Kelly Brellenthin v. Dr. Gregory Goblirsch

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.
May 25, 2021
A party may file with the Supreme Court a
Sheila T. Reiff 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. 2020AP876 Cir. Ct. No. 2018CV219

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

KELLY BRELLENTHIN AND JOSEPH BRELLENTHIN,

PLAINTIFFS-APPELLANTS,

V.

DR. GREGORY GOBLIRSCH, WESTERN WISCONSIN MEDICAL
ASSOCIATES, S.C. D/B/A VIBRANT HEALTH FAMILY CLINICS,
ALLINA HEALTH SERVICES AND MMIC GROUP,

DEFENDANTS-RESPONDENTS,

BLUECROSS BLUESHIELD OF MINNESOTA,

SUBROGATED-PARTY.

APPEAL from a judgment of the circuit court for Pierce County:
THOMAS W. CLARK, Judge. Affirmed.

Before Stark, P.J., Hruz and Seidl, JJ.
No. 2020AP876

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).

¶1 PER CURIAM. Kelly and Joseph Brellenthin appeal a summary
judgment granted in favor of Dr. Gregory Goblirsch, Western Wisconsin Medical
Associates, S.C. d/b/a Vibrant Health Family Clinics, Allina Health Services, and
MMIC Group (collectively “Goblirsch”), dismissing their complaint alleging
medical negligence in Goblirsch’s treatment of Kelly. The Brellenthins argue that
the medical records filed in support of Goblirsch’s motion were insufficient to
support a prima facie case for summary judgment on statute of limitations
grounds. Additionally, the Brellenthins contend that expert testimony was
required to support Goblirsch’s prima facia case for dismissal. We reject the
Brellenthins’ arguments and conclude that the medical records submitted in
support of Goblirsch’s summary judgment motion were sufficient to present a
prima facie case for summary judgment of dismissal, which the Brellenthins did
not sufficiently rebut. We therefore affirm.

BACKGROUND

¶2 Kelly Brellenthin contacted Goblirsch’s office on March 3, 2015,
because she had developed a significant allergic reaction, which she attributed to
food she had eaten. On that same day, Goblirsch prescribed Benadryl and
instructed her to follow up with him if her symptoms worsened. The following
day, Kelly contacted Goblirsch complaining that her symptoms had worsened and
asked about being prescribed prednisone, a corticosteroid, which she had used in
the past. After Goblirsch reviewed her symptoms, he prescribed 20 mg per day of
prednisone for Kelly to use orally for seven days.

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¶3 Over the next several days, Kelly’s symptoms continued to worsen,
prompting her to go to the emergency department at River Falls Hospital. On
March 11, 2015, she was transferred to Allina’s Health United Hospital in
Minnesota, where she remained until March 16, 2015. At the time of her
discharge from United Hospital, Kelly was placed on a prednisone regimen
designed to taper her prednisone use. This taper included taking 60 mg twice a
day for three days (March 17-19, 2015); 60 mg once a day for three days (March
20-22, 2015); 40 mg once a day for three days (March 23-25, 2015); then 20 mg
once a day for three days (March 26-28, 2015).

¶4 Following Kelly’s discharge from United Hospital, she followed up
with Goblirsch on March 18, 2015. Goblirsch continued Kelly on her medication
regimen prescribed at United Hospital, including prednisone. On March 23, 2015,
Kelly contacted Goblirsch reporting that her symptoms were returning and not
under control with her current 40 mg per day dose of prednisone. After Goblirsch
recommended returning Kelly to her previous dosage of 60 mg per day, she
requested more steroids. In response, Goblirsch agreed to try an increased
prescription of 80 mg per day of prednisone.

¶5 Kelly continued to experience discomfort, so she saw several other
physicians, including an allergist in early April 2015 at Mayo Clinic, and she was
admitted to the Mayo Clinic for observation and management. While hospitalized
at Mayo Clinic, her providers made a slight modification to her existing
medication regimen and initiated another tapering of the prednisone by decreasing
the dosage to 50 mg per day and then weaning by 10 mg every day for five days.
Kelly was discharged from Mayo Clinic on April 9, 2015.

