PUBLISHED
OPINION
COURT OF
APPEALS
DECISION
DATED AND FILED
December
28, 1999
Marilyn L. Graves
Clerk, Court of Appeals
of
Wisconsin
NOTICE
This opinion is subject to further editing. If published, the official version will
appear in the bound volume of the Official Reports.
A party may file with
the Supreme Court a petition to review an adverse decision by the Court of Appeals. See
§ 808.10 and Rule 809.62, Stats.
No. 99-0979-FT
STATE OF
WISCONSIN IN COURT OF APPEALS
DISTRICT
III
Roger S. Webb and
Cynthia L. Webb,
Plaintiffs-Appellants-Cross-Respondents,
v.
Ocularra Holding,
Inc.,
d/b/a Pearle Vision
Express,
and Travelers Indemnity
Company,
Defendants-Respondents-Cross-Appellants.
APPEAL and CROSS-APPEAL1 from a judgment of the circuit court for Eau Claire
County: GREGORY A. PETERSON, Judge. Affirmed.
Before Wedemeyer, P.J., Fine and Curley, JJ.
¶1. CURLEY, J.Roger Webb appeals from the trial court's grant of summary
judgment to Ocularra Holding, Inc., d/b/a Pearle Vision Express (Pearle Vision). Webb
argues that the trial court erred when it determined that the medical malpractice statute of
limitations applied to his action seeking damages from a Pearle Vision optometrist who, he
claimed, failed to note an abnormal test result from Webb's eye examination and to refer
Webb to a medical specialist. Webb also contends that the trial court erred in determining
that the medical malpractice statute of limitations had expired before he brought his action.
Pearle Vision asks that we affirm the trial court's summary judgment decision, and it submits
that summary judgment could be affirmed on another ground not granted by the trial court;
that is, that Webb's summary judgment submissions were insufficient to prove that the
optometrist had a duty to refer Webb to another medical care provider.
¶2. We conclude that the medical malpractice statute of limitations applies to
Webb's action; that the action was time-barred; and that Webb failed to submit adequate
affidavits to prove his claim of optometrist negligence. Consequently, we affirm both the
trial court's conclusion that the medical malpractice statute of limitations applies and its
determination that the statute of limitations expired prior to Webb's commencement of his
suit. Although we affirm the trial court's grant of summary judgment, we disagree with the
trial court's determination that Webb's submissions were adequate to prove optometrist
negligence.
I.Background.
¶3. On February 23, 1994, Webb made his first and only stop at a Pearle
Vision store, where he had his eyes examined. He decided to have his eyes examined
because he had been experiencing headaches and blurred vision, which he thought might be
attributable to a change in his eyesight. Webb was examined by Dr. Larry Knutzen, a
licensed optometrist employed by Pearle Vision. The examination of Webb's eyes lasted
approximately forty-five minutes. Although Webb's recollection of the examination is scanty
and he could not remember being asked any family medical history, he averred that, had he
been asked any questions about his family medical history, he would have related a family
history of brain disease and high blood pressure. Dr.Knutzen also had little independent
recollection of his examination of Webb. In his deposition, he testified about Webb's eye
examination with the aid of the Pearle Vision medical record generated at the time of the
examination. Dr.Knutzen stated that the document revealed that Webb recited no unusual
family medical history and he observed no other conditions which would have prompted him
to refer Webb to another medical provider. Further, Dr. Knutzen testified that while Webb's
eyesight was not perfect, the examination was unremarkable, revealing nothing unusual for a
man of forty-two years of age. The Pearle Vision report also verified that Dr. Knutzen
prescribed eyeglasses for Webb, which Webb purchased that day.
