Court: Court of Appeals of Wisconsin; February 13, 2019; Wisconsin; State Appellate Court
Gerald Glumske appeals a summary judgment that dismissed his negligence lawsuit against Dr. Sean Yetman and associated health providers and insurers, claiming Yetman negligently performed heart surgery on his wife, Nancy, leading to her death. Yetman sought summary judgment, arguing that the claim was barred by the three-year statute of limitations for medical malpractice under WIS. STAT. 893.55(1m)(a) (2017-18). Gerald argued that his suit fell under the "discovery rule" in WIS. STAT. 893.55(1m)(b), allowing for a complaint within one year of discovering the injury. The circuit court found that Gerald did not exercise reasonable diligence in discovering the alleged negligence and thus denied the application of the discovery rule, granting summary judgment to Yetman.
However, the court concluded that reasonable inferences from undisputed facts necessitate a jury's determination on whether Gerald exercised reasonable diligence regarding the cause of Nancy's death. The case background indicates that in July 2011, Yetman performed surgery to replace Nancy’s mitral heart valves, but later informed Gerald that he had not replaced them, without providing further explanation. Following surgery, Nancy’s health declined, leading to organ failure and her eventual death about four weeks later. After her death, Gerald sought her medical records to understand the lack of valve replacement but did not obtain them due to financial constraints. The appellate court reversed the summary judgment and remanded the case for further proceedings.
Gerald took no action regarding Nancy's medical care or death until 2016, when he read an article revealing that Yetman, the surgeon, had been fired after multiple unsuccessful procedures, including Nancy's. The article stated that Yetman left her on a heart bypass machine for too long, causing kidney and liver failures, and that he should have replaced her heart valves rather than attempting repairs. Yetman was terminated in October 2011 after a review of his cases and surrendered his medical license in 2014.
On July 12, 2016, Gerald filed a complaint alleging negligent care against Yetman. Yetman sought summary judgment, claiming the case fell outside the three-year statute of limitations. Gerald argued that the discovery rule applied, as he only learned of the negligence from the newspaper article and filed within one year of that discovery. The circuit court rejected the discovery rule, concluding that Gerald failed to exercise reasonable diligence in uncovering the cause of Nancy's death, leading to the dismissal of the complaint.
Gerald appealed, asserting that reasonable inferences could be drawn regarding his diligence, requiring a jury's determination. The summary judgment standards dictate that such judgments are appropriate only when no genuine issue of material fact exists, and the burden is on the moving party to demonstrate this absence of dispute. The reviewing court must interpret materials in favor of the non-moving party, and if multiple reasonable inferences arise from undisputed facts, summary judgment is not warranted. Any reasonable doubt about material facts must be resolved against the party seeking summary judgment.
Wisconsin law stipulates that in medical malpractice cases, the determination of reasonable diligence is typically a factual issue for a jury rather than a matter for summary judgment. The statute of limitations under WIS. STAT. 893.55(1m) requires that a claim must be filed within three years of the injury or one year from when the injury was discovered or should have been discovered with reasonable diligence. In this case, it is undisputed that Gerald filed his complaint over three years after the alleged injury. The key issue on appeal is whether the complaint was timely under the "discovery rule."
The assessment of whether a party exercised reasonable diligence is fact-specific and should be judged from the perspective of a reasonable person in similar circumstances. An initial suspicion may trigger the obligation to investigate, but varying degrees of certainty may be necessary depending on the case. A court must evaluate whether Gerald had access to information that would aid in exercising reasonable diligence without expecting him to undertake extraordinary measures for a full medical analysis.
Yetman claims entitlement to summary judgment based on the assertion that the only reasonable conclusion from the undisputed facts is that Gerald did not exercise reasonable diligence to investigate the cause of Nancy's death. Yetman argues that Gerald could have discovered negligence as early as the date of Nancy's surgery or death in 2011. Conversely, Gerald concedes that Yetman's inference is reasonable but posits a second inference: a reasonable person might view Nancy's death as a common complication from heart surgery, leading to no suspicions or investigations until a newspaper article in January 2016. The court agrees with Gerald's perspective.
