McElwain v. Physicians Ins. Co. of Wis.

McElwain v. Physicians Ins. Co. of Wis.,
No. 99-CV-656 (Wis. Ct. App. Feb. 5, 2002)

A patient and his wife appealed a summary judgment dismissing their medical
malpractice action against a cardiac surgeon and a hospital. The patient suffered
complications after surgery in 1994 but did not file suit until 1999. The cardiac
surgeon and hospital argued that the plaintiffs knew, or should have known,
about any alleged malpractice after reading a July 1998 article in a local newspaper
about the surgeon. Therefore, they argued, the claim was barred by the statute
of limitations.

Under Wisconsin law, a patient has one year to commence an action from the
time an injury is discovered or, in the exercise of reasonable due diligence,
should have been discovered. The appeals court noted that the question of whether
a plaintiff knew or should have known of an injury is usually left to the jury.
In this case, the court found the July 1998 article to be so ambiguous that
a jury should determine whether, after reading it, the plaintiffs should have
known they had a malpractice claim. Therefore, the court ruled that summary
judgment was inappropriate.