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Limitations Case Analysis

The majority states that its holding is limited by the defense of laches, but it is difficult to see how.

The law governing the elements is as follows: “For laches to arise, there must be unreasonable delay, lack of knowledge on the part of the party asserting the defense that the other party would assert the right on which he bases his suit, and prejudice to the party asserting the defense in the event the suit is maintained.” Watkins v. Milwaukee County Civil Serv. Comm’n., 88 Wis.2d 411, 422, 276 N.W.2d 775 (1979)(emphasis added).

Obviously, if suit were not brought until decades after the alleged malpractice, the defendant could easily meet the second and third elements. However, the first element — unreasonable delay — can never be met.

If a plaintiff is developmentally disabled, the delay in filing suit cannot be unreasonable. This is why sec. 893.16, albeit with exceptions, tolls the statute of limitations until after disability ceases.

Courts in other jurisdictions that have considered the issue agree.

In Haas v. Westlake Community Hospital, 402 N.E.2d 883 (Ill.App.1980), the plaintiff allegedly suffered personal injuries during birth, and was incompetent as a result, as in the case at bar. The trial court dismissed the suit based on both the statute of limitations and laches, but the court of appeals reversed.

Discussing laches, the court wrote, “If the plaintiff can prove that at the time the cause of action occurred Thomas Haas was insane or mentally ill, the period of limitations for filing the suit does not began (sic) to run until the disability is removed. During that relevant time, Thomas Haas cannot be held accountable for any apparent delay, negligence, or laches in seeking redress through the courts.” 402 N.E.2d at 885.

Laches was also held inapplicable to the mentally disabled in Buxton v. Buxton, 770 A.2d 152 (Md.2000). In Buxton, the guardian for a mentally retarded adult son brought suit against the father, accusing him of misappropriation, among other claims. The father asserted laches as a defense, but the Maryland Court of Appeals (Maryland’s highest court) held it inapplicable.

The court held, “It is generally well established that the kind of mental disability that will toll the statute of limitations will also prevent the operation of laches.

Restatement (Second) of Trusts sec. 219 cmt. d (1959)(Beneficiary of trust will not be barred by laches as long as he is under an incapacity)(other cites omitted).”

Buxton, 770 A.2d at 159.

Arguably, if the plaintiff has a guardian, who could and should have brought action earlier, a defendant could maintain that the unreasonable delay on the guardian’s part should be attributed to the plaintiff. However, such reasoning would plainly conflict with the legislative purpose behind sec. 893.16, which tolls the statute of limitations in most cases where the plaintiff is mentally disabled, regardless of whether he has a guardian who could file suit on his behalf or not.

The same considerations that led the Legislature to toll statutes of limitations, as a general rule, when the plaintiff is under disability, will invariably militate against application of the defense of laches. Delay can never be unreasonable, under the circumstances.

Accordingly, laches will never apply against a developmentally disabled person who brings suit against a health care provider, for as long as the plaintiff is still alive.

The question is, how long after death must suit be brought?

The logical place to look for answer would seem to be Walberg v. St. Francis Home, Inc., 2005 WI 64, 281 Wis.2d 99, 697 N.W.2d 36, which considered the proper statute of limitations to apply when a person who is disabled dies. Unfortunately, that opinion provides no sensible answer.

The two competing statutes of limitation were sec. 893.16, which tolls the statute of limitation in cases of disability, and sec. 893.22, which governs actions brought by an estate after an injured party’s death.

The Wisconsin Supreme Court held that sec. 893.22 is inapplicable because, “Wis. Stat. sec. 893.22 applies only when a person dies with an existing claim that has less than one year remaining on the period of limitation. We therefore determine that Wis. Stat. Sec. 893.22 acts as a saving statue, not a statute of limitations.” By default, the court therefore applied sec. 893.16.

In a case such as Haferman’s, however, neither applies.

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Court finds no statute of limitations

The court has already held, in the case at bar, that sec. 893.16 does not apply, because it specifically excepts from its purview health care providers.

But sec. 893.22 does not apply, because the court held that there is no statute of limitations. As such, it cannot be the case that there will be “less than one year remaining on the period of limitation.”

So, ev
en after a developmentally disabled person dies, no statute of limitations will bar the claim, regardless of how long it is brought after the alleged malpractice, and regardless of how long after the plaintiff’s death.

Presumably, however, once the plaintiff has died, the defense of laches can finally be asserted against the estate.

– David Ziemer

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David Ziemer can be reached by email.

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