Webb v. Ocularra Holding, Inc., 99-0979-FT.

• Decision Date: 28 December 1999
• Docket Number: No. 99-0979-FT.,99-0979-FT.
• Citation: 2000 WI App 25,232 Wis.2d 495,606 N.W.2d 552
• Parties: Roger S. WEBB and Cynthia L. Webb, Plaintiffs-Appellants-Cross-Respondents, v. OCULARRA HOLDING, INC., d/b/a Pearle Vision Express, and Travelers Indemnity Company, Defendants-Respondents-Cross-Appellants.
• Court: Wisconsin Court of Appeals

232 Wis.2d 495

2000 WI App 25

606 N.W.2d 552

Roger S. WEBB and Cynthia L. Webb, Plaintiffs-Appellants-Cross-Respondents,¹ v. OCULARRA HOLDING, INC., d/b/a Pearle Vision Express, and Travelers Indemnity Company, Defendants-Respondents-Cross-Appellants.

No. 99-0979-FT.

Court of Appeals of Wisconsin.

Submitted on briefs August 16, 1999.

Decided December 28, 1999.

On behalf of the plaintiffs-appellants-cross-respondents, the cause was submitted on the briefs of Michael J. Happe of Kelly & Ryberg, S.C., of Eau Claire.

On behalf of the defendants-respondents-cross-appellants, the cause was submitted on the brief of Thomas J. Niemiec of Bassford, Lockhart, Truesdell & Briggs, P.A., of Minneapolis, Minnesota.

Before Wedemeyer, P.J., Fine and Curley, JJ.

¶ 1. CURLEY, J.

Roger Webb appeals from the trial court's grant of summary judgment to Ocularra Holding, Inc., d/b/a Pearle Vision Express (Pearle Vision). Webb argues that the trial court erred when it determined that the medical malpractice statute of limitations applied to his action seeking damages from a Pearle Vision optometrist who, he claimed, failed to note an abnormal test result from Webb's eye examination and to refer Webb to a medical specialist. Webb also contends that the trial court erred in determining that the medical malpractice statute of limitations had expired before he brought his action. Pearle Vision asks that we affirm the trial court's summary judgment decision, and it submits that summary judgment could be affirmed on another ground not granted by the trial court; that is, that Webb's summary judgment submissions were insufficient to prove that the optometrist had a duty to refer Webb to another medical care provider.

¶ 2. We conclude that the medical malpractice statute of limitations applies to Webb's action; that the action was time-barred; and that Webb failed to submit adequate affidavits to prove his claim of optometrist negligence. Consequently, we affirm both the trial court's conclusion that the medical malpractice statute of limitations applies and its determination that the statute of limitations expired prior to Webb's commencement of his suit. Although we affirm the trial court's grant of summary judgment, we disagree with the trial court's determination that Webb's submissions were adequate to prove optometrist negligence.

I. BACKGROUND.

¶ 3. On February 23, 1994, Webb made his first and only stop at a Pearle Vision store, where he had his eyes examined. He decided to have his eyes examined because he had been experiencing headaches and blurred vision, which he thought might be attributable to a change in his eyesight. Webb was examined by Dr. Larry Knutzen, a licensed optometrist employed by Pearle Vision. The examination of Webb's eyes lasted approximately forty-five minutes. Although Webb's recollection of the examination is scanty and he could not remember being asked any questions about his family medical history, he averred that, had he been asked any questions about his family medical history, he would have related a family history of brain disease and high blood pressure. Dr. Knutzen also had little independent recollection of his examination of Webb. In his deposition, he testified about Webb's eye examination with the aid of the Pearle Vision medical record generated at the time of the examination. Dr. Knutzen stated that the document revealed that Webb recited no unusual family medical history and he observed no other conditions which would have prompted him to refer Webb to another medical provider. Further, Dr. Knutzen testified that while Webb's eyesight was not perfect, the examination was unremarkable, revealing nothing unusual for a man of forty-two years of age. The Pearle Vision report also verified that Dr. Knutzen prescribed eyeglasses for Webb, which Webb purchased that day. ¶ 4. Webb continued to have headaches and, in February of 1995, he complained about them to his family doctor, Dr. Asplund. Dr. Asplund initially treated Webb for migraine headaches, but he also made arrangements for Webb to have a CAT scan. Before the date of the CAT scan, however, Webb was admitted to the emergency room suffering from acute headache pain. Shortly thereafter, a CAT scan was performed and Webb was diagnosed with having a meningioma, a slow-growing encapsulated brain tumor, which was subsequently surgically removed on February 27, 1995. Sometime in 1995, Webb inquired of his surgeon, Dr. Rankin, whether the tumor could have been detected by the optometrist. Dr. Rankin replied that he thought it was "possible." Webb then waited until April 1996 to contact a lawyer to explore the possibility of a lawsuit. On April 27, 1997, one of Webb's lawyers consulted with Dr. Roy Olson. Dr. Olson told the attorney that Dr. Knutzen was negligent; Dr. Olson said that he reviewed the medical record of the eye examination, and he detected an abnormality which should have prompted Dr. Knutzen to refer Webb to a medical specialist.