¶4. Webb continued to have headaches and, in February of 1995, he
complained about them to his family doctor, Dr. Asplund. Dr. Asplund initially treated
Webb for migraine headaches, but he also made arrangements for Webb to have a CAT
scan. Before the date of the CAT scan, however, Webb was admitted to the emergency
room suffering from acute headache pain. Shortly thereafter, a CAT scan was performed
and Webb was diagnosed with having a meningioma, a slow-growing encapsulated brain
tumor, which was subsequently surgically removed on February 27, 1995. Sometime in
1995, Webb inquired of his surgeon, Dr.Rankin, whether the tumor could have been detected
by the optometrist. Dr.Rankin replied that he thought it was "possible." Webb
then waited until April 1996 to contact a lawyer to explore the possibility of a lawsuit. On
April 27, 1997, one of Webb's lawyers consulted with Dr.Roy Olson. Dr. Olson told the
attorney that Dr. Knutzen was negligent; Dr. Olson said that he reviewed the medical record
of the eye examination, and he detected an abnormality which should have prompted Dr.
Knutzen to refer Webb to a medical specialist.
¶5. Webb commenced his suit on February 25, 1998. Pearle Vision brought a
summary judgment motion, arguing that under the medical malpractice statute of limitations
found in §893.55, Stats., Webb's suit was untimely. Pearle Vision also contended that
Webb failed to provide sufficient proof to support his claim that, under the circumstances
presented here, Dr. Knutzen had a duty to refer Webb to a medical care provider.
¶6. In response, Webb argued that the statute of limitations found in
§893.54, Stats., not §893.55, Stats., applied to his action. Further, Webb
asserted that if the medical malpractice statute of limitations did apply to his suit, his suit
was timely because he did not discover his injury until Dr.Olson opined to his attorney that
Dr.Knutzen was negligent. Alternatively, he argued that the discovery date of his injury is a
factual determination, making it inappropriate for resolution by summary judgment. Finally,
he maintained his summary judgment submissions were sufficient to prove that Dr.Knutzen
was negligent.
¶7. The trial court found that the medical malpractice statute of limitations
embodied in §893.55, Stats., governed Webb's suit and found that the statute of
limitations had run. The trial court, however, did find that Webb's supporting affidavits
were sufficient and survived Pearle Vision's summary judgment challenge. Webb appeals
and Pearle Vision cross-appeals.
II.Analysis.
A.The statute of limitations found in §893.55, Stats., controls
this
suit.
¶8. Webb is suing Pearle Vision for damages allegedly caused by the
delay in diagnosing his brain tumor. He claims the Pearle Vision optometrist should have
detected evidence of his brain tumor and referred him to a medical specialist because his eye
examination revealed an abnormal test result. Webb argues that the statute of limitations
found in §893.54, Stats., applies to his action, not the medical malpractice statute of
limitations found in §893.55, Stats.
¶9. Determining which statute of limitations applies to an action is a question
of law that we review de novo. See Ritt v. Dental Care
Assocs., 199 Wis.2d 48, 60, 543 N.W.2d 852, 856 (Ct. App. 1995).
¶10. The medical malpractice statute of limitations, §893.55, Stats., in
pertinent part, reads:
Medical malpractice; limitation of actions; limitation of
damages; itemization of damages.
(1) Except as provided by subs. (2) and (3), 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 later of:
(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.
Webb argues that this is not a medical malpractice suit.
Rather, Webb insists that the statute of limitations found in §893.54, Stats., should
apply. Section 893.54 provides:
Injury to the person. The following actions shall be
commenced within 3 years or be barred:
(1) An action to recover damages for injuries to the person.
(2) An action brought to recover damages for death caused by the wrongful
act, neglect or default of another.2
As support for his position, Webb notes that Dr.
Knutzen is not a listed health care provider under the definitions found in §655.001(8),
Stats.3 Section 655.001(8) reads:
"`Health care provider' means a person to whom this chapter applies under s.655.002
(1) or a person who elects to be subject to this chapter under s. 655.002 (2)." Chapter
655 regulates health care liability and establishes the patients compensation fund. Webb
argues that an "optometrist" is not found in §655.002(1),
Stats.,4 listing the mandatory
participants of Chapter 655, nor is an "optometrist" found in
§655.002(2),5 listing the
optional participants of Chapter655.
¶11. Moreover, Webb posits that the legislative history of Chapter 655
buttresses his contention that the medical malpractice statute of limitations should not apply
to his suit. Webb claims that the rationale behind Chapter 655 can be found in Lund v.
