Limitation time for disabled children same as adults

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Hon. Paul Higginbotham

The Wisconsin Court of Appeals held on Sept. 2 that, where a minor claims that medical malpractice caused him to be born developmentally disabled, the statute of limitations is only three years, as set forth in sec. 893.55(1)(a).

Toby Haferman, Jr., was born on Feb. 10, 1991, and is developmentally disabled. On Sept. 4, 2002, his family filed suit against Dr. Donald W. Vangor, St. Clare Healthcare Foundation, and their insurers, claiming that the disability was the result of medical malpractice.

The defendants moved for summary judgment, arguing that the Hafermans’ claim was barred by the three-year statute of limitations set forth in sec. 893.55(1)(a).

Sauk County Circuit Court Judge Daniel George denied the motion, concluding that the claims were governed by sec. 893.16, which tolls the statute of limitations for persons under a disability.

The defendants appealed, and the court of appeals reversed in a decision written by Judge Paul Higginbotham and joined by Judge David G. Deininger. Judge Charles P. Dykman dissented.

Section 893.16

The court concluded that a plain reading of the unambiguous language of sec. 893.16 establishes that it does not apply to the Hafermans’ claim.

Section 893.16(1) generally tolls statutes of limitation for persons under a disability: “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 2 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.”

The court held, “The unambiguous language of this tolling statute plainly precludes the Hafermans’ claim. Toby Jr. was under the age of 18 when his cause of action allegedly accrued and his claims are against health care providers. Section 893.16(1) plainly provides that its tolling limitation period does not apply to those under the age of 18 who sue health care providers.”

The court added, “Wis. Stat. sec. 893.16(2) states ‘A disability does not exist, for the purposes of this section, unless it existed when the cause of action accrues.’

We have previously concluded that the legislature intended this subsection to apply where the disability existed at the time of the plaintiff’s injury, not where the disability resulted from the incident causing the plaintiff’s injury. Accordingly, we further conclude that sec. 893.16 does not apply to the Hafermans’ claim because Toby Jr.’s disability resulted from Vangor’s alleged negligence (cite omitted).”

Section 893.56

The court also found sec. 893.56 inapplicable. That statute provides: “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. That action shall be brought by the parent, guardian or other person having custody of the minor within the time limit set forth in this section.”

Because Toby was under disability by reason of a developmental disability when the action was commenced, the court held the statute does not apply.

Section 893.55

Instead, the court concluded that the applicable statute of limitation is sec. 893.55(1), which states, in relevant part, “(1) 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.”

Because the statute of limitations is only three years, and the action was not filed until more than 11 years after the action accrued, the court held that the defendants are entitled to summary judgment, and reversed.

Absurdity

Before concluding, however, the court acknowledged in a footnote that it considered the result absurd, stating: “The result in th
is case seems absurd and illogical given that the legislature has, through Wis. Stat. sec. 893.56, provided more time for young children to file medical malpractice suits than the three years provided in Wis. Stat. sec. 893.55(1)(a). In creating Wis. Stat. sec. 893.56, the legislature decided that the interests of very young children would be fully protected by extending the time limit for filing medical malpractice claims to age ten. See ch. 390, Laws of 1977 at § 1(3); Aicher v. Wisconsin Patients Comp. Fund, 2000 WI 98, ¶¶22-23, 237 Wis. 2d 99, 112-14, 613 N.W.2d 849. The legislature, however, excepted minors who are developmentally disabled from the extended statute of limitations without protecting their interests in any other statute, thereby, by default, bringing these children under the ‘adult’ statute of limitations of three years.

Wis. Stat. sec. 893.55(1)(a). We recommend the legislature address what we perceive to be an illogical gap in the statute of limitations scheme for protecting young children with developmental disabilities caused by medical malpractice.”

The Dissent

Judge Dykman dissented, agreeing with the majority that the result is absurd, but concluding that the statutes can be read to preserve the action.

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Dykman wrote, “The majority doesn’t explain why the legislature would choose to penalize children who fall within these three categories [insane, developmentally disabled or imprisoned]. The rational result would be to give those children more time to seek redress for their injuries. Having given the matter considerable thought, I cannot discover a reason why insane, developmentally disabled or imprisoned children would be required to bring their negligence suits in half the time allotted to children not under those disabilities. This interpretation assumes a punitive and irrational legislature, an explanation I do not accept.”

Instead, Dykman interpreted sec. 893.56, as follows: “A rational legislature could have concluded that while most children might need a longer limitations period than adults to bring negligence lawsuits, some children might need even more time due to a disability other than age. It is irrational and absurd to conclude that the legislature intended to benefit all children except those who are insane, developmentally disabled or imprisoned. The ‘stitch’ dropped by the legislature was to specifically provide an extended statute of limitations for those excepted in sec. 893.56, though it is obvious that this provision was intended. The solution from reading the two statutes I have discussed together with Wis. Stat. sec. 893.16 is that the legislature intended to benefit children under the three categories of disability more than other children, but that even those children must bring negligence suits by no later than their eighteenth birthday or within the limits of Wis. Stat. sec. 893.55, whichever is longer.”

Dykman concluded, “I do not think it necessary to recommend that the legislature address something it has already addressed, albeit imperfectly. The legislative intent to benefit persons under a disability is obvious; it is only the drafting of the imperfect statute that led to the result the majority chooses. Courts have remedied problems like the one before us on many occasions in the past, and I would do so here. Because the majority does not, I respectfully dissent.”

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David Ziemer can be reached by email.