Sue A. TAMMINEN and Leroy Tamminen, Plaintiffs-Appellants-Petitioners, v. AETNA CASUALTY & SURETY CO., a foreign corporation, Gundersen Clinic, Ltd., a Wisconsin corporation, Dr. William A. Kisken, and Wisconsin Patients Compensation Fund, Defendants-Respondents.
No. 81-199
Supreme Court of Wisconsin
November 30, 1982
327 N.W.2d 55
Argued October 5, 1982.
For the defendants-respondents there was a brief by Daniel T. Flaherty, Ellen M. Frantz and Johns, Flaherty & Gillette, S.C., La Crosse, and oral argument by Daniel T. Flaherty.
Amicus curiae brief was filed by Thomas D. Bell and Doar, Drill & Skow, New Richmond, for Wisconsin Academy of Trial Lawyers.
HEFFERNAN, J. This is a review of a decision of the court of appeals which affirmed a judgment of the circuit court for La Crosse county, DENNIS G. MONTABON, circuit judge, which held that the medical malpractice claim of the plaintiff, Sue A. Tamminen, was barred by the statute of limitations.
On this review three component issues are presented. The first question is whether there is a conflict between
We conclude, in agreement with the court of appeals, that there is no conflict between
We conclude that, where it is alleged and affidavits on summary judgment state that there is a continuing course of negligent treatment, but one cause of action or claim is stated; and, hence, if any portion of the continuing course of negligent treatment falls within the period of limitations, the entire cause of action is timely brought.
We also conclude that neither the insurer nor the Patients Compensation Fund need be joined in the proceedings before the compensation panel as a prerequisite to suing them in the circuit court. Because the court of appeals incorrectly concluded that the statute of limitations had run, we reverse its decision and remand the case for trial.
This case had its procedural origin when the plaintiff, Sue A. Tamminen, pursuant to
The “submission of controversy” was filed on October 30, 1978, and the final order of the panel was issued on September 26, 1979. The formal compensation panel decided that neither of the health care providers was negligent.
In accordance with
Irrespective of when the statute of limitations would otherwise have run, Tamminen contends that her filing of a circuit court action on January 11, 1980, one hundred eight days after the panel‘s decision, was the timely bringing of her malpractice action. Tamminen asserts statute of limitations; and she argues that, because under that
655.19 Court trial. Unless the parties have stipulated in writing under
s. 655.07 to be bound by the panel determination, any party to a panel hearing may, within 120 days after the date of an order made by a panel, commence an action for a trial in the circuit court for the county designated in the submission of controversy unders. 655.04 ....
It is conceded by all parties that, when Tamminen filed her submission of controversy with the patients com-
Although we disagree with the trial and appeals courts’ determination of when the three-year period of limitations commenced to run, we are in accord with the conclusion of both courts that only
Chapter 655 requires that an aggrieved patient file a malpractice claim with the administrator of the patients compensation panel prior to the bringing of any court action. State ex rel. Strykowski v. Wilkie, 81 Wis. 2d 491, 261 N.W.2d 434 (1978).
The effect of the statute is that the limitations period cannot run out while the controversy is before the panel, and a claimant is thereafter given a thirty-day grace period plus the time which remained on the period of limitations at the time of the filing.
... any party to a panel hearing may, within 120 days after the date of an order made by a panel, commence an action for a trial in the circuit court....
Tamminen argues that this latter statute extends the period of limitations so that a plaintiff who has filed with the panel before the three-year period has run will always have one hundred twenty days after the panel order to commence a circuit court action no matter how little of the three-year limitations period remains when the submission of controversy was filed. Under the plaintiff‘s theory, a filing made with the panel on the last day of the period of limitations would be sufficient not only to allow the submission to the panel, but would also assure the claimant one hundred twenty days following the panel‘s written decision to commence a court action. Both the trial court and the court of appeals properly determined that this view was erroneous.
