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Paul v. Skemp6/8/2000
APPEAL from a judgment of the circuit court for La Crosse County: JOHN A. DAMON, Judge.
Affirmed.
. Joseph Paul, Judith Paul and the Estate of Jennifer Paul, appeal from the circuit court's dismissal of their medical malpractice claims. The circuit court granted summary judgment to the defendants because it concluded that the Pauls' action was barred by the statute of limitations. We agree because we conclude that the date of the injury and the date of the last act which could constitute negligence both occurred more than three years from the date the Pauls commenced the action. Accordingly, this action is barred by the statute of limitations and we affirm the circuit court's dismissal of the Pauls' claims.
BACKGROUND
. Joseph Paul, Judith Paul, and the Estate of Jennifer Paul (collectively "Pauls") sued Dr. Frederick Skemp, Dr. Virginia Updegraff and the Skemp Clinic (collectively "Skemp") for medical malpractice. The Pauls' complaint alleges that Skemp misdiagnosed the cause of Jennifer's headaches, which misdiagnosis resulted in a fatal hemorrhage in her brain. Jennifer died as a result of cerebellar and occipital hemorrhages on May 23, 1995, which hemorrhages were caused by an arteriovenus malformation in the right cerebellum.
. Jennifer was seen by the doctors at the Skemp Clinic on numerous occasions for reoccurring headaches. These contacts started in 1984 and continued off and on for many years. Jennifer complained about severe headaches during her November 20, 1994 visit with Skemp and only one month later, on December 20, 1994, Jennifer also saw Updegraff and complained about headaches. No doctor ever connected her headaches to the vascular malformation which caused the fatal hemorrhage.
. This lawsuit was commenced on March 16, 1998. Skemp answered and moved for summary judgment, contending that the Pauls' suit was not timely filed. Skemp argued that the last alleged negligent act occurred on December 20, 1994, when Jennifer complained about her headaches to Updegraff. Skemp contends that the statute of limitations requires a malpractice action to be filed within three years of the December 20, 1994 visit or, alternatively, within one year of discovering the injury.
. In response, the Pauls relied on Judith Paul's deposition in which she testified that Jennifer told her that she discussed her headache problems with Habel during her March 17, 1995 visit. Additionally, Kevin Mason, Jennifer's boyfriend, filed an affidavit stating that: (1) prior to her March 17, 1995 visit with Habel, Jennifer told him that she was going to complain about her headaches at her appointment; and (2) after her appointment, Jennifer told him that the doctor did not tell her what was causing the headaches and did not look into the problem with any depth. The circuit court concluded that Judith's testimony and Mason's affidavit were inadmissible hearsay and barred by the dead man's statute. The court also concluded that the last possible date of injury was December 20, 1994, and the parties stipulated that discovery of Jennifer's injury occurred no later than the date of Jennifer's death, May 23, 1995. Therefore, the court dismissed the lawsuit as untimely filed. The Pauls appeal.
DISCUSSION
Standard of Review.
. This court applies the same summary judgment methodology as the circuit court. See Smith v. Dodgeville Mut. Ins. Co., 212 Wis. 2d 226, 232, 568 N.W.2d 31, 34 (Ct. App. 1997). We first examine the complaint to determine whether it states a claim, and then we review the answer to determine whether it joins a material issue of fact or law. See id. If we conclude that the complaint a
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