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PUBLISHED OPINION
Case No.:                                                   94-3344
Complete Title
of Case:RICKI  A.  RITT,
Plaintiff-Respondent,
                                                            v.
DENTAL  CARE  ASSOCIATES,  S.C.,
                                                            GREGORY  C.  SKELDING,  D.D.S.,
                                                            AND  ST.  PAUL  FIRE  &  MARINE  INSURANCE
COMPANY,
Defendants-Appellants.
Submitted on Briefs:                                        November  10,  1995
COURT                                                       COURT OF APPEALS OF WISCONSIN
Opinion Released:                                           December  28,  1995
Opinion Filed:                                              December  28,  1995
Source of APPEAL                                                                                         Appeal from  a  judgment  and  an  order
Full Name JUDGE                                             COURT:                                       Circuit
Lower Court.                                                COUNTY:                                      Marquette
(If "Special"                                                                                            JUDGE: William  McMonigal
so indicate)
JUDGES:                                                     Eich,  C.J.,  Dykman  and  Vergeront,  JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSFor  the  defendants-appellants  the  cause  was
submitted  on  the  briefs  of  Stephen  O.  Murray  of
Otjen,  Van  Ert,  Stangle,  Lieb  &  Weir,  S.C.  of
Madison.
Respondent




ATTORNEYSFor  the  plaintiff-respondent  the  cause  was
submitted  on  the  brief  of  Gregory  R.  Wright  of
Gregory  R.  Wright  Law  Offices  of  Montello.




COURT OF APPEALS
DECISION
DATED AND RELEASED
NOTICE
December 28, 1995
A party may file with the Supreme Court                                                    This opinion is subject to further editing.
a petition to review an adverse decision                                                   If  published,  the  official  version  will
by the Court of Appeals.  See § 808.10 and                                                 appear  in  the  bound  volume  of  the
RULE 809.62(1), STATS.                                                                     Official Reports.
No.   94-3344
STATE OF WISCONSIN                                                                         IN COURT OF APPEALS
RICKI A. RITT,
                                                                                           Plaintiff-Respondent,
v.
DENTAL CARE ASSOCIATES, S.C.,
GREGORY C. SKELDING, D.D.S.,
AND ST. PAUL FIRE & MARINE INSURANCE COMPANY,
Defendants-Appellants.
APPEAL from a judgment and an order of the circuit court for
Marquette County:   WILLIAM MCMONIGAL, Judge.   Judgment affirmed in part
and reversed in part; order reversed and cause remanded with directions.
Before Eich, C.J., Dykman and Vergeront, JJ.
VERGERONT,  J.                                                                             Gregory  Skelding,  D.D.S.,  Dental  Care
Associates, S.C., and their insurer, St. Paul Fire & Marine Insurance Company,1
1  The complaint also named Marquette County Department of Health and Social
Services as a subrogated defendant, but that party was dismissed before trial.   In this
opinion, the term "defendants" means Dr. Skelding, Dental Care Associates, S.C., and St.




No.                                                                                   94-3344
appeal  from  a  judgment  on  a  jury  verdict  finding  that  Dr. Skelding  was
negligent in providing dental services to Ricki Ritt.   They also appeal from an
order in which the trial court found that an offer of settlement submitted by Ritt
was a valid offer of settlement.   They contend that the trial court:                 (1) erred in
denying their motion for summary judgment on the ground that the action was
time barred; (2) erroneously exercised its discretion in excluding Dr. Skelding's
appointment  book  as  evidence;                                                      (3) committed  error  in  awarding  Ritt
prejudgment  interest  and  double  costs;  and                                       (4) erroneously  exercised  its
discretion in denying their motion for a new trial based on newly-discovered
evidence.
We  conclude  that  the  statute  of  limitations,  § 893.55,  STATS.,2
relating to malpractice actions against health care providers, applies to claims
against dentists, rather than the personal injury statute of limitations, § 893.54,
STATS.3   Applying § 893.55, we conclude that the trial court's denial of summary
(..continued)
Paul Fire & Marine Insurance Company, unless otherwise indicated.
2  Section 893.55(1), STATS., provides:
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
(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.
3  Section 893.54, STATS., provides:
The following actions shall be commenced within  3 years or be
barred:
(1) An action to recover damages for injuries to the person.
(2) An action brought to recover damages for death caused by the
wrongful act, neglect or default of another.
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No.                                                                                      94-3344
judgment was proper, but not for the reason stated by the trial court.   We
conclude there are factual disputes regarding whether Ritt exercised reasonable
diligence in discovering his injury, and whether Ritt commenced his action
within five years of the act or omission.   We therefore remand for a trial on
these issues.
If  on  remand  the  timeliness  of  Ritt's  action  is  resolved  in
defendants' favor, the remaining issues in this appeal will be moot.   However,
in the event the jury determines that Ritt timely filed his action, we decide the
other issues.   We conclude the trial court based its denial of a new trial on an
incorrect factor.  Therefore, the trial court should exercise its discretion applying
the proper legal standard in deciding the defendants' motion for a new trial.
We  also  conclude  that  the  trial  court  properly  exercised  its  discretion  in
excluding from evidence the appointment book.   Finally, we reverse the order
awarding prejudgment interest and double costs to Ritt because we conclude
the offer of settlement was not valid under § 807.01(3), STATS.