We have frequently said that courts should avoid finding conflict between statutory provisions unless the conflict is clear. We stated in Moran v. Quality Aluminum Casting Co., 34 Wis. 2d 542, 553, 150 N.W.2d 137 (1967):
It is a cardinal rule of statutory construction that conflicts between different statutes, by implication or otherwise, are not favored and will not be held to exist if they may otherwise be reasonably construed.
We find no conflict nor even an implied incongruity between these statutes.
The one-hundred-twenty-day period set forth in
Although the plaintiff argues that the different periods of time set forth in
Although we have not previously addressed the alleged conflict between the statutes, we referred to both of them in Mortenson v. Miller, 99 Wis. 2d 209, 218, 298 N.W.2d 546 (1980). Therein we said:
Plaintiff commenced his action in circuit court within thirty days of the adverse determination by the patients compensation panel, the time during which the statute of limitations was tolled,
sec. 655.04 (6), Stats. , and within the 120-day period permitted bysec. 655.19, Stats.
This statement in Mortenson foreshadowed our present holding that both sections of the statutes apply and do not conflict. The statute of limitations is tolled from
Although the legislative history at the time patient compensation panels were created in 1975 is not persuasive one way or the other, the plaintiff argues that subsequent legislative activity shows that the legislature has recognized that
We do not so interpret the recent proceedings in the legislature, which have been brought to our attention by the plaintiff. 1981 Assembly Bill 537, as amended, proposed to change the time period of both sections to ninety days. However, there is nothing in the Legislative Reference Bureau‘s analysis of the bill which indicates that the change was proposed because of a conflict between the statutes. All the bill proposed was to make the periods under
For a party who has made an early submission to a compensation panel the period during which the action can be commenced is thus reduced by the proposed change in
We conclude, therefore, that, under the law as it now exists, for Tamminen to be timely in the commencement of her circuit court action, the action must have been brought before one hundred twenty days had passed following the court‘s decision and before her claim was extinguished by the running of the period of limitations. There is no conflict between
The court of appeals affirmed the trial court‘s summary judgment, which was granted on the theory that the statute of limitations barred any cause of action for any act of negligence which occurred prior to January 12, 1976. This time computation, which has been set forth earlier in this opinion, was based upon the theory that each act of negligence specifically alleged in the complaint or set forth in the affidavits on summary judg-
The plaintiff bases her appeal upon the theory that this court should affirm and restate the continuous-treatment doctrine, which she contends we have adopted, at least by implication, in the early case of Lotten v. O‘Brien, 146 Wis. 258, 131 N.W. 361 (1911).
Before we address the theory of the case on which the plaintiff wishes us to proceed, it is necessary, however, to determine whether summary judgment was properly granted. The court‘s duty where a motion for summary judgment is presented is set forth in
“The court must initially examine the pleadings to determine whether a claim has been stated and whether a material issue of fact is presented. If the complaint states a claim and the pleadings show the existence of factual issues, the court examines the moving party‘s (in this case the defendants‘) affidavits or other proof to determine whether the moving party has made a prima facie case for summary judgment under
sec. 802.08 (2) . To make a prima facie case for summary judgment, a moving defendant must show a defense which would defeat the plaintiff. If the moving party has made a prima facie case for summary judgment, the court must examine the affidavits and other proof of the opposing party (plaintiffs in this case) to determine whether there exist disputed material facts, or undisputed material facts from which reasonable alternative inferences may be drawn, sufficient to entitle the opposing party to a trial.” P. 338.
The plaintiff stated a cause of action in her amended complaint. The defendants in their affidavit state that the plaintiff made no claim of any negligent act or omission on the part of any of the defendants which occurred after December 3, 1975. If this affidavit were uncontroverted, it would be clear that the defendants posed a prima facie defense based on the three-year statute of limitations, which would entitle them to summary judgment. However, in the counter-affidavit filed by the plaintiff, it is stated that the negligent acts and omissions on the part of the defendants occurred throughout the period of continuous treatment from November 3, 1975, through March 30, 1976. The affidavit further states that, although specific acts of negligence itemized by the defendants in their affidavit were alleged and
The plaintiff argued in the trial court that the statute of limitations should not begin to run until the health care providers’ negligence ceased. The trial court did not entirely reject the plaintiff‘s argument or the evidence of her affidavits, but relied upon the theory, for which it could find support in Wisconsin law, that each day on which there is a negligent act or omission commences the running of a period of limitations on a new and different cause of action.
