*1 Litem, ad Aicher, minor, Ame her Guardian Gerald Kathy LaBarge, Esq. Goelz, and mother of Ame Plaintiffs-Respondents, Aicher, Compensation Wiscon Patients Wisconsin Fund Liability Plan, Health Care sin Insurance Defendants-
Appellants, County Inc. Waukesha Plan, Primecare Health Department Services, of Health and Social
Defendants. Supreme Court argument May July No. 98-2955. Oral 2000. Decided 98WI (Also 849.) reported in 613 N.W.2d *3 defendants-appellants there were briefs For Mil- Culbertson, and Hinshaw & Michael P. Russart *4 argument by waukee, Michael P. Russart. and oral (in plaintiffs-respondents there was a brief For Timothy appeals) by Aiken, James C. court of J. Gal- Scoptur, S.C., Milwaukee, and oral lanis and Aiken & by Timothy argument J. Aiken.
¶ 1. DAVIDT. PROSSER, J. This case is before by appeals pursu- the court on certification the court of (Rule) (1993-94).1 ant to Wis. Stat. 809.61 Wisconsin Compensation Patients Fund and Wisconsin Health (Insurers) Liability Care Insurance Plan seek review of County a decision of the Waukesha Court, Circuit Judge. Kieffer, James R. The circuit court denied the summary judgment Insurers' motion for in a medical malpractice action filed on behalf of Arne Aicher her (Aicher). Guardian ad Litem alleged ¶ 2. Aicher that she became blind in her right eye as a result of medical committed during her newborn examination on December 1982. Aicher maintains that she did not discover the. September 10, condition until 1993, after she reached birthday. her tenth Aicher initiated this action in years when she was 13 old.
¶ 3. The Insurers filed a motion to dismiss and sought summary judgment, invoking then Wis. Stat. 893.55(l)(b)2 and 893.56.3 Section establishes a statute of limitations for medical mal-
1 All references to the Wisconsin Statutes are to the 1993-94 volumes unless indicated otherwise. 893.55(1)
2 Wisconsin Stat. provides: malpractice; actions; Medical limitation limitation (1) damages; damages. Except provided by itemization of as (2) (3), damages injury arising subs. an action to recover any operation performed by, any treatment or or from omis- by, person provider, regardless sion who is a health care theory based, on which the action is shall be within the commenced later of: (a) years injury, Three from the date of the (b) year or, injury One from the date the was discovered in the diligence discovered, exercise of reasonable should have been except may paragraph that an action not be commenced under this more than 5 from the date of the act or omission. *5 discovery year practice from the date of actions of one injury. provision operates also as the repose,
tolling years act or from the date of the five repose, 893.56, another statute of omission. Section mal- for minors to initiate medical extends the time birthday. practice claims to the tenth summary judg The circuit court denied the holding that the were motion, ment statutes applied circum as to the factual unconstitutional case. The court relied on Estate stances of Aicher's Fund, Care 211 Wis. 2d Makos v. Wisconsin Health (1997), opin lead in which the court's 564 N.W.2d 893.55(1)(b) § ion Stat. unconstitutional. found Wis. and 893.56 The circuit court held that remedy process right procedural due and the violate foreclose some claims before because statutes opportunity plaintiff an has the to know that even injury The court that the statutes occurred. observed 893.55(l)(a) is not at issue in this case. Wisconsin
Section 893.55(1) person may file the later provides Stat. that a within § (a) (b). did not period time of either subsection or The Insurers 893.55(l)(a) explained allege precluded Aicher's claim. As § old, below, injury accrued she was six months Aicher's when alone, 893.55(l)(a), when she was and read would have tolled 893.55(2) (3) are three and six months old. Sections in this not at issue case. states: Wisconsin Stat. 893.56 providers; Any person actions. under the Health care minors disability by insanity, develop- age who is not under reason of disability imprisonment, bring shall an action to recover mental injuries person arising any damages treatment or to the any by pro- operation performed by, or for omission a health care the time limitation under s. 893.55 or the time that vider within person age years, of 10 whichever is later. That action reaches having brought by parent, guardian person or other shall be custody the time limit set forth in this section. of the minor within gave days thereby Aicher zero to file her action opportunity denied her an to be heard in court. appealed. appeals ¶ 5. The Insurers The court of (1) certified two issues to this court: Does the Makos *6 plurality opinion represent majority a consensus of the justices binding ofthe (2) that is on the courts ofthis state? 893.55(l)(b) If Stat. is considered unconstitu- Makos, tional under can the time limitation for the discovery malpractice injury of a medical be severed repose portion from the of the statute? question
¶ 6. We do not answer first certified appeals today the court of because our decision expressly overrules Makos. We hold Wis. Stat. 893.55(l)(b) §§ and 893.56 are constitutional for three right-to- First, reasons. the statutes do not violate the remedy provision of the Wisconsin Constitution. Sec- 893.55(l)(b) equal §§ ond, protection and 893.56 do not offend
because classification of minor medical rationally legiti- claimants is related to the legislative objectives reducing mate health care right Third, costs. procedural the statutes do not violate Aicher's process due because an unaccrued cause property action is not a interest. Because we sustain 893.55(l)(b) constitutionality §§ of Wis. Stat. question. 893.56, we do not reach the second certified Accordingly, we hold that and 893.56 preclude action, Aicher's cause and we reverse the decision of the circuit court.
FACTS dispute. ¶ 7. Most of the relevant facts are not September 10, 1993, On Aicher when was three shy birthday, months of her eleventh she underwent eye anticipation routine examination in of her transfer to a new school. The examination that she had revealed right eye that caused in her cataract untreatable
an appeared permanent cataract because The blindness. develop properly right eye as a failed muscle in her phy- "poor A red reflex." known as of a condition result had that if the condition Aicher's mother told sician birth, the after Aicher's six months treated within been parties problem do correctable. would have been injury dispute in an resulted the condition not during life. Aicher is months of Aicher's the first six right eye. in her now blind 10, 1982. Dr. on December 8. Aicher was born
Beryl performed exami- Harris, Aicher's newborn who medical record that she a notation in her nation, made eye." right "poor Aicher contends had red reflex on follow-up no treatment conducted that Dr. Harris spoke eye Aicher's he never with condition, and testing Aicher's or treatment. further mother about deposition that Aicher had a red *7 at her mother testified displayed eye spot several Aicher in her since birth. unexplained in her childhood. clumsiness of instances open split After her chin twice. times and She fell few hospi- treating doctors nor incidents, neither the these anything suggested mother that was to Aicher's tals wrong is no There evidence with Aicher's vision. sought to uncover medical attention mother Aicher's episodes. addition, Aicher testified In the cause of these eye during her examinations some of that she cheated good eye eye by looking chart with her at the in school eye being right Dr. Harris died on tested. her was when recovery sought years April Aicher ten before 26,1986, action. in this HISTORY
PROCEDURAL April 30,1996, claim on Aicher initiated this malpractice alleging when Dr. Harris committed performed he initially her newborn examination. The Insurers arguing dismiss,
filed a motion to that Wis. §§ Stat. 893.55 and 893.56 bar Aicher's action.
