This is a review of a decision of the court of appeals, Robinson v. Mt. Sinai Medical Center, 127 Wis.2d 285, 379 N.W.2d 326 (Ct. App. 1985), affirming an order of the circuit court for Milwaukee county, Honorable Marvin C. Holz, denying a defense motion for summary judgment. The issue presented is whether the services rendered by successive health care providers constituted a "continuum of negligent treatment" such that a single cause of action against these parties arose and the applicable statute of limitations did not begin to run until the last negligent act occurred.
We hold that, under the facts as alleged by Plaintiff, the services rendered by the health care providers can be properly characterized as a "continuum of negligent treatment" within the meaning of that phrase as explained in Tamminen v. Aetna Casualty & Surety Co., 109 Wis.2d 536, 327 N.W.2d 55 (1982). We therefore hold that Plaintiff's claim against
On January 20, 1979, Humberto Robinson (Plaintiff), sixteen years old, came to the Mount Sinai Medical Center (Mount Sinai) emergency room and was examined by a resident. The Plaintiff complained of having a toothache and a frontal headache. He had been vomiting for five days, his right eye was swollen and caused him pain over the right temporal area, and
The Plaintiff's condition worsened, and he returned to Mount Sinai on January 23, 1979, with his right eye swollen shut. On this occasion he was examined by a Dr. Mary Lynn Ryan, who was on staff at Mount Sinai and Milwaukee Children's Hospital (Children's). Dr. Ryan admitted Plaintiff to Children's and remained his attending physician throughout his stay.
At Children's, Plaintiff underwent an allegedly negligent course of treatment, directed at stemming the spread of infection to the brain. These efforts were unsuccessful, and the spread of the infection caused an intra-cranial abscess. As a result of the alleged negligent treatment, the Plaintiff suffered severe brain damage. According to Plaintiffs' medical expert, Doctor Eric B. Zurbrugg, a specialist in pediatric neurology who provided a report on the Plaintiff which was included in papers submitted in opposition to the summary judgment motion, the Plaintiff is "thoroughly demented and a total invalid."
Four major neurosurgical procedures were performed on Plaintiff while he was at Children's. The purpose of these operations was to surgically drain infectious abscess material from different portions of the cranium. The last of these surgeries occurred on
Other procedures were required, due to the continued progression of the infection and the unsuccessful attempts at drainage. The Plaintiff developed communicating hydrocephalus, which required the insertion of a shunt. The original placement and various modifications of the shunt took place in May and June of 1979. Plaintiff eventually developed grand mal seizures in June of 1979. He was discharged from Children's on September 13, 1979, and removed to the Sacred Heart Rehabilitation Hospital in Milwaukee.
A submission of controversy
Following Mount Sinai's dismissal, Humberto Robinson, by his mother and legal guardian, Jane Robinson, and Jane Robinson individually, commenced an action on May 2, 1984,
The trial court, relying on the foregoing, concluded that the claim was not barred by the statute of limitations. The trial court stated: "[i]t is not unreasonable for a lay person to view the whole course of treatment as a single occurrence. Different injuries or conditions did occur medically, but all resulted from the failure to cure an infection."
On appeal of this decision, the court of appeals affirmed the trial court, holding that the alleged negligence of the health care providers (both the hospitals and doctors) "constituted a continuum of negligence resulting in only one cause of action, which accrued at the end of the continuum." Robinson, 127 Wis. 2d at 288.
Mount Sinai argued to the court of appeals that Tamminen and the cases on which it relies, each
Relying in large part on Ewing, the court of appeals held "that a single cause of action arises from a continuum of negligent treatment, whether by a single actor or by successive actors, that results in personal injury."
Mount Sinai argues that the Tamminen holding must be "confined to the situation where the continuous negligent treatment was rendered by the same group of doctors and/or the same hospital or clinic throughout the period of negligent treatment." The alleged act of negligence by Mount Sinai consisted of one act of the resident on January 20, 1979. Mount Sinai asserts that the single act of medical malpractice cannot constitute a continuum of negligent treatment.