Under the trial court‘s reasoning, the statute of limitations begins to run each day for the negligent acts or omissions which occurred on that day. Thus, the trial court determined that the statute of limitations barred the plaintiff‘s cause of action with respect to most of the alleged negligence, while it did not bar an action for negligent acts or omissions that fell within the period subsequent to January 12, 1976. Under the trial court‘s view of the law, the factual disparity was not relevant, for it considered each act of negligence as a separate cause of action. The plaintiff argues that she is within the statute of limitations for all the acts of negligence during the entire course of the treatment. She relies on what she calls the continuous treatment rule, and she defines that rule as one which provides that the statute
As the plaintiff states, the rule of the doctrine of continuous treatment is that, if there has been negligence and the negligent health care provider continues to treat the plaintiff for the condition resulting from the negligence, the statute of limitations does not begin to run until the last day that the plaintiff was treated for that condition. The plaintiff distinguishes that doctrine from the doctrine of termination of relationship.9 Under the latter theory, the statute of limitations would not commence to run as long as the doctor-patient relationship continued, even though a portion of the treatment or the last day of it had nothing to do with the condition relevant to the alleged negligent acts. See, Louisell & Williams, Medical Malpractice, Vol 1 (1981) 13-32 ff.
The plaintiff claims that this court, impliedly at least, has recognized and approved of the continuous-treatment doctrine in the case of Lotten v. O‘Brien, supra. In Lotten, the plaintiff alleged that the defendant physician had negligently set his broken arm on August 24, 1908, and negligently treated it on several occasions thereafter. The last treatment was on September 26, 1908. Action
Lotten is simply irrelevant to the theory propounded by the plaintiff here, since even had an act of negligence occurred on September 26, 1908, it would have been barred by the statute of limitations. There is no intimation in that opinion that, had the September 26 date been within the period of limitations, the continuous-treatment doctrine would have been applied. Lotten has never been cited in this state for the proposition urged by the plaintiff and, to the extent that it has been cited elsewhere for the continuous-treatment doctrine, we deem those citations to be in error.
The continuous-treatment doctrine has not been recognized in Wisconsin. Nor do we do so in this opinion. The problem posed by the continuous-treatment doctrine is not before us, because the affidavits show that the plaintiff asserts facts which are beyond the minimum requirements of those states which have adopted the continuous-treatment doctrine. Under the continuous-treatment doctrine, the mere fact that there has been continuous treatment, whether negligent or not, for a condition occa-
Although some states have followed the rule that the continuous-treatment doctrine applies whenever there has been negligence at any time during the course of treatment, irrespective of whether there was negligence subsequent to the original malpractice, other states hold that the statute of limitations only begins to run when the continuing negligence ceases. It is the latter type of case that is revealed in Tamminen‘s affidavits.
In Hotelling v. Walther, 169 Ore. 559, 130 P.2d 944 (1942), the court held that, where there was continuous negligence following the extraction of a wisdom tooth, the statute of limitations did not commence to run until the negligent conduct, which was a part of a continuum, ceased. The court stated:
“The alleged negligent treatment of the plaintiff must be considered as a whole. Plaintiff was not obliged to split his cause of action. The continued negligent treatment constituted but a single cause of action. Where the tort is continuing, the right of action is continuing.” P. 565.
Thus, the plaintiff was able to maintain his action for the entire negligent course of conduct even though some of the acts of negligence, if considered separately and not a part of a continuum, would have been barred by the statute of limitations.
