01-1137 McElwain v. Physicians Insurance Company of Wisconsin, et al.

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Robert and Colleen McElwain appeal a summary judgment dismissing their medical malpractice action against M. Terry McEnany, M.D.; Midelfort Clinic, Ltd.; Luther Hospital and Physicians Insurance Company of Wisconsin. The trial court granted summary judgment because it found as a matter of law that the McElwains did or should have discovered their medical malpractice claims against McEnany and the Hospital when they read a July 1998 article in the Eau Claire Leader Telegram.

We conclude that whether the McElwains knew or should have known to pursue a medical malpractice action against McEnany and the Hospital after reading the July article is a question of fact for the jury to decide. The article was sufficiently ambiguous that the trial court could not properly conclude as a matter of law that the July article triggered the discovery rule. Because material facts remain in dispute, summary judgment was inappropriate.

We therefore reverse the judgment and remand for further proceedings consistent with this opinion.

This opinion will not be published.

Dist III, Eau Claire County, Proctor, J., Per Curiam

Attorneys:

For Appellant: Michael J. Happe, Eau Claire

For Respondent: James Samuelson, Fond du Lac; Joy L. O’Grosky, Madison