Citing Hansen v. A.H. Robins, Inc., 113 Wis.2d 550, 335 N.W.2d 578 (1983) for the rule that a cause of action accrues when an action of negligence occurs with resulting injury and the injury is discovered, Mount Sinai argues that "[a]ll the necessary elements
In the present case, if Mount Sinai's involvement with the Plaintiff is treated as a separate occurrence, then, since the last day of treatment was January 23, 1979, the three year statute of limitations expired three years after the cause of action accrued. Section 893.04, Stats. If Mount Sinai's involvement is treated as part of a continuing course of negligent treatment, under the Tamminen rule, then the cause of action against it did not accrue until the last negligent act. Under the facts, the last neurosurgical procedure was performed on Plaintiff on April 11, 1979. The submission of controversy was filed April 7, 1982. Thus, under the Tamminen rule, the three year statute would have been tolled prior to its expiration.
In Tamminen, Plaintiff filed a "submission of controversy" with the Patients Compensation Panel on October 30, 1978, claiming that health care services were negligently performed in connection with gastric bypass surgery which she underwent on November 4, 1975. The Panel issued a final order September 26, 1979, finding that the health care providers had not been negligent. The Plaintiff then commenced a circuit court action against the health care providers on January 11, 1980. The Defendants moved to dismiss the claim on statute of limitations grounds. The trial court granted summary judgment "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." Tamminen, 109 Wis. 2d at 548. As explained by this court:
Plaintiff in Tamminen contended that one cause of action arose as a result of a continuous course of negligence from the time of admission to the hospital to the time of final discharge, Id. at 549, and Plaintiff urged this court to adopt the "continuous treatment doctrine."
The Tamminen court stated that the continuous treatment doctrine had not and would not be adopted in Wisconsin. Id. at 553. In declining to adopt the continuous treatment doctrine, this court noted that under that doctrine "the mere fact that there has been continuous treatment, whether negligent or not, for a condition occasioned by a prior negligent act, is
However, the Tamminen court, relying on cases from Oregon and Virginia, adopted the rule that "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." Id. at 556. The Tamminen court concluded that the rationale expressed by the Oregon and Virginia courts in determining whether a continuum of negligent conduct exists is "identical" to the rationale utilized by this court in determining whether or not there is a single cause of action in misjoinder cases. Id. at 557.
The question here is, was the denial of summary judgment proper. Section 802.08(2), Stats. 1977, sets forth the court's duty where a motion for summary judgment is presented.
The court must apply the summary judgment methodology in the same manner as the trial court. Spring Green Farms v. Kersten, 136 Wis.2d 304, 401 N.W.2d 816 (1987). The first step in this methodology is
"In testing the sufficiency of a complaint, we take all facts pleaded by plaintiffs and all inferences which can reasonably be derived from those facts as true. Pleadings are to be liberally construed, with a view toward substantial justice to the parties. Sec. 802.02(6), Stats. The complaint should be dismissed as legally insufficient only if it is quite clear that under no circumstances can plaintiffs recover." Id.
If the court concludes a claim for relief has been stated, the court must determine whether any factual issues exist and whether the Defendant is entitled to judgment as a matter of law. Id. at 13.
The complaint sets forth a cause of action in negligence against the Defendant, Mount Sinai. The elements in a cause of action for negligence are: 1) a duty of care on the part of the defendant; 2) a breach of that duty; 3) a causal connection between the conduct and the injury; and 4) an actual loss or damage as a result of the injury. Coffey v. Milwaukee, 74 Wis.2d 526, 631, 247 N.W.2d 132 (1976). Plaintiffs' complaint alleges that the resident who initially saw the Plaintiff at Mount Sinai was negligent in his diagnosis of the problem and treatment orders with respect to the original infection; that the resident's negligence was a substantial factor in the spread of the infection to the brain and in producing the resulting brain damage; that the standard of care evinced by the resident fell below that norm expected of members of the profession; and that permanent damage, causally related to the original misdiagnosis,
Mount Sinai, in its answer, raised the statute of limitations as an affirmative defense. Shortly after filing its answer, Mount Sinai brought the summary judgment motion, again relying on the statute of limitations argument.
