PUBLISHED OPINION
Case No.: 94-2457
† Petition
for review filed.
Complete Title
of Case:
JIMETTA CLAYPOOL, MARVIN CLAYPOOL
and JENNIFER CLAYPOOL,
Plaintiffs,
v.
MARK R. LEVIN, M.D. and
WISCONSIN PATIENTS COMPENSATION
FUND,
Defendants-Respondents,
†
AA INSURANCE COMPANY, and
COLUMBIA HOSPITAL,
Defendants,
RUSSELL GOLDSTEIN and
WISCONSIN LAWYERS MUTUAL
INSURANCE COMPANY,
Defendants-Appellants.
Submitted on Briefs: May 3, 1995
Oral Argument: ---
COURT COURT OF APPEALS OF WISCONSIN
Opinion Released: June 27, 1995
Opinion Filed: June
27, 1995
Source of APPEAL Appeal from a judgment
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Milwaukee
(If
"Special", JUDGE: WILLIAM D. GARDNER
so indicate)
JUDGES: Sullivan, Schudson, Myse, JJ.
Concurred: ---
Dissented: ---
Appellant
ATTORNEYSFor the defendants-appellants the cause was submitted on
the briefs of Peterson, Johnson & Murray, S.C., with Terry E.
Johnson, and Peter F. Mullaney, of Milwaukee.
Respondent
ATTORNEYSFor the defendants-respondents the cause was submitted
on the briefs of Hinshaw & Culbertson, with Michael J. Pfau, Susan
R. Tyndall, and Jeffrey R. Munson, of Milwaukee.
COURT OF APPEALS DECISION DATED AND RELEASED June
27, 1995 |
NOTICE |
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 94-2457
STATE OF WISCONSIN IN
COURT OF APPEALS
JIMETTA
CLAYPOOL, MARVIN CLAYPOOL
and
JENNIFER CLAYPOOL,
Plaintiffs,
v.
MARK
R. LEVIN, M.D. and
WISCONSIN
PATIENTS COMPENSATION
FUND,
Defendants-Respondents,
AA
INSURANCE COMPANY, and
COLUMBIA
HOSPITAL,
Defendants,
RUSSELL
GOLDSTEIN and
WISCONSIN
LAWYERS MUTUAL
INSURANCE
COMPANY,
Defendants-Appellants.
APPEAL
from a judgment of the circuit court for Milwaukee County: WILLIAM D. GARDNER, Judge. Reversed and cause remanded.
Before
Sullivan, Schudson and Myse, JJ.
SCHUDSON,
J. Attorney Russell Goldstein and his
insurer, Wisconsin Lawyers Mutual Insurance Company, appeal from the trial
court judgment granting summary judgment in favor of Dr. Mark R. Levin[1]
and his insurer, Wisconsin Patients Compensation Fund, and dismissing the
complaint of Jimetta Claypool, her husband, and her daughter against Dr.
Levin. The issue is whether, under the
medical malpractice statute of limitations, § 893.55(1), Stats., the Claypools “discovered”
their injury despite their original lawyer's representation that he and his
medical consultant had concluded that there was no viable cause of action. We conclude that such medical/legal advice
may have rendered the Claypools “blamelessly ignorant” of their claim. We further conclude, however, that whether
the Claypools exercised reasonable diligence to discover their injury remains a
factual issue for the jury.
Accordingly, we reverse and remand for further proceedings.
