarding that claim.

[2]

¶ 9. Notwithstanding a dispute on the merits, a defendant may be entitled to summary judgment by establishing that the action was not filed within the limitations period set forth in the statute of limitations.

If the complaint states a claim and the pleadings show the existence of factual issues, the court examines the moving party's (in this case the defendants') affidavits or other proof to determine whether the moving party has made a prima facie case for summary judgment under sec. 802.08(2). To make a prima facie case for summary judgment, a moving defendant must show a defense which would defeat the plaintiff. If the moving party has made a prima facie case for summary judgment, the court must examine the affidavits and other proof of the opposing party (plaintiffs in this case) to determine whether there exist disputed material facts, or undisputed material facts from which reasonable alternative inferences may be drawn, sufficient to entitle the opposing party to a trial.

Id. (quoting Grams v. Boss, 97 Wis. 2d 332, 338, 294 N.W.2d 473 (1980)).

[3]

¶ 10. Whether, as Skemp contends, the action is time-barred by the statute of limitations that governs medical malpractice actions, Wis. Stat. § 893.55, involves statutory construction. Such statutory construction is a question of law, which we review de novo, even though we benefit from the analyses of the circuit court and the court of appeals. Czapinski v. St. Francis Hosp., 2000 WI 80, ¶ 12, 236 Wis. 2d 316, 613 N.W.2d 120; see also Patients Compensation Fund v. Lutheran Hosp., 223 Wis. 2d 439, 454-55, 588 N.W.2d 35 (1999)

. "A court will not ordinarily engage in statutory construction unless a statute is ambiguous. `When a statute is plain and unambiguous, interpretation is unnecessary and intentions cannot be imputed to the legislature except those to be gathered from the terms of the statute itself.'" Czapinski, 2000 WI 80 at ¶ 17 (citing and quoting Harris v. Kelley, 70 Wis. 2d 242, 249, 234 N.W.2d 628 (1975)).

III

¶ 11. As just noted, the statute at issue is Wis. Stat. § 893.55(1). Section 893.55(1) provides that:

[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.

¶ 12. Skemp contends that Wis. Stat. § 893.55(1) bars the Pauls' action because the action was filed more than three years after Jennifer's injury. According to Skemp, Jennifer's injury is the alleged misdiagnosis, which last occurred when Jennifer last complained about her headaches to Dr. Virginia Updegraff on December 20, 1994. This action was not filed until March 16, 1998. Skemp also contends that the Pauls' action is untimely because the Pauls discovered Jennifer's injury, at the very latest, on the day she died, May 23, 1995; correspondingly, the Pauls' action should have been filed one year after the Pauls discovered Jennifer's injury, by May 23, 1996.

¶ 13. In contrast, the Pauls contend that the injury that triggered the statute of limitations in Wis. Stat. § 893.55(1) is the rupture of the AVM in Jennifer's brain and the resultant hemorrhaging. That injury occurred on May 22, 1995, and, according to the Pauls, the action was timely filed, less than three years later, on March 16, 1998. The Pauls additionally submitted, in opposition to Skemp's motion for summary judgment, an affidavit from an expert witness, who concluded, to a reasonable degree of medical certainty, that had Jennifer's AVM "been properly diagnosed at any time prior to May 1, 1995, it is more likely than not that [Jennifer] would not have sustained the injury and disability she ultimately experienced on May 22, 1995." (R. at 11:5.)

¶ 14. The Pauls also contend that, alternatively, Jennifer complained about her headaches to Dr. Habel when she last visited Skemp on March 17, 1995. Even though the medical records do not reflect that complaint, the Pauls point to Judith Paul's deposition testimony that Jennifer had told her that she had complained about her headaches to Dr. Habel. The Pauls also point to an affidavit from Jennifer's boyfriend, Kevin Mason, that Jennifer told him before the appointment that she intended to complain about her headaches, and...