Statutory Interpretation – Malpractice Actions

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WI Court of Appeals – District III

Case Name: David W. Paynter, et al. v. ProAssurance Wisconsin Insurance Company, et al.

Case No.: 2017AP739

Officials: Stark, P.J., Hruz and Seidl, JJ.

Focus: Statutory Interpretation – Malpractice Actions

David and Kathryn Paynter sued Dr. James Hamp, alleging he negligently failed to diagnose David’s cancer. The circuit court granted Hamp summary judgment. It concluded Wisconsin’s borrowing statute, WIS. STAT. § 893.07 (2015-16), applied to the Paynters’ lawsuit, and their claims were therefore subject to Michigan’s statute of limitations for medical malpractice actions. Applying the Michigan statute of limitations, the court concluded the Paynters’ lawsuit was not timely filed.

The circuit court applied an incorrect legal standard in determining the Paynters’ lawsuit was subject to the borrowing statute. Nonetheless, we agree with the court’s ultimate conclusion that their lawsuit was not timely filed.  The borrowing statute applies to actions brought in Wisconsin “on a foreign cause of action.” See WIS. STAT. § 893.07(1), (2). A cause of action is foreign, for purposes of the borrowing statute, when it is premised on an injury that occurred outside of Wisconsin. See Guertin v. Harbour Assurance Co. of Bermuda, 141 Wis. 2d 622, 630, 415 N.W.2d 831 (1987). In a case—like this one—in which the plaintiff claims to have been injured in the same course of action in multiple states, we conclude the plaintiff’s location at the time of his or her first injury controls whether the plaintiff’s cause of action is “foreign.”

Here, the Paynters have alleged a negligent misdiagnosis. Our supreme court has previously held that, in such cases, an actionable injury occurs when the misdiagnosis causes a greater harm than existed at the time of the misdiagnosis. Paul v. Skemp, 2001 WI 42, ¶25, 242 Wis. 2d 507, 625 N.W.2d 860. In his summary judgment submissions, Hamp made a prima facie showing that all of David’s injuries occurred in Michigan. In response, the Paynters failed to submit sufficient evidence to raise a genuine issue of material fact as to whether David was located in Wisconsin when Hamp’s allegedly negligent misdiagnosis first caused him greater harm than existed at the time of the misdiagnosis. As a result, the Paynters’ lawsuit is a foreign cause of action and is therefore subject to the borrowing statute. Under the borrowing statute, the Paynters’ lawsuit is untimely because it was not filed within the period set forth in Michigan’s statute of limitations for medical malpractice claims. We therefore affirm the circuit court’s judgment dismissing the Paynters’ claims.

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.