Kokemoor, 195 Wis.2d 727, 537 N.W.2d 21 (Ct. App. 1995). In
Lund, this court explained that the motive behind the passage of Chapter
655 was the belief that "medical malpractice suits [were] rapidly increasing,"
id. at 734, 537 N.W.2d at 23, and with the increase in suits came an
increase in liability insurance, resulting in "many physicians refrain[ing] from
providing certain health care services because of the high risk associated with those
services," id. at 735, 537 N.W.2d at 23. Webb gleans from these
statements that the medical malpractice liability legislation was an attempt to hold down the
cost of medical malpractice suits against physicians by, inter alia, establishing the
patients compensation fund which would be supported by annual assessments to the fund by
physicians and others who are required to pay into the fund. Webb argues that because
optometrists are not among those required to pay into the fund, the legislature never
envisioned optometrists being regulated by Chapter 655 or §893.55, Stats., its
concomitant statute of limitations.
¶12. Were our analysis to stop here, we might be inclined to agree with Webb.
However, the holdings in several recent cases run counter to Webb's arguments. The first
case addressing the application of the medical malpractice statute of limitations to medical
professionals besides physicians is Clark v. Erdmann, 161 Wis.2d 428,
468 N.W.2d 18 (1991). In Clark, Dr. Erdmann, a podiatrist, raised a
similar statute of limitations defense. Clark contended that the statute of limitations found in
§893.54, Stats., rather than the medical malpractice statute of limitations found in
§893.55, Stats., applied to his suit against Dr.Erdmann. In declaring otherwise, our
supreme court stated that §655.001(8) was "not particularly instructive" to
an interpretation of §893.55, but stated that if they were to use it anyway, it would
support the broad definition adopted. Clark, 161 Wis.2d at 439, 468
N.W.2d at 22. The court then noted that during the time frame when Dr. Erdmann was
alleged to have negligently treated Clark, §655.001(8), Stats., actually contained the
word "podiatrist" in describing who fell within the statute. See
id. at 439-40, 468 N.W.2d at 22-23. The supreme court reasoned that
the legislature amended §655.001(8) and replaced all the previously-listed affected
professions with the more generic term "health care provider." See
id. at 437-38, 468 N.W.2d at 21-22. The supreme court then reasoned that
because podiatrists are required to be licensed and fell within the definition of a "health
care provider," as that term was used in §893.55, the medical malpractice statute
of limitations applied to podiatrists.
The term "health care provider" in sec. 893.55,
Stats., plainly applies to anyone who professionally provides health care to others.
Podiatrists do exactly that: they provide health care to others; and, like other professional
health care providers, they are licensed to practice by the state medical examining board
pursuant to ch. 448, Stats."
Id. at 438-39, 468 N.W.2d at 22.
¶13. Although Clark does not conclusively establish that the
medical malpractice statute of limitations applies to optometrists, because optometrists, unlike
podiatrists, were never listed in §655.001(8), Stats., nor are optometrists licensed by
the state medical examining board, all doubt is removed by the later holdings in
Ritt and Arenz v. Bronston, 224 Wis.2d 507, 592
N.W.2d 295 (Ct. App. 1999). In Ritt, this court concluded that suits
against dentists are subject to the medical malpractice statute of limitations. See
Ritt, 199 Wis.2d at 64, 543 N.W.2d at 858 (concluding that dentists are
included in the meaning of "health care provider" under the medical malpractice
statute of limitations). This conclusion was reached even though dentists are licensed by the
dentistry examining board under Chapter 447, unlike podiatrists, who are licensed by the
state medical examining board under Chapter 448. In so finding, Ritt
relied on a footnote in Clark that referenced all the other licensed
professions in defining health care providers. The Clark footnote reads:
Chapter 448, Stats., pertains to the licensing of
physicians and physical therapists as well as podiatrists, and to the certifying of occupational
therapists, occupational therapy assistants and respiratory care practitioners. Chapters 446,
447, 449, 451, and 455 pertain to the licensing or certifying of other professional health care
providers.