BACKGROUND
Ritt filed his complaint on April 6, 1992, claiming that Dr. Skelding
was  negligent  in  the  dental  care  he  provided  beginning  in  approximately
August 1986.4
The defendants filed a motion for summary judgment contending
that the action was barred by the medical malpractice statute of limitations,
§ 893.55, STATS., because the action was filed more than three years after the
date of injury,  § 893.55(1)(a), and more than one year after the injury was
discovered  or,  with  reasonable  diligence,  should  have  been  discovered,
§ 893.55(1)(b).    The  trial  court  denied  the  motion.    It  concluded  that  the
applicable statute of limitations was  § 893.54, STATS., which requires that an
action for injuries to the person be brought within three years.  It also concluded
that this statute of limitations did not begin to run until July 1991, when Ritt
consulted another dentist, Dr. Govoni.
4  Other claims contained in the complaint and amended complaint were dismissed
before trial.
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No.                                                                                        94-3344
Ritt's specific claims at trial were that Dr. Skelding was negligent
with regard to:                                                                            (1) the extraction of his teeth, and  (2) subsequent fitting of
dentures  and  lack  of  follow-up  care.     The  jury  returned  a  verdict  that
Dr. Skelding did not fail to obtain Ritt's informed consent before extracting Ritt's
teeth, but that he was negligent in providing dental services to Ritt.   The jury
awarded Ritt $6,000 in damages.   The parties agree that, given the evidence
presented at trial, the verdict means that Dr. Skelding was not negligent with
respect to the extraction of Ritt's teeth, but was negligent with respect to the
fitting of dentures and follow-up care.
Dr. Skelding's treatment records of Ritt were not produced at trial.
Dr. Skelding testified that Ritt's file was inactive and that he had looked in the
boxes of closed files in his Princeton office and in his office at home but had not
been able to find the treatment records of Ritt.   He testified that the file could
possibly have been taken by a former partner, Dr. James Greenwald.    Dr.
Skelding attempted to introduce his appointment book at trial to dispute Ritt's
testimony  that  he  (Dr.  Skelding)  refused  to  see  Ritt  after  fitting  Ritt  with
dentures.   The trial court excluded the appointment book, but permitted the
introduction  of  a  written  summary  of  dates  pertaining  to  Ritt's  scheduled
appointments from the appointment book.
The defendants' motions after verdict included a motion for a new
trial on the ground that the trial court erred in excluding the appointment book
and on  the ground of newly-discovered evidence--Dr. Skelding's treatment
records of Ritt.   The court denied these motions and entered judgment on the
verdict.   The court awarded prejudgment interest and double costs, concluding
that Ritt's settlement offer of $4,999 met the requirements of § 807.01(3), STATS.,
and that the judgment of $6,000 exceeded that amount.
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No.                                                                                   94-3344
STATUTE OF LIMITATIONS
In reviewing the trial court's denial of summary judgment, we first
consider  which  statute  of  limitations  applies--§ 893.54,  STATS.,  governing
"action[s] to recover damages for injuries to the person," or § 893.55, STATS.,
governing "action[s] 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."   Since  § 893.55 is the more specific of the two, we begin by
deciding whether the terms of that statute are met.   Clark v. Erdmann,  161
Wis.2d 428, 436-37, 468 N.W.2d 18, 21 (1991).   The meaning of a statute is a
question of law, which we review de novo.  Id. at 438, 468 N.W.2d at 22.
In Clark, the court held that podiatrists were health care providers
within the meaning of § 893.55, STATS.  The court reasoned that the term "health
care provider," which is not defined in the statute, "plainly applies to anyone
who professionally provides health care to others.   Podiatrists do exactly that:
they provide health care to others; and, like other professional health care
providers, they are licensed to practice by the state medical examining board
pursuant to ch. 448, STATS."   Clark, 161 Wis.2d at 438-39, 468 N.W.2d at 22.   The
court followed this passage by this footnote:
Chapter  448,  STATS.,  pertains  to  the  licensing  of
physicians  and  physical  therapists  as  well  as
podiatrists,  and  to  the  certifying  of  occupational
therapists,   occupational   therapy   assistants   and
respiratory care practitioners.   Chapters 446, 447, 449,
451, and 455 pertain to the licensing or certifying of other
professional health care providers.
Id. at 439 n.5, 468 N.W.2d at 22 (emphasis added).   Dentists are licensed under
ch. 447, STATS., and thus are included in the term "other professional health care
providers" as used in Clark.
Ritt argues that Clark is distinguishable because Dr. Skelding is
not licensed under ch. 448, STATS., as podiatrists are.   Chapter 448 is entitled
"Medical Practices."   However, in view of the footnote we have just quoted,
Clark cannot be read to limit health care providers under § 893.55, STATS., to
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No.                                                                                    94-3344
those licensed under ch.  448.   Clark must be read to include those licensed
under the statutes listed in the footnote, and that includes dentists.
Doe v. American Nat'l Red Cross, 176 Wis.2d 610, 500 N.W.2d 264
(1993), does not hold otherwise.   In Doe, the court held that American National
Red Cross, a blood bank, was not a health care provider under § 893.55, STATS.
The court stated:
This case is different from Clark where we found
that a podiatrist was a "health care provider" under
sec.  893.55.    The Red Cross is not involved in the
diagnosis,  treatment  or  care  of  patients  as  are
podiatrists.   The Red Cross is not licensed to practice
medicine by the state of Wisconsin or any medical
examining board.   Likewise, we reject the Red Cross'
argument that this case is similar to claims against
radiologists  or  pathologists  who  have  no  direct
patient contact but fall within the scope of sec. 893.55.
The Red Cross is not involved in diagnosing and
recommending   treatment   for   patients   as   are
radiologists and pathologists.    The conduct of the
Red Cross in collecting and selling blood products is
akin to the conduct of pharmaceutical manufacturers
or suppliers of medical equipment, not health care
providers.
Id. at 617, 500 N.W.2d at 266.