The
posture of this case is unusual. On
October 14, 1993, the Claypools filed an action claiming that Mrs. Claypool
suffered severe permanent injuries as a result of alleged negligent treatment
provided by Dr. Levin between March 6 and April 6, 1989. They also alleged legal malpractice against
Russell Goldstein, the first lawyer to whom they had brought their case. Essentially, the Claypools claimed that
Goldstein was negligent in advising them that they had no cause of action and
that, as a result, they did not discover their potentially valid claim until
they gained the advice of other counsel more than three years after the date of
injury. The Claypools' complaint
stated, in part:
That the plaintiffs ... retained the services
of the defendant, Russell Goldstein, to represent them in their claim for
medical negligence; that ... Goldstein was negligent in his representation
including but not limited to letting the Statute of Limitations run; that
without fact-finding, the plaintiffs cannot determine whether the Statute of
Limitations has indeed expired, in which case ... Goldstein would be liable for
all damages and injuries resulting from defendant Mark R. Levin, M.D.;
That the
plaintiffs ... believe that the Statute of Limitations for the claims against
... Levin ... has not expired because of the date upon which they discovered a
viable claim did exist; that if actually such Statute of Limitations has
expired, then their claims lie against ... Goldstein, for attorney's
negligence.[2]
Dr.
Levin moved for summary judgment based on § 893.55(1), Stats., which in relevant part
provides:
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.
(Emphasis added.)
It is undisputed that the Claypools' action of October 14, 1993 was
filed approximately four and one-half years after the period of Dr. Levin's
treatment.
The
Claypools did not oppose Dr. Levin's summary judgment motion. Mr. Goldstein, however, opposed the summary
judgment because, as the trial court explained, “his liability, if any, [is]
contingent upon” whether the Claypools' claim against Dr. Levin was foreclosed
by the statute of limitations.[3] Therefore, although posed in this case by
Mr. Goldstein rather than by Dr. Levin, the issue for the trial court at the
summary judgment stage was whether there was a genuine issue of material fact,
under § 893.55(1), Stats.,
regarding whether Mrs. Claypool's injury “in the exercise of reasonable
diligence should have been discovered.”
According
to the summary judgment submissions, in March of 1989, Mrs. Claypool, very ill and
unconscious, was taken to Columbia Hospital.
During the next month of care by Dr. Levin, Mrs. Claypool suffered
almost total loss of vision in both eyes during the period of her care by Dr.
Levin. On April 10, 1989, shortly after
her release from the hospital, Mrs. Claypool and her husband retained Mr.
Goldstein and signed authorizations for the release of medical records so that
he could evaluate the merits of a potential medical malpractice action. During the next six weeks, Mr. Goldstein
wrote to the Claypools telling them that he had requested the medical records
and bills, and that he was awaiting them “so that I can have them
reviewed.” He also wrote, “I will keep
you advised of what is happening.”[4]
Subsequent
to that correspondence, Mr. and Mrs. Claypool had some contact and
communication with Mr. Goldstein, but the dates were unspecified and the
references to a possible medical malpractice claim were attenuated. In her deposition of February 24, 1994, Mrs.
Claypool testified:
Q:Did
you personally have any conversations with Mr. Goldstein between April 10th,
1989, and the present date about this—his checking out this case for you?
A:Oh,
no.
Q:Did
you have any conversations with him regarding any other matters that he was
handling for you?
A:Yes.
Q:And
what matters had he been handling for you after April of 1989 that you
discussed with him?
A:My
daughter—Well, I was a passenger in the car when my daughter had the accident,
and I went with her down to retain his service for—to represent us.
Q:So
are you testifying today that you had a personal injury claim arising out of an
accident your daughter had after April 10th, 1989?
A:Yes,
um-hm.
Q:And
was that settled sometime between the time of the accident, which was after
April 10th, 1989, and let's say July of 1992?
A:Yeah,
I guess. Right, um-hm. I think.
Q:Did
you at any time while he was representing you in that personal injury case say,
“You know, Mr. Goldstein—or Russ—what's happening to this, the case with my
eyes, with the doctors?”
A:No, I didn't.
In
his deposition, Mr. Claypool testified about his limited contact with Mr.
Goldstein and about their conversation when, by chance, they met in the
courthouse.
Q:Did
he ever call you?
A:No.
Q:Did
you call him?
A:Yes.
Q:On
how many occasions?
A:One
or two, three times.
Q:And
between, let's say, April 18th, 1989, and July of 1992, did Mr. Goldstein ever
explain to you what he was doing?
A:No,
he just briefly said that he's checking it out, and that the doctor felt there
was no case.
