Attorney Russell Goldstein and his insurer, Wisconsin Lawyers Mutual Insurance Company, appeal from the trial court judgment granting summary judgment in favor of Dr. Mark R. Levin 1 and his insurer, Wisconsin Patients Compensation Fund, and dismissing the complaint of Jimetta Clay-pool, her husband, and her daughter against Dr. Levin. The issue is whether, under the medical malpractice statute of limitations, § 893.55(1), STATS., the Claypools "discovered" their injury despite their original lawyer's representation that he аnd his medical consultant had concluded that there was no viable cause of action. We conclude that such medical/legal advice may have rendered the Claypools "blamelessly ignorant" of their claim. We further conclude, however, that whether the Claypools exercised reasonable diligence to discover their injury remains a factual issue for the jury. Accordingly, we reverse and remand for further proceedings.
The posture of this case is unusual. On October 14, 1993, the Claypools filed an action claiming that Mrs. Claypool suffered severe permanent injuries as a result of alleged negligent treatment provided by Dr. Levin between March 6 and April 6, 1989. They also alleged legal malpractice against Russell Goldstein, the first lawyer to whom they had brought their case. Essentially, the Claypools claimed that Goldstein was *540 negligent in advising them thаt they had no cause of action and that, as a result, they did not discover their potentially valid claim until they gained the advice of other counsel more than three years after the date of injury. The Claypools' complaint stated, in part:
That the plaintiffs . . . retained the services of the defendant, Russell Goldstein, to represent them in their claim for medical negligence; that... Gold-stein was negligent in his representation including but not limited to letting the Statute of Limitations run; that without fact-finding, the plaintiffs cannot determine whether the Statute of Limitations has indeed expired, in which case... Goldstein would be hable for all damages and injuries resulting from defendant Mark R. Levin, M.D.;
That the plaintiffs , .. believe that the Statute of Limitations for the claims against. . . Levin . . . has not expired because of the date upon which they discovered a viable claim did exist; that if actually such Statutе of Limitations has expired, then their claims lie against . . . Goldstein, for attorney's negligence. 2
Dr. Levin moved for summary judgment based on § 893.55(1), Stats., which in relevant part provides:
an action to recover damages for injury arising from any treatment or operation performed by, or from any omission by, a person who is a health care provider, regardless of the theory on which the action is based, shall be commenced within the latеr of:
*541 (a) Three years from the date of the injury, or
(b) One year from the date the injury was discovered or, in the exercise of reasonable diligence should have been discovered, except that an action may not be commenced under this paragraph more than 5 years from the date of the act or omission.
(Emphasis added.) It is undisputed that the Claypools1 action of October 14,1993 was filed approximately four and one-half years after the pеriod of Dr. Levin's treatment.
The Claypools did not oppose Dr. Levin's summary judgment motion. Mr. Goldstein, however, opposed the summary judgment because, as the trial court explained, "his liability, if any, [is] contingent upon" whether the Claypools' claim against Dr. Levin was foreclosed by the statute of limitations. 3 Therefore, although posed in this case by Mr. Goldstein rather than by Dr. Levin, the issue for the trial court at the summary judgment stage was whether there wаs a genuine issue of material fact, under § 893.55(1), Stats., regarding whether Mrs. Claypool's injury "in the exercise of reasonable diligence should have been discovered."
According to the summary judgment submissions, in March of 1989, Mrs. Claypool, very ill and unconscious, was taken to Columbia Hospital. During the next month of care by Dr. Levin, Mrs. Claypool suffered almost total loss of vision in both eyes during the period of her care by Dr. Levin. On April 10, 1989, shortly *542 after her releasе from the hospital, Mrs. Claypool and her husband retained Mr. Goldstein and signed authorizations for the release of medical records so that he could evaluate the merits of a potential medical malpractice action. During the next six weeks, Mr. Goldstein wrote to the Claypools telling them that he had requested the medical records and bills, and that he was awaiting them "so that I can have them reviewed." He also wrote, "I will keep you advised of what is happening." 4
Subsequent to that correspondence, Mr. and Mrs. Claypool had some contact and communication with Mr. Goldstein, but the dates were unspecified and the references to a possible medical malpractice claim were attenuated. In her deposition of February 24, 1994, Mrs. Claypool testified:
Did you personally have any conversations with Mr. Goldstein between April 10th, 1989, and the present date about this — his checking out this case for you? <0
Oh, no. p>
Did you have any conversations with him regarding any other matters that he was handling for you? «©
Yes. >
And what matters had he been handling for you after April of 1989 that you discussed with him? <£>
My daughter — Well, I was a passenger in the car when my daughter had the accident, and I went with her down to retain his service for — to represent us. >
*543 So are you testifying today that you had a personal injury claim arising out of an accident your daughter had after April 10th, 1989? O*
Yes, um-hm. >
And was that settled sometime between the time of the accident, which was after April 10th, 1989, and let's say July of 1992? JD
Yeah, I guess. Right, um-hm. I think. >
Did you at any time while he was representing you in that personal injury case say, "You know, Mr. Goldstein — or Russ — what's happening to this, the case with my eyes, with the doctors?" £>
No, I didn't.
