00-2144 Estate of Sarah M. Hegarty v. Beauchaine, et al.

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“Section 893.55 clearly is the more specific of the two statutes. Unlike sec. 893.54, it concerns itself not only with injury to the person, but also with a particular way in which the injury arises, i.e., resulting from an act or omission of a ‘health care provider.

“Thus, it is apparent that the legislature intended that any claim alleging negligence against a health care provider would be controlled by § 893.55, even though the medical malpractice claim is based on a wrongful death theory of negligence.”

And, where the identity of Dr. Zimmer, the child’s pediatrician, was never in doubt, we cannot apply the relation-back theory and hold that the amended complaint against Dr. Zimmer, filed more than three years after the date of the child’s injury, nevertheless related back to the date of the filing of the original complaint.

And, plaintiffs should have discovered Dr. Zimmer’s role in Sarah’s death more than a year before filing their amended complaint naming Dr. Zimmer as a defendant for the first time because: (1) Dr. Zimmer was Sarah’s personal primary care physician before her hospital admission; (2) Dr. Zimmer attempted to treat Sarah for the ailment from which she died before she was admitted to the hospital and that treatment was unsuccessful because of Dr. Zimmer’s apparent misdiagnosis; and (3) Dr. Zimmer was listed as attending physician on the hospital admission form and had made entries on the hospital’s “progress notes” form.

“Simply put, the medical records that were available to the plaintiffs and their lawyers revealed extensive involvement by Dr. Zimmer during what both the 1998 complaint, which did not name Dr. Zimmer, and the 1999 complaint, which did name Dr. Zimmer, reference as the critical ’22-hour delay.’ At the very least, these records, combined with what both the plaintiffs and their lawyers knew about Dr. Zimmer’s involvement in the care and treatment of Sarah Hegarty before her admission to Children’s Hospital on March 20, 1996, were enough to trigger the duty to inquire: Again, ‘[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.'”

Further, we determine that because a genuine issue exists as to a number of material facts, and reasonable conflicting inferences can be drawn from the undisputed facts, summary judgment was inappropriate and a trial is necessary to resolve: (1) whether Dr. Beauchaine was a servant of the Medical College of Wisconsin Affiliated Hospitals; and (2) whether Dr. Beauchaine was a borrowed employee.

Affirmed in part, reversed in part and remanded.

Recommended for publication in the official reports.

DISSENTING OPINION: Fine, J., with whom Schudson, J., joins. “Judge Schudson and I agree with the lead opinion’s resolution of the issues discussed in Section II A., B., and C. We also believe, however, that the lead opinion’s discussion of the ‘discovery’ issue in Section II D. would, if adopted, be a sea change in our law that would eliminate the requirement that injured plaintiffs exercise ‘reasonable diligence’ in seeking to ascertain possible causes of their injuries, and would transmute the rule into one of discovery-in-fact. See Wis. Stat. § 893.55(1).

Accordingly, Section 1 of this opinion is the opinion of the court on the discovery-rule issue.”

Dist I Milwaukee County, Wasielewski, J., Curley, J.

Attorneys:

For Appellant: William M. Cannon, Edward E. Robinson and Sarah E. Frink, Brookfield

For Respondent: Peter F. Mullaney, Joseph M. Fasi II, Samuel J. Leib, Douglas S. Knott, and Mark D. Malloy, Milwaukee