COURT OF APPEALS DECISION DATED AND RELEASED APRIL 9, 1996 |
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
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No. 95-1945-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
JO ANNE M. (HOLL)
KLINE,
Plaintiff-Appellant,
v.
RALPH A. KLOEHN, M.D.,
F.A.C.S.
and WISCONSIN HEALTH
CARE
LIABILITY PLAN,
Defendants-Respondents.
APPEAL from a judgment
of the circuit court for Milwaukee County:
GEORGE A. BURNS, JR., Judge. Reversed
and cause remanded.
Before Wedemeyer, P.J.,
Sullivan and Fine, JJ.
PER
CURIAM. JoAnne Kline appeals from a summary judgment in favor
of Ralph Kloehn. The trial court
granted summary judgment dismissing the case because it concluded that the
statute of limitations had expired. We
conclude that summary judgment should not have been granted because there is a
factual dispute as to the date on which the statute of limitations began to
run. Accordingly, we reverse the trial
court's judgment and remand for further proceedings.
Kline brought this
action alleging negligence and breach of warranty against Dr. Kloehn, a plastic
surgeon, based on the liposuction surgery he performed on her. The date of the last surgery was January 8,
1991.
Kloehn brought a motion
for summary judgment, arguing that the action was barred by § 893.55, Stats., which provides that there is a
three-year statute of limitations "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." The trial court granted
the motion for summary judgment and dismissed the case.
Summary judgment is
appropriate where "there is no genuine issue as to any material fact and
... the moving party is entitled to judgment as a matter of law." Section 802.08(2), Stats. When reviewing
a summary judgment decision, we follow the same methodology as the trial
court. We first "examine the
pleadings to determine whether a claim for relief has been stated and a
material issue of fact presented."
See Clark v. Erdmann, 161 Wis.2d 428, 441, 468
N.W.2d 18, 23 (1991). Summary judgment
is not appropriate where there are issues of disputed material fact which would
entitle the party opposing the motion to a trial. Id. at 441-42, 468 N.W.2d at 23.
The statute of
limitations in a medical malpractice action begins to run when "the
plaintiff knew or should have known that the injury existed and that it may
have been caused by the defendant's conduct." Id. at 446, 468 N.W.2d at 25 (quoting Fritz
v. McGrath, 146 Wis.2d 681, 690, 431 N.W.2d 751, 755 (Ct. App.
1988)). Although a party need not 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,'" there must be more than "an
unsubstantiated lay belief" on the plaintiff's part that he or she has
been injured before the statute will start running. Id. at 446-47, 468 N.W.2d at 25.
We conclude that there
is an issue of material fact which precludes summary judgment. The pleadings, affidavits, and other
materials do not conclusively establish when Kline "knew or should have
known" that her injury existed.
Kloehn's medical notes dated January 17, 1991, state that Kline's "progress
is satisfactory and she is doing self care as directed. [She will] come back in about a month for a progress
check (emphasis added)." Kloehn's
medical notes dated March 12, 1991, state that Kline has "some folding of
the skin back there which I feel will improve by [her next appointment in June]
further." These medical notes
suggest that Kloehn informed Kline that her appearance would continue to change
after surgery for a period of time. Therefore,
there is an issue of fact as to when Kline knew that she had sustained
permanent injury. We need not reach the
other issues raised by the parties because we conclude that summary judgment
should not have been granted.
By the Court.—Judgment
reversed and cause remanded.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.