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¶6 On May 11, 2015, Kelly contacted Goblirsch reporting that she had
completed the prednisone taper but had been “sicker than a dog,” and she
wondered if she was experiencing withdrawal. At that time, Goblirsch agreed to
extend the taper, approving an additional 5 mg per day for five days and
decreasing to 2.5 mg per day for five days thereafter with no refills, and
instructions to follow up if no improvement.

¶7 On June 3, 2015, Kelly saw Goblirsch for follow up. She described
experiencing myopathy and arthralgia, weakness, fatigue, nausea, vomiting and
constipation. At that time, Goblirsch made clear he was not in favor of resuming
prednisone for Kelly and advised her to follow up with her Mayo Clinic
physicians. This was the last time Goblirsch saw Kelly as a patient, as she later
transferred her care to Mayo Clinic. In the following months, a number of Mayo
Clinic physicians documented Kelly’s complaints and attributed them to her
corticosteroid use.

¶8 On June 12, 2015, Kelly saw a Mayo Clinic rheumatologist, who
noted that during his first meeting with her on April 3, 2015, “[her difficulty
breathing] was thought to be steroid-induced abdominal fluid retention which
altered her respiratory mechanics. … She was diagnosed with iatrogenic
Cushing’s as a result of the high-dose steroids.” Kelly’s Mayo Clinic
rheumatologist ordered a cosyntropin stimulation test because of a “concern for
secondary adrenal insufficiency” related to her high-dose corticosteroid use. On
July 1, 2015, this test was reviewed by a Mayo Clinic endocrinologist, who noted
that there was a “suboptimal response of the adrenal gland to [the cosyntropin
test]. The most likely cause is chronic exogenous high-dose steroids, which have
led to secondary adrenal insufficiency ….”

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¶9 On July 8, 2015, Kelly saw a Mayo Clinic neurologist, who noted:

[Kelly] has been referred … for a neurologic consultation
principally to address her headaches which arose in
March/April 2015. These arose in the context of high dose
corticosteroid therapy for about three weeks in
March …. She did develop iatrogenic Cushing’s syndrome
as a result of the prednisone treatment for urticaria.

During a consultation on July 21, 2015, a psychiatrist noted that Kelly was
experiencing “[a]drenal insufficiency secondary to exogenous steroid treatment”
and “[h]eadache and vestibular symptoms associated with steroid treatment
withdrawal” (emphasis omitted).

¶10 On September 15, 2015, Kelly returned to see a Mayo Clinic doctor
for a psychiatry consult and reported that she had continued headaches on a “daily
basis” and that she “has had hours free of headache but no day without at least
some cephalalgia.” A day later, Kelly wrote to one of her Mayo Clinic doctors
about pain she was experiencing in her hands, noting that “[i]t feels like the
symptoms I have in my hands from the steroid poisoning are now in my feet and
toes. I also have a great amount of pain, grinding and popping in my knees.”

¶11 On October 6, 2015, Kelly underwent a vestibular evaluation at
Mayo Clinic for what was described as “daily unsteadiness, waxing and waning
head pressure, and brief spontaneous episodes of vertigo following an adverse
response to steroid treatments initiated in April of 2015.” On October 26, 2105,
Kelly visited the Mayo Musculoskeletal Clinic, where she described knee pain that
“ha[d] been bothering her for a couple of months.” Her physician ordered an
MRI, and on October 28, 2015, the imaging showed that Kelly had “[a]vascular
necrosis of the femoral heads, left greater [than] the right, without evidence of
articular surface collapse at this time.”

