Sandra J. Wendt v. Elana B. Wistrom, DO

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
August 21, 2025
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2024AP1897 Cir. Ct. No. 2024CV52

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

SANDRA J. WENDT AND JAKE KELENY,

PLAINTIFFS-APPELLANTS,

V.

ELANA B. WISTROM, DO, MERCY HEALTH SYSTEM CORPORATION,
AND THE INJURED PATIENTS AND FAMILIES COMPENSATION FUND,

DEFENDANTS-RESPONDENTS.

APPEAL from an order of the circuit court for Rock County:
ASHLEY J. MORSE, Judge. Affirmed.

Before Graham, P.J., Blanchard, and Taylor, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2024AP1897

¶1 PER CURIAM. Sandra J. Wendt and Jake Keleny appeal an order
dismissing their medical malpractice action against Elana B. Wistrom, D.O.,
Mercy Health System Corporation (“Mercy Health”), and the Injured Patients and
Families Fund (“the Fund”) (collectively referred to as “the respondents”) because
it is barred by the statute of limitations.1 On appeal, Wendt argues that the statute
of limitations did not expire prior to the filing of this action because a previous
2023 action (“the 2023 action”)—which was dismissed without prejudice—tolled
the statute of limitations or that the injury at issue occurred on October 9, 2020,
when a CAT scan (“CT scan”) revealed a surgical instrument inside of Wendt’s
abdomen, making this action timely filed. In the alternative, Wendt argues that the
respondents should be equitably estopped from raising the statute of limitations as
a defense.

¶2 We conclude that the statute of limitations bars Wendt’s medical
malpractice action because the 2023 action did not toll the statute of limitations
and the date of Wendt’s injury was September 4, 2020, the date on which the
surgical instrument was left inside Wendt’s abdomen, which commenced the
statute of limitations period. We also reject Wendt’s equitable estoppel argument
because it was not raised in the circuit court proceedings. Accordingly, we affirm.

BACKGROUND

¶3 There is no dispute about the following material facts as established
in the parties’ submissions in the circuit court on the respondents’ motions to
dismiss.

1
Because Keleny’s claim is derivative of Wendt’s claims, we will refer to the appellants
as “Wendt” throughout the remainder of this opinion unless otherwise noted.

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No. 2024AP1897

¶4 On September 4, 2020, Wistrom and Mercy Health staff performed a
Cesarean section (“C-section”) to deliver Wendt’s and Keleny’s baby at Mercy
Janesville Hospital. There were no complications during the procedure and Wendt
and the baby were discharged a few days later. On October 9, 2020, Wendt
returned to the hospital with abdominal pain, and a CT scan revealed that a
hemostat, a surgical instrument used during Wendt’s C-section, had been left in
Wendt’s lower abdomen. Wendt underwent a laparotomy surgery to remove the
hemostat, as well as a portion of her bowel that was damaged by the hemostat.

¶5 On September 19, 2022, Wendt filed a request for medical mediation
with Wistrom and Mercy Health, consistent with WIS. STAT. § 655.44(2) (2023-
24).2 The mediation period expired before the parties reached an agreement on a
mediation date, and Wistrom declined to extend the mediation period.

¶6 On January 24, 2023, following the expiration of the mediation
period, Wendt filed the 2023 action, alleging negligence against Wistrom and
Mercy Health stemming from the C-section. Keleny asserted a derivative loss of
society and companionship claim. The Fund was also named as a defendant for
the collection of damages in excess of the limits for medical malpractice claims set
forth in WIS. STAT. § 655.23(4).

¶7 In May 2023, Wistrom and Mercy Health filed a motion to dismiss
the action for lack of proper service, alleging that Wendt improperly served an
individual who was not authorized to accept service for Wistrom or for Mercy
Health. Wendt opposed the motion to dismiss, and the circuit court scheduled a

2
All references to the Wisconsin Statutes are to the 2023-24 version.

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No. 2024AP1897

hearing on the motion. Wendt made no further attempts to serve either party with
the 2023 action.

