COURT OF APPEALS DECISION DATED AND FILED June 2, 2010 David
R. Schanker Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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APPEAL
from an order of the circuit court for
Before Curley, P.J., Kessler and Brennan, JJ.
¶1 PER CURIAM. Nilima Mehra appeals pro se from a corrected order dismissing her medical malpractice claims against Drs. Steven I. Chang, John E. Whitcomb and Robert C. Hardie, and St. Luke’s Medical Center (“the doctors and St. Luke’s”). We conclude that Mehra’s claims are barred by the three-year statute of limitations. We therefore affirm.
¶2 Mehra sued the doctors and
¶3 St. Luke’s filed an affidavit from its Director of Risk Management, Mary Viergutz, who averred that “[a]t no time during 2003 was St. Luke’s Medical Center the employer of Dr. John W. Whitcomb nor Dr. Robert C. Hardie,” and that “[a]t all times material to the allegations set forth in the plaintiff’s [c]omplaint, both Dr. Whitcomb and Dr. Hardie were independent contractors of St. Luke’s Medical Center.” Other than her unsubstantiated allegations, Mehra did not contradict the Viergutz affidavit.[2] See Wis. Stat. § 802.08(3) (2007-08) (if the adverse party fails to properly substantiate the response, “summary judgment, if appropriate, shall be entered against such party”).[3] Because the only allegation against St. Luke’s was its liability pursuant to respondeat superior (as the employer of Drs. Whitcomb and Hardie), and there is uncontradicted evidence that St. Luke’s was not the employer of Dr. Whitcomb or Dr. Hardie, we affirm the order dismissing St. Luke’s from this action.
¶4 In both her complaint and her amended complaint, Mehra alleged that the “act or omission” of malpractice occurred on the date of the second CT scan, May 12, 2003. Mehra contends that the applicable statute of limitations is five years because Wis. Stat. § 893.55(1m)(b) states that “an action may not be commenced under this paragraph more than 5 years from the date of the act or omission.” Mehra is mistaken.
¶5 The applicable statute of limitations for a medical malpractice action is the later of three years from the date of the injury, or one year from when the injury was or should have been discovered. See Wis. Stat. § 893.55(1m). Mehra alleged that she was injured on May 12, 2003, when the CT scan was misread or “‘INTENTIONALLY’ concealed.” Her allegations do not implicate the discovery deadline of § 893.55(1m)(b). Because she does not implicate the discovery deadline, the five-year deadline on which she mistakenly relies, does not apply.[4] Therefore, Mehra’s medical malpractice action filed January 22, 2008, against the doctors and St. Luke’s for the malpractice she alleged occurred on May 12, 2003 is barred by the three-year statute of limitations. See § 893.55(1m)(a).
¶6 The trial court dismissed Mehra’s action against the doctors
and
By the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] This quoted phrase, including the capitalization, is taken directly from Mehra’s amended complaint.
[2] Mehra apparently does not understand the difference in St. Luke’s legal liability depending on the doctors’ employment status as St. Luke’s employees, or as independent contractors providing services at St. Luke’s and other facilities.
[3] All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
[4] This
five-year deadline applies only to actions commenced pursuant to the one-year
discovery deadline of Wis. Stat. § 893.55(1m)(b). See Forbes v. Stoeckl, 2007 WI App 151,
¶14, 303