In his deposition, Mr. Claypool testified about his limited contact with Mr. Goldstein and about their conversation when, by chance, they met in thе courthouse.
Q: Did he ever call you?
A: No.
Q: Did you call him?
A: Yes.
Q: On how many occasions?
A: One or two, three times.
Q: And between, let's say, April 18th, 1989, and July of 1992, did Mr. Goldstein ever explain to you what he was doing?
A: No, he just briefly said that he's checking it out, and that the doctor felt there was no case.
Q: And that occurred in a conversation, as related by your wife, when you were on jury duty at the courthouse?
A: Yes.
Q: And where did you see Mr. Goldstein, in the hall?
A: It was in the cafeteria.
*544 Q: Were you on a jury at that time, or were you just there — being summoned there to be called if they called you?
A: Right, summoned there if they called me.
Q: And what did Mr. Goldstein tell you?
A: He told us that the doctor feel [siс] that there was no case.
Q: And what was your response?
A: You know, I was just left hanging then, and I came back and told my wife what Mr. Goldstein said.
Q: Do you know what year that was that you were on jury duty?
A: I don't recall exact [sic].
Q: Well, was it 1992?
A: No, it wasn't.
Mrs. Claypool also stated that her husband told her about his courthouse conversation with Mr. Goldstein, who had told him "that the doctors that he had showed the case to did not see anything done wrong; and at that time my husband and I just drew the conclusion that there weren't a case." Subsequently, howеver, Ms. Claypool contacted the law firm of Warshafsky, Rotter, Tarnhoff, Gesler, Reinhardt & Bloch, S.C., which advised that she had a valid cause of action. 5
The trial court concluded:
*545 [T]he undisputed facts can lead to but one reasonable inference, that is, in the exercise of reasonable diligence plaintiffs should have discovered the probable cause of the injury within a reasonably short period of time after the injury. The injury was immediately known аnd the potentially responsible health care providers were known almost immediately after the injury. Counsel was retained within weeks of the injury to conduct an investigation regarding the potential cause or causes of the injury.
... The plaintiffs must be bound by the acts or omissions of their attorney agent. The only reasonable inference is that plaintiffs possessed sufficient information within a relatively short span of time from the injury to fоrm an objective belief that Dr. Levin's treatment was a cause of the injury. It is clear that, had reasonable diligence been exercised, the claim against Dr. Levin should have been discovered well before a year from the date of injury.
The trial court decision also noted that "[t]he Claypools are not without a remedy," given their legal malpractice claim against Mr. Goldstein.
Our review of a trial court's grant of summary judgment is
de novo. Groom v. Professionals Ins. Co.,
We look first to the complaint to determine whether it states a cause of action and, if so, we consider whether the answer states a defense. If it does, we examine the moving party's affidavits to see if the evidentiary facts alleged state a prima facie claim *546 for relief. If they do, we turn to the affidavits in opposition to the motion to see whether they raise material factual issues. If they dо not, the case is proper for disposition of the legal issues raised in the motion.
Fritz v. McGrath,
Goldstein argues, however, that" [t]he only reasonable inference that can be drawn from the record evidence is that plaintiffs discovered their claim against Dr. Levin less than one year before filing suit" when the Warshafsky firm advised them that they had a cause of action. On appeal, therefore, Goldstein requests an order reversing summary judgment and declaring the Claypools' complaint timely as a matter of law. In the alternative, he seeks an order reversing summary judgment and remanding the case for a jury's determination of whether the Claypools exercised reasonable diligence.
Goldstein contends
that Borello v. U.S. Oil Co.,
confronted by a situation where a complainant was injured more than three years before the filing of the complaint and almost contemporaneously with that injury formed her own layperson's subjective opinion that the furnace was the cause. Yet, at every turn, she was told by professionals, who were assumed to be competent to diagnosis her ailment and its cause, that the furnace fume problem was irrelevant.
Not until Dr. Fishbum made his diagnosis and findings was there any reasonable likelihood for an objective belief of a cause-and-effect relationship between the injury and the defective furnace.