¶8 Scheduling conflicts of both plaintiff and defense counsel delayed
the hearing on the motion to dismiss until November 2023. After the hearing, the
circuit court issued an oral decision in December 2023, concluding that Wistrom
and Mercy Health had not been properly served, and dismissing Wendt’s action
without prejudice.3 On January 3, 2024, the court signed a written order
dismissing the 2023 action.

¶9 On January 17, 2024, Wendt filed this action, naming the same
defendants and alleging the same claims as in the 2023 action. In their responses
to the complaint, the respondents alleged that the claims were barred by the statute
of limitations. The respondents filed motions to dismiss on this basis, with the
Fund additionally arguing that Wendt could not maintain an independent action
against the Fund if the other two defendants were no longer in the case.

¶10 The circuit court granted the motions to dismiss, concluding that the
statute of limitations bars Wendt’s action. The court made the following pertinent
findings: Wendt’s 2023 action did not toll the statute of limitations because it was
not properly served and therefore did not result in the “commencement” of an
action; for purposes of calculating the statute of limitations, the date of Wendt’s
injury was September 4, 2020, when the hemostat was left in her abdomen; and

3
On appeal, the Fund also argues that it was dismissed from the 2023 action with
prejudice and that claim preclusion bars Wendt’s current action against the Fund. Our conclusion
that the statute of limitations had expired by the time the present action was filed is dispositive, so
we do not address the Fund’s additional argument. See Lamar Cent. Outdoor, LLC v. DHA,
2019 WI 109, ¶41, 389 Wis. 2d 486, 936 N.W.2d 573 (“An appellate court need not address
every issue raised by the parties when one issue is dispositive.” (citation omitted)).

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No. 2024AP1897

the statute of limitations on Wendt’s action expired on January 2, 2024.4 The
court dismissed Wendt’s action as time barred by the statute of limitations. Wendt
appeals.5

DISCUSSION

¶11 Wendt alleges that this action was timely filed and that the circuit
court committed error when it granted the respondents’ motions to dismiss.
Specifically, Wendt alleges that this action was timely either because the 2023
action met the requirements in WIS. STAT. § 893.13, which tolled the statute of
limitations for 358 days, or because her date of injury, which commenced the
statute of limitations period, was October 9, 2020, when she returned to the
hospital with abdominal pain and the hemostat was discovered rather than on
September 4, 2020, when the hemostat was left in her abdomen. Under either
scenario, Wendt asserts that this action was timely filed. In the alternative, Wendt
argues that the respondents should be equitably estopped from asserting a statute
of limitations defense.

4
The statute of limitations was tolled during the mediation period from September 16,
2022, until January 13, 2023 (30 days after the expiration of the mediation period as set forth in
WIS. STAT. § 655.44(4)). This tolled the statute of limitations for 120 days from the original
September 4, 2023 expiration date until January 2, 2024. Neither party disputes that the statute of
limitations period was properly tolled for 120 days because of the mediation period.
5
The appellant’s brief and all of the parties’ appendices do not comply with WIS. STAT.
RULE 809.19(8)(bm), which addresses the pagination of appellate briefs. See
RULE 809.19(8)(bm) (providing that, when paginating briefs, parties should use “Arabic numerals
with sequential numbering starting at ‘1’ on the cover”). This rule has recently been amended,
see S. CT. ORDER 20-07, 2021 WI 37, 397 Wis. 2d xiii (eff. July 1, 2021), and the reason for the
amendment is that briefs are now electronically filed in PDF format, and are electronically
stamped with page numbers when they are accepted for efiling. The pagination requirements
ensure that the numbers on each page of a brief “will match … the page header applied by the
eFiling system, avoiding the confusion of having two different page numbers” on every page of a
brief. Supreme Court Note, 2021, RULE 809.19.

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No. 2024AP1897

¶12 We conclude the circuit court did not err when it granted
respondents’ motions to dismiss and that Wendt forfeited the equitable estoppel
argument by raising it for the first time on appeal.

