Ritt v. Dental Care Associates, S.C., 94-3344

• Court: Court of Appeals of Wisconsin
• Citation: 543 N.W.2d 852,199 Wis.2d 48
• Docket Number: No. 94-3344,94-3344
• Parties: Ricki A. RITT, Plaintiff-Respondent, v. DENTAL CARE ASSOCIATES, S.C., Gregory C. Skelding, D.D.S., and St. Paul Fire & Marine Insurance Company, Defendants-Appellants.
• Decision Date: 28 December 1995

Page 852

543 N.W.2d 852

199 Wis.2d 48

Ricki A. RITT, Plaintiff-Respondent, v. DENTAL CARE ASSOCIATES, S.C., Gregory C. Skelding, D.D.S., and St. Paul Fire & Marine Insurance Company,

Defendants-Appellants.

No. 94-3344.

Court of Appeals of Wisconsin.

Submitted on Briefs Nov. 10, 1995.

Opinion Released Dec. 28, 1995.

Opinion Filed Dec. 28, 1995.

[199 Wis.2d 56] Appeal from a judgment and an order of the circuit court for Marquette County: William McMonigal, Judge. Judgment affirmed in part and reversed in part; order reversed and cause remanded with directions.

For the defendants-appellants the cause was submitted on the briefs of Stephen O.

Murray of Otjen, Van Ert, Stangle, Lieb & Weir, S.C. of Madison

For the plaintiff-respondent the cause was submitted on the brief of Gregory R. Wright of Gregory R. Wright Law Offices of Montello.

Before EICH, C.J., DYKMAN and VERGERONT, JJ.

VERGERONT, Judge.

Gregory Skelding, D.D.S., Dental Care Associates, S.C., and their insurer, St. Paul Fire & Marine Insurance Company, ¹ appeal from a judgment on a jury verdict finding that Dr. Skelding was negligent in providing dental services to Ricki Ritt. They also appeal from an order in which the trial court found that an offer of settlement submitted by Ritt was a valid offer of settlement. They contend that the trial court: (1) erred in denying their motion for summary judgment on the ground that the action was time [199 Wis.2d 57] barred; (2) erroneously exercised its discretion in excluding Dr. Skelding's appointment book as evidence; (3) committed error in awarding Ritt prejudgment interest and double costs; and (4) erroneously exercised its discretion in denying their motion for a new trial based on newly-discovered evidence.

We conclude that the statute of limitations, § 893.55, STATS., ² relating to malpractice actions against health care providers, applies to claims against dentists, rather than the personal injury statute of limitations, § 893.54, STATS. ³ Applying § 893.55, we conclude that the trial court's denial of summary judgment was proper, but not for the reason stated by the trial court. We conclude there are factual disputes regarding whether Ritt exercised reasonable diligence in discovering his injury, and whether Ritt commenced his action within five years of the act or omission. We therefore remand for a trial on these issues.

If on remand the timeliness of Ritt's action is resolved in defendants' favor, the remaining issues in [199 Wis.2d 58] this appeal will be moot. However, in the event the jury determines that Ritt timely filed his action, we decide the other issues. We conclude the trial court based its denial of a new trial on an incorrect factor. Therefore, the trial court should exercise its discretion applying the proper legal standard in deciding the defendants' motion for a new trial. We also conclude that the trial court properly exercised its discretion in excluding from evidence the appointment book. Finally, we reverse the order awarding prejudgment interest and double costs to Ritt because we conclude the offer of settlement was not valid under § 807.01(3), STATS.

BACKGROUND

Ritt filed his complaint on April 6, 1992, claiming that Dr. Skelding was negligent in the dental care he provided beginning in approximately August 1986. ⁴

The defendants filed a motion for summary judgment contending that the action was barred by the medical malpractice statute of limitations, § 893.55, STATS., because the action was filed more than three years after the date of injury, § 893.55(1)(a), and more

than one year after the injury was discovered or, with reasonable diligence, should have been discovered, § 893.55(1)(b). The trial court denied the motion. It concluded that the applicable statute of limitations was § 893.54, STATS., which requires that an action for injuries to the person be brought within three years. It also concluded that this statute of limitations did not begin to run until July 1991, when Ritt consulted another dentist, Dr. Govoni

[199 Wis.2d 59] Ritt's specific claims at trial were that Dr. Skelding was negligent with regard to: (1) the extraction of his teeth, and (2) subsequent fitting of dentures and lack of follow-up care. The jury returned a verdict that Dr. Skelding did not fail to obtain Ritt's informed consent before extracting Ritt's teeth, but that he was negligent in providing dental services to Ritt. The jury awarded Ritt $6,000 in damages. The parties agree that, given the evidence presented at trial, the verdict means that Dr. Skelding was not negligent with respect to the extraction of Ritt's teeth, but was negligent with respect to the fitting of dentures and follow-up care.