In Farley, there was a two-year statute of limitations applicable to personal injuries. Yet, the court found that, although plaintiff‘s action was not commenced until November 19, 1976, her action was timely in respect to negligence which occurred as early as 1971, because there was a continuing course of negligent treatment. It distinguished this from a situation where the medical malpractice complained of constituted a single isolated act. In such a situation, it acknowledged that the statute of limitations runs from the date of the act and injury.
The Virginia court followed the same line of reasoning in Fenton v. Danaceau, 220 Va. 1, 255 S.E.2d 349 (1979). In the latter case the plaintiff underwent negligently performed surgery for a congenital abnormality to the cervical spine in 1971. Then in 1972, on a date which was within the Virginia two-year statute of limitations, additional surgery to correct the same condition was undertaken, and it was alleged that the second surgical procedure also was not consistent with good surgical practice. The Virginia court held that, because the negligence continued for a related or identical condition and the treatment was substantially uninterrupted, there was but one cause of action, and, accordingly, the first surgery, which had occurred more than two years prior to the commencement of the suit, was cognizable by the court as a part of a single cause of action because the
It would appear that these cases are more consistent with the facts stated by the plaintiff in this case than those which satisfy the continuous-treatment doctrine. Under the law of Oregon and Virginia, where there is a continuum of negligent medical care related to a single condition occasioned by negligence, there is but one cause of action; and if any act of negligence within that continuum falls within the period during which suit may be brought, the plaintiff is not obliged to split his cause of action but may bring suit for the consequences of the entire course of conduct.
We conclude that the rationale of the Oregon and Virginia cases is consistent with the Wisconsin theory of a cause of action.
In Caygill v. Ipsen, 27 Wis. 2d 578, 135 N.W.2d 284 (1965), we discussed the meaning of the term, “cause of action,” or, to use the term employed in the revised Code of Civil Procedure, a “claim for relief.”
Clark, in his treatise on Code Pleading (West, hornbook series 2nd ed. 1947), discusses on pages 472 ff. the meaning of the code expression, “cause of action,” which we consider to be substantially equivalent to the present statutory terminology, “claim for relief.” He states:
“[T]he controlling consideration in determining the extent of the cause should be trial convenience, with much discretion accorded the trial court.” P. 477.
We have taken a similar approach to the question of whether a complaint states more than one cause of
“‘[T]here is only one cause of action if there is only one grouping of facts falling into a single unit or occurrence as a lay person would view them.‘”
The problem in Hyland, Hall was whether a series of contracts alleged to be in violation of the state antitrust laws, which were entered into beginning in about 1958 and continuing until at least 1969, constituted a single cause of action. We held that but a single cause of action was stated if there is a grouping of facts which would fall into a single unit as a lay person would view them.
It is apparent that the rationale which this court has utilized in determining whether or not there is a single cause of action in misjoinder cases is identical to that employed by the Oregon and Virginia courts where there is a continuum of negligent conduct. It is also consistent with the Wisconsin case of Oosterwyk v. Bucholtz, 250 Wis. 521, 27 N.W.2d 361 (1947), where we held that a cause of action for false imprisonment accrues when the imprisonment terminates and, therefore, the statute of limitations begins to run only when the imprisonment ends. In Oosterwyk, we treated the period of imprisonment as a unit. Also, in Milwaukee County v. Schmidt, Garden & Erikson, 43 Wis. 2d 445, 168 N.W.2d 559 (1969), the court implied, albeit in dicta, that a claim for negligent supervision of construction could have been maintained if any of the related acts of negligent supervision had occurred within six years prior to the court action.
“The plaintiff has divided what is probably a single cause of action .... The wording of the two causes of action differs only in the recital of the character of the injuries, and both causes of action fall within the same category. ... we will treat the complaint as though it contained but a single cause of action.” P. 590.