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¶12 On November 2, 2018, the Brellenthins commenced this lawsuit
against Goblirsch, alleging that Goblirsch negligently prescribed Kelly high doses
of corticosteroids causing bilateral avascular necrosis of her hips and vestibular
migraine headaches. Goblirsch moved for summary judgment, arguing the
Brellenthins had failed to file suit within the three-year time limit set forth in WIS.
STAT. § 893.55(1m) (2019-20).1 In support of the motion, Goblirsch
acknowledged that he had treated Kelly with corticosteroids until June 3, 2015.
Goblirsch also filed an affidavit attaching certified copies of Kelly’s medical
records, which showed that her health care providers had documented her adverse
reactions to the corticosteroids more than three years before the suit.

¶13 The court applied WIS. STAT. § 893.55(1m) and the holdings in
Estate of Genrich v. OHIC Insurance Co., 2009 WI 67, ¶17, 318 Wis. 2d 553,
769 N.W.2d 481, and Doe 56 v. Mayo Clinic Health System-Eau Claire Clinic,
Inc., 2016 WI 48, ¶6, 369 Wis. 2d 351, 880 N.W.2d 681, both of which confirmed
the “physical injurious change” rule for the time of accrual of medical malpractice
actions. The court found that the Brellenthins’ lawsuit was untimely and granted
summary judgment in favor of Goblirsch. The Brellenthins now appeal.

DISCUSSION

¶14 We independently review a grant of summary judgment, using the
same methodology as the circuit court. Hardy v. Hoefferle, 2007 WI App 264, ¶6,
306 Wis. 2d 513, 743 N.W.2d 843. Summary judgment is appropriate where the
pleadings, depositions, answers to interrogatories, and admissions on file, together

1
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

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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. WIS.
STAT. § 802.08(2). Here, the circuit court’s summary judgment ruling turned on
questions of statutory interpretation and application, which we also review
independently. See McNeil v. Hansen, 2007 WI 56, ¶7, 300 Wis. 2d 358, 731
N.W.2d 273.

¶15 The parties agree that the summary judgment methodology under
WIS. STAT. § 802.08(2) requires the moving party to put forth a prima facie case
for summary judgment. To make a prima facie case for summary judgment, a
moving defendant must show a defense that would defeat the plaintiff. See Tews
v. NHI, LLC, 2010 WI 137, ¶4, 330 Wis. 2d 389, 793 N.W.2d 860. A prima facie
case is established only when evidentiary facts are stated which, if they remain
uncontradicted by the opposing party’s affidavits, resolve all factual issues in the
moving party’s favor. Walter Kassuba, Inc. v. Bauch, 38 Wis. 2d 648, 655, 158
N.W.2d 387 (1968). If such a showing has been made, the court must examine the
affidavits and other proof of the opposing party to determine whether a genuine
issue exists as to any material fact or whether reasonable conflicting inferences
may be drawn from undisputed facts. Tews, 330 Wis. 2d 389, ¶4.

¶16 The Brellenthins contend that Kelly suffered injuries as a result of
Goblirsch’s negligence. As relevant to our analysis, the statute of limitations for
medical malpractice actions under WIS. STAT. § 893.55(1m) provides that:

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

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(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.

Sec. 893.55(1m).2 The Brellenthins contend that Kelly’s injuries did not occur
until November 4, 2015, and their lawsuit was therefore timely filed on November
2, 2018, under § 893.55(1m)(a). Accordingly, the timeliness of the Brellenthins’
action hinges on when Kelly’s alleged injuries due to corticosteroid toxicity
occurred and whether this action was commenced within three years of that date.

¶17 Wisconsin case law has over time developed a consistent test for
determining the date of injury in medical malpractice claims, which is the date of
the “physical injurious change.” Doe 56, 369 Wis. 2d 351, ¶17. The “physical
injurious change” test has “withstood the test of time,” and it has been applied to
determine the expiration of the statute of limitations “in a variety of factual
scenarios.” Id.