Dr. Skelding's treatment records of Ritt were not produced at trial. Dr. Skelding testified that Ritt's file was inactive and that he had looked in the boxes of closed files in his Princeton office and in his office at home but had not been able to find the treatment records of Ritt. He testified that the file could possibly have been taken by a former partner, Dr. James Greenwald. Dr. Skelding attempted to introduce his appointment book at trial to dispute Ritt's testimony that he (Dr. Skelding) refused to see Ritt after fitting Ritt with dentures. The trial court excluded the appointment book, but permitted the introduction of a written summary of dates pertaining to Ritt's scheduled appointments from the appointment book.

The defendants' motions after verdict included a motion for a new trial on the ground that the trial court erred in excluding the appointment book and on the ground of newly-discovered evidence--Dr. Skelding's treatment records of Ritt. The court denied these motions and entered judgment on the verdict. The court awarded prejudgment interest and double costs, concluding that Ritt's settlement offer of $4,999 met [199 Wis.2d 60] the requirements of § 807.01(3), STATS., and that the judgment of $6,000 exceeded that amount.

STATUTE OF LIMITATIONS

In reviewing the trial court's denial of summary judgment, we first consider which statute of limitations applies--s 893.54, STATS., governing "action[s] to recover damages for injuries to the person," or § 893.55, STATS., governing "action[s] 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." Since § 893.55 is the more specific of the two, we begin by deciding whether the terms of that statute are met. Clark v. Erdmann, 161 Wis.2d 428, 436-37, 468 N.W.2d 18, 21 (1991). The meaning of a statute is a question of law, which we review de novo. Id. at 438, 468 N.W.2d at 22.

In Clark, the court held that podiatrists were health care providers within the meaning of § 893.55, STATS. The court reasoned that the term "health care provider," which is not defined in the statute, "plainly applies to anyone who professionally provides health care to others. Podiatrists do exactly that: they provide health care to others; and, like other professional health care providers, they are licensed to practice by the state medical examining board pursuant to ch. 448, STATS." Clark, 161 Wis.2d at 438-39, 468 N.W.2d at 22. The court followed this passage by this footnote:

Chapter 448, STATS., pertains to the licensing of physicians and physical therapists as well as podiatrists, and to the certifying of occupational therapists, occupational therapy assistants and respiratory care practitioners. Chapters 446, 447, [199 Wis.2d 61] 449, 451, and 455 pertain to the licensing or certifying of other professional health care providers.

Id. at 439 n. 5, 468 N.W.2d at 22 (emphasis added). Dentists are licensed under ch. 447, STATS., and thus are included in the term "other professional health care providers" as used in Clark.

Ritt argues that Clark is distinguishable because Dr. Skelding is not licensed under ch. 448, STATS., as podiatrists are. Chapter 448 is entitled "Medical Practices." However, in view of the footnote we have just quoted, Clark cannot be read to limit health care providers under § 893.55, STATS., to those licensed under ch. 448. Clark must be read to include those licensed under the statutes listed in the footnote, and that includes dentists.

Doe v. American Nat'l Red Cross, 176 Wis.2d 610, 500 N.W.2d 264 (1993), does not hold otherwise. In Doe, the court held that American National Red Cross, a blood bank, was not a health care provider under § 893.55, STATS. The court stated:

This case is different from Clark where we found that a podiatrist was a "health care provider" under sec. 893.55. The Red Cross is not involved in the diagnosis, treatment or care of patients as are podiatrists. The Red Cross is not licensed to practice medicine by the state of Wisconsin or any medical examining board. Likewise, we reject the Red Cross' argument that this case is similar to claims against radiologists or pathologists who have no direct patient contact but fall within the scope of sec. 893.55. The Red Cross is not involved in diagnosing and recommending treatment for patients as are radiologists and pathologists. The conduct of the Red Cross in collecting and selling blood products is akin to the conduct of pharmaceutical manufacturers[199 Wis.2d 62] or suppliers of medical equipment, not health care providers.

Id. at 617, 500 N.W.2d at 266.

Ritt points to the references to "licensed to practice medicine" and "medical examining board" in this passage from Doe in support of his argument. We are persuaded that Doe does not hold that a health care provider under § 893.55, STATS., must be licensed under ch. 448, STATS. The more accurate statement of the Doe holding is that the Red Cross is not a health care provider under § 893.55 because it "plays no role in the diagnosis, treatment or care of patients [but rather] is the supplier of a product that is used by health care providers in their treatment of patients." Id. at 616-17, 500...