Id.
at 403-404,
Although
Borello's
language would seem to support Goldstein's argument, several subsequent decisions help to clarify distinguishing factors between
Borello
and the instant case. In
Fritz v. McGrath,
We do not believe . . . that a party must be specifically advised by an expert that, in the expert's opinion, he or she received negligent treatment from a physician before the injury may be considered to have been "discovered." All that is required is that the plaintiff knew or should have known that the injury existed and that it may have been caused by the defendant's conduct. And while there must be more than an unsubstantiated lay belief of the existence and cause of the injury on the plaintiffs part, there is no requirement that he or she must have a full and specific "magic word" medical or legal opinion before the statute will be deemed to start running.
Id. (citation omitted).
Similarly, in
Clark v. Erdmann,
If a plaintiff has information that would constitute the basis for an objective belief of her injury and its cause, she has discovered her injury and its cause. It does not matter whether her objective belief resulted from information "officially" obtained from an expert witness. Nor... does it necessarily always matter whether the objective belief resulted at all from information obtained from any "expert" person.
Id.
at 448,
Thus, at first glance,
Fritz
and
Clark
might seem to support the argument that the Claypools discovered their cause of action soon after Dr. Levin's treatment despite the subsequent advice from their lawyer. That, however, would be a misreading of
Fritz
and
Clark
that would swallow the sound principle of
Borello.
Significantly, in neither
Fritz
nor
Clark
was the claimant specifically advised that there was no cause of action. In
Fritz,
as we noted, the plaintiff "was told by the very first physician she visited either that her аilments were 'related to [the] dental surgery,' or, in her version, that it was 'possible' that the surgery was a cause of her present problem."
Fritz,
Thus, in this important regard, Goldstein correctly argues that
Borello
corresponds more exactly to the instant case. In
Borello,
a succession of specific medical opinions advising the plaintiff that her problems were not caused by the furnace reasonably deterred her from filing any action.
See id,.,
In support of summary judgment, however, Dr. Levin cites a footnote in
Groom v. Professionals Ins. Co.,
Thus, the trial court's conclusion that "the only reasonable inference" is that the Claypools "possessed sufficient information within a relatively short span of time from the injury to form an objective belief that Dr. Levin's treatment was a cause of the injury" was an accurate expression of the Claypools' understanding at the point at which they presented their case to Gold-stein. That, however, does not logically end the analysis because the Claypools' "discovery" as a matter of law was not necessarily locked in time by their initial belief given the subsequent events. To conclude otherwise would be to ignore the "ordinary person" standard of
Borello
and require a claimant "to take extraordinary steps to secure a full medical analysis" beyond
*552
whatever counsel has obtained.
See Borello,
Although Goldstein would also have us conclude, as a matter of law, that the Claypools did nоt discover their cause of action until they received advice from the Warshafsky firm, we can not do so based on this somewhat indefinite record. "The issue of reasonable diligence is ordinarily one of fact."
Spitler v. Dean,
By the Court. — Judgment reversed and cause remanded.
Notes
The parties inconsistently spell Dr. Levin's name throughout the record as "Mark R. Levin" and "Marc R. Levin." We cannot determine which is the correct spelling.
In their amended complaint, the Claypools stated that they "believe that the Statute of Limitations for the claims against... Levin... and any other health care providers herein above referred to have [sic] expired; that the plaintiffs further believe that said claims may have been stayed by virtue of the date of discovery of a viable claim."
The trial court also concluded "that Goldstein being a defendant whose rights will be affected by this decision may properly interpose an objection to the motion." Although in the trial court the respondents challenged Mr. Goldstein's standing to oppose Dr. Levin's summary judgment motion, they have not challenged that aspect of the trial court's decision on appeal.
In his deposition, however, Mr. Claypool stated that he did not receive any correspondence from Mr. Goldstein after April 10,1989.
Dr. Levin, without providing a record reference, asserts that "the Claypools took no additional steps to obtain a second opinion until consulting with the Warshafsky firm in the summer of 1993, some eighteen months later." We are unable to locate anything in the summary judgment submissions to establish exactly when the Claypools received advice from Goldstein and, therefore, the exact chronology remains uncertain. We agree, however, that whether the Claypools exercised "reasonable diligence" may depend on factors including the exact nature and timing of their communication with their attorneys.
We are not unmindful of Dr. Levin's concern that, in this cаse, Mr. Goldstein might seem to benefit because of his own alleged malpractice. That, we concede, is an irony resulting from the unusual circumstances of this case. Although we agree that, in virtually all circumstances, a lawyer's possible negligence certainly should not shield him or her from liability for legal malpractice, we are no less concerned that a lawyer's liability might improperly insulate a doctor from a potentially meritorious medical malpractice claim.