Wiegert v. Goldberg

• Decision Date: 14 January 2004
• Docket Number: No. 03-0891.,03-0891.
• Citation: 2004 WI App 28,269 Wis.2d 695,676 N.W.2d 522
• Parties: Deborah E. WIEGERT and Terry S. Wiegert, Plaintiffs-Appellants, v. Jerry W. GOLDBERG, M.D., Defendant-Respondent.
• Court: Wisconsin Court of Appeals

269 Wis.2d 695

2004 WI App 28

676 N.W.2d 522

Deborah E. WIEGERT and Terry S. Wiegert, Plaintiffs-Appellants, v. Jerry W. GOLDBERG, M.D., Defendant-Respondent.

No. 03-0891.

Court of Appeals of Wisconsin.

Submitted on briefs August 22, 2003.

Decided January 14, 2004.

On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of David P. Lowe and Paul R. Jacquart of Jacquart & Lowe, S.C., Milwaukee.

On behalf of the defendant-respondent, the cause was submitted on the brief of Randall J. Sandfort of Marshfield Clinic, Marshfield.

Before Anderson, P.J., Brown and Snyder, JJ.

¶ 1. SNYDER, J.

Deborah E. and Terry S. Wiegert appeal from an order granting Dr. Jerry W. Goldberg's motion for summary judgment. The Wiegerts contend that the trial court erred when it concluded that the applicable statute of limitations barred the Wiegerts' claim against Dr. Goldberg for medical malpractice. We disagree and affirm the order of the trial court.

FACTS

¶ 2. On November 24, 1997, Deborah Wiegert (Wiegert) was hospitalized at St. Joseph's Hospital in Sheboygan county with an undiagnosed inflammatory/autoimmune disorder that included symptoms of fatigue, pain in her extremities, and insomnia. While hospitalized, she saw Dr. Goldberg, who prescribed medication that provided relief of her symptoms. Following release from the hospital, Wiegert followed up with Dr. Goldberg by appointment on December 30, 1997, and then by phone in January and February 1998.

¶ 3. Wiegert's symptoms returned and she called Dr. Goldberg on March 18, 1998. Dr. Goldberg prescribed 30 mg. of Temazepam per day for thirty days without requiring an office appointment. Possible side effects of Temazepam include anxiety, insomnia, abuse and addiction, depression, disinhibition, and other mental and behavioral reactions.

¶ 4. On April 14, 1998, Wiegert called Dr. Goldberg's office for a refill of Temazepam. Dr. Goldberg did not speak to Wiegert, but provided her with prescriptions for three thirty-day refills of Temazepam. In April 1998, Wiegert's behavior started to change drastically. She experienced mood fluctuations, in addition to aggressive, argumentative, and unstable behavior that led to several interventions by local police. Wiegert made an appointment with Dr. Goldberg for May 12, 1998. Dr. Goldberg's notes from this appointment state that Wiegert's condition had improved, but make no reference to her use of Temazepam, and no mention of the behavioral problems Wiegert had been experiencing prior to the visit. The parties dispute whether Wiegert discussed her behavioral changes with Dr. Goldberg at the May 12 appointment, but for purposes of this appeal, Dr. Goldberg accepts her contention that she did.

¶ 5. After the May 12 appointment, Wiegert's condition deteriorated rapidly, and on June 16, 1998, Wiegert became manic and chased her husband's car through the streets of Sheboygan, ramming into it with her own vehicle.

¶ 6. Later that day, the police were called to the Wiegert home where Wiegert had stripped off her clothing and begun to cut her chest, breasts, arms, and legs with pieces of glass from a container she had broken. The police detained Wiegert and she was committed to Sheboygan Memorial Medical Center, where she stayed until June 18, 1998. The hospital psychiatrist informed Weigert that her abnormal behavior was probably caused by the Temazepam, and she stopped taking the drug.

¶ 7. The Wiegerts filed their claim of medical malpractice on June 14, 2001. Dr. Goldberg then moved for summary judgment on grounds that the Wiegerts' action was not timely brought under WIS. STAT. § 893.55 (2001-02).¹ Dr. Goldberg argued that the statute of limitations had run because the claim was not filed within three years of Dr. Goldberg's last negligent act on May 12, 1998, the date of Wiegert's final visit to Dr. Goldberg. The Wiegerts argued that the continuum of negligent medical treatment doctrine extended Dr. Goldberg's negligence to at least June 18, 1998, because Dr. Goldberg negligently failed to monitor Wiegert during the course of her use of Temazepam. The trial court granted Dr. Goldberg's motion for summary judgment and found that no negligent act occurred after May 12, 1998. The Wiegerts appeal from the order for summary judgment.