¶ 10. Wisconsin Stat. and 893.56 set forth the statutes of issue this case. 893.55(l)(b) provides malprac- Section that a medical year tice claim must be filed within one of the date (the discovery injury one-year-after-discovery of the limitations), provided statute that five have (the passed five-year not since the act or omission stat- repose).4 filing ute of Section time 893.56 extends pursuing malpractice claims, minors medical allowing recovery if the minor initiates the lawsuit (the reaching age 10-year before minors). repose for interplay
¶ 11. The statutes of between both repose operated preclude this Under suit. provisions 893.56, broader Wis. Stat. Aicher would by malpractice have had to file the claim tenth her birthday, roughly nine months before she claims to only governed have discovered her condition. When types exempted of medical Two claims are 893.55(2) from provides: these limitations. Wisconsin Stat. § provider patient prior If a health care from a or conceals act provider injury patient, omission which has resulted in to the year an action shall be commenced one within date or, patient discovers in the the concealment exercise reasonable diligence, should have discovered concealment or within (1), provided by time limitation sub. whichever is later. 893.55(3) Wisconsin Stat. § states: foreign object therapeutic diagnostic pur- aWhen which has no *8 pose patient's body, or effect has left in be been an action shall year patient or, commenced within one after the aware in the care, presence exercise reasonable should have been aware of the (1), object provided or within the time limitation sub. whichever is later. 893.55(l)(b), § Aicher's action tolled when Wis. Stat. just years years old, under six before the she was five discovery. in This time line illustrates the critical dates this action: 10,1982: Aicher
December born. 10, performed 1982: Dr. Harris December examination.
newborn 10, End period during June 1982: of six-month injury
which Aicher's accrued. Tolling date for Wis. Stat. June 1985: 893.55(l)(a), under which
§ plaintiffs file no later than years from the date of three injury. Tolling date Wis.
December 1987: for Stat. 893.55(l)(b), five-year
§ repose, pre- brought cludes actions than 5 from the "more date of the act or omission." 10, 1992: Aicher turns 10 and December Wis. 893.56,
Stat. ten- § year statute of minors, her claim. bars 10, 1993: Aicher discovers September
injury. 9,1994: one-year-after-discov- If the September
ery statute of limitation set forth Stat. 893.55(l)(b) were severa- ble from the five-year repose, statute of tolling filing date for this is suit. *9 30,1996:
April Aicher files this action. After the the Insurers filed motion to dis- miss, Makos, this court decided 211 Wis. 2d a case constitutionality that addressed the of Wis. Stat. 893.55(l)(b). summary sought judg- § The Insurers maintaining majority" ment, that "the fractured 893.55(l)(b) only Makos found as to unconstitutional particular the facts of that case. relying opin- court, 13. The circuit on the lead summary judgment Makos,
ion in denied the motion. 893.55(l)(b) §§ The court held that and 893.56 were applied unique the unconstitutional when to factual circumstances ofAicher's case. The court reasoned that process by deny- procedural the ing. violated statutes due opportunity an Aicher to be heard the "because doors of the courtroom were closed before she even injured." discovered she was The court Aicher likened concluding Makos, in that funda- to mentally claimant it was a claim unfair allow toll on plaintiff before the knew or could have known about injury. granting The circuit court found that sum- mary judgment inappropriate was because case presented question jury, namely a of fact for injury whether Aicher should have discovered her birthday.5 her before tenth
¶ 14. The circuit court also held that Stat. and 893.56 were unconstitutional they "right remedy" clause of because violated provision §I, Constitution, a art. 9 of Wisconsin "guarantees every person shall be afforded a 29-30, explain As minor an absolute we below in has ¶¶ right age to file medical before of 10 claim alone, 893.56, years. Wisconsin Stat. read contains no discov ery provision.
remedy wrongs against per- or her his committed right-to- Noting property character." that the son, remedy provision Wisconsin residents to their "entitles day court," the court concluded that the statutes remedy deprived wrong Aicher of a for a that she did *10 not and could not discover.
¶ 15. The circuit court declined to address argument statutes her Aicher's that two violated equal process rights, protection and substantive due it had found the statutes unconstitutional on because right-to- process grounds procedural due and the remedy clause. appeals
¶ 16. The court of certified the Insurers' highlighting disputed appeal court, inter- to this generated by pretations suggested The Makos. court "[tjhis appeal appropriate is for the that case Wis- Supreme guidelines" about the consin Court to fashion opinions. precedential plurality addition, In value of appeals asked this court to address court five-year whether statute of Wis. Stat. 893.55(l)(b), unconstitutional, if can be severed from one-year-after-discovery limitations statute of filing a medical claim. OF
STANDARD REVIEW Although ¶ 17. this case comes before the court summary judgment decision, as the result the issue requires we address to determine the constitutional- us ity of two statutes. constitutionality ques-
¶ 18.
of a
is a
The
tion of law that we review de
Riccitelli v.
novo.
119,
Broekhuizen,
100,
227 Wis. 2d
110 possible, any law if at if all doubt exists about a constitutionality, statute's we must resolve that doubt constitutionality. in favor of State ex rel. Hammermill Paper Plante, v. La 32, 46-47, Co. 58 Wis. 2d (1973). N.W.2d 784 strong
. presumption, To 19. overcome this party challenging constitutionality a statute's must demonstrate the statute unconstitutional beyond a reasonable doubt. State v. Hezzie R., Wis. 2d It N.W.2d is not sufficient challenging merely party for the to establish doubt constitutionality, enough about a statute's and it is not probably establish a statute is unconstitutional. Paper Co., Hammermill Wis. 2d 46-47. presumption statutory constitution ality product recognition judiciary is the of our that the positioned is not political economic, social, to make the *11 province
decisions
fall
the
that
within
of the
legislature. See State ex rel. Carnation Milk Prods. Co.
(1922).
Emery,
147, 160,
v.
178 Wis.
N.W.
564
The
duty
only
legislation
of the
if
provision
court
determine
the
clearly
beyond
and
doubt offends
of the
specifically
legis
state constitution that
circumscribes
Paper Co.,
lative action. Hammermill
2d
58 Wis.
at
Chicago
Ry.
46-47;
Follette,
&
La
N.W.
Co. v.
27 Wis.
(1965).
505,
2d
521,
medical
actions when it
573,
Kretz, Wis. 2d
enacted these statutes. Miller v.
(citation omitted).
(Ct.
1995)
App.
580,
BACKGROUND Legislature ¶ 22. In 1975 the Wisconsin enacted bring- governing procedures for a series of statutes ing malpractice 37, medical actions. Ch. Laws of 1975. targeted: statutes These of malpractice sudden increase in the number
[A] suits, awards, in malpractice in the size of and several premiums, insurance identified costs, dangers: increased health care impending proce- "defensive" medical prescription elaborate dures, unavailability of certain hazardous possibility physicians and the that would services practices. curtail their Strykowski Wilkie, 508, ex rel. 81 Wis. 2d
State
legislature
later,
Health care minors actions. 18, person the age under of who is not under disabil- by
ity insanity, developmental disability reason imprisonment, bring or shall an action to recover injuries damages person for to the arising any operation performed by, any treatment or for or by omission a provider health care within the time by person limitation under s. 893.55 or the time that age reaches years, whichever is later. That action shall brought parent, guardian be person having custody other of the minor within the time limit set forth in this section. legislature general
¶ 23.
