00-0330 Landis v. Physicians Ins. Co.

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Plaintiff’s husband had septuple coronary bypass surgery on March 17, 1994; he died two weeks later. In February 1999, plaintiff learned from media reports that the death may have been caused by the doctor’s negligence. On March 8, 1999, plaintiff filed a request for mediation pursuant to Wis. Stat. sec. 655.44, triggering a mandatory 90-day mediation period, during which time plaintiff was statutorily prevented from filing suit, and the limitations period expired.

The mediation statute tolls “any applicable statute of limitations.” Because a review of several editions of Black’s Law Dictionary leads us to the conclusion that ‘statute of limitations’ is an ambiguous phrase, as it relates to statutes of repose, we look to the legislative history of the mediation statute, and find that the legislature’s intent was to toll the medical malpractice limitations period during the statutory mediation period.

Our holding today ensures that all claimants, whether or not faced with the impending passage of the five-year time limitation for commencing an action, can pursue resolution through Chapter 655 mediation.

It is apparent that the legislature wanted claimants to have a choice: (1) to demonstrate a willingness to cooperate with a defendant in resolving a matter through mediation by first filing a mediation request under Wis. Stat. sec. 655.44; or (2) to demonstrate the gravity of a matter by first commencing an action in circuit court under Wis. Stat. sec. 655.445.

CONCURRING OPINION: Bradley, J., joined by Abrahamson, Ch.J. “What the dissent fails to acknowledge is that Makos has no precedential value. The dissent is unwilling to acknowledge that the term “statute of repose” is not part of the legislature’s lexicon, but rather is a judicially created label used to describe a particular type of limitation on actions.”

DISSENTING OPINION: Crooks, J., Bablitch, J., Wilcox, J. “The statutes governing mediation and the commencement of medical malpractice actions are plain on their faces. Further, the legislature provided an exception to the requirement that mediation must be completed before an action is commenced in sec. 655.445, and according to that choice, plaintiff could have filed her action first, and then completed mediation.

It is especially difficult for me to accept the majority’s device of characterizing a statute of repose as only a ‘judicial label’ now, when the statute of repose was championed as a legislative mandate just last year to foreclose a child’s opportunity for redress. See Aicher, 2000 WI 98.”

Reversed.

Review of a Decision of the Court of Appeals, Prosser, J.

Attorneys:

For Appellant: Joy L. O’Grosky, Madison

For Respondent: J. Drew Ryberg, Michael J. Happe, Eau Claire