Clark, 161 Wis.2d at 439 n.5, 468
N.W.2d at 22 n.5. Thus, in Ritt, we concluded that
"Clark must be read to include those licensed under the statutes listed in
the footnote." Ritt, 199 Wis.2d at 61, 543 N.W.2d at 857.
¶14. In Arenz, the supreme court applied the analysis found
in Clark and Ritt and determined that suits against
chiropractors are also subject to the medical malpractice statute of limitations. See
Arenz, 224 Wis.2d at 515, 592 N.W.2d at 298-99. The supreme court
observed that because chiropractors are health care providers and are required to be licensed,
they fall within the medical malpractice statute of limitations. See id.
Moreover, the supreme court rejected the argument that the term "health care
provider" is an ambiguous term, which can only be defined by looking at the legislative
history. See id. at 514 n.4, 592 N.W.2d at 298 n.4. "Because we
conclude that the statute is unambiguous, we need not consider its legislative history."
Id. at 514, 592 N.W.2d at 298. Further, in response to an argument,
raised in Arenz and reiterated by Webb here, that construing the statute so
broadly would result in medical malpractice suits against inappropriate parties, such as
massage therapists and cosmetologists, the supreme court noted that while the definition of
health care provider may be broad, the two required factors would limit the scope of the
definition. See id.
In Ritt, we considered the definition of
"health care provider." We held that §893.55, Stats., applied to
individuals who are: (1)involved in the diagnosis, treatment or care of the patient, and
(2)licensed by a state examining board to provide such care. These two factors, particularly
the second factor, clarify and limit the scope of the definition, and offer guidance to lower
courts when applying the statute.
Id. at 514, 592 N.W.2d at 298.
¶15. Thus, in applying the teachings of the cited cases, we conclude that even
though optometrists are not listed in §655.002(1) or (2), Stats., as either mandatory or
optional participants of Chapter 655, optometrists fall within the ambit of the medical
malpractice statute of limitations. This is so because optometrists provide medical care,
see §449.01, Stats. (defining the practice of optometry), and they are
required to be licensed, see §449.04, Stats. (requiring licenses to practice
optometry). Thus, we conclude that the medical malpractice statute of limitations applies to
Webb's action seeking damages from Dr. Knutzen for alleged professional negligence.
2.As a matter of law, Webb failed to commence his lawsuit within
one year of discovering his injury.
¶16. We now address whether Webb's claim against Pearle Vision is
barred by the statute of limitations found in §893.55, Stats. The issue of whether
Webb's action was time-barred under §893.55 "involves the interpretation of a
statute, which presents a question of law. We review this question of law de
novo." Awve v. Physicians Ins. Co., 181 Wis.2d 815, 821,
512 N.W.2d 216, 218 (Ct. App. 1994) (citation omitted).
¶17. Pearle Vision argues that Webb started his suit against Dr. Knutzen after
the statute of limitations expired. Pearle Vision contends that Koschnik v.
Smejkal, 96 Wis.2d 145, 291 N.W.2d 574 (1980), and Olson v. St. Croix
Valley Memorial Hospital, Inc., 55 Wis.2d 628, 201 N.W.2d 63 (1972),
support its view that where there is a missed diagnosis, the day of the injury is the date of
the misdiagnosis.6 Pearle Vision
asserts that when Dr. Knutzen examined Webb's eyes and allegedly failed to detect evidence
of a brain tumor revealed by the abnormal test result, this established the date of Webb's
injury. Based on this assumption, Pearle Vision posits that the statute of limitations expired
in February 1997, three years from the February 1994 eye examination. Alternatively,
Pearle Vision argues that if the statute of limitations is evaluated using §893.55(1)(b),
Stats., then the suit had to be brought within one year from the date that Webb discussed
with Dr. Rankin the possibility that Dr. Knutzen should have detected his brain tumor.
Since this particular conversation with Dr. Rankin occurred some time in 1995, Pearle
Vision claims that at the end of 1996, Webb's action became time-barred.
¶18. Webb disagrees and argues that if the medical malpractice statute of
limitations applies, his suit is still timely because he did not discover his injury until April
27, 1997, when his attorney consulted with Dr. Olson, who told Webb's attorney that Dr.