In 1979 the
undertook a
323,
revision of the
of limitations. Ch.
statutes
Laws
part
response
1979. These revisions
in
a
were
to this
legislature
existing
court's admonitions to the
that the
periods
time limitation
for medical
actions
Claypool
Levin,
284,
were too short.
2dWis.
292-93,
tice claimants were to file suit within three injury. legislature At Id. that time the did recognize "discovery not a rule" that otherwise estab- period commencing an time limitation lishes action based on the date on which a claimant discov- encountering injury. ered After several cases three-year precluded which the rule relief before plaintiff injury, urged leg- discovered the this court originally
6 Wisconsin Stat. 893.56 was enacted as Wis. § Assembly Stat. 893.235 as result of 1977 Bill 705. See Ch. July 1,1980, Laws of it 1977. Effective was renumbered as Wis. Stat. 893.56. See Ch. Laws of 1979. *13 of malpractice the medical statute
islature amend limitations: for peculiarly leg- that is a
We conclude this matter of the numerous islative determination. Because three-year requirement in which the present cases commencing by party an action a who the for short, malpractice of medical is too we victim legislature that the strongly recommend to the three-year negligence statute for actions due basic to medical be amended. 1, 57 2d
Id. at 292 n.2
Peterson v.
Wis.
(quoting
Roloff,
6,
(1973),
other
Han-
grounds,
Medical limitation damages; limitation dam- itemization (1) (2) ages. Except (3), provided by as subs. an damages injury arising action to recover any by, or operation performed treatment or from any by, person pro- omission a health who is care vider, regardless theory which on the action is *14 based, shall be commenced within the later of: (a) years Three the injury, date of or (b) year injury One from the date the was discov- or, in ered the exercise of diligence reasonable discovered, except should have been that an action may be paragraph not commenced under this more years than date act 5 from the of the or omission. 893.55(1) 26. Wisconsin Stat. and 893.56 both set of forth statutes Statutes of are repose. different of A from statutes limitations. statute of limi- tations usually establishes the time frame within which a claim must of be initiated after cause action actually contrast, accrues. A statute of limits repose, the time within which an action period may brought be based on date of the act or omission. Statutes of repose thus bear no relation to the accrual of a cause of holding "While, pointed In so this court stated: as we out in may discovery rule,
McCluskey, there
merit to the
state of
be
presented
is not
to
of
facts
herein
conducive modification
holdings
present
Id.
this court."
at 633.
McCluskey
McCluskey
case referred to in
is
v. Thra
Olson
now,
245,
(1966),
2d
Wis.
N.W.2d 787
another situation
court
an
in which the
ruled that
action for
must be
negligent
within three
act.
started
injury
an
discovered or
action and can toll before
injury
an
has occurred.8
even before
27. Statutes of limitation and statutes
policy
repose represent
legislative
dic
decisions that
particular
tate
litigants.
the courthouse doors close
when
Tomczak,
See
2d at 253-54. Statutes
approved
limitation,
in all
which "are found
systems
jurisprudence,"
enlightened
articulate the
adversary
just
put
principle that it is
on
more
specified period of
to defend a claim within a
notice
permit
prosecution
stale
time than
unlimited
Kubrick,
111,
444 U.S.
claims. United States v.
(1979).
promote
prompt
fair and
Statutes of limitation
litigation
protect
from stale or fraudu
defendants
"brought
lent claims
after memories have faded
has
Co.
evidence
been lost." Korkow General Cas.
Wisconsin,
117 Wis. 2d
Statutes plaintiffs litigating both and defendants from claims may by disap the truth obfuscated death or which be pearance key witnesses, evidence, faded of loss of and DeVries, Note, Malpractice Acts'
8 See Scott A. Medical They They Apply to Minors: Are Statutes Limitation as of Proper?, (1995); Rev. J. Christopher 28 Ind. L. 414-15 Trombetta, Note, Unconstitutionality Malprac Medical The of Repose: Legislative tice Statutes Judicial Conscience Versus of Will, (1989); Randall, 397, 400-01 C. 34 Vill. L. Rev. Susan' Comment, Challenges Repose, Due 40 Sw. Process to Statutes of 997,1002-03 L.J. Kubrick, at 117; Tomczak,
memories. 444 U.S. 218 Wis. 2d at 272. malpractice arena, In medical the inter-
play among the statutes limitations of and statutes of 893.55(1) by Stat. established and special discovery provisions 893.56, and the of 893.55(2) (3), perplexing, resulting § can be in dif- tolling depending upon injury, ferent times of the date injury, age the nature of child. 893.55(1) presents § alone, Examined points two alternative determining malpractice when medical prospective plaintiff action must initiated. he must points choose the later these two alternative as the 893.55(l)(a) pro- marker for to file when suit. Section malpractice vides that a medical claim must be filed years injury. within three of the date of Section filing extends the deadline for to within year following discovery injury. one This subsec- requires plaintiffs tion, however, to file who seek year discovery within one to initiate their claims no later than five after the date of the act or omis- injured statute, sion. Under this someone birth (1) required would be to commence the action either: (2) age year three, one within after date of discovery injury, age of the but before the five. overlaps § 29. Wisconsin Stat. 893.56 with Wis. 893.55(1) give § Stat. minors time in additional malpractice which to medical initiate actions. Like 893.55(1), provides Wis. Stat. 893.56 the claimant tolling with the date available benefit latest statutory under the scheme. Section 893.56 allows minors to commence medical claims age period within years. child before the reaches the of 10 *16 893.55(1), together § with When read 893.56 injured a creates a situation in which child at birth (1) following by the at latest of the dates: must file the (2) year age the of three; after date discov- of within one (3) ery injury, age before five; but before of or of years. age Thus, a minor the child reaches the of 10 always pursuing malpractice a cause of action medical age suit, file no matter when the has until the of 10 to age 10, After the child reaches act or omission occurred. years of the action be initiated either within three must discovery, injury year pro- or one date within years passed that not more than five have since vided the act or omission.
