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Culbert v. Ciresi6/17/2003
. Anna Culbert appeals an order dismissing her medical malpractice claim because the statute of limitations had expired. She argues: (1) the statute of limitations was tolled by her original federal action, and (2) equitable estoppel bars the defendants from raising the statute of limitations as a defense. We disagree and affirm the order.
BACKGROUND
. On September 22, 1998, Culbert underwent surgery to her right leg at Luther Hospital in Eau Claire. Dr. David Ciresi and Dr. Richard Cochrane participated in an artery bypass of her right leg. An injury to Culbert's spinal cord, caused by a blood clot, was discovered on September 24 and Culbert underwent emergency surgery that same day. As a result of the spinal cord injury, Culbert lost the use of her right leg and is now confined to a wheelchair.
. Culbert's medical records are headed "Mayo Health System." Culbert filed a medical malpractice action on April 6, 2000, against the Mayo Foundation in the federal district court in Minnesota. The body of the complaint alleged negligence by Dr. Ciresi, Dr. Cochrane, and the "physicians and nurses of Luther Hospital ...."
. Mayo filed a motion to dismiss and provided an affidavit stating that it did not employ Ciresi and Cochrane and had no responsibility for the day-to-day operations of Luther Hospital. Culbert therefore voluntarily dismissed her action on June 26, 2000.
. Culbert's attorney began preparing a new complaint to be filed in Wisconsin. The defendants were Dr. Ciresi and Luther Hospital, and Dr. Cochrane and Eau Claire Anesthesiologists. Before filing, the attorney for Dr. Ciresi and Luther Hospital contacted Culbert's attorney. Ciresi and Luther's attorney asked that all correspondence and pleadings for the new state action be served upon her instead of serving Ciresi and the hospital directly. Culbert's attorney sent a copy of the as yet unfiled complaint and attached a cover letter stating, "If you are not willing to accept service on behalf of Luther Hospital and Dr. Ciresi please advise me immediately." Ciresi and Luther's attorney wrote back stating, "This letter will confirm that I accepted service of the Complaint ...."
. The summons and complaint were filed on September 1, 2000. On September 6, 2000, unauthenticated copies of the summons and complaint were served on Dr. Cochrane and Eau Claire Anesthesiologists. All the defendants filed answers alleging as affirmative defenses that there was insufficient service and that the court lacked personal jurisdiction.
. In February 2002, the defendants moved for dismissal or summary judgment on the grounds of defective service because, among other things, they were never served with authenticated copies of the summons and complaint. Culbert acknowledged the error, and the trial court dismissed the action without prejudice on May 28, 2002.
. Culbert filed the present action on March 13, 2002, alleging the same facts as in the federal action and the first Wisconsin action. The defendants moved to dismiss, arguing the statute of limitations had run. Culbert first argued that the federal action tolled the statute of limitations from the date she filed the federal complaint, April 6, 2000, until the time for appeal passed on July 26, 2000. Thus, she argued the statute of limitations was tolled for 111 days, plus an additional 123 days for a mandatory mediation period. See Wis. Stat. ยง 893.54. The three-year statute of limitations on Culbert's claim would have expired on September 24, 2001. The present action was filed on March 13, 2002. If the statute of limitations tolled as Culbert argues, it would not have expired until May 14, 2002.
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