The case for why the Supreme Court should accept review and decide that Toby should have until he is 18 to file suit was amply made by Judge Dykman in his dissent. Likewise, the case for why the legislature should amend the statute, if the Supreme Court does not adopt Dykmans interpretation, was amply made by the majority.
If neither of those things happens, however, plaintiffs should still be able to avoid the result in this decision by framing the issue on equal protection grounds, rather than statutory ones.
The distinction in sec. 893.16, permitting minors to sue until they turn 18, except when they sue health care providers, does satisfy equal protection. In Aicher ex rel. LaBarge v. Wisconsin Patients Compensation Fund, 237 Wis.2d 99, 613 N.W.2d 849 (2000), the court held this classification rationally related to the legitimate objectives of taming the costs of medical malpractice and ensuring access to affordable health care.
However, the same cannot be said of sec. 893.56, which 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.
The plain purpose of the statute is to give children a somewhat longer time to sue a health care provider than an adult, but not as much time as they have to sue a regular tortfeasor under sec. 893.16. It would be abhorrent to even suspect that the legislature actually intended to do what it did give disabled children less time to sue than healthy ones.
Shockingly absent from both the majority opinion and the dissent is any reference to that portion of the Supreme Courts decision in Aicher v. Wisconsin Patients Comp. Fund, 2000 WI 98, pars. 55-73, 237 Wis.2d 99, 613 N.W.2d 849, in which the very statutes at issue were challenged on equal protection grounds.
Making an equal protection argument, Aicher maintained, the classification scheme is irrational because it does not treat minors equally. … the legislation harms developmentally disabled minors who require the most protection. … whereas non-developmentally disabled minors have one year from the date of discovery to file malpractice actions, limited by a maximum of five years from injury or until the tenth birthday, developmentally disabled minors must file within the narrower time established for adults. Aicher, 237 Wis.2d at 136.
The Wisconsin Supreme Court declined to address the equal protection issue because the plaintiff was not developmentally disabled, and therefore lacked standing to make an equal protection challenge. Id., at 137.
Nevertheless, the courts discussion certainly suggests that it would accept such an argument if made by an appropriate plaintiff. The court wrote, Aicher correctly reads Wis. Stat. sec. 893.56 to exclude the developmentally disabled, and she also correctly notes that Wis. Stats. sec. 893.16 does not provide the developmentally disabled with an extension for filing medical malpractice actions. We suspect that this discrepancy is the result of oversight rather than purposeful discrimination. It is likely that the legislatures intent was to extend the period of filing for persons with developmental disabilities, not reduce it. Id.
While this may be dicta, it appears that, although the Supreme Court agrees with the court of appeals majority in the case at bar, as to the meaning of the statutes, it would not uphold that interpretation if an equal protection challenge were made by a disabled plaintiff.
It should be noted, however, that an equal protection challenge would not help the plaintiff in the case at bar. As the Supreme Court in Aicher recognized, the likely intent of the legislature was to give disabled children longer to file, until age 18, not less than non-disabled children.
The statutes failed to do so, however, and all that a successful equal protection challenge could accomplish is to give disabled children the same rights as non-disabled, e.g., no malpractice action can be foreclosed before the 10th birthday.
In the case at bar, however, the plaintiff waited more than ten years, and thus, an equal protection argument would not save his case. For him to prevail, the Supreme Court would have to adopt the statutory interpretation adopted by the dissent.
– David Ziemer
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David Ziemer can be reached by email.