¶ statutes do not 30. The medical extinguish automatically a minor's when the claim age a 10. Whether cause of action minor reaches upon age depends act, survives that date injury. injured age omission, A child for years (age instance, file within the later of three must discovery 12), year not more one from the date but (age after the date of the act or omission than five 14), birthday. the child's tenth or before All these are overridden when 31. limitations special in Wis. two situations outlined Stat. 893.55(2) (3) play. come into These subsections nearly open-ended discovery constitute rules situa- provider prior in care a tions which a health conceals injury in act or omission that has resulted non-therapeutic object patient foreign has and when a body.9 patient's been left Because, nature, their statutes of arbitrarily extinguish prospective can sometimes statutory implications Our brief discussion of these illus complicated trates how the interrelation between Wis. Stat. is. Practitioners should take cautious note 893.55 893.56 impact tolling these for their potential deadlines clients. *17 they
plaintiff subject of action, s cause often are the of Although constitutional debate.10 this has court never constitutionality § addressed the of 893.56, Wis. Stat. constitutionality examined we last the of Wis. Stat. 893.55(1)(b) § in Makos. patient
¶ Makos, In filed a medical mal- practice alleging physician action, that had misdiagnosed malignant her metastatic melanoma. physician patient's growth leg examined a on the malignant. and Makos, declared that it was not years later, Wis. 2d at 45. Nine doctors reexamined the growth malignant. found it was Id. The patient approximately filed a claim 11 months and one diagnosis. after week she received the melanoma ¶ 34. The combination these facts meant that patient action, when initiated her the Wis. Stat. 893.55(l)(b) one-year-after-discovery § statute limi- preclude five-year action, tations did not hut sought acted as a bar because she recovery years than "more the date the act or namely omission," nine after initial misdiagnosis. opin-
¶ in 35. The decision in Makos resulted four Steinmetz, ions. Justice Donald W. author of the lead 893.55(l)(b), opinion, applied held that Wis. Stat. as particular plaintiffs hand, facts at violated the right procedural process constitutional due and vio- right-to-remedy §I, lated the clause of art. 9 of the Wisconsin Constitution. Wis. 2d at 44. joined by Bablitch, 36. Justice William A. Jus- only judgment Wilcox, Jon P.
tice concurred join opinion's not did in the lead rationale. Justice Bab- 10 See generally, Josephine Herring Hicks, Note, The Con stitutionality Reigns, Repose: Statutes Federalism 38 Vand. L. Rev. 627 necessary to reach
litch found it was not issues the case could be decided constitutional because statutory interpretation: Wis. Stat. means of plaintiffs claim did not cover only "treatment," not the statute addresses because "diagnosis." Id. at 55-57. sepa- Patrick Crooks concurred 37. Justice N.
rately agreed opinion the lead insofar as Wis. and with 893.55(l)(b) right-to-remedy § Stat. offended §I, clause art. 9 of the Wisconsin Constitution. under procedural pro- due Justice Crooks did not address Id. at cess issue. 59-60. Bradley, j
¶38. Justice Ann oined Chief Walsh Shirley Abrahamson, Justice S. dissented. Justice 893.55(l)(b) Bradley prop- § Stat. concluded Wis. erly plaintiffs barred action and found that any grounds not on raised statute was unconstitutional by the defendants. Id. 68. participate
¶ not 39. Justice Janine P. Geske did in Makos. recognize spoken
¶ 40. We that this court has not constitutionality clarity about the of statutes with provision right-to-remedy of Wis- acknowledge consin Constitution. We also that there preceden- has been considerable discussion about Upon consideration, we tial effect of Makos. careful sufficiently it examined determine that have Makos to precedential weight, to carries no we have decided today adopts it. Our much of Justice overrule decision Bradley's dissent in Makos. REMEDY
RIGHT TO Aicher that Wis. Stat. contends constitutionally infirm and 893.56 are remedy they precluded right to for a her seek because I, Article wrong. Wisconsin Constitution pro- vides:
Every person remedy is entitled to a certain in the injuries, wrongs may laws for all or he which receive character; person, property, ought his he justice freely, being obligated obtain and without purchase it, completely denial, and without promptly delay, conformably and without to the laws. I, 42. Article 9 is of a something constitu-
tional Our enigma. decisions trace its origin to 40 of the Paragraph Magna Carta, which states: "To sell, none will we none or delay, will we deny, right or Vol. I justice." Wisconsin Statutes Sanborn and Berryman's Annotations at 9. The of the clause purpose was explained by Justice Marshall in Christianson Co., Pioneer Furniture 343, 347-48, 77 N.W. (1898).11 174, 77 subject.. N.W. "[Ejvery .may take explained: As Justice Marshall *19 provision very history days That old. Its to the dates back of Magna designed prevent species It Carta. was to a of official exac- justice. price delaying expediting tions made as the of or From the king himself, times, lowest officer in to the the olden bribes were freely procure demanded and taken to the benefits of the laws. They system bore no relation whatever to our of exactions for expenses costs, litigation, charge suits, called or as a tax the on all; imposed they equally upon under laws which bear but were arbitrary times, exactions sanctioned the manners that personal judicial body controlling went to the ofthe or benefit head law, the execution of the or to servants or officers connected there- abuse, among others, England with. It was such barons of that the King by granting Magna forced John to abolish Carta. It con- following guaranteed upon tained the as one of the limitations kingly prerogatives: right justice any- will not and "We sell the to one, it, put Says Coke, nor will we refuse it off." Sir Edward "The king, law, judgment present repeating in the and is ever in courts, vendemus, negabimus, all his 'Nulli nulli aut differemus
121
remedy by
justice
of the law and havfe
his
the course
freely,
injury
right
him,
done to
without
and
for the
fully
any
speedily
sale,
denial, and
without
without
delay."
that state consti-
Id. at 348. Marshall asserted
principle
incorporating
provisions
not
this
"do
tutional
right"
remedy
preserve
grant
rather
reme-
but
Id.
at common law.12
dies that existed
pronouncements
possible
It is
to mine the
§I, 9
courts for
that art.
creates
Wisconsin
evidence
rights.
rights,
In
or that it authorizes courts
fashion
interpretation
provision, however,
this
its recent
legal rights.
§I, 9
no
court has stated that art.
confers
Leroy
225,
W.,
Wis. 2d
578
Roberta Jo W. v.
218
(1998); Tomczak,
262;
218
2d at
N.W.2d 185
Wis.
dissenting);
(Bradley,
J.,
Mul
Makos, 211 Wis. 2d
79
Corp.,
173, 189-90,
v. Acme-Cleveland
95 Wis. 2d
der
(1980).
only
applies
I, §
Rather, art.
9
injury done without without delay." right speedily as a without So the thus obtained conces- sovereign power through has come down us sion passed, preserved integrity in all its centuries have and been substantially They grant right, do all state constitutions. not preservation guarantee of one existed under the con- but England. stitution 343, 347-48, Co., v. Pioneer Furniture Christianson N.W. 77 N.W. XTV, recognizes explicitly legislative Article author *20 ity suspend to alter or common law.
122
Const,
analysis
§I,
art.
in
Wis.
Kallas stood for no
proposition
'remedy wrongs'
than the
more
that the
might
'possible application.
section
have
.
a
.where
remedy
sought
'legislatively recognized right.'"
is
for a
(Bradley,
dissenting)
Makos, 211
2d
J.,
Wis.
at 79
n.3).
(quoting
right-
Mulder,
¶ 44. What is the
as it in fact
"law
exists?" One of
rights recognized by
legislature
the common-law
right
bring
malpractice
a medical
claim. Martin
Richards,
156, 206-09,
v.