Ritt points to the references to "licensed to practice medicine" and
"medical  examining  board"  in  this  passage  from  Doe  in  support  of  his
argument.  We are persuaded that Doe does not hold that a health care provider
under  § 893.55,  STATS.,  must  be  licensed  under  ch.  448,  STATS.    The  more
accurate statement of the Doe holding is that the Red Cross is not a health care
provider under § 893.55 because it "plays no role in the diagnosis, treatment or
care of patients [but rather] is the supplier of a product that is used by health
care providers in their treatment of patients."   Id. at 616-17, 500 N.W.2d at 266
(footnote omitted).
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No.                                                                                         94-3344
Ritt urges us to look to other statutes that define "health care
provider."   He refers us to §§ 655.001(8) and 655.002(1)(a), STATS., which read
together,   define  "health   care   provider"  for  purposes  of  the  patients
compensation fund as a physician or nurse anesthetist.  "Physician" is defined as
"a  medical  or  osteopathic  physician  licensed  under  ch.                               448."                  Section
655.001(10m).   The court in Clark also considered § 655.001(8), but found it did
not exclude a broad definition of "health care provider" under § 893.55, STATS.
Clark, 161 Wis.2d at 439, 468 N.W.2d at 22.
Ritt also refers us to § 154.01(3), STATS., which defines a "health
care professional" for purposes of ch. 154, entitled "Natural Death," as persons
licensed,  certified  or  registered  under  ch.  441  (Board  of  Nursing),  ch.  448
(Medical Practices) or ch. 455 (Psychology Examining Board).   Since ch. 154
relates to the execution, compliance and revocation of declarations relating to
persons with terminal conditions, the omission of dentists from this definition
does not persuade us that  § 893.55, STATS., should be interpreted similarly
narrowly.    Moreover, we note that  § 154.03(1)(d), STATS., when referring to
those persons who may not be a witness to the execution of a declaration, refers
to "[a]n individual who is a health care provider, as defined in s. 155.01(7), who
is serving the declarant at the time of execution."   Section  155.01(7), STATS.,
which defines "health care provider" for purposes of the chapter entitled "Power
of Attorney for Health Care," includes "a dentist licensed under ch. 447," as well
as a number of other licensed persons not included in the definition of health
care professional in § 154.01(3).
It is apparent, even from the statutes cited by Ritt, that "health care
provider"  and  "health  care  professional"  are  defined  in  different  ways  in
different statutes, depending on the purpose of the statute.5   The definitions of
"health care provider" and "health care professional" in other statutes do not
resolve the correct construction of § 893.55, STATS.
There is no definition of "health care provider" in § 893.55, STATS.
Absent a statutory definition, we construe words in statutes according to their
5  Other statutes in addition to  § 155.01(7), STATS., define "health care provider" to
include a dentist, but vary as to which other professions are included in the definition.
See,  e.g.,                                                                                 § 146.81(1),  STATS.   (defining  "health  care  provider"  for  purposes  of  patient
records); § 146.89(1), STATS. (defining "volunteer health care provider" for purposes of
participating in the volunteer health care provider program).
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No.                                                                                    94-3344
common and approved usages.  Clark, 161 Wis.2d at 438, 468 N.W.2d at 22.  We
may consult a dictionary for that purpose.  In re Christopher D., 191 Wis.2d 680,
704, 530 N.W.2d 34, 43 (Ct. App. 1995).   "Dentistry" is "[t]he medical science
concerned  with  diseases  of  the  teeth,  gums,  and  related  oral  structures,
including the restoration of defective teeth."   THE AMERICAN HERITAGE COLLEGE
DICTIONARY  372  (3d ed.  1993).    As did the court in Clark with respect to
podiatrists, we conclude that dentists are included in the meaning of "health
care provider" under § 893.55.
We now consider whether, applying  § 893.55, STATS., summary
judgment was properly denied.   Section 893.55(1) requires that the action be
brought within the later of:                                                           (a) three years from the date of injury, or (b) one
year from the date the injury was discovered or, with reasonable diligence,
should have been discovered, but not more than five years from the date of the
act or omission.   Since the jury found Dr. Skelding negligent only with respect
to the denture fitting and follow-up care, we examine the summary judgment
motion only with respect to that claim.
We follow the same methodology as the trial court.   Ervin v. City
of  Kenosha,  159  Wis.2d  464,  479,  464  N.W.2d  654,  660  (1991).    Summary
judgment is proper only if there are no genuine issues of material fact and the
moving party is entitled to judgment as a matter of law.   Section  802.08(2),
STATS.    The court does not decide issues of fact on a motion for summary
judgment, but simply determines if there are disputed issues of fact.   Ervin, 159
Wis.2d at 480, 464 N.W.2d at 661.   Even if there are no disputed issues of fact, if
reasonable  alternative  inferences  can  be  drawn  from  the  facts,  summary
judgment is not appropriate.  Id. at 478-79, 464 N.W.2d at 660.
We first examine the defendants' submissions in support of the
motion to determine whether they have made a prima facie case for a statute of
limitations defense that would defeat Ritt's claim.   See Clark, 161 Wis.2d at 442,
468 N.W.2d at  24.   The defendants' only submission was a portion of Ritt's
deposition.   Ritt stated in his deposition that he first saw Dr. Skelding in May
1986.  He last saw Dr. Skelding in April 1987.  Dr. Skelding extracted his teeth in
1986 and fitted him with upper and lower dentures in early  1987.   He first
started to experience problems with the dentures about a week after the fitting.