Knutzen was negligent. Webb, relying on Goff v. Seldera, 202 Wis.2d
600, 550 N.W.2d 144 (Ct. App. 1996), also argues that the date on which he discovered his
injury is more appropriately a jury question because it requires a factual determination.
¶19. With respect to Webb's last argument, we have concluded that this is a
question of law and its resolution does not require a trial because the summary judgment
record leads to only one reasonable conclusion about when Webb should have discovered his
injury. Webb's reliance on Goff is misplaced. In
Goff, this court observed that "[t]his is not a case in which the
summary judgment record allows for but one reasonable conclusion about when Goff should
have discovered her injury such that her claim is precluded as a matter of law."
Id. at 612, 550 N.W.2d at 149. By contrast, we are satisfied that this is a
case where reasonable minds could not differ as to when Webb discovered or exercising
reasonable diligence should have discovered his injury.
¶20. We are also satisfied that Webb's suit was time-barred. As noted, the
provisions of §893.55, Stats., provide that claims against health care providers must be
brought within three years from the date of injury, or within one year from the date that the
injury was discovered, or in the exercise of reasonable diligence should have been
discovered. This action was filed on February 25, 1998. The only time Dr. Knutzen saw
Webb was on February 23, 1994. Thus, any injury caused by Dr. Knutzen could only have
occurred on the date of Webb's eye examination. Like the facts in Olson,
the date of negligence and the date of injury were the same date. Olson,
55 Wis.2d at 633, 201 N.W.2d at 64. Given the wording of §893.55(1)(a), Webb's
suit was not started "within three years of the date of injury." Thus, the only
possible way that Webb's suit can survive a statute of limitations challenge is under
§893.55(1)(b).
¶21. The discovery rule embodied in §893.55(1)(b), Stats., permits an
extension of the statute of limitations. It allows suit "one year from the date the injury
was discovered or, in the exercise of reasonable diligence should have been
discovered." Section 893.55(1)(b). Thus, the issue in this case turns on when Webb
discovered his injury or exercising reasonable diligence should have discovered his injury.
After reviewing the summary judgment submissions, we determine, as a matter of law, that
Webb discovered his injury on the day in 1995 when Webb discussed Dr. Knutzen's alleged
negligence with his neurosurgeon.
¶22. Webb argues that he discovered his injury only when Dr. Olson conferred
with Webb's attorney and Dr. Olson stated that Dr. Knutzen was negligent.7 We disagree. In Clark, the
supreme court explained that discovery occurs when the "plaintiff has information that
would constitute the basis for an objective belief of her injury and its cause."
Clark, 161 Wis.2d at 448, 468 N.W.2d at 26. In Claypool v.
Levin, 209 Wis.2d 284, 562 N.W.2d 584 (1997), the supreme court elaborated
on when a person discovers an injury. "In other words, discovery occurs when a
potential plaintiff has information that would give a reasonable person notice of her injury
and its cause.... This standard also does not require that the potential plaintiff know with
certainty the cause of her injury." Id. at 300, 562 N.W.2d at 590.
Reasonable diligence has also been defined. Reasonable diligence "means such
diligence as the great majority of persons would use in the same or similar
circumstances." Spitler v. Dean, 148 Wis.2d 630, 638, 436
N.W.2d 308, 311 (1989).
¶23. In applying these definitions to the facts present here, we determine that
Webb knew or should have known of his injury, had he exercised reasonable diligence, when
he inquired of Dr. Rankin whether the optometrist should have detected his brain tumor
during his eye examination. Our determination is based upon the fact that Webb clearly
harbored suspicions about the care rendered by Dr. Knutzen or he would never have asked
Dr. Rankin whether the optometrist could have detected the tumor. Indeed, it was this same
suspicion that led Webb to later consult with a lawyer. Moreover, we conclude that Webb
failed to exercise reasonable diligence because when he was told that it was possible that Dr.
Knutzen could have detected his brain tumor, he failed to reasonably act upon that
information. Once his suspicion that Dr. Knutzen may have been negligent was confirmed
by Dr. Rankin, Webb waited almost a year before consulting with an attorney.
