880 N.W.2d 681
Wis.2016Background
- Two minors (John Doe 56 and John Doe 57) allege Dr. David A. Van de Loo inappropriately manipulated their penises during genital exams while they were patients (dates alleged within 2003–2008 for Doe 56 and 2003–2009 for Doe 57).
- The boys claim they suffered no recognized injury until October 2012, when news of criminal charges against Dr. Van de Loo for similar conduct led them to discover severe psychological injury (depression, anxiety, etc.).
- Plaintiffs sued in October 2013 asserting, among other claims, medical malpractice; the malpractice claims were dismissed by the circuit court as time‑barred and that dismissal was affirmed by the court of appeals.
- Central legal question: when did the malpractice claims accrue for purposes of the three‑year malpractice limitations in Wis. Stat. § 893.55(lm)(a)—(a) at the time of the last alleged inappropriate touching, or (b) later, when plaintiffs learned via news reports that the exams may have been criminal sexual assaults and then suffered psychological injury?
- Supreme Court majority held claims accrued at the time of the last physical touching (the "physical injurious change"), rendering the malpractice claims filed in 2013 time‑barred. A dissent argued accrual occurred when plaintiffs suffered severe emotional injury upon learning of the criminal charges.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| When did malpractice claim accrue for Wis. Stat. § 893.55(lm)(a)? | Accrual did not occur at the touching because plaintiffs did not then suffer injury; accrual occurred when they learned of criminal charges and then suffered severe emotional/psychological injury. | Accrual occurred at the time of the last inappropriate genital touching because that moment produced the physical injurious change that starts the 3‑year limitations. | Accrual occurred on the date of the last physical touching (physical injurious change). Claims are time‑barred. |
| Whether sexual assault during medical exam may be pursued as medical malpractice | Plaintiffs proceed under malpractice theory where touching occurred during an exam with alleged pretext of medical purpose. | Defendants argue intentional sexual assault may be an intentional tort/crime rather than negligence. | Court: Sexual assault often is an intentional tort and may not be malpractice, but where touching occurs as part of a legitimate medical exam and is alleged to be unnecessary/improper treatment, it can state a malpractice claim. |
| Whether later psychological injury restarts limitations | Plaintiffs: later emotional harm caused by learning about criminal charges is the injury, so statute restarts then. | Defendants: later emotional manifestation is a subsequent injury from the same tort and does not restart the limitations. | Held: later psychological injury is secondary and does not restart the statute; limitations ran from the touching date. |
| Applicability of discovery rule or John BBB Doe precedent | Plaintiffs relied on a form of delayed discovery argument (but did not press Wis. Stat. § 893.55(lm)(b) on appeal). | Defendants relied on accrual precedent applying the "physical injurious change" test. | Court: discovery rule not argued on appeal; John BBB Doe (clergy abuse) not extended to this medical malpractice accrual issue. |
Key Cases Cited
- Estate of Genrich v. Ohio Ins. Co., 318 Wis. 2d 553 (Wis. 2009) (establishes "physical injurious change" benchmark for accrual under Wis. Stat. § 893.55(lm)(a))
- Paul v. Skemp, 242 Wis. 2d 507 (Wis. 2001) (statute accrues when injury occurs, not merely when negligent omission occurs)
- Fojut v. Stafl, 212 Wis. 2d 827 (Ct. App. 1997) (injury from failed tubal ligation accrues at conception, not surgery date)
- Aicher ex rel. LaBarge v. Wisconsin Patients Comp. Fund, 237 Wis. 2d 99 (Wis. 2000) (discusses policy rationales for malpractice limitations and situations where discovery rule applies)
- John BBB Doe v. Archdiocese of Milwaukee, 211 Wis. 2d 312 (Wis. 1997) (clergy sexual‑abuse accrual/discovery analysis; court explains discovery or accrual at last assault)
- Deborah S.S. v. Yogesh N.G., 175 Wis. 2d 436 (Ct. App. 1993) (sexual acts unrelated to treatment are intentional torts, not malpractice)
- J.W. v. B.B., 284 Wis. 2d 493 (Ct. App. 2005) (where there is a legitimate medical purpose for touching, claim may proceed as malpractice if treatment was unnecessary or improper)