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No.                                                                                     94-3344
We conclude Ritt's deposition testimony establishes a prima facie
defense that the claim for negligent fitting of dentures and follow-up care is
time barred under § 893.55(1), STATS.   It is a sufficient showing that the injury
caused by the negligence occurred in early 1987.   The action, filed on April 6,
1992, is more than three years after that date.   This testimony is also a sufficient
showing that Ritt discovered the injury about one week after the fitting, also in
early 1987, with the result that the action was filed more than one year after
discovery.
We now examine Ritt's affidavit in opposition to the motion to
determine if it creates any genuine issues of material fact.    Ritt averred as
follows.  In his deposition, he was confused as to the dates of treatment because
he had not yet been able to obtain his dental records from Dr. Skelding in spite
of his requests for them.    He has since reviewed the dental records of Dr.
Govoni,  another  dentist  who  treated  him,  as  well  as  the  records  of  the
Marquette County Department of Health and Social Services medical assistance
files pertaining to his treatment by Drs. Skelding and Govoni, and that has
refreshed his memory.   He was treated by Dr. Skelding from April 12, 1986,
through the fall of  1987.   After he received his dentures, he telephoned Dr.
Skelding on several occasions through 1987 with complaints that his dentures
were very loose.  Dr. Skelding advised him that he had to allow for shrinkage in
his mouth and it would take time before the dentures fit appropriately.  Because
of Dr. Skelding's advice, he believed he needed to be patient and, at some point
in the future, the shrinkage in his mouth would occur and his dentures would
fit securely.  However, this did not occur and he realized the problems were not
going to go away.    It was at that point he made an appointment with Dr.
Govoni on July 30, 1991, for consultation and treatment.
Ritt's affidavit continues:
I first discovered that I had a claim or cause of action
against Gregory C. Skelding for dental malpractice
during my treatment with Dr. Govoni on July  30,
1991.   It was during that treatment that Dr. Govoni
explained  to  me  the  failure  of  Dr.  Skelding  to
professionally provide dental services for me and the
negligence of Dr. Skelding in his care and treatment
of me by not properly fitting my mouth with upper
and lower dentures, failing to fully inform me of the
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No.                                                                                     94-3344
procedures,  failing  to  inform  me  of  alternative
treatments, and misrepresenting to me that all of my
teeth that were extracted needed to be extracted.
After my first meeting with Dr. Govoni on July 30,
1991,  I  retained  Attorney  Gregory  R.  Wright  to
represent me involving a dental malpractice claim
against Gregory C. Skelding...
We first address the defendants' objection to the admissibility, on
hearsay grounds, of Dr. Govoni's statements as related by Ritt.  According to the
defendants, Ritt is offering the statement of another--Dr. Govoni's--for the truth
of  the  matter  asserted  by  Dr.  Govoni,  and  it  is  therefore  hearsay  under
§ 908.01(3),  STATS.    We  agree  that  Dr.  Govoni's  statement  is  hearsay,  and
therefore inadmissible, as evidence that Dr. Skelding's treatment was deficient
and negligent.  However, we conclude that it is not hearsay as evidence that this
is what Dr. Govoni told Ritt on July 30, 1991.
The date on which a plaintiff discovers an injury for statute of
limitations purposes depends in part on the information he or she has.   "If a
plaintiff has information that would constitute the basis for an objective belief of
[his or] her injury and its cause, [he or] she has discovered [his or] her injury
and its cause."   Clark, 161 Wis.2d at 448, 468 N.W.2d at 26.   For this purpose,
what Dr. Govoni said to Ritt is relevant but the truth of what he said is not
relevant.   For example, plaintiffs sometimes offer statements of professionals
made to them that their symptoms were not caused by the act or omission of a
health care provider in order to prove they did not have information that would
constitute an objective belief of their injuries and their causes.   These plaintiffs
obviously do not offer such statements to prove that the health care provider is
not negligent.   See, e.g., Borello v. U.S. Oil Co., 130 Wis.2d 397, 388 N.W.2d 140
(1986); Claypool v. Levin,  195 Wis.2d  535,  536 N.W.2d  206  (Ct. App.  1995),
review granted, ___ Wis.2d ___, 542 N.W.2d 154 (Wis. Nov. 14, 1995).
Although  Dr.  Govoni's  statement,  according  to  Ritt,  was  that
Dr. Skelding was negligent, the analysis is the same.    The statement is not
hearsay and is admissible for the purpose of proving what information Ritt had
and when he had it.
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No.                                                                                            94-3344
The defendants point to our decision in Fritz v. McGrath,  146
Wis.2d 681, 431 N.W.2d 751 (Ct. App. 1988), in support of their argument that
Ritt's averment of Dr. Govoni's statement is inadmissible.   In Fritz, we affirmed
a summary judgment that an action alleging negligent dental surgery was time
barred.6  In opposition to the motion for summary judgment, Fritz submitted an
affidavit  that  we  described  as  containing  "considerable  hearsay  discussion
regarding other doctors' statements to her" which were "not properly before the
court on the motion for summary judgment."   Id. at 689, 431 N.W.2d at 755.
This is the statement the defendants here rely on.    However, immediately
following  this  statement,  we  stated  that  Fritz's  affidavit  admitted  that  Dr.
Gabriel, a neurosurgeon, advised her in April 1983 of the possibility that she
sustained nerve damage during the dental surgery.  Id. at 689-90, 431 N.W.2d at
755.    We  concluded  that  the  information  Fritz  received  from  Dr.  Gabriel,
together  with  other  facts  known  to  her,  provided  a  basis  for  objectively
concluding in April 1983 that the dental surgery was probably the cause of her
symptoms.  Id. at 692, 431 N.W.2d at 756.