Q:And
that occurred in a conversation, as related by your wife, when you were on jury
duty at the courthouse?
A:Yes.
Q:And
where did you see Mr. Goldstein, in the hall?
A:It
was in the cafeteria.
Q:Were
you on a jury at that time, or were you just there—being summoned there to be
called if they called you?
A:Right,
summoned there if they called me.
Q:And
what did Mr. Goldstein tell you?
A:He
told us that the doctor feel [sic] that there was no case.
Q:And
what was your response?
A:You
know, I was just left hanging then, and I came back and told my wife what Mr.
Goldstein said.
Q:Do
you know what year that was that you were on jury duty?
A:I
don't recall exact [sic].
Q:Well,
was it 1992?
A:No, it wasn't.
Mrs. Claypool also stated that her husband told her
about his courthouse conversation with Mr. Goldstein, who had told him “that
the doctors that he had showed the case to did not see anything done wrong; and
at that time my husband and I just drew the conclusion that there weren't a
case.” Subsequently, however, Ms.
Claypool contacted the law firm of Warshafsky, Rotter, Tarnhoff, Gesler,
Reinhardt & Bloch, S.C., which advised that she had a valid cause of
action.[5]
The
trial court concluded:
[T]he
undisputed facts can lead to but one reasonable inference, that is, in the
exercise of reasonable diligence plaintiffs should have discovered the probable
cause of the injury within a reasonably short period of time after the injury. The injury was immediately known and the
potentially responsible health care providers were known almost immediately
after the injury. Counsel was retained
within weeks of the injury to conduct an investigation regarding the potential
cause or causes of the injury.
....
... The plaintiffs
must be bound by the acts or omissions of their attorney agent. The only reasonable inference is that
plaintiffs possessed sufficient information within a relatively short span of
time from the injury to form an objective belief that Dr. Levin's treatment was
a cause of the injury. It is clear
that, had reasonable diligence been exercised, the claim against Dr. Levin
should have been discovered well before a year from the date of injury.
The trial court decision also noted that “[t]he
Claypools are not without a remedy,” given their legal malpractice claim
against Mr. Goldstein.
Our
review of a trial court's grant of summary judgment is de novo. Groom v. Professionals Ins. Co.,
179 Wis.2d 241, 246, 507 N.W.2d 121, 123 (Ct. App. 1993). Summary judgment must not be granted if
there is a genuine issue of material fact.
Rule 802.08(2), Stats.
We look first to the complaint to determine whether it
states a cause of action and, if so, we consider whether the answer states a
defense. If it does, we examine the
moving party's affidavits to see if the evidentiary facts alleged state a prima
facie claim for relief. If they do,
we turn to the affidavits in opposition to the motion to see whether they raise
material factual issues. If they do
not, the case is proper for disposition of the legal issues raised in the
motion.
Fritz v. McGrath, 146 Wis.2d 681, 683, 431 N.W.2d 751, 752 (Ct. App.
1988). Moreover, where a defendant's
summary judgment submissions state a prima facie defense based on the
statute of limitations, the party opposing summary judgment has the burden to
establish the existence of disputed material facts to defeat summary
judgment. See id.
at 685-686, 431 N.W.2d at 753. Here,
given the undisputed dates of Dr. Levin's treatment and the Claypools' filing
of their suit, it is clear that the submissions stated a prima facie
defense based on the statute of limitations.
Goldstein
argues, however, that “[t]he only reasonable inference that can be drawn from
the record evidence is that plaintiffs discovered their claim against Dr. Levin
less than one year before filing suit” when the Warshafsky firm advised them
that they had a cause of action. On
appeal, therefore, Goldstein requests an order reversing summary judgment and
declaring the Claypools' complaint timely as a matter of law. In the alternative, he seeks an order
reversing summary judgment and remanding the case for a jury's determination of
whether the Claypools exercised reasonable diligence.
