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Malpractice – Statute of Limitations

By: Derek Hawkins//July 3, 2019//

Malpractice – Statute of Limitations

By: Derek Hawkins//July 3, 2019//

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WI Supreme Court

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

Case No.: 2019 WI 65

Focus: Malpractice – Statute of Limitations 

This is a review of a published decision of the court of appeals affirming an order of the Circuit Court for Ashland County, Robert E. Eaton, Judge, granting summary judgment in favor of Defendant-Respondent Dr. James A. Hamp. Plaintiffs-Appellants-Petitioners David and Kathryn Paynter live in Bessemer, Michigan, a city located near the Wisconsin-Michigan border. The Paynters sued Dr. Hamp, a medical doctor who practiced in both Wisconsin and Michigan, alleging that he negligently failed to diagnose Mr. Paynter with cancer. The Paynters also allege that Dr. Hamp violated Mr. Paynter’s right to informed consent.Dr. Hamp moved for summary judgment, arguing that the Paynters’ claims are “foreign cause[s] of action” pursuant to Wisconsin’s borrowing statute, Wis. Stat. § 893.07 (2015-16). Wisconsin’s borrowing statute adopts the limitations rule of a foreign jurisdiction and applies it to any “foreign cause of action” as if it were Wisconsin’s own statute, provided that the foreign period of limitation is shorter than Wisconsin’s period of limitation.

Dr. Hamp argues that pursuant to Wisconsin’s borrowing statute, Michigan’s statute of limitations applies to the Paynters’ claims. It is undisputed that if Michigan’s statute of limitations applies, the Paynters’ claims are untimely. The Paynters argue that their claims are not “foreign cause[s] of action” under the borrowing statute. Thus, they argue that Wisconsin’s statute of limitations applies to their claims. It is undisputed that if Wisconsin’s statute of limitations applies, the Paynters’ claims are timely. The circuit court granted Dr. Hamp’s motion for summary judgment. It considered five factors that are traditionally used to resolve choice-of-law questions and concluded that those factors favored applying Michigan’s statute of limitations. The Paynters appealed. The court of appeals, applying a different analysis than the circuit court, affirmed the circuit court’s order granting summary judgment to Dr. Hamp. The court of appeals announced that “in cases involving an injury or injuries that allegedly occurred in multiple states, the plaintiff’s cause of action is not foreign, for purposes of the borrowing statute, when the first instance of injury occurred in Wisconsin.

The court of appeals held that because the Paynters lived in Michigan during the four-year period between Dr. Hamp’s alleged misdiagnosis and Mr. Paynter’s discovery of his injury, the Paynters’ negligence claim was “foreign” for purposes of the borrowing statute. The court of appeals further held that the Paynters’ informed consent claim was “foreign” for purposes of the borrowing statute because Mr. Paynter was located in Michigan at the time his right to informed consent was allegedly violated. Accordingly, the court of appeals applied the Michigan statute of limitations to both claims and affirmed the circuit court order granting summary judgment in favor of Dr. Hamp. The Paynters petitioned this court for review.

On this issue of first impression, we hold that in medical malpractice cases involving a negligent misdiagnosis that results in a latent, though continuous, injury, whether the action is “foreign” for purposes of Wisconsin’s borrowing statute is determined by whether the plaintiff’s first injury occurred outside of Wisconsin. We disagree with the court of appeals’ conclusion that the borrowing statute applies to the Paynters’ negligence claim. On the record before the court, Mr. Paynter’s place of first injury appears to be beyond ascertainment to any reasonable, non-speculative degree. When the plaintiff’s place of first injury is unknowable, as in the instant case, Wisconsin’s borrowing statute does not apply. However, we agree with the court of appeals that the Paynters’ informed consent claim is “foreign” for purposes of Wisconsin’s borrowing statute. Therefore, we apply Michigan’s statute of limitations to the Paynters’ informed consent claim and conclude that the claim is untimely. Dr. Hamp is entitled to summary judgment as to that claim. Accordingly, the court of appeals’ decision is affirmed in part and reversed in part. We remand the cause to the court of appeals in order to address the Paynters’ argument that the circuit court erred by determining that an insurance policy issued to Dr. Hamp by Defendant-Respondent ProAssurance Wisconsin Insurance Company did not provide coverage for the Paynters’ claims.

Affirmed in part. Reversed and remanded in part.

Concur: A.W. BRADLEY, J. concurs and dissents (opinion filed). R.G. BRADLEY, J. concurs and dissents, joined by KELLY, J. (opinion filed).

Dissent:

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.

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