In spite of our statement about the hearsay nature of other doctors'
statements, we did consider Fritz's averment about what Dr. Gabriel told her to
determine what information she received from him.   We described that as the
"key question."   Fritz, 146 Wis.2d at 689, 431 N.W.2d at 755.   Therefore, our
statement about the hearsay nature of other doctors' statements is dictum,
which we now withdraw.7  See State v. Lee, 157 Wis.2d 126, 130 n.4, 458 N.W.2d
562, 563 (Ct. App. 1990) (although a published decision of the Court of Appeals
is binding on all panels of the court, we may withdraw dictum).
Having concluded that Ritt's averments of Dr. Govoni's statements
to him are admissible for purposes of the summary judgment motion, we now
consider whether Ritt's affidavit is sufficient to defeat summary judgment.   We
conclude that it is.
6  In Fritz v. McGrath, 146 Wis.2d 681, 431 N.W.2d 751 (Ct. App. 1988), we applied
§ 893.54(1), STATS.  No party raised the issue of whether § 893.55, STATS., applied instead.
7  We do not intend to suggest that Fritz's averments about other doctors' statements,
which we detail in a footnote, see Fritz v. McGrath, 146 Wis.2d 681, 689 n.2, 431 N.W.2d
751, 755 (Ct. App. 1988), are necessarily otherwise admissible.
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No.                                                                                            94-3344
The defendants argue that Ritt discovered his injury in early 1987
because he knew his dentures bothered him one week after he received the
dentures.   They ignore the averment that Dr. Skelding advised him on several
occasions during 1987 that it would take time before the dentures fit properly.
Given this averment, we cannot conclude as a matter of law that Ritt discovered
or, with reasonable diligence, should have discovered his injury in early 1987.
However, we disagree with the trial court that, as a matter of law, Ritt did not
discover his injury until July 30, 1991, when he saw Dr. Govoni.
In Claypool, we held that even though the plaintiffs immediately
believed that a physician's treatment had caused the injury, that was not, as a
matter of law, the date of discovery because of the subsequent advice from a
lawyer that a doctor or doctors who had reviewed the case for him saw nothing
wrong  with  the  treatment.    We  therefore  reversed  the  grant  of  summary
judgment in favor of the health care provider.   However, we also refused to
find,  as  a  matter  of  law,  that  discovery  did  not  occur  until  the  plaintiffs
subsequently consulted with another attorney who advised them that there was
a viable claim.   Claypool, 195 Wis.2d at 552, 536 N.W.2d at 212.   We noted that
the issue of reasonable diligence is ordinarily one of fact and we concluded,
based on the record, that the issue had to be tried.  Id.
We reach that same conclusion here.    Ritt did not necessarily
discover his injury when the dentures first bothered him, given Dr. Skelding's
later statements that it would take time for his mouth to shrink and the dentures
to fit.    But there remains the question of whether Ritt exercised reasonable
diligence in not consulting another dentist until July 1991.   It appears the trial
court did not analyze this question in denying the summary judgment motion.8
On this point, the record consists only of Ritt's affidavit, since the defendants
did not submit anything in reply.   We conclude that Ritt's affidavit gives rise to
competing reasonable inferences as to whether Ritt did exercise reasonable
diligence in not consulting another dentist until July 1991.
We also conclude that the affidavit creates a factual dispute as to
whether the action was brought within five years of the date of the act or
omission, the second requirement under § 893.55(1)(b), STATS.   Ritt avers in his
8  Ritt's counsel did argue before the trial court that there was a material factual dispute
on this point.
-12-




No.                                                                                             94-3344
affidavit that he last saw Dr. Skelding in the fall of 1987 and that he called Dr.
Skelding on several occasions through  1987 complaining of loose dentures.
Drawing all reasonable inferences in Ritt's favor, these averments are sufficient
to raise a factual dispute as to when the last act or omission occurred concerning
the claim that Dr. Skelding was negligent in fitting the dentures and providing
follow-up care.
The defendants' summary judgment motion should have been
denied because, applying § 893.55, STATS., there were material factual disputes
as to whether the action was timely.   The denial of summary judgment was
correct, although the reason given by the trial court was not.9   We remand for a
trial on the issues of whether Ritt exercised reasonable diligence in discovering
his injury and whether he commenced his action within five years of the act or
omission.
9  In reviewing the denial of the summary judgment motion, we have considered only
the materials submitted before trial in support of, and in opposition to, the motion.   The
issue of reasonable diligence was not litigated at trial, nor was the five-year limitation.
The  defendants  did  bring  a  post-trial  motion,  titled  a  "Motion  For  Judgment
Notwithstanding  The  Verdict,"  again  raising  the  statute  of  limitations  issue.    The
arguments were the same as those presented on the motion for summary judgment,
except that the defendants submitted portions of the deposition of Dr. Govoni in which he
states that he did not recall telling Ritt at the July  1991 visit that Dr. Skelding was
negligent and that it was not his practice to comment on the quality of care provided by
other dentists.   Dr. Govoni's deposition was taken after the court denied the motion for
summary judgment.    The deposition was apparently taken because Dr. Govoni was
initially going to be Ritt's expert.    Defendants submitted these same portions of Dr.
Govoni's deposition to the court before trial in opposition to Ritt's motion for modification
of the scheduling order.
As  the  trial  court  recognized,  the  post-trial  motion  was,  in  effect,  a  motion  to
reconsider the denial of summary judgment.  The court noted that defendants should have
moved  for  reconsideration  of  the  summary  judgment  motion  before  trial,  with  Dr.
Govoni's deposition, but stated that it remained comfortable with its denial of summary
judgment.    In their brief on appeal, the defendants refer to Dr. Govoni's deposition
testimony.   Even if it were proper for us to consider his deposition on appeal from the
denial of summary judgment, that would not change our conclusion.    Dr. Govoni's
deposition creates a factual dispute concerning the information he gave Ritt in July 1991.
