Robinson by Robinson v. Mount Sinai Medical Center

• Decision Date: 01 April 1987
• Docket Number: No. 84-2301,84-2301
• Citation: 137 Wis.2d 1,402 N.W.2d 711
• Parties: Humberto ROBINSON, by Jane ROBINSON, Legal Guardian, and Jane Robinson, Respondents, v. MOUNT SINAI MEDICAL CENTER, a domestic corporation, Wisconsin Health Care Liability Insurance Plan, and Patients Compensation Fund, Appellants- Petitioners.
• Court: Wisconsin Supreme Court

Page 711

402 N.W.2d 711

137 Wis.2d 1

Humberto ROBINSON, by Jane ROBINSON, Legal Guardian, and Jane Robinson, Respondents, v. MOUNT SINAI MEDICAL CENTER, a domestic corporation Wisconsin Health Care Liability Insurance Plan and Patients Compensation Fund Appellants- Petitioners.

No. 84-2301.

Supreme Court of Wisconsin.

Argued Jan. 5, 1987.

Decided April 1, 1987.

Irving W. Zirbel, Kathleen E. Bonville, argued, and Zirbel, Howard & Malone, S.C., Milwaukee, for appellants-petitioners.

Leonard V. Brady, Milwaukee, and oral argument by Thomas P. Tofte, argued, Racine, for respondents.

DAY, Justice.

This is a review of a decision of the court of appeals, Robinson v. Mt. Sinai Medical Center, 127 Wis.2d 285, 379 N.W.2d 326 (Ct.App.1985), affirming an order of the circuit court for Milwaukee county, Honorable Marvin C. Holz, denying a defense motion for summary judgment. The issue presented is whether the services rendered by successive health care providers constituted a "continuum of negligent treatment" such that a single cause of action against these parties arose and the applicable statute of limitations did not begin to run until the last negligent act occurred.

We hold that, under the facts as alleged by Plaintiff, the services rendered by the health care providers can be properly characterized as a "continuum of negligent treatment" within the meaning of that phrase as explained in Tamminen v. Aetna Casualty & Surety Co., 109 Wis.2d 536, 327 N.W.2d 55 (1982). We therefore hold that Plaintiff's claim against Defendants was timely brought. ^1. We affirm the decision of the court of appeals upholding the denial of summary judgment.

On January 20, 1979, Humberto Robinson (Plaintiff), sixteen years old, came to the Mount Sinai Medical Center (Mount Sinai) emergency room and was examined by a resident. The Plaintiff complained of having a toothache and a frontal headache. He had been vomiting for five days, his right eye was swollen and caused him pain over the right temporal area, and his right cheek was swollen. In addition, he was suffering from chills and a fever. The resident allegedly misdiagnosed the problem. An oral medication was prescribed and the Plaintiff was instructed to return to the primary care clinic in two weeks.

The Plaintiff's condition worsened, and he returned to Mount Sinai on January 23, 1979, with his right eye swollen shut. On this occasion he was examined by a Dr. Mary Lynn Ryan, who was on staff at Mount Sinai and Milwaukee Children's Hospital (Children's). Dr. Ryan admitted Plaintiff to Children's and remained his attending physician throughout his stay. ^2.

At Children's, Plaintiff underwent an allegedly negligent course of treatment, directed at stemming the spread of infection to the brain. These efforts were unsuccessful, and the spread of the infection caused an intra-cranial abscess. As a result of the alleged negligent treatment, the Plaintiff suffered severe brain damage. According to Plaintiffs' medical expert, Doctor Eric B. Zurbrugg, a specialist in pediatric neurology who provided a report on the Plaintiff which was included in papers submitted in opposition to the summary judgment motion, the Plaintiff is "thoroughly demented and a total invalid."

Four major neurosurgical procedures were performed on Plaintiff while he was at Children's. The purpose of these operations was to surgically drain infectious abscess material from different portions of the cranium. The last of these surgeries occurred on April 11, 1979, during which surgeons drained or aspirated a left frontal abscess and a right parasagittal abscess.

Other procedures were required, due to the continued progression of the infection and the unsuccessful attempts at drainage. The Plaintiff developed communicating hydrocephalus, which required the insertion of a shunt. The original placement and various modifications of the shunt took place in May and June of 1979. Plaintiff eventually developed grand mal seizures in June of 1979. He was discharged from Children's on September 13, 1979, and removed to the Sacred Heart Rehabilitation Hospital in Milwaukee.

A submission of controversy ^4. was filed with the Patient's Compensation Panel (Panel) on April 7, 1982, naming both hospitals, Dr. Ryan (the admitting physician), and three additional doctors who performed surgery on Plaintiff at Children's. The Panel dismissed the controversy against Mount Sinai and one of the doctors, ruling that the alleged misdiagnosis took place on January 20, 1979, and that the three year statute of limitations had expired prior to the date the controversy was submitted. ^4. The doctor that was dismissed was said to have had limited contact with the Plaintiff, once on January 25, 1979, and again on February 1, 1979. Thus, as against this doctor, the three year limitations period was stated to have expired prior to the filing of the submission of controversy.

