Zielke v. Wausau Memorial Hospital

• Decision Date: 13 January 1982
• Docket Number: No. 80-C-147.,80-C-147.
• Citation: 529 F. Supp. 571
• Court: U.S. District Court — Western District of Wisconsin
• Parties: Melissa Phyllis ZIELKE, a Minor, by her parents and next friends, Sharone C. Zielke and E. Ronald Zielke, and Sharone C. Zielke and E. Ronald Zielke, individually, Plaintiffs, v. WAUSAU MEMORIAL HOSPITAL, Now Known as Wausau Hospital, Inc., and their Insurers, Continental Insurance Company; T. H. Peterson, M.D., and his Insurer, the Medical Protective Company; Donald Janes, M.D., and his Insurer, the Medical Protective Company; and Martha Stargardt, C.R.N.A., and her Insurer, Continental Insurance Company, Defendants.

529 F. Supp. 571

Melissa Phyllis ZIELKE, a Minor, by her parents and next friends, Sharone C. Zielke and E. Ronald Zielke, and Sharone C. Zielke and E. Ronald Zielke, individually, Plaintiffs, v. WAUSAU MEMORIAL HOSPITAL, Now Known as Wausau Hospital, Inc., and their Insurers, Continental Insurance Company; T. H. Peterson, M.D., and his Insurer, the Medical Protective Company; Donald Janes, M.D., and his Insurer, the Medical Protective Company; and Martha Stargardt, C.R.N.A., and her Insurer, Continental Insurance Company, Defendants.

No. 80-C-147.

United States District Court, W. D. Wisconsin.

January 13, 1982.

COPYRIGHT MATERIAL OMITTED

Turner & Shoemaker, Rockford, Ill., for plaintiffs.

Richard A. Hollern, Brian E. Butler and Jeffrey M. Gallagher, Stafford, Rosenbaum, Rieser & Hansen, Madison, Wis., for defendants Martha Stargardt, Wausau Memorial Hospital and Continental Ins. Co.

Douglas J. Klingberg, Wausau, Wis., for defendants T. H. Peterson, The Medical Protective Co., and Donald Janes.

CRABB, District Judge.

This is a civil case for monetary damages based on the alleged improper medical treatment provided to Melissa Phyllis Zielke (Melissa) at the time of, and immediately following, her birth. Jurisdiction is based upon diversity of citizenship. 28 U.S.C. § 1332.

Melissa, by her parents, has alleged that defendants Wausau Memorial Hospital, now known as Wausau Hospital, Inc., Dr. T. H. Peterson, Dr. Donald Janes, and Martha Stargardt, C.R.N.A. caused her to suffer brain damage by acting contrary to prevailing and accepted medical standards. In addition, Melissa's parents, Sharone C. and E. Ronald Zielke (the parents) have alleged a separate injury to themselves as parents because of medical and caretaking expenses they have incurred and will incur for the care and treatment of their disabled daughter. The Medical Protective Company, insurer of defendants Peterson and Janes, has been joined as a defendant; Continental Insurance Company, insurer of defendants Wausau Hospital and Stargardt, has also been named a defendant.

This matter is before the court on three motions to dismiss various counts of the complaint for failure to state a claim on which relief can be granted.¹ First, defendant Continental moves to dismiss all claims against it because it was not identified as a joined party until after the limitations period expressed in Wis.Stats. § 893.235 (1977) had run. Second, all of the defendants have moved to dismiss all claims brought by the parents, contending that such claims are barred by the statute of limitations, Wis. Stats. § 893.205 (1977).² Finally, defendant Medical Protective moves to dismiss all claims against itself as insurer of defendant Peterson on the basis of a clause in its contract with Peterson prohibiting direct actions by injured parties.

In considering a motion to dismiss, the facts alleged in the complaint are presumed to be true and the motion should not be granted if a claim for relief could conceivably be proven by those facts. Kochlacs v. Local Board No. 92, 476 F.2d 557 (7th Cir. 1973); United Milk Products Co. v. Lawndale National Bank of Chicago, 392 F.2d 876 (7th Cir. 1968). Applying this standard to the allegations of the second amended complaint, I find the following to be facts for the sole purpose of disposing of these motions.

FACTS

On May 10, 1970, Melissa was born at Wausau Hospital. Defendant health care providers were responsible for Melissa's care and either failed to act or acted improperly concerning a number of required or warranted procedures. These acts and omissions caused continuing injury to Melissa, beginning on the day of her birth.

Melissa was delivered in the frank breech position and at birth had a delay in respiration, respiratory distress and a sluggish Moro reflex. Moreover, as a direct result of the acts and omissions of the defendant health care providers, Melissa became hypoxic, hypoglycemic, cyanotic, cold stressed, suffered seizures and sustained brain damage.

On May 10, 1970, defendants Wausau Hospital and Stargardt were insured by Continental; defendants Peterson and Janes were insured by Medical Protective.