¶24. Webb urges us to find that that he did not discover his injury until one of
his attorneys consulted with Dr. Olson. We are not so persuaded. This identical argument
was rebuffed in Clark when the court stated:
"We do not believe, as [plaintiff's] argument suggests,
that a party must be specifically advised by an expert that, in the expert's opinion, he or she
received negligent treatment ... 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."
Clark, 161 Wis.2d at 446, 468
N.W.2d at 25 (quoted source omitted).
¶25. A similar argument was made in Claypool. There,
Claypool was originally told by her first attorney that she had no cause of action. She only
learned otherwise after changing law firms. Claypool argued, in urging the court to find her
action under §893.55(1)(b), Stats., timely, that she did not have an objective basis for
concluding that her blindness was a result of her doctor's negligence until her new attorney
told her so. That argument was rejected. The supreme court found that even though her
first attorney incorrectly advised her of the viability of her claim, she already had an
objective basis for knowledge of her injury and its cause. See
Claypool, 209 Wis.2d at 302-03, 562 N.W.2d at 592.
¶26. Here, Webb knew of his brain tumor on the date that he asked Dr.Rankin
the question about Dr. Knutzen because it had already been surgically removed. He knew
that Dr. Knutzen failed to detect the tumor, and he was put on notice that Dr. Knutzen's
negligence may have caused this failure. As a consequence, Webb's suit was untimely
because the statute of limitations expired at the close of the 1996 calendar year.
3.Pearle Vision is entitled to summary judgment because Webb
failed to provide evidence that Dr. Knutzen was negligent.
¶27. Pearle Vision contends that Webb's summary judgment
submissions failed to support a claim against Pearle Vision. Section 802.08, Stats., governs
summary judgment. Section 802.08(2) directs that "[t]he judgment sought shall be
rendered if the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter of law." In
Preloznik v. City of Madison, 113 Wis.2d 112, 334 N.W.2d 580 (Ct.
App. 1983), we set out the methodology to be used in summary judgment:
Under that methodology, the court, trial or appellate, first
examines the pleadings to determine whether claims have been stated and a material factual
issue is presented. If the complaint ... states a claim and the pleadings show the existence of
factual issues, the court examines the moving party's affidavits for evidentiary facts
admissible in evidence or other proof to determine whether that party has made a prima facie
case for summary judgment.... If the moving party has made a prima facie case for
summary judgment, the court examines the affidavits submitted by the opposing party for
evidentiary facts and other proof to determine whether a genuine issue exists as to any
material fact, or reasonable conflicting inferences may be drawn from the undisputed facts,
and therefore a trial is necessary.
Id. at 116, 334 N.W.2d at
582-83.
¶28. Pearle Vision posits that Webb failed to meet his summary judgment
burden for two reasons. First, it contends that the affidavit of one of Webb's attorneys,
relating a conversation he had with Dr. Roy Olson, at which time Dr.Olson opined that Dr.
Knutzen was negligent, was not "made on personal knowledge," and did not
"set forth such evidentiary facts as would be admissible in evidence." Section
802.08(2), Stats. Further, Pearle Vision argues that Webb never established any connection
between Dr. Knutzen's alleged negligence and Webb's damages.
¶29. Webb's submissions can best be summarized as follows: Webb does not
remember much of what occurred at the eye examination, but he thought that the optometrist
stated he was having difficulty finding a prescription for his right eye. He does not recall
whether Dr. Knutzen or anyone else asked him about his family and personal medical
history. Had he been asked about his family medical history, he would have told the doctor
that one of his brothers died of brain cancer in 1990, an aunt had an aneurysm, and there
was a family history of high blood pressure. He does not recall Dr. Knutzen asking him if
he was experiencing headaches, but had he been asked, he would have related that he had a
history of headaches and the headaches were what caused him to seek an eye examination.