2dWis.
that art. 9 is inconsistent with injury actually suit before an Makos, occurs. (lead opinion); Corp.
2d at 52-54
Kallas Millwork
Square
Co.,
382, 393,
D
66 Wis. 2d
¶
the statute of
of what
46.
particular action
for a
the statute
tions or
question
public policy.
a fundamental
should be is
recognized
importance
legislature
has
The
prompt
protect
litigation
claims and a need
claims. Statutes of
fraudulent or stale
defendants from
finality
repose bring
dis-
and statutes
limitations
putes,
they
judicial
respect
in the
close
at least
prosecution of claims. Pritchard vs.
to the
tribunals
Howell, Wis.
1
131,
[118],
[123]
(1853).
A statute of
.[I]t
away altogether.
. .
"takes the action
limitations
remedy." Id.
annihilates the
Although
"guarantees
a suitor a
¶
I,
art.
9
47.
may preclude
day
[ ]
court,"
of limitations
a statute
may rely
plaintiffs
on the stat
action, and a defendant
utory
plaintiff
not discover
bar, even if the
did
injury.
355-56,
Farrell,
349,
2d
291
Rod v.
96 Wis.
(1980)
curiam),
grounds,
(per
rev'd on other
568
N.W.2d
Assoc,
550;
2d
CLL
v. Arrowhead
Hansen, 113 Wis.
Corp.,
115
604, 614—15,
2d
N.W.2d
174 Wis.
497
Pacific
Tydrich,
(1993);
214-16,
2d
156 Wis.
Halverson
1990).
(Ct. App.
¶ 50. We see no distinction between injury doors to the courtroom for claimants when an period has not been discovered within fixed of time closing after some act or omission and the doors to the person injury yet courtroom for a whose has not period occurred within a fixed of time after some act or remedy extinguishing The omission. effect of in court many is the same. This court has concluded times that legislature may person's sever a claim a statute person of limitations or a statute of when possibility discovering injury has no had —when every person respect. has been blameless These represent judicial pol- decisions deference to the stated icy legislature. Protecting the interests of those defend who must claims based on old acts or omissions policy legislative weighed is a concern that bodies have persons intentionally for centuries. Even commit who criminal batteries and other crimes from these benefit
125 policy 183, State, 96 Wis. 2d considerations. John v. (1980).13 194, 291 502 N.W.2d statutory legislature The formulates authority. pursuant constitutional Wisconsin, law authority power legislature's to define includes the abrogate common law limit causes of action and to grounds. policy on has determined that sound 52. This court itself liability. may justify Rolph
public policy
limitations on
(1991);
2d
actions
have
legislature.
province
Tomczak,
See
218 Wis.
the
of the
State,
John
In
we observed:
of functions
The criminal statutes of limitations serve a number
having
primary purpose
protect
to
the
is to
the accused from
but
corollary
against charges
A
of remote misconduct.
defend himself
prosecutions
purpose
will be based on
is to ensure that criminal
origin.
is
recent
It also assures that law enforce-
evidence that
of
investigate
prosecute
promptly
act
to
ment officials will
integrity
activity.
helps
preserve
the deci-
This
to
the
criminal
sion-making process in the trial of criminal cases.
State,
183, 194,
John v.
2d
tion inherently articulated statutes policy
are considerations better left to the legislative government. Tomczak, branch 218 Wis. right remedy 2d at 254. to resides here No because legislature expressly recognize right chose not to on a claim discovered more than five after based allegedly negligent act or omission or after the child age right preserve reaches of We cannot justice Mulder, in fact obtain where none exists. See remedy right Wis. 2d at 189-90. Were we to extend a recognized rights, outside the limits of these we effec- tively ability legislature would eviscerate any repose. enact statute of
EQUAL PROTECTION Having ¶ 55. found that Wis. Stat. right-to- and 893.56 do not violate remedy Constitution, we next clause of Wisconsin equal protec- consider whether the statutes offend the *24 provisions United States the Wisconsin or tion analyze here is must The issue we Constitutions.14 treating claimants medical minor whether equal differently violates other tort claimants protection. challenge seeking the constitu 56. Parties grounds equal protection
tionally must on of a statute of a simi that the statute treats members demonstrate differently. larly Tomczak, 218 2dWis. situated class (citing 279, 318, 541 Post, 197 Wis. 2d State v. (1995)). Usually, uphold a this court will N.W.2d 115 equal protection principles if we find statute under legislative supports the classifica a rational basis 453, 468, 2d 484 N.W.2d Annala, 168 Wis. tion. State (1992). scrutiny analysis only engage in strict We right" impinges a "fundamental or on when "operates peculiar to the creates a classification disadvantage suspect 2d Tomczak, 218 Wis. of a class." 468). (quoting Annala, 168 2d at at 261-62 guaranteed by rights §I, not art. 9 are Because the employ test to "fundamental," the rational basis we provides: I, Constitution 14 Article of the Wisconsin people equally All are rights. inherent Section 1. born "Equality; rights; among certain inherent independent, free and have life, liberty happiness; to secure pursuit are and the these instituted, deriving just their rights, governments are these governed." powers from the consent of the pro- XIV, 1 the United States Constitution Amendment life, liberty, any person .deprive shall. . vides: "No State law; deny any person process nor property, due without jurisdiction equal protection of the laws." within its equal protection apply interpretation the same We and the federal provisions of both the Wisconsin Constitution 245, 261, 578 Bailey, 218 Wis. 2d constitution. Tomczak v. N.W.2d 166 *25 constitutionality
examine Wis. Stat. 893.55(1)(b) §§ and 893.56.15Id. at 262. test, 57. Under the rational basis a statute is legislature applied if the an irrational
unconstitutional arbitrary provi classification when it enacted the State, 6, 18-19, 218 64 2d sion. Omernik Wis. N.W.2d drawing 734 The task of lines different between legislative perfection classifications is a one which possible necessary." Makos, "is neither nor 211 Wis. 2d (Bradley, dissenting) (quoting J., at 75 Massachusetts (1976)). Murgia, Bd. Retirement v. 427 U.S. 314 It is not our role to determine the underpinning or rationale wisdom particular legislative pronouncement.
a
City
(quoting
Tomczak,
(2) adopted germane The classification must be purpose law. (3) upon must not be The classification based only. [It must not con- existing circumstances be so preclude stituted as to addition to the numbers class.] included within
(4) may class a law it must apply, To whatever to each member thereof. apply equally (5) of each class should be That the characteristics those of other classes as to so far different from reasonably propriety, having at least suggest public good, substantially to the different regard legislation. McManus, County
Id. at 272-73 Dane (quoting (1972)). 423, Aicher con Wis. 2d 198 N.W.2d by tends that the classification established Wis. system 893.55(1)(b) under four of Stat. and 893.56 fails §§ these five factors. scheme statutory governing general 59. The actions has survived previous challenges
malpractice
Miller,
criteria. See
2d
under the
191 Wis.
five-pronged
courts,
582; Strykowski,
¶ 60. To overcome the first Aicher must Stat. show that Wis. are not 893.56 on based substantial distinctions that make one class different from another. She unable to do so for three First, reasons. practice the distinct nature of the medical mal- apart
arena itself sets it
from other forms of
litigation.