Goldstein
contends that Borello v. U.S. Oil Co., 130 Wis.2d 397, 388 N.W.2d
140 (1986), controls this case. In that
case, Mary Borello experienced symptoms and disabilities that she suspected
were caused by fumes from a new furnace recently installed in her home. Id. at 400-403, 388 N.W.2d at
141-142. However, “she was repeatedly
told by physicians that her symptoms and disabilities could not be the result
of the furnace.” Id. at
403, 388 N.W.2d at 142. Subsequently,
she was advised by an occupational medicine specialist that her problems had
resulted from the furnace fumes. Thus,
in Borello, the supreme court was:
confronted
by a situation where a complainant was injured more than three years before the
filing of the complaint and almost contemporaneously with that injury formed
her own layperson's subjective opinion that the furnace was the cause. Yet, at every turn, she was told by
professionals, who were assumed to be competent to diagnosis her ailment and
its cause, that the furnace fume problem was irrelevant.
Not until Dr.
Fishburn made his diagnosis and findings was there any reasonable likelihood
for an objective belief of a cause-and-effect relationship between the injury
and the defective furnace.
Id. at 403-404, 388 N.W.2d at 142.
The supreme court concluded that “discovery does not occur until there
is information available to the claimant of the nature of her injury, the cause
of her injury, and the defendant's part in that cause.” Id. at 414, 388 N.W.2d
147. Accordingly, “[a] person who has
used reasonable diligence to secure medical advice should be given the
protection of one who is ‘blamelessly ignorant’ even though a prior hunch later
proved to be correct. We cannot expect
the ordinary person to take extraordinary steps to secure a full medical
analysis.” Id. (citation
omitted).
Although
Borello's language would seem to support Goldstein's argument,
several subsequent decisions help to clarify distinguishing factors between Borello
and the instant case. In Fritz v.
McGrath, 146 Wis.2d 681, 431 N.W.2d 751 (Ct. App. 1988), the plaintiff
appealed from the summary judgment granted to her periodontal surgeon based on
the statute of limitations. We
emphasized that, under Borello, a cause of action accrues not
when a plaintiff confirms causation with absolute certainty, but rather, when
“‘the plaintiff discovers, or in the exercise of reasonable diligence should
have discovered, not only the fact of injury but also that the injury was probably
caused by the defendant's conduct.’” Fritz,
146 Wis.2d at 686-687, 431 N.W.2d at 754 (emphasis added; quoting Borello,
130 Wis.2d at 411, 388 N.W.2d at 146).
In Fritz, “[f]rom the very beginning, [the plaintiff] was
satisfied that the dental surgery was the sole cause of her oral and facial
problems.” Id. at 688,
431 N.W.2d at 754-755. Similarly, Mrs.
Claypool knew “that the injury existed and that it may have been caused by the
defendant's conduct.” Id.
at 690, 431 N.W.2d at 755. As we
explained:
We do not believe
... that a party must be specifically advised by an expert that, in the
expert's opinion, he or she received negligent treatment from a physician
before the injury may be considered to have been “discovered.” All that is required is that the plaintiff
knew or should have known that the injury existed and that it may have been
caused by the defendant's conduct. And
while there must be more than an unsubstantiated lay belief of the existence
and cause of the injury on the plaintiff's part, there is no requirement that
he or she must have a full and specific “magic word” medical or legal opinion
before the statute will be deemed to start running.”
Id. (citation omitted).
Similarly,
in Clark v. Erdmann, 161 Wis.2d 428, 468 N.W.2d 18 (1991), the
supreme court emphasized that the authorities do not support “‘the proposition
that the cause cannot accrue until the injured person is advised of his or her
legal rights.’” Id. at
447, 468 N.W.2d at 26 (citation omitted).
In Clark, the supreme court affirmed a summary judgment
dismissal in favor of a podiatrist based on the statute of limitations in a
medical malpractice action. The court
explained:
If a plaintiff has information that would constitute the
basis for an objective belief of her injury and its cause, she has discovered
her injury and its cause. It does not
matter whether her objective belief resulted from information “officially”
obtained from an expert witness. Nor
... does it necessarily always matter whether the objective belief resulted at
all from information obtained from any “expert” person.