We note that, as a general rule of pleading, plaintiffs are not required to anticipate defenses which defendants may raise and thus are not required to negative potential defenses in their complaint. See, 61A Am. Jur. 2d Pleading sec. 81 (1981). Wisconsin adheres to this general rule. It was stated in Thomas v. Kells, 53 Wis.2d 141, 145, 191 N.W.2d 872 (1971): "While a complaint need not specifically deny the existence of any and all affirmative defense, it can, by inadvertence or otherwise, create or concede an affirmative defense fatal to its validity." (Footnote omitted.) See, also, Falk v. Whitewater, 65 Wis.2d 83, 87, 221 N.W.2d 915 (1974). The statute of limitations is an affirmative defense, sec. 802.02(3), Stats.,
Having determined that the complaint states a claim upon which relief may be granted, we now consider whether the pleadings or evidentiary matter show the existence of a disputed issue as to any material fact. See, Grams v. Boss, 97 Wis.2d 332, 354, 294 N.W.2d 473 (1980).
Because we apply the Tamminen rule in this case, the date of the last alleged negligent treatment therefore becomes a disputed issue. Resolution of the disputed issue of fact is necessary before it can be determined whether the statute of limitations applies to bar Plaintiffs' action. If the involvement of Mount Sinai was treated as something disconnected from the treatment given at Children's, Defendants could show that since Mount Sinai last saw the Plaintiff on January 23, 1979, the cause of action arguably accrued at that time and the applicable three year limitations period thus would have expired prior to the filing of the submission of controversy.
In Plaintiffs' affidavit submitted on the summary judgment motion (filed September 24, 1984 and dated September 21, 1984; record at 7), it is stated that nine different "injurious conditions" progressively occurred to Robinson from January 20 to August 30, 1979; that these injuries resulted directly from the negligence of the Mount Sinai resident on January 20, 1979; and that these injuries were "separate, distinct, successive, continuous and progressive." (Emphasis added.)
Plaintiff's affidavit incorporates by reference the medical reports of Doctor Eric B. Zurbrugg, a physician specializing in pediatric neurology, analyzing Plaintiff's treatment and subsequent injuries. On the
Doctor Zurbrugg stated that the Plaintiff's brain injury was "diverse and cumulative throughout his hospitalization." The series of four neurosurgial procedures each was "necessitated by the delay and apparent inadequacy of the previous ones." Doctor Zurbrugg summarized the course of treatment received by Plaintiff:
Doctor Zurbrugg questioned the appropriateness of the use of drugs to combat the spreading infection:
We conclude that the record sets forth a case in which the Tamminen rule should apply. The facts as averred by Plaintiffs evince a situation "where there is a continuum of negligent medical care related to a single condition occasioned by negligence." Tamminen, 109 Wis. 2d at 556.
In reviewing the materials submitted on the summary judgment motion, we find that Plaintiffs, in setting forth statements asserting the continued negligence of Children's, raise an issue of fact as to when the last act of negligence occurred. The determination of when the last act of negligence occurs becomes significant only upon application of the Tamminen rule. Since the rule is applied and we assume the facts are as Plaintiffs aver, the Defendants cannot prevail on their statute of limitations argument. The existence of this disputed issue of fact thus makes the granting of summary judgment inappropriate. We need not proceed to the third step in the analysis to determine whether a party should receive judgment as a matter of law.
We are not persuaded by Mount Sinai's argument that the Tamminen rule of continuing course of negligence treatment is restricted to situations involving a
This court stated in Ewing, 70 Wis.2d 962, 236 N.W.2d 200 (1975), that the test of whether there is
We agree with the court of appeals that in the instant case a lay person would reasonably view the facts as falling into a single unit or occurrence. Robinson, 127 Wis. 2d at 290-291. We also agree with the court of appeals that "there is only one subject of controversy (Humberto's brain damage), one primary right (his right to be free from medical malpractice) and, consequently, only one cause of action." Id. at 291.
We recognize that Wisconsin case law dealing with the concept of "successive torts" appears to limit the types of cases where injuries inflicted on a plaintiff by successive tortfeasors can be grouped together and characterized as forming a single cause of action. As representative of these types of cases, Mount Sinai cites Voight v. Aetna Casualty & Surety Co., 80 Wis.2d 376, 259 N.W.2d 85 (1977), a case involving medical malpractice.
In Voight, Plaintiff was diagnosed as having a tumor in her right hip by Doctor Frederick Gaenslen. Dr. Gaenslen performed surgery on the hip on April 5, 1971. During the surgery Dr. Gaenslen broke a fragment from the bone; he stapled the fragment back to the bone and finished the operation without removing the tumor.