(Bradley,
Makos,
See
¶ 61. different treatment children generally during early years are who less able their
17 appeals of equal protection The court addressed an chal lenge by Tydrich, in a minor Halverson v. 2d 456 Wis. 1990). (Ct. App. Halverson, plaintiff argued N.W.2d 852 In the that deprived he was of his claim because his mother failed to bring appeals the Id. at court of concluded action. 215. The plaintiffs minority the was irrelevant under the facts of that plaintiff facts because both the and his mother discovered the injury five-year after the of under Wis. Stat. 893.55(1)(b) elapsed. Id. at 215-16. protect not their interests is
articulate concerns legislature a Moreover, the found statistical novel. distinguishing adults in medi- children from basis for Bradley malpractice noted in her cal actions. As Justice findings dissent, in 1976 indicated that 98.9 Makos malpractice percent of adult medical claimants and malpractice percent filed of minor medical claimants alleged actions five of the act omission. within (cit- (Bradley, dissenting) J., at 73 Makos, 211 Wis. 2d ing Paper Analysis #10, Statistical Data and Staff of Limitations, Recent Wisconsin Cases on Statutes of Malpractice Legislative Staff, Committee, Council 1976). Sept. Allowing in minors additional time comports file which to claims with these statistics. prong, Under the second Aicher has the germane showing of that the statutes are not burden purpose of law. This is a difficult burden to recognized legisla- Our surmount. courts have surrounding cognizant policy ture was issues malpractice e.g., Miller, medical See 191 Wis. actions. legislature designed 2d 580. The Wis. Stat. 893.55(l)(b) perceived a in the to address crisis immunity by providing degree of health care field "long liability. Makos, from the tail" of tort otherwise (Bradley, dissenting). J., 2d at pur- 63. We are able to locate rationale and pose underlying the enactment of both Wis. Stat. history legislative and 893.56 in provisions. support generated Materials legislation medical reveal that the drafters continuing liability statute balanced both providers rising malprac- health care and the costs Paper premiums. Analysis #10, tice Staff Statistical Data Cases on Limi- and Recent Wisconsin Statutes of Malpractice Legislative tation, Committee, Council *28 Sept. perception Staff, 21,1976. of a Whether mal- practice illusory was inflated or crisis makes little perceived legisla- difference because crisis led policy ture to make determination about costs of Moreover, health care. the enactment of Wis. Stat. 893.55(l)(b), discovery § which created a for rule medi- malpractice, response pointed cal was in to this court's three-year injury that recommendation rule on based many Claypool, alone short was too to cover claims. 893.55(2) (3) § Wis. 2d at 292-93. Wisconsin Stat. and discovery specific also created new rules for claims. chapter The created Wis. Stat. ten-year repose § 893.56, the minors, statute for legislative finding included a that the "number of suits damages arising professional and for claims patient tremendously past has care years increased in the judgments several and the and size settle- substantially, ments. . .has increased even more especially in case of minors." Ch. Laws of 1(a). legislature expressed § concern that increas- ing judgments brought by and settlements lawsuits rising and on behalf of minors contributed to insurance 1(b) (c). legislature- § and health costs. care Id. at The — further stated that "the of by interests minor children can adequately fully protected adopting be the same bringing applies time limit for to adults, actions as except very young in the case of children," con- very young cluded that the interests of minor children protected adequately extending were l(d)-(e). repose up age years. of ten Id. at 65. Aicher 893.56 contends Wis. Stat. legislature irrational because the no sound articulated selecting age reason period 10 as the limitation for the statute of for minors. She cor- *29 rectly Assembly Bill the that 705 first utilized *30 system. By age contacts with the health care of the years, they probably ability developed will have an to ability concerns, communicate their an that will have markedly early advanced from their childhood. ¶ 68. Aicher has failed show that the statutes germane purpose are not the of the law. legislature important policy took account of the considerations health care insurance costs and timely litigation made a determination to ensure the malpractice legislature claims. The also reckoned with protection very young might require. the extra children recognizing While repose that harsh results statutes of potential litigants,
sometimes create for we uphold legislative public must determination that policy by setting is best fulfilled finite termination malpractice minor medical claims within either five years of the act or or date omission the minor age 10, Makos, reaches whichever is later. See (Bradley, dissenting). J., 2d at Wis. 73-74 dispute ¶ 69. Aicher does not that the statutes prong criteria, meet the third namely of the rational basis upon that the classification is not based existing only way circumstances is in a constituted preclude that does not addition the numbers included within a class. Wisconsin Stat. expansion to include allow class
and 893.56 both additional minors. prong, however, the fourth Aicher 70. Under
argues scheme is irrational classification equally. particular, it not treat minors In because does legislation developmen- that the harms she contends require protection. tally the most disabled minors who non-developmentally explains that dis- Aicher whereas year discovery have one from the date of abled minors by a maximum of actions, to file limited birthday, injury from or until the tenth five developmentally minors must file within disabled for adults. narrower time limits established ¶ 71. Stat. 893.56 has remained Wisconsin present. pro- unchanged July 1, 1980, It until the part "Anyperson age that, under the of who vides by insanity, develop- disability is not reason under disability imprisonment, bring an or shall mental action. . .within the time limitation under s. 893.55 age years, person of 10 the time reaches added). (emphasis whichever later" pro- Stat. 893.16 72. Until late part: vided in *31 (1) disability. person
Person under If a entitled is, to an action at the time the cause of action bring accrues, age years, except the of 18 for either under insane, providers; health care or against actions charge may the be imprisoned on a criminal action disability commenced within after ceases, disability due except that where the is imprisonment, period of limitation insanity or chapter may for prescribed this not be extended years. more than 5 correctly § 73. Aicher reads Stat. Wis. 893.56 to developmentally disabled,
exclude and she also cor- rectly provide § notes that Wis. Stat. does 893.16 not developmentally the ing with disabled an extension for fil- suspect
medical
actions. We
that this
discrepancy
oversight
pur-
is the result of
rather than
poseful
likely
legislature's
discrimination. It is
period
filing
persons
intent was to extend the
developmental
any
with
disabilities, not
In
reduce it.19
developmentally
event, Aicher is
disabled,
not
and she
poised
perspective
not
attack the statutes
part.
of a
class which she is
anot
Our courts disfavor
statutory challenges
plain-
that are not
on
based
rights
tiffs actual status because "constitutional
are
personal
may
vicariously."
not be asserted
State v.
(1998)
Janssen,
362, 371,
2dWis.
