929 N.W.2d 113
Wis.2019Background
- David and Kathryn Paynter (Michigan residents) sued Dr. James Hamp (practiced in WI and MI) for negligent failure to diagnose David Paynter’s neck cancer (aspiration in MI, pathology read in WI) and for violation of informed consent after a June 2010 phone call stating the growth was benign.
- Plaintiff discovered the cancer on June 19, 2014. Mediation request to Wisconsin panels was sent in May 2015; lawsuit filed in Ashland County, WI in August 2015.
- Dr. Hamp moved for summary judgment invoking Wisconsin’s borrowing statute, Wis. Stat. § 893.07, arguing Michigan’s shorter statute of limitations applies and bars the claims.
- The circuit court granted summary judgment applying choice-of-law factors; the court of appeals affirmed but held the negligence claim was "foreign" because plaintiff resided in Michigan during the latency period and the informed-consent injury occurred in Michigan.
- The Wisconsin Supreme Court considered whether a misdiagnosis that produces a latent, continuous injury is a "foreign cause of action" for § 893.07 and whether the place/time of the plaintiff’s "first injury" can be ascertained.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the negligence (misdiagnosis) claim is a "foreign cause of action" under Wis. Stat. § 893.07 | Place-of-injury test should treat continuous latent injury as occurring where some injury was suffered (Faigin-like multi-state approach); Paynter often visited WI so injury not necessarily foreign | Michigan applies because Paynters resided in Michigan during the latency period; thus first injury occurred in MI and § 893.07 bars suit in WI | The borrowing statute applies only if the plaintiff's place of first injury is ascertainable; here the place/time of first injurious change is unknowable, so § 893.07 does not apply and the negligence claim is timely under WI law |
| Whether the informed-consent claim is a "foreign cause of action" under § 893.07 | Argued the last significant event test (Abraham) or other analyses support WI limitations applying | Argued the injury (loss of opportunity to choose treatment) was "felt" in Michigan where plaintiff received the phone call | The informed-consent injury was felt in Michigan (plaintiff received the call there); claim is foreign under § 893.07 and is time-barred under Michigan law |
| Whether the negligence claim is timely under Wisconsin malpractice statute (if § 893.07 does not apply) | Timely: filed within one year of discovery (May 2015 mediation request within one year of June 19, 2014 discovery) and within 5-year outer limit | Argued § 893.07 should apply so Michigan limits govern (and bar suit) | Under Wis. Stat. § 893.55(1m) the negligence claim is timely; summary judgment for negligence was improper |
| Whether insurance coverage ruling should be addressed by this court | Paynters preserved coverage challenge to ProAssurance policy exclusion for services in MI | ProAssurance argued coverage and addressed merits in briefing; circuit court had granted coverage to insurer; parties varied on whether to decide here | The Supreme Court declined to decide coverage issues on appeal and remanded to court of appeals for resolution consistent with this opinion |
Key Cases Cited
- Guertin v. Harbour Assur. Co. of Bermuda, Ltd., 141 Wis. 2d 622 (1987) (interpreting "foreign cause of action" under Wisconsin’s borrowing statute to focus on place of injury)
- Abraham v. General Cas. Co. of Wis., 217 Wis. 2d 294 (1998) (adopting a "final significant event" approach for applying the borrowing statute in contract-like contexts)
- Paul v. Skemp, 242 Wis. 2d 507 (2001) (holding that in negligent misdiagnosis cases the actionable injury occurs when the misdiagnosis causes greater harm than existed at the time of misdiagnosis)
- Faigin v. Doubleday Dell Publ’g Grp., Inc., 98 F.3d 268 (7th Cir. 1996) (addressing multi-state libel injuries and whether presence of injury in WI prevents classification as a foreign cause of action)
- Brusa v. Mercy Health Sys., Inc., 304 Wis. 2d 138 (Ct. App. 2007) (recognizing situations where the date/place of injury from delayed cancer diagnosis is not ascertainable)
- Int’l Shoe Co. v. Washington, 326 U.S. 310 (1945) (due process minimum-contacts test cited in concurrence/dissent regarding jurisdictional considerations)