The plaintiff commenced an action against Dr. Gaenslen, Columbia Hospital (the hospital at which Dr. Gaenslen performed his two operations), Dr. Barash, and their insurers. Defendants demurred to the action. The trial court sustained the demurrers and ordered that the three actions be separately brought. The plaintiff appealed, arguing that the trial court erred in holding that the complaint improperly united several causes of action. The Voight court stated that the case before it arose under sec. 263.04, Stats. 1973, which provided:
The court noted that the foregoing provision would have no application when a complaint states only one cause of action. Voight, 80 Wis. 2d at 382. The court then reviewed prior cases dealing with the definition of a single cause of action to determine if a single cause of action was stated.
The court looked at several "successive tortfeasor" cases, including Caygill v. Ipsen, 27 Wis.2d 578, 135 N.W.2d 284 (1965) (two automobile accidents five
The Voight court stated that the foregoing cases "compel the conclusion that each of the operations involved in the instant action was a `grouping of facts falling into a single unit or occurrence.'" Voight, 80 Wis. 2d at 383, quoting Caygill, 27 Wis. 2d at 582. The court also stated that the fact that there was only one injury alleged and that the alleged damages may be indivisible would not alter the conclusion that there were three separate causes of action. Voight, 80 Wis. 2d at 383.
Having determined that there were separate causes of action, the Voight court then proceeded to determine whether the causes were properly joined under sec. 263.04, Stats. 1973. To be properly joined, one of the things that need be shown was that the causes affect all the parties to the action. Id. at 384. The court noted that in order to make this showing, the defendants had to be either "joint tortfeasors or independent tortfeasors whose negligence concurs in time and place to produce a single injury." Id.
The Voight court stated that the case involved neither joint nor concurrent negligence. Id. The case was compared to Butzow, where the Butzow court stated:
Mount Sinai argues that Voight, and the cases cited therein, offer strong support for the conclusion that negligent acts by successive tortfeasors, even though they may be close in time and relate to the same injury, should not form the basis for a single cause of action. We conclude that Voight does not control the present case.
First, we note that Voight is a pre-Tamminen case. This court in Tamminen saw fit to adopt a new rule for cases involving negligent medical treatment. In the medical malpractice context special considerations arise. Voight interpreted sec. 263.04, Stats. 1973, dealing with the issue of when several causes of action could be united. This rule was repealed by supreme court order, 67 Wis.2d 585, 758, effective January 1, 1976. In analyzing whether a single cause of action arose, the Voight court relied on other pre-Tamminen cases dealing with joinder questions under sec. 263.04. None of these cases involved solely medical malpractice issues related to treatment for a single condition.
Terms such as "successive tortfeasors" often have different meanings in different contexts. As Professor James Ghiardi has noted:
The question considered in Voight was whether there was a misjoinder of causes of action. The Voight court made no special allowance for the fact that medical malpractice was involved. It was concluded, virtually without analysis, that each of plaintiff's hip operations constituted distinct wrongful acts and therefore separate causes of action.
The question in this case is whether Plaintiffs state facts sufficient to show that a continuum of negligent medical treatment exists. In assessing this, we rely on the concept of cause of action as analyzed in misjoinder cases.
The misjoinder cases define a cause of action as "a grouping of facts falling into a single unit or occurrence as a lay person would view them." Caygill, 27 Wis. 2d at 582. It is this central idea—whether there is a group of facts which, as viewed by a lay person, would fall into a single unit or occurrence—that the Tamminen court relied upon in explaining the new continuum of negligent treatment doctrine. This definition of a cause of action, by its terms, has no limits as to the number of acts or number of wrongdoers.
The Caygill court concluded: "The conduct of the defendants, Thompson and Ipsen, are two separate invasions of the right to be free from bodily harm; and, as a consequence, the accidents give rise to two separate causes of action." Id. at 583.
Thus, the Caygill court emphasized that each defendant performed a wrongful act; since there were two wrongful acts there were two causes of action. In relying on the single "cause of action" notion to aid our continuum of negligent treatment analysis, we are not concerned with the number of defendants or the number of wrongful acts. In this respect, the analysis in continuum of negligent medical treatment cases differs from the analysis in the misjoinder cases. Our concern is with the question whether a lay person could reasonably conclude that the facts fall within a single unit or occurrence. The implied assumption is that this will function as a test in helping to determine whether the events can be characterized as forming a "continuum" of negligent treatment.