Webb related that he was prescribed reading glasses which he purchased that day. Webb
further stated that he continued to have headaches after obtaining the reading glasses. Webb
recounted that the severity of the headaches increased and led to his consulting his family
doctor. Eventually, he entered the hospital as an emergency room patient, and a CAT scan
was ordered that revealed a tumor which was surgically removed in February 1995. He later
had two related surgeries. He discussed the possibility of Dr. Knutzen's negligence with Dr.
Rankin in 1995.
¶30. In Dr. Knutzen's deposition, he stated that he does not remember asking
Webb about his family history, and the medical record notes no history that would have
alerted him to look for another cause of Webb's complaint of poor eyesight. He diagnosed
Webb as suffering from presbyopia, a condition that would not require him to refer Webb to
a medical specialist. Dr. Knutzen testified that he did not recall encountering any difficulties
during the eye examination and stated that while there are certain conditions under which he
would be obligated to refer a patient to another medical care provider, none of those
conditions were present when he examined Webb.
¶31. In Dr. Rankin's affidavit, he noted that he was Webb's treating
neurosurgeon. He also recounted that Webb suffered from a meningioma and that it was
surgically removed. Further, Dr. Rankin stated that had Webb been diagnosed with the
tumor earlier, "caring for the condition in 1994 would have been a simpler
operation" and he observed that Webb's later operations posed greater risks to him and
more expansive surgical work.
¶32. The affidavit of Webb's attorney, J. Drew Ryberg, claimed that he had
Webb's case reviewed by Dr. Roy Olson, a certified ophthalmologist, and that Dr. Olson
told him that Webb's eye examination at Pearle Vision "was not normal."
Specifically, Attorney Ryberg's affidavit states that Dr. Olson felt the examination was not
normal because "the inability to reconcile the acuity in both eyes was not a normal
finding and something should have been done," meaning that Webb should have been
referred to an "appropriate medical specialist."
¶33. Pearle Vision argues that Attorney Ryberg's affidavit is not admissible
because it is not based on his personal knowledge. We agree. Attorney Ryberg's affidavit
contained hearsay testimony and runs contrary to the requirements of §802.08(3),
Stats., that "supporting and opposing affidavits shall be made on personal knowledge
and shall set forth such evidentiary facts as would be admissible in evidence." Case
law is consistent. Affidavits in support of a motion for summary judgment made by persons
who do not have personal knowledge are insufficient and will be disregarded, and affidavits
made only on the basis of the affiant's information and belief and mere assertions of ultimate
facts are ineffectual to establish evidentiary facts. See West Side Bank v.
Marine Nat'l Exchange Bank, 37 Wis.2d 661, 665-66, 155 N.W.2d 587,
589-90 (1968). Dr. Olson's non-evidentiary expert opinion should not have been considered
at the hearing. Without Dr. Olson's opinion, the record contains no evidence of
Dr.Knutzen's negligence. As a result, we overturn the trial court's determination that
Webb's summary judgment submissions were sufficient. Because of our decision on Pearle
Vision's contention that Attorney Ryberg's affidavits were improper, it is not necessary for
us to address the remaining arguments. See Gross v. Hoffman, 227 Wis.
296, 300, 277 N.W. 663, 665 (1938) (only dispositive issues need be addressed).
Accordingly, we affirm the trial court's determination that the medical malpractice statute of
limitations applies and that Webb's suit was time barred.
By the Court.-Judgment affirmed.
Recommended for publication in the official reports.
1 Pearle Vision has filed a cross-appeal. A cross-appeal was unnecessary and inappropriate
in this case because Pearle Vision prevailed in its summary judgment motion and the relief it
seeks in the cross-appeal is an affirmation of the trial court's decision, although on other
grounds.
2 Hansen v. A.H. Robins, Inc., 113 Wis.2d 550, 335 N.W.2d 578
(1983), adopted the discovery rule for all tort actions. Therefore, under this statute, Webb
would have had three years to commence his suit after "discovering" his
injury.
3 In his reply brief, Webb argues for the first time that Pearle Vision is not a health care
provider, but rather the employer of Dr. Knutzen and, thus, his suit against Pearle Vision is
subject to the statute of limitations found in §893.54, Stats. We will not entertain
arguments raised for the first time in a reply brief. See Swartwout v.