¶18 In order to constitute a “physical injurious change,” an injury does
not need to be untreatable. Genrich, 318 Wis. 2d 553, ¶16. Rather, an “actionable
injury arises when the [negligent act or omission] causes a greater harm than [that
which] existed at the time of the [negligent act or omission].” Paul v. Skemp,
2001 WI 42, ¶25, 242 Wis. 2d 507, 625 N.W.2d 860. Moreover, a later injury
from the same tortious act does not restart the running of the statute of limitations.
Fojut v. Stafl, 212 Wis. 2d 827, 832, 569 N.W.2d 737 (Ct. App. 1997).

2
There is no argument in this case that either WIS. STAT. § 893.55 (1m)(2) or (3) applies.

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¶19 The Brellenthins agree that Goblirsch provided medical records
pursuant to affidavit in support of his summary judgment motion and the
Brellenthins do not contest the accuracy or content of any of those medical
records. They argue, however, that the medical records were insufficient to
support a prima facie case for summary judgment. In particular, they argue that
expert testimony was required to prove whether Kelly suffered a physical injurious
change as a result of Goblirsch’s alleged negligent prescription of corticosteroids,
or whether changes to her condition were merely ordinary and natural responses to
the medication she was taking. The Brellenthins also argue expert testimony was
necessary to establish when any physical injurious change caused by Goblirsch’s
alleged negligence occurred. Without such testimony, the Brellenthins contend
there was a material question of fact “concerning whether Ms. Brellenthin had
‘physical injurious changes,’ and, if so, the nature of those, and ultimately the
cause of those changes ….”

¶20 The Brellenthins emphasize that this case involves the effects of a
prescription drug taken over a period of time, that some of those effects were or
could have been normal side effects of the drug, and that some of the effects may
have abated while others did not. Under these circumstances, the Brellenthins
argue that Kelly’s medical records alone cannot prove when she first suffered a
physical injurious change as a result of Goblirsch’s alleged overprescription of the
corticosteroids. While there is evidence in the record that Kelly experienced
negative side effects from the corticosteroids more than three years before this
action was commenced, including the effects claimed in her complaint, the
Brellenthins contend a reasonable inference from the medical records could be that
those adverse effects did not arise from Goblirsch’s actions, but rather were
merely natural side effects of taking steroids. The Brellenthins therefore assert

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that expert testimony was necessary to establish when any physical injury caused
by Goblirsch’s alleged negligence took place.

¶21 The Brellenthins’ arguments fail for several reasons. First, the
Brellenthins argue, without citation to any authority, that Goblirsch’s medical
records submission would be insufficient evidence for Goblirsch to prevail at trial
and, therefore, it “should not pass muster at this stage of the proceedings.”

¶22 Here, the Brellenthins incorrectly apply summary judgment
procedure and conflate the need for expert testimony at trial with the need for
expert testimony on summary judgment, where Goblirsch was only required to
establish a prima facie case. To pursue summary judgment, Goblirsch was not
required to submit the same proof that would have been required at trial, but only
to make a prima facie case. As explained above, a prima facie case is
characterized as one established … when evidentiary facts are stated which, if they
remain uncontradicted by the opposing party’s affidavits, resolve all factual issues
in the moving party’s favor. Kassuba, 38 Wis. 2d at 655. Once a claimant brings
forward evidence sufficient to establish a prima facie case, the burden is on the
opponent to produce sufficient evidence to go forward with its case. See Tews,
330 Wis. 2d 389, ¶4.

¶23 The medical records submitted in support of Goblirsch’s summary
judgment motion were sufficient to support a prima facie case for summary
judgment.3 As mentioned, the Brellenthins do not contest the accuracy or content

3
The Brellenthins also make the argument that the medical records at issue are hearsay.
Medical records fall under a well-known exception to the hearsay rule. See WIS. STAT.
§ 908.03(6m).

