Wisconsin Appellate Court Applies Discovery Rule In Reviving Medical Malpractice Wrongful Death Case

In its decision filed on February 14, 2019, the Wisconsin Court of Appeals held in a Wisconsin medical malpractice wrongful death case that “summary judgment should not have been granted in favor of [the defendant cardiac surgeon]. Instead, we conclude that there are competing reasonable inferences from the undisputed facts in this case that require a jury to determine whether [the plaintiff] exercised reasonable diligence under these circumstances. To be clear, we do not conclude that [the plaintiff] exercised reasonable diligence. As noted in Wisconsin case law, that is a decision for a jury to make.”

The Underlying Facts

The defendant cardiac surgeon performed heart surgery on the plaintiff’s wife in July 2011 to replace her mitral heart valves. Following the surgery, the defendant came to the waiting room and told the plaintiff that he had not replaced his wife’s heart valves. The plaintiff asked the defendant why he had not replaced the valves, and the defendant did not answer. Either in the waiting room or a few hours later in his wife’s intensive care unit room, the defendant told the plaintiff that “every time he touched a valve, it would flake away.”

The wife’s condition deteriorated in the weeks following the surgery. Approximately two weeks after the surgery, her kidneys and liver began to fail. Neither the defendant nor any other medical personnel explained to the plaintiff why his wife’s kidneys and liver were failing, and the plaintiff did not ask. Approximately four weeks after the surgery, the plaintiff’s wife died.

Shortly after his wife’s death, the plaintiff requested his wife’s medical records because, in his own words, he “wanted to maybe find out why the procedure was never done” and because he was surprised that she had died following the surgery. Ultimately, the plaintiff did not obtain a copy of his wife’s medical records because he could not afford the cost of the records.

In January 2016, the plaintiff read a newspaper article on medical disciplinary practices which reported that the hospital that employed the defendant had fired him following two unsuccessful procedures, including his wife’s surgery. The article reported that according to medical board records: (1) the defendant had left the plaintiff’s wife on a heart bypass machine for too long, which caused her kidney and liver failures and, ultimately, her death; and (2) the defendant should have replaced her heart valves with an artificial device, rather than attempting to repair them. According to the article, the hospital fired the defendant in October 2011 after hiring a consultant to review records of the seven patients he had operated on during his time at the hospital. The article also reported that the Wisconsin Medical Examination Board learned of the defendant’s termination in 2013 and accepted the surrender of his medical license in 2014.

Wisconsin Medical Malpractice Statute Of Limitations

The Wisconsin medical malpractice statute of limitations is set forth in WIS. STAT. § 893.55(1m), which states, in relevant part:

[A]n action to recover damages for injury arising from any treatment or operation performed by … a person who is a health care provider … 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 ….

Section 893.55(1m).

The Wisconsin Court of Appeals stated that it is undisputed in the case before it that the plaintiff filed the Wisconsin medical malpractice wrongful death complaint more than three years after the alleged injury. Thus, the sole issue on appeal is whether the complaint was timely filed under the “discovery rule” in WIS. STAT. § 893.55(1m)(b), which provides that a complaint may be brought within “[o]ne year from the date the injury was discovered or, in the exercise of reasonable diligence should have been discovered ….”

The Wisconsin Court of Appeals stated that whether a party has exercised reasonable diligence is tied to the facts of each case. The test is whether a reasonable person under the same or similar circumstances as the plaintiff should have discovered his injury and its cause. In an appropriate case, an initial suspicion may trigger the discovery or the obligation to exercise reasonable diligence to discover the injury. However, in another case, a greater degree of certainty may be required. Importantly, a court must consider whether the plaintiff in the present case had available to him information relevant to his exercise of reasonable diligence.

The Wisconsin Court of Appeals stated that a reasonable inference is that a reasonable person in the plaintiff’s position would have believed that he did not have the right to demand any further information from the defendant or any other health care provider while his wife was still alive. Moreover, the plaintiff asked the defendant once for pertinent information and received no answer. A reasonable inference that can be drawn from that fact is that the defendant was not going to tell the plaintiff anything about what happened during the surgery or why his wife was in the condition she was in – a reasonable inference is that a reasonable person in the plaintiff’s position would have believed that the defendant and other providers were not going to give any information, even if he demanded it.

The Wisconsin Court of Appeals further stated that a reasonable inference in this case is that a layperson would not have had objective reasonable evidence of medical malpractice because of the bad result (the undisputed facts may support the inference that wife’s death was a “normal” death due to complications from heart surgery).

The Wisconsin Court of Appeals stated that there is nothing in the record supporting the inference that the hospital would have given the plaintiff any information regarding his wife’s death, or regarding the fact of and reasons for the defendant’s subsequent termination. A reasonable inference (at the very least) is that the hospital would have not given the plaintiff any information other than that the defendant was no longer employed at the hospital, and that a reasonable person in the plaintiff’s position, believing that to be the case, would have addressed no further inquiries to the hospital. “A jury should consider that reasonable inference in deciding whether [the plaintiff] exercised reasonable diligence.”

The Wisconsin Court of Appeals stated that under Wisconsin law regarding the exercise of reasonable diligence, information must be reasonably accessible and within a person’s reach. Without the means to pay for the medical records, a reasonable inference which may be drawn from that undisputed fact is that any reasonable person in the plaintiff’s circumstances did not have reasonable access to the medical records, and those records were not within his reach. All reasonable inferences must be drawn in favor of the non-movant on summary judgment. Without the medical records, a reasonable inference is that there is no more than a hunch as to what, if anything, may have gone wrong related to the plaintiff’s wife’s death, and a hunch is insufficient to trigger the statute of limitations.

The Wisconsin Court of Appeals held that “there are competing reasonable inferences from the undisputed facts in this case that require a jury to determine whether [the plaintiff] exercised reasonable diligence under these circumstances.”

Source The Estate of Nancy A. Glumske v. Sean Yetman, M.D., Appeal No. 2018AP715.

If you or a loved one may have been injured as a result of medical negligence in Wisconsin, you should promptly find a Wisconsin medical malpractice lawyer who may investigate your medical malpractice claim for you and represent you or your loved one in a Wisconsin medical malpractice case, if appropriate.

Click here to visit our website or call us toll-free in the United States at 800-295-3959 to find medical malpractice attorneys in Wisconsin, or in your U.S. state, who may assist you.

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This entry was posted on Monday, February 25th, 2019 at 5:30 am. Both comments and pings are currently closed.

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