¶ 74. Aicher also maintains that statutes of repose irrationally disparate create treatment between ages injured minors of different because a child at the age has a two more time in which to file than child injured eight. when We such "cannot conclude that irrational, time-based classification is since their every nature, statute of limitations and statute of repose must such a Makos, make distinction." 211 Wis. (Bradley, dissenting). accept J., 2d at 78 we Were challenge grounds, on Aicher's these have to we would every every conclude that limitation and 19 creating 893.235, In then Wis. Stat. which § is now Wis. 893.56, Assembly precisely Stat. Bill 705 tracked then 893.33, entitled disability," Stat. "Persons under until approved adding Senate handwritten floor amendment the phrase "developmental disability." Senate Amendment 1977 A.B. 705. *32 repose a result of is unconstitutional. Such that statutes policy contradict our traditional view
would establishing periods are consid- time limitation legislature. province erations within Tomczak, (citing Miller, at 2d 218 Wis. 2d 580). Finally, prong under fifth of substantially test, that a need for rational basis we find legislation of the class minors different arises because malpractice reasonably medical is distinct from other finality particularly claimants. The need for acute malpractice actions. In the case minor medical minors, rapidly, of an act or omission can fade more recollection maturity a
the onset can affect the nature of modify a condition, and can whether medical advances particular Moreover, when, as is treatable.20 condition alleges here, a minor that the act or omission occurred very greater young áge, a at a there is likelihood provider, an essential to the health care witness If occurrence, be deceased or retired. will required claims, carriers defend such stale were there would be substantial increase in cost precisely types These results the health care. are legislature attempted to alleviate. equal
¶ 76. We conclude our examination of the
by observing
protection question
that similar statutes
and statutes of limitations
withstood
have
challenges
jurisdictions.
in the
of other
state courts
test, These courts hold that under the rational basis
pursuing
minors
mal-
classification
treats
medical
practice
differently
persons
actions
with claims
legitimate
rationally
for other torts is related
to the
Malpractice
Acts'
20 See Scott
Medical
DeVries, Note,
A.
They
They Apply
Statutes
Limitation as
to Minors: Are
Proper?, 28 Ind. L.
Rev.
*33
legislative objective
reducing
of
health care
and
costs
malpractice
premiums.21 Significantly,
insurance
age
repose
at which other states set the statute of
often
21
McCarthy
See Estate
v. Montana Second
Dist.
Judicial
of
(Mont.
Court,
1999)
County,
Silverbow
994 P.2d
1095
(sustaining
repose
of
requires
that
minors to file cause
by
age
eight
injuries
age
of action
of
for
sustained before the
(Mass.
four);
Gillieson,
of
Plummer
692
App.
v.
N.E.2d 528
Ct.
1998) (statute
repose
extinguishes
of
claims of
mal
minor
practice
age
legislative
objective
claimants
six fulfills
of
insurance);
reducing
malpractice
cost of medical
v.
Partin
St.
(Ill.
1998) (statute
Hosp.,
App.
Francis
694 N.E.2d
Ct.
574
of
repose prohibiting
malpractice
injury
medical
lawsuit for
brought
years
eight
minor
more than
after
act or
omission
protection
did
equal
rights
not violate minor's
under rational
(Kan. 1996)
test);
Vannaman,
v.
basis
Bonin
one, have with one voice constitu- not tionality repose and statutes of statutes Knowles, P.2d See Corkill v. limitations. 1998) (Thomas, concurring); (Wyo. J., Scott A. 445-47 Malpractice DeVries, Note, Medical Acts' Statutes of They Apply Proper?, They Are Limitation as to Minors: (1995); Christopher Trombetta, L. J. 28 Ind. Rev. Malpractice Unconstitutionality Note, The Medical Repose: Legisla- *34 Versus Statutes Judicial Conscience of (1989); Josephine Herring Will, 34 Vill. L. Rev. 397 tive Constitutionality Statutes Hicks, Note, The of of Repose: Reigns, L. 627 38 Vand. Rev. Federalism that Nonetheless, we conclude that the cases repose minor are down statutes of for claimants strike distinguishable. explore the different Those decisions legislative purposes underpinning statutes, under- protection analysis heightened equal take under scrutiny, or strike down the statutes on other constitu- grounds.22 tional (S.D. Laboratories, Lyons v.
22 See Lederle N.W.2d 1989) legislative objective (finding that was not reduction care rather desire to reduce the number of health costs but plaintiffs; malpractice by claims initiated minor statute limited three-year malpractice general claims minors to statute of age eight to limitations but allowed child until the seek recov County Torres v. six); ery injuries age occur before the 1989) (Cal. Angeles, Los (finding Rptr. App. Cal. that, statute of limitations for minors runs from the date act, discovery, alleged for adults runs from the date of and Hosp., Strahler St. Luke's equal protection); minors' violates (Mo. 1986) 7, 12 gave (striking n.9 706 S.W.2d down statute that afterwards, age until 10 to commence actions and minors applied open only alleged malpractice. Court two from the Taming malpractice ¶ the costs of medical ensuring legiti- and access affordable health care are objectives. legislative mate We therefore hold that the statutes of for minor medical satisfy they actions rational basis test because relationship evince a rational between the classifica- legitimate governmental objective. tion scheme and a 893.55(l)(b) Accordingly, §§ we hold that Stat. equal protection provi- do and 893.56 not violate the sions the Wisconsin and United States Constitutions.
DUE PROCESS
Having
¶ 79.
concluded
that Wis. Stat.
protec-
equal
and 893.56 withstand an
challenge,
tion
we next examine whether the statutes
analysis
expressly
equal
courts
stated that it did not
on
rule
protection grounds);
Magma
Barrio v. San Manuel Div. Hosp.,
(Ariz. 1984)
Copper,
(applying
scrutiny
property right only Makos, if it has accrued. 211 Wis. (Bradley, dissenting) (citing J., 2d at 70 Hunter v. Gale-Etrrick-Trempealeau, School Dist. 97 Wis. 2d (1980)). 435, 445-46, 293 In claims, N.W.2d 515 tort cause of action "accrues" when claimant "discovers" injury. Hansen, at "If Wis. 2d 560. a statute of recognized legally run, has no cause action right and, can accrue therefore, no can vest." Susan C. Challenges Randall, Comment, Due Process Statutes Repose, 997, 1007 40 Sw. L.J. In this case Aicher's cause action accrued injury, when she discovered her after she had reached birthday. point, her tenth At that the statutes of repose, 893.56, Wis. Stat. run had extinguish and combined her cause of action. The recognize property statutes ceased interest property right." Makos, "before it ever became a (Bradley, dissenting). J., 2d 70-71 ¶ 84. therefore We determine Aicher has not deprived constitutionally protected been Having interest. question found,
so we do not address the procedures deprivation whether the attendant with the property aof interest were sufficient.
