Alleged Failure to Disclose Need for Additional Treatment does not Extend Malpractice Statute of Repose
In 'Pagoudis v. Korkos' (2008AP2965)k the plaintiff had sued the
defendant for medical malpractice, alleging that the defendant
failed to inform him of a final pathology report and failed to
require follow-up care associated with his medical condition.
The plaintiff had undergone medical treatment in the year 2000
and did not seek follow-up care, but he claimed that he was not
told of the final pathology report or need for additional
treatment.
When he later suffered a relapse of the condition in 2007, he
ordered his medical records and discovered that the doctor had
dictated in the treatment notes that he had informed the
plaintiff of the pathology report and had recommended follow-up
care. The defendant moved for summary judgment, arguing that the
medical malpractice statute of repose, Wis. Stat.
§893.55(1m)(b), barred the claim because it was not filed within
five years of the alleged act or omission. The plaintiff
asserted that the doctor had concealed his omission from the
plaintiff and that one of the exceptions to the five year
statute of repose, Wis. Stat. §895.55(2), allowed the claim to
proceed because the doctor had intentionally concealed the
omission. The circuit court granted summary judgment and the
plaintiff appealed. The court of appeals affirmed, holding that
the plaintiff's medical malpractice action was not commenced
within five years of the alleged omission and did not fall under
any exception to the statute of repose. The court noted that a
jury cannot reasonably infer concealment of an act or omission
when a defendant has no contact with the plaintiff after the act
or omission, and where there is no other evidence of intentional
concealment.