Bilsie, 100 Wis.2d 342, 346 n.2, 302 N.W.2d 508, 512 n.2 (Ct. App. 1981)
(appellate court will generally not consider issues raised for the first time in a reply
brief).
4 Section 655.002(1), Stats., provides:
Applicability. (1) Mandatory Participation. Except as
provided in s. 655.003, this chapter applies to all of the following:
(a) A physician or a nurse anesthetist for whom this state is a principal place of
practice and who practices his or her profession in this state more than 240 hours in a fiscal
year.
(b) A physician or a nurse anesthetist for whom Michigan is a principal place of
practice, if all of the following apply:
1. The physician or nurse anesthetist is a resident of this state.
2. The physician or nurse anesthetist practices his or her profession in this state or
in Michigan or a combination of both more than 240 hours in a fiscal year.
3. The physician or nurse anesthetist performs more procedures in a Michigan
hospital than in any other hospital. In this subdivision, "Michigan hospital"
means a hospital located in Michigan that is an affiliate of a corporation organized under the
laws of this state that maintains its principal office and a hospital in this state.
(c) A physician or nurse anesthetist who is exempt under s. 655.003 (1) or (3), but
who practices his or her profession outside the scope of the exemption and who fulfills the
requirements under par. (a) in relation to that practice outside the scope of the exemption.
For a physician or a nurse anesthetist who is subject to this chapter under this paragraph, this
chapter applies only to claims arising out of practice that is outside the scope of the
exemption under s. 655.003 (1) or (3).
(d) A partnership comprised of physicians or nurse anesthetists and organized and
operated in this state for the primary purpose of providing the medical services of physicians
or nurse anesthetists.
(e) A corporation organized and operated in this state for the primary purpose of
providing the medical services of physicians or nurse anesthetists.
(f) A cooperative sickness care association organized under ss. 185.981 to 185.985
that operates a nonprofit sickness care plan in this state and that directly provides services
through salaried employes in its own facility.
(g) An ambulatory surgery center that operates in this state.
(h) A hospital, as defined in s. 50.33 (2) (a) and (c), that operates in this
state.
(i) An entity operated in this state that is an affiliate of a hospital and that provides
diagnosis or treatment of, or care for, patients of the hospital.
(j) A nursing home, as defined in s. 50.01 (3), whose operations are combined as a
single entity with a hospital described in par. (h), whether or not the nursing home
operations are physically separate from the hospital
operations.
5 Section 655.002(2), Stats., provides:
(2) Optional Participation. All of the following may
elect, in the manner designated by the commissioner by rule under s. 655.004, to be subject
to this chapter:
(a) A physician or nurse anesthetist for whom this state is a principal place of
practice but who practices his or her profession fewer than 241 hours in a fiscal year, for a
fiscal year, or a portion of a fiscal year, during which he or she practices his or her
profession.
(b) Except as provided in sub. (1) (b), a physician or nurse anesthetist for whom
this state is not a principal place of practice, for a fiscal year, or a portion of a fiscal year,
during which he or she practices his or her profession in this state. For a health care
provider who elects to be subject to this chapter under this paragraph, this chapter applies
only to claims arising out of practice that is in this state and that is outside the scope of an
exemption under s. 655.003 (1) or (3).
6 Pearle Vision also cites both cases for its assertion that the statute of limitations expired
because the three years must run from the date of the eye examination. These cases are of
little assistance in resolving that issue because they were decided before the adoption of the
discovery rule in medical malpractice cases. "For many years, no provision was made
by this court for extending accrual of a cause of action and the running of a period of
limitations when an injury was not, in due diligence, immediately discovered."
Kohnke v. St. Paul Fire & Marine Ins. Co., 144 Wis.2d 352, 359,
424 N.W.2d 191, 194 (1988).
7 As will be discussed later, Dr. Olson's expert opinion was not properly submitted in
response to Pearle Vision's summary judgment motion. We have assumed, for the sake of
our analysis, that Dr. Olson rendered an opinion on April 27, 1997, that Dr.Knutzen was
negligent.
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