Id. at 448, 468 N.W.2d at 26.
Thus,
at first glance, Fritz and Clark might seem to
support the argument that the Claypools discovered their cause of action soon
after Dr. Levin's treatment despite the subsequent advice from their
lawyer. That, however, would be a
misreading of Fritz and Clark that would swallow
the sound principle of Borello.
Significantly, in neither Fritz nor Clark
was the claimant specifically advised that there was no cause of action. In Fritz, as we noted, the
plaintiff “was told by the very first physician she visited either that her
ailments were ‘related to [the] dental surgery,' or, in her version, that it
was ‘possible' that the surgery was a cause of her present problem.” Fritz, 146 Wis.2d at 690-691,
431 N.W.2d at 755 (brackets in Fritz). In Clark, the supreme court pointed out that
“unlike the plaintiff in Borello, Clark was never told by medical
experts that her injury was not caused by what she ultimately determined to be
its cause.” Clark, 161 Wis.2d at 448, 468 N.W.2d at 26.
Thus,
in this important regard, Goldstein correctly argues that Borello
corresponds more exactly to the instant case.
In Borello, a succession of specific medical opinions
advising the plaintiff that her problems were not caused by the furnace
reasonably deterred her from filing any action. See id., 130 Wis.2d at 401, 388 N.W.2d at
141. Here, although as the trial
court's written decision noted, “[i]t is not clear what actions or
investigation Attorney Goldstein pursued during the time he was representing
the Claypools,” certain important things are clear from the summary judgment
submissions: the Claypools immediately
believed Dr. Levin's treatment had caused Mrs. Claypool's injury; the Claypools
promptly presented their case to Mr. Goldstein; the Claypools received
medical/legal advice from Goldstein that Mrs. Claypool said led her and her
husband to “dr[a]w the conclusion that there weren't a case”; and the Claypools
then brought their case to other counsel for additional advice.
In
support of summary judgment, however, Dr. Levin cites a footnote in Groom
v. Professionals Ins. Co., 179 Wis.2d 241, 507 N.W.2d 121 (Ct. App.
1993) (statute of limitations barred medical malpractice action against other
health care provider and insurer not originally named in complaint but
identified in decedent's medical records where wife's cause of action arising
from husband's death accrued when husband's medical records were sent to wife
at her request), for the proposition that “[a] party is bound by the acts of
her lawyer-agent and has notice of all facts in the possession of her
attorney.” Id. at 250
n.3, 507 N.W.2d at 125 n.3. The trial
court adopted that reasoning and concluded that the Claypools “must be bound by
the acts or omissions of their attorney agent.” We conclude, however, that although this principle under other
circumstances may bind a client to the result of his or her lawyer's acts, see
Johnson v. Allis Chalmers Corp., 162 Wis.2d 261, 470 N.W.2d 859
(1991) (court may dismiss products liability action for failure of attorney to
comply with scheduling and discovery orders), this principle does not restrict
our analysis of the Claypools' “discovery” to only what the Claypools
understood when they brought their case to Goldstein. Indeed, in this context, this very principle would seem to carry
the analysis to also encompass what the Claypools understood when Goldstein
told them they had no cause of action.
At that later point, regardless of what they may have suspected or
understood previously, if they were “bound” by their lawyer's advice, they were
bound by his advice carrying “all facts in [his] possession” including, most
significantly, the “fact” that they had no viable claim.
