Court finds no statute of limitations

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The Wisconsin Supreme Court held on Dec. 30 that there is no statute of limitations for a claim against a health care provider alleging injury to a developmentally disabled child.

In so holding, the court reversed a published decision of the court of appeals, Haferman v. St. Clare Healthcare Foundation, Inc., 2004 WI App 206, 277 Wis.2d 156, 689 N.W.2d 636.

Toby Haferman was born on Feb. 10, 1991. On Sept. 4, 2002, Toby and his parents filed a medical malpractice suit against a variety of defendants, alleging that, as a result of medical malpractice, Toby was born with cerebral palsy. As a further consequence, Toby is developmentally disabled.

The defendants moved for summary judgment, asserting the statute of limitations as a defense, but Sauk County Circuit Court Judge Daniel George denied the motion.

The circuit court found that three statutes of limitation are relevant to the issue — secs. 893.55, 893.56, and 893.16.

Section 893.55(1) is the general statute of limitations for actions against health care providers, providing a three-year limitation period running from the date of injury, along with a discovery rule that is limited by a five-year period of repose.

Section 893.56 governs actions against health care providers by children, and provides that children must bring suit either within the time limits prescribed by sec. 893.55 or by the age of 10 years, whichever is later. However, the statute specifically excepts children “under disability by reason of insanity, developmental disability or imprisonment.”

Section 893.16(1) is a tolling statute that extends limitation periods for persons under disability (including minority). However that statute specifically excepts actions against health care providers. The statute allows children to sue until two years after they turn 18 years of age.

Calling the interplay of the three statutes “a very difficult conundrum,” because, in some cases, the statutes create a shorter statute of limitations for disabled children suing health care providers than for non-disabled children, the circuit court applied sec. 893.16, by excising the exception for actions against health care providers.

The circuit court thus denied the defendants’ motion.

The court of appeals granted the defendants petition for leave to appeal, and reversed. In a split decision, the court held that the three-year statute of limitations in sec. 893.55(1)(a) must be applied, even though it found the result “troubling.”

The Supreme Court granted review, and reversed the court of appeals, in a decision written by Justice Ann Walsh Bradley. Justice David T. Prosser dissented, in an opinion joined by Justices Jon P. Wilcox and Patience Drake Roggensack.

Going even further than the circuit court, the Supreme Court held that, because none of the three statutes of limitation is directly applicable, therefore, there is no statute of limitations at all.

The court began with sec. 893.16(1), which provides, “If a person entitled to bring an action is, at the time the cause of action accrues, either under the age of 18 years, except for actions against health care providers; or mentally ill, the action may be commenced within two years after the disability ceases, except that where the disability is due to mental illness, the period of limitation prescribed in this chapter may not be extended for more than 5 years (emphasis added by court).”

Rejecting the applicability of the statute, the court wrote, “Were we to apply sec. 893.16 to Toby, either under the Hafermans’ construction [and the circuit court’s] or some other construction, we would, at a minimum, have to rewrite the statute to do one of two things. Either we would have to write in ‘developmentally disabled’ as an additional category of disability that is not presently included in the statutory language, or we would have to strike out the entire phrase ‘except for actions against health care providers’ from sec. 893.16 so that the statute could apply to Toby based on his ‘disability’ of minority. We would thus be rewriting the statute in a manner that appears to directly contravene the legislative intent.”

Turning to sec. 893.56, the court found it inapplicable, as well.

That statute provides, in relevant part, “Any person under the age of 18, who is not under disability by reason of insanity, developmental disability or imprisonment, shall bring an action to recover damages for injuries to the person arising from any treatment or operation performed by, or for any omission by a health care provider within the time limitation under s. 893.55 or by the time that person reaches the age of 10 years, whichever is later (emphasis added by court).”

Declining to apply this statute also, the court concluded, “In order to apply sec. 893.56 to Toby, we would, at a minimum, have to strike out the words ‘developmental disability’ from the statute. Again, we would be rewriting the statute in a manner that appears to directly contravene the legislative intent as manifest from the statute’s plain language, here to exclude developmentally disabled children from the statute’s re
ach.”

Finally, the court rejected the court of appeals’ holding that sec. 893.55 applied. The court reasoned, “The Legislature could not have intended that developmentally disabled children bringing actions against health care providers would be subject to a shorter statute of limitations than would other children bringing medical malpractice actions.”

The court noted that, in Aicher v. Wisconsin Patients Compensation Fund, 2000 WI 98, par. 73, 237 Wis.2d 99, 613 N.W.2d 849, the court identified this anomaly and observed, “We suspect that this discrepancy is the result of oversight rather than purposeful discrimination. It is likely that the legislature’s intent was to extend the period of filing for persons with developmental disabilities, not reduce it.”

Citing the rule of statutory construction that “Reviewing courts must interpret statutes of limitations so that ‘no person’s cause of action will be barred unless clearly mandated by the legislature,’” the court held, “the legislature has not provided a statute of limitations for claims against health care providers alleging injury to a developmentally disabled child. This determination is the only determination the court is able to reach without either rewriting the statutes or working an absurd and illogical result.

“We cannot act in the Legislature’s stead. The gap in the statutes of limitations was previously brought to the attention of the Legislature in Zielke, 529 F. Supp 571, and again in Aicher. We once again bring to the attention of the legislature this gap in the statutory scheme.”

Accordingly, the court reversed the court of appeals, and remanded the case to the circuit court for further proceedings.

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Before concluding, however, the court wrote that the defense of laches may be applicable in an appropriate case, even in the absence of legislative action.

The Dissent

Justice Prosser wrote a dissent, concluding that a developmentally disabled person must bring action within the time limitations set forth in sec. 893.55, or by the time the person reaches the age of 10 years, whichever period is longer.

Like the lower courts and the majority, Prosser agreed the statutes were flawed: “This case exposes an obvious legislative mistake, which renders the Legislature’s blueprint for certain litigants ambiguous. Under the circumstances, this court is required to devise a response that will carry forward legislative objectives.”

Prosser found that the Equal Protection Clause supplies an adequate response: “Application of sec. 893.55 to developmentally disabled children under 7 violates equal protection of the law. But sec. 893.55 applies only because sec. 893.56 excepts minors with developmental disabilities from its purview. Therefore, the exception in sec. 893.56 is unconstitutional as applied. Striking this exception would eliminate the constitutional infirmity of these statutes and sidestep the bizarre conclusion that no statute of limitations applies to minors with developmental disabilities.”

Prosser concluded, “Excising unconstitutional language from an obviously defective statute is the common sense solution and is no more problematic than removing a ruptured appendix from an otherwise healthy body.”

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David Ziemer can be reached by email.