CONCLUSION 893.55(l)(b) §§ ¶ and Stat. 85. We find Wis. they despite results 893.56constitutional, the harsh 893.55(l)(b) yield §§ hold that and in this case. We right-to-remedy clause not violate 893.56do legisla- prospective a not have a claimant does because malpractice right pursue if the a medical action tive injury to statutory time limitation is after the discovered 893.55(l)(b) period elapses. §§ and conclude that We principles equal protection not offend 893.56do by the are the classifications created statutes because rationally objectives. legitimate legislative on based violate Aicher's find that the statutes did not We also right process procedural an unaccrued to due because constitutionally a cause of action does not constitute protected property we sustain the interest. Because 893.55(l)(b) constitutionality §§ Wis. Stat. one-year-after 893.56, we do not address whether discovery be severed from the statute of limitations can five-year repose. find that statute of We therefore 893.55(l)(b) action, Aicher's cause of 893.56 bar reverse the decision of the circuit court. and we By the Court.—The order of the circuit court is reversed. (dissenting). CROOKS, 86. N. PATRICK J. again the courthouse have closed—this
doors of
been
majority's
The result of the
decision is
time to children.
deny
opportunity children such as Arne Aicher the
day
I
have their
in court. This result
untenable.
that the statutes at issue are unconstitutional
conclude
Accordingly,
applied
I
the facts of this case.
would
as
the circuit court's decision.
affirm
part,
§
87. Wisconsin Stat.
is, in
filing
statute of
that extends the deadline for
malpractice
year
medical
one
action to
from the date of
injury's discovery,
years
but no later than five
after
the date ofthe act or omission. Wisconsin Stat. 893.56
repose extending
is a statute of
the time minors to
they
initiate a medical
claim until
are 10
majority
old. The
holds that these two statutes
they
right-
are constitutional because
do not violate the
Const,
to-remedy provision
Majority
of Wis.
I, 9.
art.
op.
majority
¶ The
at 6.
also concludes that the statutes
equal protection
procedural
pro-
do not violate
due
*38
disagree
majority's
cess. Id. I
the
with
conclusion
§I,
the statutes are constitutional under art.
9.
¶ 88.
In Estate Makos v. Wisconsin Masons
Fund,
41, 67,
Health Care
211 Wis. 2d
(1) legislature modified, reduced, whether post-constitutional eliminated a ated cause of action cre- (2) legislature itself; whether the legislature reduced, modified, or eliminated a com- statutory pre-constitutional mon law or cause provided alternative; action and a reasonable (3) legislature provide whether, if the did not a rea- alternative, sonable overpowering it has that an established
public necessity for the abolishment right exists, ofsuch and that no alterna- reasonable tive exists. principles,
I taking in concluded Makos that under these unique into consideration "the nature ofmedical malpractice § § actions," I, violated art. 9. Cheryl plaintiff her Makos, case, in that filed Id. 893.55(l)(b)'s malpractice § one- action within medical year discovery expiration the five- rule, but after the 893.55(l)(b). year repose § I Id. at 45. statute of joined opinion's statute, that the in the lead conclusion right-to- applied case, in the Makos violated the as remedy provision I, did discover in art. 9. Makos not injury, so, could done until after her nor she have right bring repose Id. The to a had run. at 59. statute of present malpractice claim was at common law. medical freely legislature, therefore, not eliminate could bring right Further, claim. the legislature to such a Id. provide alternative, a
did not reasonable remedy. completely Id. at 65. barred her from a but legislature already Finally, had addressed because crisis" of the 1970s with "medical ch. there was no need enactment Wis. Stat. remedy through right eliminate Makos' § 893.55(l)(b). Id. I "concluded that there are circum legislature stances under which the cannot eliminate right bring pursuant plaintiffs cause of action to a violating I, statute of without Wis. Const. art. Bailey, 245, 282, Tomczak v. 218 Wis. 2d 9." (1998) (Crooks, concurring) (citing J., N.W.2d Makos). jurisdictions
¶ 89. Other have examined this *39 issue and concluded that the harm to children out reining weighs any legislative interest in in economic malpractice. and social costs associated with medical Supreme a statute The Missouri requiring Court invalidated plaintiffs in medical cases to bring years injury, of the claim within two unless years plaintiff old, less 10 in which case the was than birthday bring plaintiff had until his or her twelfth to (Mo. Luke's Hosp., 7, v. 8 claim. Strahler St. 706 S.W.2d 1986) 1978)). (citing §516.105, RSMo The Missouri court found that the statute I, violated Mo. art. Const. Const, analogous provision § 14, an which is to Wis. explained putting §I, art. 9.1 The court such limi ability bring on tations of children to claims ignores "plainly the disabilities and limitations that relationships, legal system childhood, familial and our place upon a minor of tender has little if —who any understanding complexities sys legal of our statutory tem." Id. at 10. Faced with a similar provision Supreme and state constitution, the Texas period Court also concluded the limitations vio right lated the Texas Constitution's to redress (Tex. provision. Votteler, Sax 648 S.W.2d 1983). eye
¶ 90. In this case Aicher did not her discover birthday, condition until after her tenth and did not file through guardian a claim her ad litem until she was 893.55(l)(b) periods § after the in time Wis. Stat. and expired. § Wis. Stat. 893.56 had For the same reasons application Ias found the of Wis. Stat. application Makos, I
be unconstitutional find the be statutes to unconstitutional here. statutes applied are unconstitutional as to Arne Aicher because filing expired the time for an action on her behalf before injury. she even discovered her The courthouse door completely, has been closed to her been she has right remedy § I, denied her to a in violation of art. 9. majority's summary I also address the con- precedential weight, clusion that carries no Makos majority's subsequent reliance on the Makos dis- I, jus Missouri Const. art. 14 states "that the courts of person, open every remedy tice shall be and certain afforded Hosp., Strahler v. St. Luke's every injury person...." (Mo. 1986). 7, 8-9 S.W.2d *40 already Majority op. ¶ has 40. This court
sent.2 adopted Supreme State Court's treatment the United holdings plurality opinions applying of that in Management Lounge Trenton, 219 Court. v. Town of (1998). plural- In 13, 21-22, Wis. 2d 580 N.W.2d " may ity holding the Court be viewed as that 'the position in who concurred taken those Members judgments grounds.'" (quoting Id. on the narrowest (1976) Gregg Georgia, [] 428 U.S. n.15 JJ.)). (opinion Stevens, Stewart, Powell, See also States, 430 U.S. This Marks v. United apply plurality decision in Makos to court should acknowledge prece- this case and should continue to its weight. dential three-part apply
¶ sum, I test I 92. In would in to the discussed in Makos and reiterated Tomczak of this and hold that the statutes of facts case and 893.56—are unconstitu- involved— tional as applied Arne Aicher. To do otherwise closes young children such as the door the courthouse to remedy right them the in Arne Aicher and denies Const, I I, reasons, art. 9. For these violation Wis. respectfully dissent. I am to state that Justice WIL- authorized joins
LIAM A. BABLITCH
this dissent.
inconsistency
majority's
finding
2 I
further note the
value,
repeat
precedential
the Makos decision has no
and then
edly seeming
precedent.
refer to the
dissent as
One
Makos
why
necessary to
majority
finds it
overrule Makos
wonders
precedential
Majority op. at 40.
if indeed it has no
value.
notes
eight
subsequently
age
ages
the
of
of
and
considered
ultimately selecting 10. Aicher
13, 10, and 15 before
argues that these
reflect the arbitrariness of
variations
Although
legislature's
legislative
choice.
the
his-
the
tory
why
made,
is silent about
these choices were
we
validity
indulge every presumption favoring the
must
Tomczak,