We conclude that a situation such as that alleged in the complaint and set forth in the plaintiff‘s affidavits in the instant case is consistent with this court‘s theory of pleading—that there was but a single unit of negligent treatment, both surgical and remedial, from the time Sue Tamminen was admitted to the Gundersen Clinic for examination until the time she was discharged from her hospitalization on March 30, 1976. It is averred that the tortious conduct did not cease until that latter date; and, accordingly, the statute of limitations for that entire course of conduct, a unitary episode as it is reasonably viewed, does not commence to run until the tortious conduct ceases. Because a cause of action is not to be split, the plaintiff is entitled to have the entire cause of action adjudicated if the action is timely brought, measuring that timeliness from the last negligent act in the related continuum of malpractice.
This view of when the cause of action accrues is entirely consistent with prior Wisconsin cases in respect to
The period of negligent treatment ran from November 3, 1975, to March 30, 1976. The controversy was submitted to the patients compensation panel on October 30, 1978. At that point, two years and two hundred fourteen days had elapsed following the date of last negligent treatment. At the time of the submission of controversy one hundred fifty-one days remained before the
We hasten to add, however, that it is incumbent upon the plaintiff to prove at trial that negligence persisted until March 30, 1976. On summary judgment the interpretation of the affidavits is designedly skewed to favor the party opposing summary judgment. That, however, does not relieve Tamminen of her burden of proof to show negligence which in fact persisted until the date she now asserts. Moreover, we are cognizant of the fact that the formal panel found no negligence on the part of the health care providers. Their basic negligence is unproved. By concluding that this action was timely brought, we merely give the plaintiff the opportunity to prove her allegations at trial. Upon the submission of proof it is not impossible that a motion to dismiss based upon the statute of limitations can be reasserted. We have in this opinion assumed, as we must, that there is an issue of fact in respect to when the negligent conduct ceased. We have pointed out that the factual question is material, but the resolution of the question can only be had on the basis of the evidence at trial.
The defendants Aetna Casualty and Surety Company and the Patients Compensation Fund also assert that the court action against them should be dismissed because they were not named in the submission of controversy filed with the compensation panel. The question was not addressed by the trial court; and the court of appeals, we conclude, incorrectly disposed of the question when it stated:
“Tamminen‘s action against Aetna and the Fund was properly dismissed because their liability is to insure the health care providers, Gundersen and Kisken, who were determined not negligent by the panel. Because the health care providers are not liable, Aetna and the Fund, as their insurers, are not liable.” 105 Wis. 2d at 424.
The implication of the court of appeals’ statement is that the insurers could not be found liable simply because the panel found the health care providers not negligent. This is incorrect. The health care providers could be found negligent in a trial de novo regardless of what the panel found; and then, of course, the insurer and the Fund would be liable to the extent of their contractual or statutory obligations. Only if no such liability were imposed on the health care providers could either the Fund or the insurer escape liability. An insurer and the Fund are proper parties to be joined where a patient seeks a trial de novo.
Nor is it necessary to have named them in the submission of controversy.
The defendants rely upon
In summary, then, we hold that there is no conflict between
The decision of the court of appeals is reversed. The cause is remanded to the circuit court with directions to vacate the summary judgment dismissing the plaintiff‘s complaint and for further proceedings.
We note that the petitioner‘s attorneys, on page 8 of their reply brief, cite and quote from an unpublished opinion of the court of appeals in violation of Rule 809.23 (3). The rule provides:
“An unpublished opinion is of no precedential value and for this reason may not be cited in any court of this state as precedent or authority, except to support a claim of res judicata, collateral estoppel, or law of the case.”
As the Judicial Council‘s comments to the rule reveal, the noncitation rule is essential to the reduction of the overwhelming number of published opinions and is a necessary adjunct to economical appellate court administration. Accordingly, violations of the noncitation rule will not be tolerated. Under Rule 809.83 (2), we deem the imposition of a penalty of $50 upon the attorneys for the
By the Court.—Decision of court of appeals reversed; cause remanded with directions.
SHIRLEY S. ABRAHAMSON, J. (concurring). As I read the lines of the majority‘s opinion and as I read between those lines, it is clear to me that the majority has adopted the continuous treatment rule. The majority attempts to avoid adopting the rule in this case by distinguishing essentially indistinguishable cases which adopt the continuous treatment rule.