This does not make summary judgment appropriate, but rather adds  to the factual
disputes that make denial of summary judgment proper.
-13-




No.                                                                                   94-3344
APPOINTMENT BOOK
Defendants contend they are entitled to a new trial because the
trial court erred in excluding Dr. Skelding's appointment book.   We review a
trial court's evidentiary rulings according to the erroneous exercise of discretion
standard.  See State v. Pharr, 115 Wis.2d 334, 342, 340 N.W.2d 498, 501 (1983).  If
a trial court applies the proper law to the established facts, we will not find a
misuse of discretion if there is any reasonable basis for the trial court's ruling.
Id.
Ritt testified at trial that after he received his dentures, he tried to
make appointments with Dr. Skelding on and off during  1987 because the
dentures were too loose, but either Dr. Skelding or his staff declined to make an
appointment to adjust the dentures.   In order to dispute that testimony, Dr.
Skelding sought to introduce his appointment book, which contained Ritt's
name written in at various dates and times, often with abbreviated notations
after the entry.    Ritt objected to the introduction of the appointment book,
contending that it was unfair to admit it since the treatment records had not
been produced.
The trial court excluded the appointment book but did permit
Dr. Skelding to introduce an exhibit containing a list of dates of scheduled
appointments in 1986, 1987 and 1988, taken from his appointment book.   The
trial court explained that it had no problem with the appointment book insofar
as  it  was  evidence  that  certain  appointments  were  scheduled.    However,
because of the notations, the court was concerned that the jury might consider it
evidence that the appointments actually occurred and the procedures noted
were actually performed.   In introducing the exhibit listing the appointment
dates, Dr. Skelding was permitted to testify that these were the dates from his
appointment book for appointments scheduled between him and Ritt.
Defendants argue that the appointment book was admissible as
"other evidence of the contents" of the records within the meaning of § 910.04,
STATS., because the treatment records were lost or destroyed and the loss did
not occur through the bad faith of Dr. Skelding.   We do not agree that the
appointment book is evidence of the contents of the treatment records insofar as
those records relate the treatment actually provided Ritt.   As the trial court
noted, the entries are not evidence that Ritt actually came in on the scheduled
-14-




No.                                                                                  94-3344
dates  and  received  a  particular  treatment.     The  defendants  appear  to
acknowledge that, but argue that the entries in the appointment book "at least
show that appointments had been made," contrary to Ritt's testimony at trial.
We agree, but that does not make the appointment book "other evidence of the
contents" of the treatment records.    In his testimony describing his patient
records, Dr. Skelding states that they reflect what he did to the patient on any
given date that an appointment was kept.    There is no testimony that the
treatment records show appointments made where the patient did not come
into the office.
The appointment book itself is not evidence of the contents of the
treatment records, but is itself a record of appointments scheduled.   The trial
court allowed evidence of those dates, but not the book, for the reasons it
explained.   The trial court may exclude relevant evidence where its probative
value is substantially outweighed by the danger of unfair prejudice.    See  §
904.03, STATS.   We do not agree with the defendants that the trial court must
specifically make a finding using these exact words.  The trial court did consider
the probative value of the appointment book, both as to Ritt's treatment and as
to the appointments scheduled.   It found the appointment book probative as to
the latter but not the former.   The court determined that the book's admission
would suggest that treatments occurred when they might not have occurred,
and that would be unfair to Ritt who did not have access to his treatment
records, which had been in Dr. Skelding's custody.   The alternative exhibit,
coupled  with  Dr.  Skelding's  testimony,  presented  the  dates  of  all  the
appointments for Ritt scheduled in the book.    We conclude the trial court
properly exercised its discretion.
-15-




No.                                                                                    94-3344
OFFER OF SETTLEMENT
Defendants contend that Ritt's offer of settlement did not meet the
requirements of § 807.01(3), STATS., because it contained only one offer to all
defendants.   The offer stated:   "The above named plaintiff hereby offers to settle
the above entitled action for the sum of $4,999.00 plus costs."   Defendants point
out that although the interests of Dr. Skelding, Dental Care Associates, S.C., and
St. Paul Fire & Marine Insurance Company were aligned, Marquette County
Department  of  Health  and  Social  Services                                          (MCDHSS)  was  named  as  a
subrogated defendant.   The complaint alleged that MCDHSS provided medical
assistance  payments  to  Ritt  for  medical  expenses  incurred  by  him  in  the
treatment of injuries he sustained as a result of Dr. Skelding's negligence.   The
other three defendants contend that since their interests were adverse to the
interests of MCDHSS, they were not able to evaluate their own exposure based
on the one offer.
Ritt responds that it is clear that the subrogated defendant's lien, if
any, would be taken out of any settlement sum paid to Ritt and therefore the
other three defendants could evaluate their exposure.
Application of § 807.01(3), STATS., to the facts of this case presents
a question of law, which we review de novo.  See Stan's Lumber, Inc. v. Fleming,
196 Wis.2d 554, 575, 538 N.W.2d 849, 857 (Ct. App. 1995).  Generally, § 807.01(3),
together with § 807.01(4), provide that if a plaintiff recovers a judgment more
favorable than a properly made offer of settlement which is not accepted within
the prescribed time period, the plaintiff is entitled to double the amount of
taxable costs and interest on the amount recovered from the date of the offer
until the amount is paid.
The trial court found the offer valid because MCDHSS did not
materially participate in the proceedings and was dismissed at the outset of the
trial.   It also noted that the offer was acknowledged at various stages of the
proceedings and remained "on the table" through a substantial portion of the
proceedings.   The court reasoned that if the three defendants were seriously
interested in the offer, they could have raised questions earlier.