I. Standard of Review

¶13 This case involves the review of a circuit court’s resolution of a
motion to dismiss, which presents an issue of law that we review independently.6
Doe 56 v. Mayo Clinic Health Sys.—Eau Claire Clinic, Inc., 2016 WI 48, ¶14,
369 Wis. 2d 351, 880 N.W.2d 681. To determine whether a lawsuit was timely
filed requires us to interpret and apply WIS. STAT. § 893.55(1m)(a). Id., ¶14;
Fojut v. Stafl, 212 Wis. 2d 827, 829, 569 N.W.2d 737 (Ct. App. 1997). The
interpretation and application of a statute to an undisputed set of facts are issues of
law that we review de novo. Doe 56, 369 Wis. 2d 351, ¶14; Fojut, 212 Wis. 2d at
829.

II. The 2023 action did not toll the statute of limitations.

¶14 Wendt argues that the filing of the 2023 action tolled the statute of
limitations until the circuit court’s final written order of dismissal on January 3,
2024. We disagree and conclude that, because Wendt did not properly serve

6
When a party moves to dismiss a complaint because of an allegation that the statute of
limitations has expired, “the motion shall be treated as one for summary judgment.” WIS. STAT.
§ 802.06(2)(b); see Alliance Laundry Systems LLC v. Stroh Die Casting Co., Inc., 2008 WI App
180, ¶18, 315 Wis. 2d 143, 763 N.W.2d 167 (§ 802.06(2)(b) allows a circuit court to convert a
motion to dismiss to one for summary judgment even when the defendant has not yet filed an
answer). Neither the record in this case nor the parties’ briefs indicate that the court treated the
respondents’ motions to dismiss as motions for summary judgment, and we will follow this lead.
Even if the court had treated the motions to dismiss as motions for summary judgment, our
review would still be de novo. Blunt v. Medtronic, Inc., 2009 WI 16, ¶13, 315 Wis. 2d 612, 760
N.W.2d 396 (citing Acuity v. Bagadia, 2008 WI 62, ¶12, 310 Wis. 2d 197, 750 N.W.2d 817).

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No. 2024AP1897

Wistrom or Mercy Health with the summons and complaint in the 2023 action, the
2023 action was not commenced as required for tolling under WIS. STAT.
§ 893.13.

¶15 “A law limiting the time for the commencement of an action is tolled
by the commencement of the action to enforce the cause of action to which the
period of limitation applies.” WIS. STAT. § 893.13(2). The commencement of an
action is generally defined as “the time at which judicial or administrative
proceedings begin, typically with the filing of a formal complaint.”
Commencement of an Action, Black’s Law Dictionary (12th ed. 2024). However,
in Wisconsin, the “commencement” of an action requires both the filing of the
summons and complaint with the circuit court and the service of the authenticated
summons and complaint on the named defendant within 90 days. See WIS. STAT.
§ 893.02 (“[N]o action shall be deemed commenced as to any defendant upon
whom service of authenticated copies of the summons and complaint has not been
made within 90 days after filing.” (emphasis added)); see also WIS. STAT.
§ 801.02(1) (commencement is contingent on service of authenticated summons
and complaint upon the defendant within 90 days after filing). When an action is
not commenced in accordance with these statutory requirements, the action does
not toll the statute of limitations. See Colby v. Columbia Cnty., 202 Wis. 2d 342,
362, 550 N.W.2d 124 (1996) (a prematurely filed lawsuit under WIS. STAT.
§ 893.80 meant the action was not commenced and did not toll the statute of
limitations); see also Hester v. Williams, 117 Wis. 2d 634, 640, 345 N.W.2d 426
(1984) (personal service did not commence an action when the plaintiff failed to
file the summons and complaint with the court).

¶16 Here, because Wendt never properly served the 2023 action, that
action was never commenced in accordance with statutory requirements. Wendt

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No. 2024AP1897

filed the summons and complaint in the 2023 action on January 24, 2023, and
thereafter had 90 days to serve each defendant named with authenticated copies of
the summons and complaint in order to properly commence the 2023 action. See
WIS. STAT. §§ 893.02, 801.02(1). Wendt failed to properly serve Wistrom and
Mercy Health because the individual served was not authorized to accept service
on behalf of these defendants. Wendt’s failure to properly serve Wistrom or
Mercy Health as required by § 801.02(1) prevents the 2023 action from meeting
the requirements for the commencement of an action.