DISCUSSION

[1]

¶ 8. In reviewing a grant of summary judgment, an appellate court applies the standards set forth in WIS. STAT. § 802.08(2) in the same manner as the circuit court. Hubbard v. Messer, 2003 WI 145, ¶ 7, 267 Wis. 2d 92, 673 N.W.2d 676. Our methodology is as follows. We must first determine whether the complaint states a claim. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987). If the plaintiff has stated a claim and the pleadings show the existence of factual issues, then we must examine whether the moving party has presented a defense that would defeat the claim. Preloznik v. City of Madison, 113 Wis. 2d 112, 116, 334 N.W.2d 580 (Ct. App. 1983). If the defendant has made a prima facie case for summary judgment, the court examines the pleadings, affidavits, depositions, answers to interrogatories, and admissions on file to determine whether a genuine issue exists as to any material fact, or whether reasonable conflicting inferences may be drawn from undisputed facts, therefore requiring a trial. See Green Spring Farms, 136 Wis. 2d at 315

.

[2-4]

¶ 9. Summary judgment is proper when no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. WIS. STAT. § 802.08(2). We will reverse a decision granting summary judgment if either (1) the trial court incorrectly decided legal issues, or (2) material facts are in dispute. Deminsky v. Arlington Plastics Mach., 2001 WI App 287, ¶ 9, 249 Wis. 2d 441, 638 N.W.2d 331,aff'd,2003 WI 15, 259 Wis. 2d 587, 657 N.W.2d 411,reconsideration denied, 2003 WI 91, 262 Wis. 2d 505, 665 N.W.2d 378. Taking these in reverse order, we first scour the record to determine whether material facts are in dispute. All inferences drawn from the underlying facts are interpreted in the light most favorable to the nonmoving party; therefore, we consider the pleadings and affidavits in the light most favorable to the Wiegerts. See Grams v. Boss, 97 Wis. 2d 332, 338-39, 294 N.W.2d 473 (1980)

.

[5]

¶ 10. A claim for medical malpractice, like any claim for negligence, requires four elements: (1) a breach of (2) a duty owed (3) that results in (4) an injury or injuries or damages. Paul v. Skemp, 2001 WI 42, ¶ 17, 242 Wis. 2d 507, 625 N.W.2d 860. The Wiegerts have alleged all elements required for a medical malpractice claim and Dr. Goldberg's answer is sufficient to join issue. Dr. Goldberg's motion for summary judgment provides a prima facie case based on the statutory time limits for medical malpractice claims proscribed by WIS. STAT. § 893.55(1). The Wiegerts' response and accompanying affidavit assert that an issue of material fact does exist. Our analysis of the record, however, indicates that only a question of law remains.

¶ 11. The Wiegerts argue that "[b]y providing Mrs. Wiegert with a continuum of negligent care, including prescribing ninety days of medication with dangerous side effects, Dr. Goldberg must accept a ninety day period of professional responsibility to monitor his patient." In support of their argument, the Wiegerts reference the affidavit of Peter R. Breggin, M.D. Dr. Breggin states:

It is my opinion that Dr. Goldberg provided Mrs. Wiegert a continuum of substandard care that began on the date of his first temazepam prescription to her, March 18, 1998, and continued through and after June 18, 1998 because Dr. Goldberg was not monitoring her use of the drug or its effects during this unusually lengthy period of use.

Dr. Goldberg, for purposes of this appeal, does not dispute that a physician has a duty to monitor a patient who is taking medication such as Temazepam. Rather, Dr. Goldberg asserts that the last act of negligence could not have occurred later than May 12, 1998, Wiegert's final office visit. The Wiegerts point to the dispute over the last date of negligence as an issue of material fact, rendering summary judgment inappropriate.

[6,7]

¶ 12. We disagree with the Wiegerts' attempt to recast the question of Dr. Goldberg's duty from a question of law to an issue of material fact. The issue before us is whether Dr. Goldberg's duty to monitor Wiegert was ongoing and constant through the full ninety-day prescription refill period. Whether a legal duty exists in a negligence case and the scope of that duty are questions of law. See Gould v. Am. Family Mut. Ins. Co., 187 Wis. 2d 671, 675, 523 N.W.2d 295 (Ct. App. 1994),

rev'd on other grounds,

198 Wis. 2d 450, 543 N.W.2d 282 (1996). Whether Dr. Goldberg's legal duty to monitor Wiegert existed until June 18, 1998, is, therefore, a question of law. Summary judgment is proper and will be upheld on review when only a question of law is presented. Hubbard, 267 Wis. 2d 92, ¶ 7.

¶ 13. We now turn our attention to whether the trial court correctly decided the question of law. Dr. Goldberg asserts that the Wiegerts' claim is barred by the applicable statute of limitations. The Wiegerts and Dr. Goldberg agree that the applicable statute of limitations is WIS. STAT. § 893.55(1), which provides in relevant part:

[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. . . .

[8]

¶ 14. Under this statute, the date of Wiegert's injury triggers the beginning of the limitations period. A patient has either the three-year general time period or the one-year time period from the date of discovery, whichever is later, in...