The standard for determining the validity of an offer of settlement
under  § 807.01(3), STATS., is whether it allows the offeree to fully and fairly
-16-




No.                                                                                    94-3344
evaluate the offer from his or her own independent perspective.    Testa v.
Farmers Ins. Exch., 164 Wis.2d 296, 302, 474 N.W.2d 776, 779 (Ct. App. 1991).
Where the offeree is a defendant, a full and fair evaluation entails the ability to
analyze the offer with respect to the offeree's exposure.    Id. at  302-03,  474
N.W.2d at 779.  It is the obligation of the party making the offer to do so in clear
and unambiguous terms, and any ambiguity in the offer is construed against
the drafter.  Stan's Lumber, 196 Wis.2d at 576, 538 N.W.2d at 858.
At the time Ritt's offer was made, and during the ten days within
which the offer had to be accepted in order to bring the recovery provisions into
play, MCDHSS was a subrogated defendant.   Whether it was later dismissed,
and on what terms, is not relevant for the purpose of determining the validity of
the offer.  Similarly, whether the three aligned defendants were inclined to settle
at all and whether questions they had about the offer could have been answered
earlier, are not relevant to the determination.   Double costs and interest are
recoverable under § 807.01(3) and (4), STATS., only if the offer is valid.   The
offer's  validity  requires  an  analysis  of  the  offer  in  the  context  of  the
circumstances at the time it was made.   In this case, the analysis turns on the
relationship among all the named defendants, including MCDHSS.
A  single  offer  of  one  aggregate  settlement  figure  to  multiple
defendant tortfeasors is not valid under § 807.01(3) and (4), STATS., because it
does not permit each defendant to evaluate the offer from the perspective of
that defendant's assessment of his or her own exposure.   Wilber v. Fuchs, 158
Wis.2d 158, 164, 461 N.W.2d 803, 805 (Ct. App. 1990).   However, where the
multiple defendant tortfeasors are jointly and severally liable to a plaintiff and
covered by the same insurance policy, and the offer is within the insurance
policy's limits, a single offer of an aggregate sum is a valid offer.   Testa, 164
Wis.2d at 303, 474 N.W.2d at 779.   In this latter situation, the insurer is the
offeree and is able to fully and fairly evaluate the offer with respect to its own
exposure.  Id.  Under Testa, it is clear that one offer to Dr. Skelding, Dental Care
Associates, S.C., and St. Paul Fire & Marine Insurance Company was valid.  But
neither Wilber nor Testa answers the question of the offer's validity given the
presence of MCDHSS, a subrogated defendant.
An insurer who pays a claim on behalf of its insured, under a
policy providing for subrogation, has a cause of action against the tortfeasor
and the tortfeasor's insurer for its subrogated interest.   Mutual Serv. Casualty
Co. v. American Family Ins. Group, 140 Wis.2d 555, 561, 410 N.W.2d 582, 584
-17-




No.                                                                                      94-3344
(1987).    In  such  a  situation,  the  insured  and  the  subrogated  insurer  each
separately own a part of the claim against the tortfeasor.   Id.   Because each
separately owns part of the claim against the tortfeasor, a settlement between
the insured and the tortfeasor that does not involve the subrogated insurer as a
party, or provide for payment of the subrogated interest, leaves unsatisfied the
part of the claim owned by the subrogated party.   Id.   In these circumstances,
the subrogated insurer still has an enforceable claim against the tortfeasor.   Id.
at 561, 410 N.W.2d at 584.
MCDHSS is not an insurance company, but it is subrogated by
statute to the rights of Ritt for medical assistance payments made to him for
injuries resulting from any negligence of Dr. Skelding.  Section 49.65(2), STATS.10
A governmental unit to whom this statute applies is not bound by a release
between the recipient and the tortfeasor, and any payment to a recipient of
assistance in consideration for a release of liability is evidence of the payer's
liability to the governmental unit.  Section 49.65(8)(a).11
Under both the case law defining the rights of subrogated insurers
and the statute governing the rights of governmental units paying medical
assistance,  the  subrogated  party  has  rights  against  the  tortfeasor  that  are
separate from the rights of the insured.   Ritt's offer did not indicate whether he
would pay any sums due MCDHSS from the $4,999 or whether he expected to
receive that sum himself, leaving the other three defendants potentially exposed
to a claim by MCDHSS.   This is in contrast to the offer in Testa which provided
that Testa would settle her claim for $135,000 excluding medical expenses on
which  a  subrogation  claim  was  being  made,  or  $154,000  including  such
expenses.   Testa, 164 Wis.2d at 299, 474 N.W.2d at 777.   In his brief, Ritt states
that payment to him of the $4,999 would "settle all claims and liens involved
therein," but he does not cite any authority for this proposition.   He also states
that "plainly the claim of [MCDHSS] would be satisfied from the settlement
proceeds," but the offer of settlement does not indicate this.   As the offering
party, Ritt was responsible for making this clear in order for the offer to be
valid.
10  Section  49.65(2), STATS., was renumbered § 49.89(2), STATS., by 1995 Wis. Act 27,
enacted July 26, 1995.
11  Section 49.65(8), STATS., was renumbered § 49.89(8), STATS., by 1995 Wis. Act. 27,
enacted July 26, 1995.
-18-




No.                                                                                   94-3344
We conclude that Ritt's offer of settlement was not a valid offer
under § 807.01(3), STATS., because it did not allow the three aligned defendants
to fully and fairly evaluate their exposure.