¶17 Wendt points out that this court has made the broad statement that
“[u]nder the plain language of the first sentence of WIS. STAT. § 893.13(2), the
statute of limitations is tolled for every cause of action when an action is filed.”
Johnson v. County of Crawford, 195 Wis. 2d 374, 380, 536 N.W.2d 167 (Ct.
App. 1995). Johnson did not purport to address the issue here and is
distinguishable in material ways from this case. The discussion in Johnson
focused on the procedural timeline of the tolling period and whether a voluntary
dismissal of the first lawsuit tolled the statute of limitations for the second
identical lawsuit, not whether the first lawsuit had been properly commenced. Id.
at 378-80. Because the factual and procedural postures of Johnson are
distinguishable from Wendt’s case, Johnson does not support Wendt’s argument.

¶18 Wendt also argues that requiring both the filing of a lawsuit and
service upon the defendants renders WIS. STAT. § 893.13 meaningless. We
disagree. An action that is filed with the circuit court and properly served on a
defendant in accordance with WIS. STAT. § 801.02(1) would toll the statute of
limitations from the date of filing. Further, allowing the filing of a lawsuit by
itself to toll the statute of limitations would be contrary to the use of the word
“commencement” in § 893.13(2) and render it meaningless. Statutory language is

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No. 2024AP1897

read to give effect to every word where possible. State ex rel. Kalal v. Circuit Ct.
for Dane Cnty., 2004 WI 58, ¶46, 271 Wis. 2d 633, 681 N.W.2d 110. If the
legislature wanted to require only the filing of a lawsuit to commence an action,
§ 893.13(2) would use the word “filing” in place of the word “commencement.”

¶19 Wendt also argues that applying the statute of limitations on these
facts rendered it impossible for Wendt to avoid the statute of limitations bar. This
is inaccurate. Wistrom and Mercy Health filed their motion to dismiss the 2023
action more than six months before the statute of limitations expired, and the
motion should have put Wendt on notice that Wistrom and Mercy Health were
challenging service. Wendt had ample opportunity over the six months that
followed to voluntarily dismiss the 2023 action without prejudice, pursuant to
WIS. STAT. § 805.04(2), so that she could timely refile her claims. See Dunn v.
Fred A. Mikkelson, Inc., 88 Wis. 2d 369, 376-77, 276 N.W.2d 748 (1979)
(§ 805.04(2) allows a plaintiff to move the court to dismiss the plaintiff’s action
not on the merits even after a defendant filed a responsive pleading or motion).
While the statute of limitations period continued to run, Wendt chose to contest
the respondents’ allegations in their motions to dismiss that service had been
improper.

¶20 In sum on this issue, we conclude that because Wendt failed to
effectuate proper service of the 2023 action, she never commenced the 2023 action
and the 2023 action did not toll the statute of limitations period applicable to
Wendt’s action.

III. Wendt’s injury occurred on September 4, 2020.

¶21 Wendt argues in the alternative that this action was properly filed
because the date of injury which commenced the statute of limitations period was

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No. 2024AP1897

October 9, 2020, when the hemostat was discovered in her abdomen. She argues
that for this reason, after accounting for the undisputed 120-day tolling period for
mediation, the statute of limitations for this action expired on February 9, 2024,
rather than on January 2, 2024. We conclude, consistent with controlling
precedent, that the date of injury was the date that the hemostat was left in
Wendt’s abdomen, September 4, 2020.

¶22 The parties agree that WIS. STAT. § 893.55(1m) is the applicable
statute of limitations for these claims. Under § 893.55(1m), the claims accrue on
the date that Wendt sustained an “injury,” the determination of which was
addressed by our state supreme court in Estate of Genrich v. OHIC Ins. Co., 2009
WI 67, ¶11, 318 Wis. 2d 553, 769 N.W.2d 481. In Genrich, a medical sponge was
left inside of a patient during a surgery to repair an ulcer. Id., ¶3. The sponge
caused an infection in the patient’s abdominal cavity and he underwent surgery to
remove the sponge. Id. Our supreme court held that the injury occurred on the
date when the sponge was left inside the patient’s abdomen. Id., ¶20. The court
rejected the argument that the date on which the infection was discovered was the
date of injury, stating that “[i]t was the negligence during the first surgery that
resulted in an infection-producing sponge being present in [the plaintiff’s]
abdomen.” Id., ¶19. The court concluded that the negligent act of leaving the
sponge caused the “physical injurious change” experienced by the patient’s body.
Id., ¶20 (citing Paul v. Skemp, 2001 WI 42, ¶25, 242 Wis. 2d 507, 625 N.W.2d
860).