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of any of those medical records. They acknowledge that the injuries Kelly
sustained from Goblirsch’s alleged negligent prescription of high doses of
corticosteroids were avascular necrosis of her hips bilaterally and vestibular
dysfunction resulting in migraine headaches. The medical records unequivocally
show that Goblirsch prescribed corticosteroids to Kelly from March 4 through
May 11, 2015. During and after that time, and before November 4, 2015, the
records show that Kelly experienced multiple negative side effects—i.e., “physical
injurious changes”—related to the corticosteroid use. These effects include the
diagnosis of “[a]vascular necrosis of the femoral heads, left greater [than] the
right, without evidence of articular surface collapse …” on October 28, 2015, and
symptoms of vestibular dysfunction on October 6, 2015. These are the very
injuries that the Brellenthins claim were caused by Goblirsch’s alleged negligent
prescription of high doses of corticosteroids and the resulting steroid toxicity.

¶24 The burden then shifted to the Brellenthins to overcome Goblirsch’s
prima facie showing. The Brellenthins, however, failed to provide an expert
opinion or any counter affidavit that the mismanagement of Kelly’s corticosteroids
was not the cause of any physical injurious change to her—that is, avascular
necrosis and migraine headaches—prior to November 4, 2015. In fact, the
Brellenthins failed to put forth any proof to contradict the facts in the medical
records demonstrating that Kelly experienced multiple negative side effects related
to the corticosteroid use prior to November 4, 2015, and that those side effects
were due to mismanagement of Kelly’s corticosteroids. The Brellenthins present
no disputed issue of material fact, nor do they raise an alternative inference from
uncontroverted evidence entitling Kelly to a trial. We therefore reject the
Brellenthins’ argument.

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¶25 While the Brellenthins assert we could reasonably infer that some of
the negative effects Kelly suffered were the natural result of taking corticosteroids,
they provide no evidence to support that assertion, either in the form of opposing
expert opinion or via medical records. As the circuit court correctly observed
when reviewing the medical records, Kelly experienced the very adverse medical
conditions that she claims resulted from Goblirsch’s alleged negligence prior to
November 4, 2015. There is nothing in the appeal to permit a reasonable inference
that Kelly’s conditions, or other physically injurious conditions she experienced
prior to November 4, 2015, were from another cause, including side effects that
could reasonably be expected to accompany the use of corticosteroids.

¶26 Goblirsch provided admissible evidence to make a prima facie
showing that the Brellenthins’ claim was untimely. As set forth above, Kelly’s
medical records submitted in support of Goblirsch’s summary judgment motion
contain numerous examples of physical injurious changes that she experienced
more than three years before the Brellenthins filed suit. In response to Goblirsch’s
motion, the Brellenthins did not submit evidence, in the form of affidavits or
otherwise, to create a disputed issue of material fact as to whether Kelly
experienced a physical injurious change more than three years before this lawsuit
was filed. Thus, even if we do not know precisely when Kelly first experienced a
physical injurious change sufficient to cause her claim to accrue, we do know that
she experienced the medical issues that she claims arose from Goblirsch’s alleged
negligence by at least July 8, 2015, for the headaches, and by October 28, 2015,
for the avascular necrosis. Both of those dates occurred more than three years
prior to the commencement of the Brellenthins’ lawsuit.

¶27 The Brellenthins offered nothing from the medical records to rebut
the above facts. There is nothing in the records to indicate that all of the adverse

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reactions Kelly had to the corticosteroids prior to November 4, 2015, were
unrelated to Goblirsch’s alleged negligence, while at the same time his alleged
negligence would have caused those exact same negative physical responses after
November 4, 2015. In fact, the record shows that Goblirsch had stopped treating
Kelly by June 3, 2015.

¶28 Ultimately, the undisputed facts establish that Kelly suffered a
physical injurious change as a result of Goblirsch’s alleged negligence no later
than October 28, 2015. The Brellenthins did not file the instant lawsuit until
November 2, 2018—more than three years after that date. Accordingly, the
Brellenthins’ claims are time barred under WIS. STAT. § 893.55(1m)(a), and the
circuit court properly granted Goblirsch summary judgment.

By the Court.—Judgment affirmed.

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

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