COURT OF APPEALS DECISION DATED AND FILED May 22, 2008 David R. Schanker Clerk of Court of Appeals |
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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 Dykman, Vergeront and Lundsten, JJ.
¶1 PER CURIAM. Kathy Genrich and the Estate of Robert Genrich (collectively “Genrich”) appeal from an order granting summary judgment dismissal of Genrich’s medical malpractice claims against OHIC Insurance Company, Wisconsin Injured Patients & Families Compensation Fund, Meriter Hospital, Inc., Margaret Bjelde, R.N., Shelly White, O.R.T., Kimberly A. Brown, O.R.T., David Melnick, M.D., Brenda Satchie, M.D., University of Wisconsin Hospital & Clinics Authority and Dawn M. Shaw, O.R.T. Genrich argues that the circuit court erred by dismissing her claims as time-barred. Alternatively, Genrich contends the circuit court erred by not applying equitable estoppel to preclude OHIC and its insureds from asserting a statute of limitations defense. We reject Genrich’s arguments and affirm the judgment.
Background
¶2 On July 23, 2003, Kathy’s husband, Robert, underwent an
abdominal surgical procedure at
¶3 Meriter and its personnel were insured by OHIC Insurance Company. During pre-suit settlement discussions, an OHIC claims adjuster, Rickie Rennie, allegedly told Genrich’s counsel on two occasions that the statute of limitations expired on August 13, 2006. In any event, on August 9, 2006, Genrich brought both survivorship and wrongful death claims arising from allegations of medical negligence. The named defendants moved to dismiss the complaint as time-barred under the three-year statute of limitations period set forth in Wis. Stat. § 893.55(1m)(a) (2005-06).[1] The circuit court granted summary judgment dismissal and this appeal follows.
Discussion
¶4 This court reviews summary judgment decisions independently,
applying the same standards as the circuit court. Smith v. Dodgeville Mut. Ins. Co.,
212
¶5 In challenging the summary judgment dismissal of her claims as time-barred, Genrich emphasizes that the complaint alleged two distinct causes of action—a wrongful death action and a survival action. Genrich argues that the wrongful death action could not accrue until August 11, 2003, the date of death. Genrich also contends that the survival claim did not accrue until Robert suffered an “irreversible” injury, the date of which Genrich contends is in dispute and, thus, not properly a matter for summary judgment. We are not persuaded.
¶6 Citing
Miller
v. Luther, 170
¶7 This
court focused on the language of the wrongful death statute, Wis. Stat. § 895.03, to hold that
Elaine’s wrongful death claim was time-barred as well. As the Miller court noted, the statute
provided “that an action for wrongful death may be brought only if the
decedent’s death was caused by a wrongful act and the act would have entitled
the decedent to maintain an action and recover damages if death had not
ensued.”
¶8 Estate
of Hegarty v. Beauchaine (Hegarty I), 2001 WI App 300, ¶21, 249
Wis. 2d 142, 638 N.W.2d 355, clarifies that all claims resulting from
medical malpractice, whether they be injury or death claims, are subject to the
statute of limitations governing medical malpractice. Under the correct statute of limitations, Wis. Stat. § 893.55(1m)(a), an
action must be commenced within three years from the date of the injury. To the extent Genrich argues that Robert’s
death was the triggering injury, we are not persuaded. The Hegarty I court acknowledged that
“there is no logical distinction between injury and death claims arising out of
medical malpractice … [and] [o]nce medical malpractice produces a loss, a
remedy exists regardless whether the consequence is injury or death.” Hegarty I, 249
¶9 With
respect to identifying which “injury” triggered the statute of limitations for
Genrich’s claims, the parties dispute whether the injury had to be irreversible
and what might constitute the last actionable event in a sequence of
events. Because the date of injury is
seemingly in dispute, Genrich contends the circuit court erred by dismissing
her claims on summary judgment. Under
these facts, however, a dispute over the date of injury does not amount to an
issue of material fact. See
Green Spring Farms, 136
¶10 Alternatively, Genrich contends the circuit court erred by not
applying equitable estoppel to preclude OHIC and its insureds from asserting a
statute of limitations defense. Whether
to apply estoppel to preclude a party from raising a defense is within the circuit
court’s discretion. Gonzalez v. Teskey, 160
¶11 Here,
Genrich’s counsel argues that to his detriment, he reasonably relied on the
OHIC claims adjuster’s representations regarding the date on which the statute
of limitations expired. The claims
adjuster, a non-attorney working in
By the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.