¶23 The factual similarities between Genrich and Wendt’s case are
strong. During Wendt’s C-section, the hemostat was left in her abdomen, and the
hemostat caused physical damage to Wendt. Given the discussion in Genrich, we
are obligated to conclude that leaving the hemostat in Wendt’s abdomen was the

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No. 2024AP1897

“physical injurious change” that established the date of her injury, which was on
September 4, 2020, when the hemostat was left in her abdomen.

¶24 Wendt’s attempts to distinguish Genrich are unpersuasive. First,
Wendt argues that in Genrich neither the date of the surgery in which the sponge
was left nor the date of the surgery to remove the sponge were within the statute of
limitations period. Wendt provides no explanation about why this distinction is
material to our analysis, and we decline to address Wendt’s undeveloped
argument. See Associates Fin. Servs. Co. of Wis., Inc. v. Brown, 2002 WI App
300, ¶4 n.3, 258 Wis. 2d 915, 656 N.W.2d 56 (a court may decline to consider
conclusory and undeveloped arguments that are not adequately briefed).

¶25 Wendt also argues that we should conclude that the statements by
our supreme court in Genrich regarding the injury date are dicta. We reject this
argument because it is contrary to Zarder v. Humana Ins. Co., 2010 WI 35, ¶58,
324 Wis. 2d 325, 782 N.W.2d 682 (“the court of appeals may not dismiss a
statement from an opinion by [the Wisconsin Supreme Court] by concluding that it
is dictum”).

¶26 In sum on this issue, we conclude that, because we are bound to
follow Genrich, Wendt’s injury occurred on September 4, 2020. The statute of
limitations period began to accrue on that date and, applying the 120-day tolling
period for mediation, expired on January 2, 2024.

IV. Wendt forfeited the equitable estoppel argument.

¶27 Wendt also argues that the respondents should be equitably estopped
from raising the statute of limitations as a defense. Because Wendt raises this

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No. 2024AP1897

argument for the first time on appeal, we conclude that this argument was
forfeited, and we will not consider it for the first time here.

¶28 “As a general rule, issues not raised in the circuit court will not be
considered for the first time on appeal.” State v. Dowdy, 2012 WI 12, ¶5, 338
Wis. 2d 565, 808 N.W.2d 691. Whether a claim is forfeited or adequately
preserved for appeal is a question of law that this court reviews de novo. State v.
Corey J.G., 215 Wis. 2d 395, 405, 572 N.W.2d 845 (1998). “It is a fundamental
principle of appellate review that issues must be preserved at the circuit court.
Issues that are not preserved at the circuit court … generally will not be considered
on appeal.” State v. Huebner, 2000 WI 59, ¶10, 235 Wis. 2d 486, 611 N.W.2d
727. “The party who raises an issue on appeal bears the burden of showing that
the issue was raised before the circuit court.” Id. Issues that are not raised before
the circuit court are generally deemed forfeited. Id., ¶11 & n.2.

¶29 Wendt asserts that equitable estoppel was raised during the circuit
court proceedings when Wendt argued that granting the respondents’ motions to
dismiss was unjust. Wendt fails to include any record cite to support this
assertion. See Dieck v. Unified Sch. Dist. of Antigo, 157 Wis. 2d 134, 148 n.9,
458 N.W.2d 565 (Ct. App. 1990) (this court need not consider arguments
unsupported by adequate factual assertions). Further, we do not find any place in
the circuit court record where Wendt alleged inequitable behavior from the
respondents or mentioned the concept of barring the use of the statute of
limitations defense as a result of inequitable behavior. Wendt also does not
persuade us that the circumstances here call for us to overlook forfeiture of an
issue that required factual development in the circuit court. Accordingly, we
conclude that Wendt’s equitable estoppel argument is forfeited and we do not
address it.

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CONCLUSION

¶30 For the foregoing reasons, we affirm the order of the circuit court.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

13