NEWLY-DISCOVERED EVIDENCE
Dr. Skelding's affidavit in support of his motion for a new trial
because  of  newly-discovered  evidence  averred  that  on  September 16,  1994,
approximately two weeks after the trial, he found a plain brown envelope on
the floor of the  lobby  in  his dental office  when he  entered  the  lobby.    It
contained two pages of his clinic records for Ritt and a loose-leaf page on which
the following message was typed:   "Dr. Greenwald and Garro kept this from
you.   It was Garro's doing."   Copies were attached to the affidavit.   The two
pages of clinic records contained Ritt's name, began with an entry of April 12,
1986, and ended with an entry of March 30, 1988.
Section 805.15(3), STATS., provides:
A  new  trial  shall  be  ordered  on  the  grounds  of
newly-discovered evidence if the court finds that:
(a) The  evidence  has  come  to  the  moving  party's
notice after trial; and
(b) The  moving  party's  failure  to  discover  the
evidence earlier did not arise from lack of diligence
in seeking to discover it; and
(c) The evidence is material and not cumulative; and
(d) The new evidence would probably change the
result.
Each element must be met.   State v. Johnson, 181 Wis.2d 470, 489,
510 N.W.2d 811, 817 (Ct. App. 1993).   Whether to grant the motion is within the
trial court's discretion.  Id.
-19-




No.                                                                                   94-3344
The trial court found that Ritt's records were not in Dr. Skelding's
possession during the trial.  In discussing the requirement of diligence, the court
stated:
The                                                                                   question  the  Court  sees  in  this  is  whether  the  newly
discovered evidence, that is, the clinical records, can
be presented in a form that requires a new trial, and
the  underlying  issue  of  that  goes  with  the  due
diligence,  whether  or  not  prior  to  trial  this  now
newly  discovered  evidence  could  have,  through
diligence, been discovered.   The Court has some real
difficulties with that, in both directions.  And by both
directions, the Court means that the efforts that Dr.
Skelding has put forth may not have been sufficiently
diligent  as                                                                          [Ritt's  counsel]  would  present  to  the
Court, but the Court having been informed to some
degree through this trial process of the dynamics of
Dr. Skelding and Dr. Greenwald, that even with due
diligence there may still have been no production of
the documents.  We now have the ingredient that the
records  were  not  necessarily  in  Dr.  Greenwald's
possession but were in some way under the control
of Dr. Garro.   That's further complicated now by the
fact  that  Dr.  Garro  is  not  around  any  longer  to
provide any amplification of that which gets us back
to  the  speculation  about  what  did  happen  to  the
records and just how they did come to be presented
so timely after the jury completed its deliberations in
this case.
The court then stated that "even beyond diligence" there is "the
underlying requirement" of the health care provider to maintain the patient's
health care records.   The court discussed its view of this obligation at some
length.    The court reasoned that since Dr. Skelding did not maintain Ritt's
records in his possession, whether by inadvertence or intent of, or entanglement
with, third parties, the burden of failing to maintain the records should fall on
the physician, not the patient.
-20-




No.                                                                                       94-3344
The court added as "a secondary but not necessarily a significant
contributing factor," that since Dr. Garro, who had not previously participated
in the trial, was now dead,12 that might present procedural obstacles to a retrial.
The trial court's primary basis for denying the motion for a new
trial  was  the  fact  that  Dr. Skelding  had  not  maintained  Ritt's  files  in  his
possession in the first instance.   However, the statute speaks to the moving
party's "lack of diligence in seeking to discover" the evidence "earlier."   Section
805.15(3), STATS.  This requires a finding as to Dr. Skelding's diligence, or lack of
diligence, in recovering Ritt's medical records for this litigation.
In appropriate circumstances, even though a trial court did not
make a particular finding, we may assume that such a finding was made
implicitly in favor of its decision.   See State v. Hubanks, 173 Wis.2d 1, 27, 496
N.W.2d 96, 105 (Ct. App. 1992), cert. denied, 114 S. Ct. 99 (1993).   However, we
decline  to  assume  a  finding  that  Dr.  Skelding  did  not  exercise  reasonable
diligence in seeking to recover Ritt's records because the trial court explicitly
discussed this without coming to a conclusion and then rested its decision on a
different basis.    And we are unable, as a reviewing court, to make factual
determinations.   Wisconsin State Employees Union v. Henderson, 106 Wis.2d
498, 501-02, 317 N.W.2d 170, 171 (Ct. App. 1982).   Although the drawing of an
inference is a question of law where there is only one reasonable inference to be
drawn from the evidence, see Vocational, Technical & Adult Educ., Dist. 13 v.
DILHR, 76 Wis.2d 230, 240, 251 N.W.2d 41, 46 (1977), on this record there are
conflicting reasonable inferences to be drawn from the evidence.
We therefore decide that we must remand to the trial court for a
finding as to whether Dr. Skelding's failure to recover Ritt's records earlier arose
from a lack of diligence.   If necessary to its decision, the trial court should also
make findings as to the third and fourth factors under § 805.15(3), STATS.
SUMMARY
12  During argument on the motion, Ritt's counsel informed the court that he had
learned that Dr. Garro had recently died.
-21-




No.                                                                                    94-3344
We remand for a trial on the issues of whether Ritt exercised
reasonable diligence in discovering his injury and whether he commenced his
action within five years of the act or omission.   In the event these issues are
resolved in Ritt's favor, we direct the trial court to decide defendants' motion for
a new trial applying the proper legal standard.   If the trial court denies the
motion, then the judgment on the verdict is affirmed, and the order granting
double taxable costs and interest from the date of the offer of settlement under
§ 807.01(3) and (4), STATS., is reversed.
By the Court.—Judgment affirmed in part and reversed in part;
order reversed and cause remanded with directions.
-22-

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