Gerald was aware of several critical health issues concerning Nancy prior to her death in mid-August 2011, including her history of heart surgery, the installation of a pacemaker, her receipt of Social Security disability due to atrial fibrillation, her smoking habit, and her declining activity level in the year leading up to her surgery. Nancy chose to undergo heart valve replacement surgery to alleviate her fatigue and restore her active lifestyle, despite the associated risks. However, post-surgery, her condition worsened significantly; she was unable to speak or move due to swelling and remained in a hospital bed without the intended surgery being completed. Gerald questioned Yetman, a medical provider, about the failure of the procedure and the deterioration of Nancy's health, but he did not receive satisfactory explanations.
Yetman argued that Gerald failed to exercise reasonable diligence in investigating Nancy's death, suggesting that a reasonable person would have made inquiries after the surgery. However, the court found that Yetman did not demonstrate that Gerald had reasonable access to the information in question during those critical periods. There was no evidence that Gerald had a legal right to demand information from medical providers while Nancy was alive, nor that Nancy had granted him such rights through any legal instruments. Thus, the inference drawn was that Gerald reasonably believed he could not seek further information from medical professionals regarding Nancy's condition while she was still alive.
Gerald's attempts to obtain information from Yetman about Nancy's surgery and subsequent condition were met with silence, suggesting that Yetman would not divulge any details. There is no indication from Yetman or other medical providers that they would provide information if asked. This absence of communication leads to the reasonable inference that Gerald believed he would not receive answers, even if he pressed for them. The incomplete surgery and Nancy's unexpected death do not solely imply negligence on Yetman's part; rather, these outcomes could also be interpreted as a tragic but normal result of her complex health history and the nature of heart surgery. Legal precedents suggest that a poor surgical outcome does not automatically indicate malpractice, as medicine is inherently uncertain and even skilled physicians can make errors without being negligent.
After Nancy's death, Yetman's argument that Gerald should have sought answers more vigorously is weakened by the inference that such answers were not readily accessible. There is no evidence that the hospital would provide further information regarding Nancy's death or Yetman's termination. Thus, it is reasonable to conclude that Gerald would not have pursued additional inquiries, given his belief that information would be withheld. Even if Gerald could have later discovered Yetman's departure from the hospital, this fact alone does not imply malpractice, and a jury should evaluate whether Gerald acted with reasonable diligence in light of the circumstances.
Gerald's potential awareness of Yetman's surrendered medical license in Wisconsin does not solely imply that Yetman committed malpractice, as reasonable inferences suggest that Yetman may have relocated and no longer required a Wisconsin license. Additionally, there is no evidence indicating that the public, including Gerald, had access to information explaining Yetman's loss of licensure. Yetman contends that Gerald's failure to obtain Nancy's medical records post-death reflects a lack of reasonable diligence. However, the evaluation of "reasonable diligence" must consider Gerald's circumstances, including his financial inability to afford the records, which is undisputed. While a plaintiff's financial situation alone does not determine reasonable diligence, it must be viewed alongside other facts. Under Wisconsin law, reasonable access to information is required to exercise diligence, and without the financial means to acquire the medical records, Gerald's access was effectively limited. Consequently, a reasonable inference is that Gerald lacked the resources needed to investigate further, making it inappropriate to assume he could have acted otherwise. As such, the determination of whether Gerald exercised reasonable diligence is a matter for a jury, leading to the conclusion that summary judgment in favor of Yetman was inappropriate. The case is reversed and remanded for further proceedings.
Order reversed and the case remanded for further proceedings. Gerald Glumske initiated this action both personally and as the special administrator of Nancy A. Glumske's estate. For clarity, he is referred to as Gerald, while his late wife is referred to as Nancy. The appeal involves multiple defendants, but the focus is on Yetman. References to Wisconsin statutes pertain to the 2017-18 version, with no changes affecting the litigation. Although Gerald filed a negligent-credentialing claim against the hospital, it is not addressed separately from the negligent-care claim, as both parties treat them collectively. Gerald is entitled to access his deceased wife's medical records under Wis. Stat. 146.82(1), which allows release to "a person authorized by the patient," specifically a spouse as defined in Wis. Stat. 146.81(5).