Following Mount Sinai's dismissal, Humberto Robinson, by his mother and legal guardian, Jane Robinson, and Jane Robinson individually, commenced an action on May 2, 1984, ⁵ against Mount Sinai, its insurer, Wisconsin Health Care Liability Insurance Plan, and the Patient's Compensation Fund (COLLECTIVELY, MOUNT SINAI) IN CIRCUIT court. ⁶ mount sinai moved for summary judgment on statute of limitations grounds, and the motion was denied. The trial court focused on language in the Tamminen case which described a cause of action as a "factual unit, whose limits are determined by the time and sequence and unity of the happenings...." Tamminen, 109 Wis.2d at 556, 327 N.W.2d 55. The trial court also relied on Ewing v. General Motors Corp., 70 Wis.2d 962, 236 N.W.2d 200 (1975). The Tamminen court quoted the following from the Ewing opinion defining a "cause of action:" "[t]here is only one cause of action if there is only one grouping of facts falling into a single unit or occurrence as a lay person would view them." 109 Wis.2d at 557, quoting Ewing, 70 Wis.2d at 967, 236 N.W.2d 200.

The trial court, relying on the foregoing, concluded that the claim was not barred by the statute of limitations. The trial court stated: "[i]t is not unreasonable for a lay person to view the whole course of treatment as a single occurrence. Different injuries or conditions did occur medically, but all resulted from the failure to cure an infection."

On appeal of this decision, the court of appeals affirmed the trial court, holding that the alleged negligence of the health care providers (both the hospitals and doctors) "constituted a continuum of negligence resulting in only one cause of action, which accrued at the end of the continuum." Robinson, 127 Wis.2d at 288, 379 N.W.2d 326.

Mount Sinai argued to the court of appeals that Tamminen and the cases on which it relies, each involved a single negligent actor, rather than, as here, different actors at separate institutions. The court of appeals stated: "Mount Sinai is factually correct, but nothing in Tamminen's language limits its holding to a situation with a single negligent actor. In fact, Tamminen's reliance on Ewing for its cause of action theory indicates that its holding should not be so limited." 127 Wis.2d at 290, 379 N.W.2d 326.

Relying in large part on Ewing, the court of appeals held "that a single cause of action arises from a continuum of negligent treatment, whether by a single actor or by successive actors, that results in personal injury." ^7. 127 Wis.2d at 291, 379 N.W.2d 326. Mount Sinai argues that the court of appeals improperly applied the Tamminen holding. It is argued that in Tamminen, one surgeon managed the Plaintiff's entire stay at the hospital, whereas in the instant case there are two separate "actors" or institutions involved. Mount Sinai maintains that its involvement consisted of a single act, and unlike the surgeon in Tamminen, it had "no continuing duty to provide medical services to the Plaintiff, because no physician-patient or hospital-patient relationship existed after January 23, 1979."

Mount Sinai argues that the Tamminen holding must be "confined to the situation where the continuous negligent treatment was rendered by the same group of doctors and/or the same hospital or clinic throughout the period of negligent treatment." The alleged act of negligence by Mount Sinai consisted of one act of the resident on January 20, 1979. Mount Sinai asserts that the single act of medical malpractice cannot constitute a continuum of negligent treatment.

Citing Hansen v. A.H. Robins, Inc., 113 Wis.2d 550, 335 N.W.2d 578 (1983) for the rule that a cause of action accrues when an action of negligence occurs with resulting injury and the injury is discovered, Mount Sinai argues that "[a]ll the necessary elements for accrual of the cause of action" were present on January 23, 1979, when it was clear the prescribed treatment order on January 20th was not working.

In the present case, if Mount Sinai's involvement with the Plaintiff is treated as a separate occurrence, then, since the last day of treatment was January 23, 1979, the three year statute of limitations expired three years after the cause of action accrued. Section 893.04, Stats. If Mount Sinai's involvement is treated as part of a continuing course of negligent treatment, under the Tamminen rule, then the cause of action against it did not accrue until the last negligent act. Under the facts, the last neurosurgical procedure was performed on Plaintiff on April 11, 1979. The submission of controversy was filed April 7, 1982. Thus, under the Tamminen rule, the three year statute would have been tolled prior to its expiration.

In Tamminen, Plaintiff filed a "submission of controversy" with the Patients Compensation Panel on October 30, 1978, claiming that health care services were negligently performed in connection with gastric bypass surgery which she underwent on November 4, 1975. The Panel issued a final order September 26, 1979, finding...