Thus,
the trial court's conclusion that “the only reasonable inference” is that the
Claypools “possessed sufficient information within a relatively short span of
time from the injury to form an objective belief that Dr. Levin's treatment was
a cause of the injury” was an accurate expression of the Claypools'
understanding at the point at which they presented their case to Goldstein. That, however, does not logically end the
analysis because the Claypools' “discovery” as a matter of law was not
necessarily locked in time by their initial belief given the subsequent
events. To conclude otherwise would be
to ignore the “ordinary person” standard of Borello and require a
claimant “to take extraordinary steps to secure a full medical analysis” beyond
whatever counsel has obtained. See
Borello, 130 Wis.2d at 414, 388 N.W.2d at 147.[6]
Although
Goldstein would also have us conclude, as a matter of law, that the Claypools
did not discover their cause of action until they received advice from the
Warshafsky firm, we can not do so based on this somewhat indefinite
record. “The issue of reasonable
diligence is ordinarily one of fact.” Spitler
v. Dean, 148 Wis.2d 630, 638, 436 N.W.2d 308, 311 (1989) (discovery
rule extended to allow tort action to accrue only after identity of defendant
was known or reasonably should have been known but remanded for factual determination
regarding plaintiff's diligence in attempting to discover the defendant's
identity). When evaluating whether an
individual has shown reasonable diligence we are mindful that, with respect to
medical/legal advice, one's “trust and confidence ... should not devolve into
blind faith and exempt the plaintiff from the duty diligently to pursue
potential claims.” Groom,
179 Wis.2d at 251 n.4, 507 N.W.2d at 125 n.4.
As the supreme court explained, “[p]laintiffs may not close their eyes
to means of information reasonably accessible to them and must in good faith
apply their attention to those particulars which may be inferred to be within
their reach.” Spitler,
148 Wis.2d at 638, 436 N.W.2d at 311.
Most recently, we explained that “[r]easonable diligence means such
diligence as the great majority of persons would use in the same or similar
circumstances.... If a plaintiff does
not meet the reasonable diligence requirement, the discovery rule under sec.
893.55, Stats., does not
apply.” Awve v. Physicians Ins.
Co., 181 Wis.2d 815, 823-824, 512 N.W.2d 216, 219 (Ct. App. 1994)
(statute of limitations barred medical malpractice action arising from child's
death where parents were not reasonably diligent because they “did not give
good faith attention to the information within their reach about the cause of
[their infant's] premature birth and subsequent death”). The uncertainty surrounding the nature and
timing of the communication between Goldstein and the Claypools leaves the
issue of the Claypools' reasonable diligence appropriate for a jury's
determination.
By
the Court.—Judgment reversed and
cause remanded.
[1] The parties
inconsistently spell Dr. Levin's name throughout the record as “Mark R. Levin”
and “Marc R. Levin.” We cannot
determine which is the correct spelling.
[2] In their amended
complaint, the Claypools stated that they “believe that the Statute of
Limitations for the claims against ... Levin ... and any other health care
providers herein above referred to have [sic] expired; that the plaintiffs
further believe that said claims may have been stayed by virtue of the date of
discovery of a viable claim.”
[3] The trial court
also concluded “that Goldstein being a defendant whose rights will be affected
by this decision may properly interpose an objection to the motion.” Although in the trial court the respondents
challenged Mr. Goldstein's standing to oppose Dr. Levin's summary judgment motion,
they have not challenged that aspect of the trial court's decision on appeal.
[4] In his deposition, however, Mr. Claypool
stated that he did not receive any correspondence from Mr. Goldstein after
April 10, 1989.
[5] Dr. Levin, without providing a record reference, asserts
that "the Claypools took no additional steps to obtain a second opinion
until consulting with the Warshafsky firm in the summer of 1993, some eighteen
months later." We are unable to
locate anything in the summary judgment submissions to establish exactly when
the Claypools received advice from Goldstein and, therefore, the exact
chronology remains uncertain. We agree,
however, that whether the Claypools exercised "reasonable diligence"
may depend on factors including the exact nature and timing of their communication
with their attorneys.
[6] We are not unmindful of Dr. Levin's concern that, in
this case, Mr. Goldstein might seem to benefit because of his own alleged
malpractice. That, we concede, is an
irony resulting from the unusual circumstances of this case. Although we agree that, in virtually all
circumstances, a lawyer's possible negligence certainly should not shield him
or her from liability for legal malpractice, we are no less concerned that a
lawyer's liability might improperly insulate a doctor from a potentially
meritorious medical malpractice claim.