Wrongful death claim can predate death

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If filing a medical malpractice action, it would be wise to assume the statute of limitations begins running on the day of surgery, not when the malpractice manifested itself, or worse, when the patient died.

On July 7, the Wisconsin Supreme Court held that injury occurs, and the statute begins to run, when the patient experiences a “physical injurious change,” in this case, when the doctor left a sponge inside the patient’s body during surgery.

The court also held that the statute of limitations for wrongful death begins running the same day, even though it precedes the patient’s death.

Robert V. Genrich underwent surgery on July 23-24, 2003, to have an ulcer repaired. Because of the neglected sponge, he developed an infection, and on Aug. 8, a second surgery was performed to remove the sponge. Nevertheless, Genrich died on Aug. 11.

On Aug. 9, 2006, his estate and his surviving spouse filed suit, alleging malpractice, and wrongful death, respectively.

The circuit court, the Court of Appeals, and the Supreme Court all held that both claims were time-barred.

The parties each contended that a different court opinion provided the appropriate standard for when “injury” occurs.

Genrich citied Paul v. Skemp, 2001 WI 42, 242 Wis.2d 507, 625 N.W.2d 860, for the proposition that injury does not occur until the underlying condition becomes untreatable, in this case, when Genrich died.

The defendants cited Fojut v. Stafl, 212 Wis.2d 827, 569 N.W.2d 737 (Ct.App.1997), for the proposition that injury occurs when the patient suffers “physical injurious change” — in this case, either during the first surgery, or at the latest, when the infection required the second surgery.

In an opinion by Justice Patience Drake Roggensack, the Supreme Court held that both cases state the correct rule, but that under either standard, the injury occurred during the first surgery.

“[T]he presence of an infection-producing sponge in Robert’s abdominal cavity is the type of ‘physical injurious change’ discussed in Fojut, and our conclusion that it constitutes an ‘injury’ is consistent with Paul,” Roggensack concluded. “When the doctors negligently left a sponge inside of Robert, which caused the sepsis that resulted in his death, he sustained an ‘injury’ that triggered Wis. Stat. sec. 893.55(1m)(a)’s (http://nxt.legis.state.wi.us/nxt/gateway.dll?f=templates&fn=default.htm&d=stats&jd=893.55) three-year limitations period.”

Rejecting the plaintiffs’ argument that “injury” did not occur until death, Roggensack concluded, “Because all injuries that result from medical negligence do not lead to death or to an irreversible medical course, it is not reasonable to interpret the word ‘injury’ as [plaintiffs] suggest.”

The court also held that the surviving spouse’s action for wrongful death is derivative of the malpractice action, and thus also accrued at the time of the surgery, rather than death.

The court acknowledged that, in previous decisions, it has suggested that claims for wrongful death do not accrue until the date of death. But the court limited those holdings to cases not involving medical malpractice.

Because the wrongful death action accrued at the same time as the malpractice action, the court held both were time-barred.

Justice N. Patrick Crooks concurred in part, and dissented in part. Crooks agreed that the malpractice action was filed too late, but concluded the wrongful death action was timely.

“There are undoubtedly statute of limitations cases where the crucial question of the date the claim accrued is a close question that requires a court to make a difficult decision,” Crooks wrote. “A wrongful death case, however, should not be such a case.”

Justice Ann Walsh Bradley also wrote a concurrence/dissent, agreeing with Justice Crooks that the wrongful death action was timely filed, but the malpractice action was not.

However, Bradley found it unnecessary to decide whether the date of the initial surgery was the date of injury, concluding that, at the latest, the claim had accrued by the date of the second surgery to remove the sponge.

Attorney Robert L. Jaskulski, who wrote an amicus curiae brief on the wrongful death issue, called the majority opinion inconsistent with common sense and with the rules of statutory interpretation, because, under the majority’s interpretation, a wrongful death claim could theoretically accrue and expire before the person dies.

Jaskulski noted that, in many statutes, the Legislature has specifically differentiated between injury and death, but has not done so in the medical malpractice statute.

“The Legislature can distinguish between death and injury, and has in many statutes. If it wanted to include wrongful death within the malpractice statute, it certainly knew how to do so, but didn’t,” Jaskulski said.

“It lacks common sense that a claim might have to be filed before the action accrues,” Jaskulski added.