¶ 5. Webb commenced his suit on February 25, 1998. Pearle Vision brought a summary judgment motion, arguing that under the medical malpractice statute of limitations found in WIS. STAT. § 893.55,² Webb's suit was untimely. Pearle Vision also contended that Webb failed to provide sufficient proof to support his claim that, under the circumstances presented here, Dr. Knutzen had a duty to refer Webb to a medical care provider. ¶ 6. In response, Webb argued that the statute of limitations found in WIS. STAT. § 893.54, not § 893.55, applied to his action. Further, Webb asserted that if the medical malpractice statute of limitations did apply to his suit, his suit was timely because he did not discover his injury until Dr. Olson opined to his attorney that Dr. Knutzen was negligent. Alternatively, he argued that the discovery date of his injury is a factual determination, making it inappropriate for resolution by summary judgment. Finally, he maintained his summary judgment submissions were sufficient to prove that Dr. Knutzen was negligent.

¶ 7. The trial court found that the medical malpractice statute of limitations embodied in WIS. STAT. § 893.55 governed Webb's suit and found that the statute of limitations had run. The trial court, however, did find that Webb's supporting affidavits were sufficient and survived Pearle Vision's summary judgment challenge. Webb appeals and Pearle Vision cross-appeals.

II. ANALYSIS.

A. The statute of limitations found in WIS. STAT. § 893.55 controls this suit.

¶ 8. Webb is suing Pearle Vision for damages allegedly caused by the delay in diagnosing his brain tumor. He claims the Pearle Vision optometrist should have detected evidence of his brain tumor and referred him to a medical specialist because his eye examination revealed an abnormal test result. Webb argues that the statute of limitations found in WIS. STAT. § 893.54 applies to his action, not the medical malpractice statute of limitations found in WIS. STAT. § 893.55.

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¶ 9. Determining which statute of limitations applies to an action is a question of law that we review de novo. See Ritt v. Dental Care Assocs., 199 Wis. 2d 48, 60, 543 N.W.2d 852 (Ct. App. 1995).

¶ 10. The medical malpractice statute of limitations, WIS. STAT. § 893.55, in pertinent part, reads:

Medical malpractice; limitation of actions; limitation of damages; itemization of damages.

(1) Except as provided by subs. (2) and (3), an 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.

Webb argues that this is not a medical malpractice suit. Rather, Webb insists that the statute of limitations found in WIS. STAT. § 893.54 should apply. Section 893.54 provides:

Injury to the person. The following actions shall be commenced within 3 years or be barred:

(1) An action to recover damages for injuries to the person.

(2) An action brought to recover damages for death caused by the wrongful act, neglect or default of another.³

As support for his position, Webb notes that Dr. Knutzen is not a listed health care provider under the definitions found in WIS. STAT. § 655.001(8).⁴ Section 655.001(8) reads: "`Health care provider' means a person to whom this chapter applies under s. 655.002 (1) or a person who elects to be subject to this chapter under s. 655.002 (2)." Chapter 655 regulates health care liability and establishes the patients compensation fund. Webb argues that an "optometrist" is not found in WIS. STAT. § 655.002(1),⁵ listing the mandatory participants of Chapter 655, nor is an "optometrist" found in § 655.002(2),⁶ listing the optional participants of Chapter 655.

¶ 11. Moreover, Webb posits that the legislative history of Chapter 655 buttresses his contention that the medical malpractice statute of limitations should not apply to his suit. Webb claims that the rationale behind Chapter 655 can be found in Lund v. Kokemoor, 195 Wis. 2d 727, 537 N.W.2d 21 (Ct. App. 1995). In Lund, this court explained that the motive behind the passage of Chapter 655 was the belief that "medical malpractice suits [were] rapidly increasing," id. at 734, and with the increase in suits came an increase in liability insurance, resulting in "many physicians refrain[ing] from providing certain health care services because of the high risk associated with those services," id. at 735. Webb gleans from these statements that the medical malpractice liability legislation was an attempt to hold down the cost of medical malpractice suits against physicians by, inter...