Wrongful-death statute of limitations does not apply to a med-mal death.

• Author: Ziemer, David

Byline: David Ziemer

When a patient is injured by medical malpractice, and dies much later, the applicable statute of limitations is that for malpractice, not wrongful death, and the statute begins running at the time of the initial injury, the Wisconsin Court of Appeals held last week.

Facts

In 1992, then-12-year-old Sarah Hegarty became a patient of pediatrician Mary Jo Zimmer. In 1995, she developed abdominal pain, and consulted with Zimmer, who referred her to a pediatric gastroenterologist at Childrens Hospital, who diagnosed her as having irritable bowel syndrome.

On March 20, 1996, Sarah developed severe abdominal pain, nausea and vomiting, and was rushed to Childrens Hospitals emergency room at 4:30 p.m.

She was initially treated by Ernest Stremski, the emergency room physician, and later by Angela Beauchaine, a first-year medical resident.

At 8 p.m., she was admitted to the hospital, where her condition rapidly deteriorated under treatment by Beauchaine, who, as a first-year resident, was not yet licensed to practice medicine.

Beauchaine was enrolled in a graduate medical program through The Medical College of Wisconsin (Medical College) and The Medical College of Wisconsin Affiliated Hospitals (Affiliated).

No licensed physician saw Sarah from the time of her admission until Zimmer arrived at 7:30 a.m. on the morning of March 21, 1996.

By 11:45 a.m., Sarahs condition became critical, and she was taken to surgery at approximately 1:45 p.m., by which time Sarah was diagnosed with small bowel volvulus with complete bowel infarction (her small bowel had been twisted and cut off from the blood supply).

Sarah died on March 16, 1998, after more than 50 surgical procedures related to her intestinal difficulties. Her medical bills over the two-year period were nearly $3 million.

Procedure

On Dec. 18, 1998, Sarahs estate and her parents (the Hegartys) filed suit for malpractice and wrongful death against Beauchaine, Stremski, Childrens Hospital, the Medical College, Affiliated Hospitals, their respective insurers, and the Wisconsin Patients Compensation Fund.

The girls pediatrician, Zimmer, was not named as a defendant, inasmuch as the Hegartys theory of the case was that, by the time of the pediatricians arrival at Childrens Hospital at 7:30 a.m. on the 21st, the damage had already been done.

During depositions conducted in September 1999, however, testimony revealed that Zimmer had been involved in and had directed Sarahs care throughout the time of her admission to the hospital through her arrival the morning of March 21.

As a result, the Hegartys amended their complaint on Dec. 20, 1999, to include Zimmer as a defendant.

In pretrial...