In both their original and first amended complaints, plaintiffs named as a defendant the "unknown insurer" of defendants Wausau Hospital and Stargardt. Not until they filed their second amended complaint on July 3, 1980, did plaintiffs name Continental and identify it as a party.³

OPINION

I. Claims Against Continental

Continental has moved to dismiss the second amended complaint for failure to state a claim upon which relief may be granted on the grounds that all claims against Continental are barred by the applicable statute of limitations. Since I consider the dismissal of the parents' claims against all parties in Part II infra, I will treat this motion as one to dismiss the claims of plaintiff Melissa against defendant Continental.

A motion to dismiss for failure to state a claim is generally to be decided on the basis of the allegations of the complaint alone. Where the complaint is definite enough to permit consideration of a limitations defense without resort to facts outside the complaint, however, the limitations defense may be raised and acted upon through a motion to dismiss the complaint. Contract Buyers League v. F & F Investment, 300 F.Supp. 210, (N.D.Ill.1969), aff'd 420 F.2d 1191 (7th Cir.), cert. denied 400 U.S. 821, 91 S.Ct. 40, 27 L.Ed.2d 49 (1970).

Continental's claim is based on the fact that it was not actually named and identified as a party until the filing of the second amended complaint. Since the cause of action accrued on May 10, 1970, Continental claims that the ten-year limitations period specified in § 893.235⁴ bars plaintiff's action against it.

A. Applicability of § 893.235

Plaintiff argues that § 893.235 is not applicable because it was not in effect in 1970 at the time the cause of action accrued. Plaintiff contends that the section governing the timeliness of this action is Wis. Stats. § 893.33 (1977), which tolls the running of the statute of limitations until a minor reaches the age of eighteen and then provides an additional year in which to bring suit.

Plaintiff's argument rests on the applicability of Wis.Stats. § 991.07⁵ to this case. Plaintiff believes that § 991.07 prohibits the retroactive application of § 893.235 to her situation, because the cause of action accrued under a different statute, § 893.33. I conclude that plaintiffs' argument is not supported by Wisconsin law.

In Feest v. Allis-Chalmers, 68 Wis.2d 760, 229 N.W.2d 651 (1975), the Supreme Court for the State of Wisconsin discussed the effect of § 991.07 where the time in which a minor was to file his action under § 893.33 had been altered by an amendment to the latter statute. The amendment had lowered the age of majority from twenty-one to eighteen when the plaintiff was already twenty years old; the plaintiff argued that § 991.07 prohibited the changing of the limitations period that already applied to his cause of action. The court dismissed plaintiff's complaint, holding that his claim, which was brought later than one year after plaintiff reached eighteen and later than one year after the effective date of the new enactment, was barred by the statute as amended.

In reaching this conclusion, the court noted that § 893.33 does not set a limitations period, but instead tolls the limitations period until the minor reaches legal age. At that point, the injured person has one year in which to bring an action.

The court noted that § 991.07 applies only where a limitation period has "begun to run." It found that until a minor reaches eighteen (or twenty-one), the tolling period of § 893.33 is in effect and his or her limitations period has not begun to run. The court concluded that § 991.07 was not applicable because "the relevant period of limitation barring the plaintiff's cause of action had not begun to run on the effective date" of the new provision lowering the age of majority. Id. at 765, 229 N.W.2d 651. Since the old version of the statute was not a "running" limitations period, § 991.07 did not prohibit the new version from applying to plaintiff.

This same principle must govern the issue at bar. Although § 893.235 was not enacted until 1977, § 991.07 does not prohibit its application to plaintiff's case, since no other limitations period barring plaintiff's action had begun to run by 1977. According to Feest, § 893.33 was merely tolling the running of the limitations period until plaintiff reached majority. Consequently, § 893.235, not § 893.33, is the appropriate section by which to determine whether Melissa's claims against Continental are barred.

B. Exception for Developmental Disabilities

Section 893.235 exempts from its operation a person with a "developmental disability." Thus, even though § 991.07 does not prevent § 893.235 from applying to Melissa's claims, the ten-year limitation in that statute may not apply if Melissa can be shown to be a person with a developmental disability.

Section 893.235 contains no explanation or definition of "developmental disability."⁶ Defendant Continental suggests that the definition found in Wis.Stats. § 51.01(5)(a) of the State Mental Health Act, is applicable to this case: (5)(a) "Developmental disability" means a disability attributable to mental retardation, cerebral palsy, epilepsy, autism, or another neurological condition closely related to mental retardation or requiring treatment similar to that required for mental retardation, which has continued or can be expected to continue indefinitely and constitutes a substantial handicap to the afflicted individual. "Developmental disability" does not include senility which is primarily caused by the process of aging or the infirmities of aging.

Continental contends that Melissa's condition does not fall within this definition.

I find no reason to believe that a definition found in the ...