Lawyers respond to Genrich decision

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On July 7, the state Supreme Court looked at when the clock starts running on a wrongful death claim that results from medical malpractice. The majority court decision in Estate of Genrich v. OHIC Insurance Co., No. 2007AP541, written by Justice Patience Drake Roggensack, indicated that a medical malpractice accrues when the patient experiences a “physical injurious change.”

In this case, that occurred when the doctor left a sponge inside the patient’s body during surgery. The majority court went on to explain that the wrongful death claim is derivative and accrues at the same time as the malpractice claim.

This week’s Forum offers two different perspectives from lawyers who have looked at the Supreme Court’s decision in Genrich. Ruth Heitz, general counsel for the Wisconsin Medical Society, and Edward E. Robinson, a personal injury attorney at Cannon & Dunphy SC, share their thoughts on the court’s decision and what it means.

Decision provides stability to system

The Wisconsin Supreme Court’s decision in Estate of Genrich v. OHIC Insurance Company squarely resolved two issues, namely, when a medical injury triggers the three-year statute of limitations and when the limitations period begins to run for a medical injury resulting in a patient’s death.

In medical liability cases, the statutory framework for filing and pursuing claims is predicated on balancing the interests of the injured patient and the patient’s family with the interests of all Wisconsin citizens in maintaining high quality, accessible and affordable health care. The Agency for Healthcare Research and Quality ranks Wisconsin as number one in the nation for health care quality, which is partially due to the ability of clinics and hospitals to recruit and retain quality physicians and other health care professionals.

The Supreme Court in Genrich carefully examined the governing law, Wis. Stat. Sec. 893.55, (http://nxt.legis.state.wi.us/nxt/gateway.dll?f=templates&fn=default.htm&d=stats&jd=893.55) and gave deference to the Legislature’s development of a comprehensive system governing medical liability cases. The Supreme Court noted, “It is apparent that ‘the [L]egislature intended to set medical malpractice cases involving death apart from other death cases.’…The preamble of Wis. Stat. § 893.55 shows that the purpose of the statute was to limit the liability of health care providers in certain circumstances based on a difficult balancing of a number of competing policies.”

It is clear that by creating an exclusive procedure for medical liability cases, the Legislature intended that claims fall within the scope of Wis. Stat. chapter 655, Wis. Stat. Secs. 893.55 and 893.56. Medical liability claims, by design, are not subject to the limitation periods or remedies of other statutes. The Supreme Court interpreted the point at which an “injury” triggers the statute of limitations narrowly, which is consistent with the scope established for medical liability cases. Moreover, the court’s conclusion that all medical liability claims, irrespective of the theory of recovery, must be brought within the time periods established for medical liability injuries affirms the Legislature’s balancing of interests.

Wisconsin’s relatively stable medical liability environment is attributable in part to predictability in the statutes of limitations and noneconomic damage awards, the availability of affordable professional liability insurance and the financial integrity of the Injured Patients and Families Compensation Fund. The state’s recent raid of $200 million from the fund to balance the 2007-2009 state biennial budget is already sending ripples of instability through the health care community as evidenced by declining recruitment of physicians and other health care professionals in Wisconsin. The decision of the Supreme Court in Genrich preserves one aspect of a complex system that provides stability to the medical liability environment for the benefit of all Wisconsin citizens. The Wisconsin Medical Society and its members applaud the Supreme Court’s decision in the Genrich case.

Ruth Heitz
General Counsel
Wisconsin Medical Society

Court erred with wrongful death decision

Does a cause of action for wrongful death accrue on the date of death, or before death has even occurred? This may seem like a silly question. But in Estate of Genrich v. OHIC Insurance Company, the state Supreme Court, in a 4 to 3 decision, ruled that a cause of action for wrongful death resulting from medical malpractice accrues on the date of injury, not on the date of death.

This means that, in many cases, a cause of action for wrongful death resulting from medical malpractice will accrue — and the statute of limitations will begin to run — before death has even occurred. Justice N. Patrick Crooks aptly summarized the majority’s radical holding when, writing in dissent, he exclaimed, “[t]he approach adopted by the majority in this case … unfortunately may foster a public perception that common sense sometimes is lacking in court decisions.” 2009 WI 67 ¶89.

With all due respect to the court, it erred in several fundamental respects. First, it erred in concluding that Wis. Stat. sec. 893.55(1m), rather than sec. 893.54(2), applies to wrongful death claims resulting from medical malpractice. The plain language of sec. 893.55(1) clearly limits its application to injury claims. The word “death” is not mentioned in that section. Clearly, when the Legislature intends to make a statute applicable to both injury and death claims, it does so by using the express term “injury or death” or “injury and death.” Compare § 893.55(1m)with secs. 893.55(4)(e) and (f) and secs. 655.005, 655.006, 655.007, 655.27, 655.44, and 655.445.

Moreover, the fact that Wis. Stat. ch. 655 unquestionably applies to injuries and deaths resulting from medical malpractice does not compel a finding that sec. 893.55(1m), which exists independently of ch. 655, therefore applies to both injury and death claims. See, e.g., Jelinek v. St. Paul Fire & Cas. Ins. Co., 182 Wis. 2d 1, 10, 512 N.W.2d 764 (1994) (“[C]h. 655 contains no statute of limitations.”); Deborah S.S. v. Yogesh N.G., 175 Wis. 2d 436, 441-42, 499 N.W.2d 272 (Ct. App. 1993) (“[C]h. 655, Stats., is silent as to the applicable statute of limitations.”). The only statute of limitations that clearly applies to wrongful death claims is contained in Wis. Stat. sec. 893.54(2), which provides that a wrongful death claim may be brought within three years of the date of death.

The court compounded its erroneous interpretation of sec. 893.55(1m) as applying to wrongful death claims by concluding further that a medical malpractice death claim accrues on the date of injury rather than on the date of death. Wisconsin law has long recognized that where injury causes death, there are two separate and distinct categories of claims prosecuted by two separate and distinct categories of claimants that accrue on two separate and distinct dates. See, e.g., Estate of Merrill ex rel. Mortenson v. Jerrick, 231 Wis. 2d 546, 549-50, 605 N.W.2d 645 (Ct. App. 1999).

While the survival claims of the estate are subject to the injury statute of limitations applicable to the decedent, a claim for d
eath does not accrue until the time of death, because the claim arises out of the death. Terbush v. Boyle, 217 Wis. 636, 259 N.W. 859 (1935). Consistent with this precedent, the Supreme Court and Court of Appeals previously recognized that a wrongful death action is a new action brought for the benefit of the statutory beneficiaries, and accrues at the time of the decedent’s death. See Holifield v. Setco Industries, 42 Wis. 2d 750, 168 N.W.2d 177 (1969), overruled on other grounds, Hansen v. A.H. Robins, Inc., 113 Wis. 2d 550, 335 N.W.2d 558 (1983); Miller v. Luther, 170 Wis. 2d 429, 435, 489 N.W.2d 651 (Ct. App. 1992). The court’s decision in Genrich contravenes this well established precedent.

The Genrich decision will undoubtedly be met with praise by health care providers and their insurers. However, one of the unintended consequences of the decision may be that more medical malpractice claims will be filed, on injury claims that otherwise may not have been pursued, simply in order to preserve the right to bring a wrongful death claim in the event the patient later dies.

Edward E. Robinson
Shareholder
Cannon & Dunphy SC