In cases such as Caygill, Fitzwilliams, and Butzow, the facts are such that a lay person could view
In the present case, the Plaintiff had an infection that was spreading and progressively getting worse. The fact that the resident at Mount Sinai and the various medical people at Children's treated the Plaintiff's infection was not coincidence or happenstance. It was by their conscious choice, not by accident.
This case falls within the ambit of the Tamminen rule because it meets the various conditions or elements of that rule: 1) There is a continuum of care. Reaching the conclusion that there is a continuum of care inevitably involves questions related to timing and the sequence of events. Here, there is a relatively uninterrupted chain of events as health care providers sought to address a spreading infection. This conclusion is strengthened by examining the sequence of events surrounding Plaintiff's transfer between hospitals. At the time of Plaintiff's second visit to Mount Sinai, Plaintiff was examined by Doctor Ryan. Doctor Ryan elected to admit Plaintiff to Children's Hospital, where she was also on staff. The move to Children's was accomplished by a doctor originally treating Plaintiff at Mount Sinai. The facts surrounding transfer show that treatment was uninterrupted. This case differs from Voight, where the plaintiff, although undergoing treatment which all related to her hip, waited over two years between the first and second treatment and over a year between the second and third treatment.
3) The medical care related to a single condition. There is no question but that all the treatment was directed at stemming the spread of a progressive infection. This fact alone distinguishes the majority of the "successive tortfeasor" cases, most of which exhibit no connection between the tortfeasors as to their purpose for acting. Their sole connection is that they have inflicted some type of injury on the Plaintiff.
4) The precipitating factor in this series or "continuum" was the original misdiagnosis at the Mount Sinai emergency room. Had timely and appropriate intervention taken place upon Plaintiff's first visit, the infection may have been curtailed and further radical treatment, such as neurosurgery, made unnecessary. The spreading infection was thus "occasioned by negligence," and the continuum of negligent medical care all "related" to the treatment of the spreading infection.
The facts of this case thus fall squarely within the Tamminen rule. It is precisely this type of case that this court envisioned when it fashioned the continuum of negligent medical treatment rule.
We conclude that the course of conduct here, as phrased by the Tamminen court, constituted "a unitary episode as it is reasonably viewed." Tamminen, 109 Wis. 2d at 558.
We note that by concluding that the continuum of negligent treatment doctrine applies to this case and
By the Court.—The decision of the court of appeals is affirmed.
Section 893.205(1), Stats. 1977 provides:
Once there had been a filing, any applicable statute of limitations was thereby tolled. Section 655.04(6), Stats., 1977 provides:
The statutory scheme dealing with medical malpractice was substantially revised by recent legislation. 1985 Wisconsin Act 340 replaces the Patient Compensation Panels with a "mediation system." Much of Chapter 655, including the provisions requiring a filing of a submission of controversy prior to any court action, has been repealed.
"(1) Within the age of 18 years, except for actions against health care providers; or
"(2) Insane; or
"(3) Imprisoned on a criminal charge or in execution under sentence of a criminal court for a term less than his natural life, the time of such disability is not a part of the time limited for the commencement of the action, except that the period within which the action must be brought cannot be extended more than 5 years by any such disability, except infancy; nor can it be so extended in any case longer than one year after the disability ceases."
The court of appeals held that sec. 893.33, Stats., would apply if Plaintiffs could show that Humberto Robinson was insane when the cause of action accrued. Robinson, 127 Wis. 2d at 288. As noted, Humberto Robinson suffered severe brain damage. Plaintiffs consulted with a doctor specializing in pediatric neurology who examined Mr. Robinson and found that he met the criteria for dementia.
Since we resolve the statute of limitations question based on the Tamminen rule of continuous negligent treatment and the action falls within the three year statutory period, it is not necessary to reach the question of the applicability of sec. 893.33, Stats.
The foregoing cases arise in jurisdictions that have adopted the "continuous treatment" rule, which differs from the continuous negligent treatment doctrine adopted in Wisconsin. Therefore, we do not rely on decisions from these other jurisdictions for guidance in interpreting and applying the Wisconsin rule.