ESTATE OF Robert V. GENRICH and Kathy Genrich, Plaintiffs-Appellants-Petitioners, BLUE CROSS BLUE SHIELD OF MASSACHUSETTS, Involuntary-Plaintiff, v. OHIC INSURANCE COMPANY, Wisconsin Injured Patients & Family Compensation Fund, Meriter Hospital, Inc., Margaret Bjelde, R.N., Shelly White, O.R.T., Kimberly A. Brown, O.R.T., David Melnick, M.D., Brenda Satchie, M.D., University of Wisconsin Hospital and Clinics Authority and Dawn M. Shaw, O.R.T., Defendants-Respondents.
No. 2007AP541
Supreme Court of Wisconsin
July 7, 2009
2009 WI 67 | 769 N.W.2d 481
Oral argument February 3, 2009.
For the defendants-respondents there was a brief by David J. Pliner and Corneille Law Group, LLC, Madison, and oral argument by David J. Pliner.
An amicus curiae brief was filed by Robert L. Jaskulski, Linda M. Meagher, and Habush Habush & Rottier, S.C., Milwaukee, on behalf of the Wisconsin Association for Justice.
¶ 1. PATIENCE DRAKE ROGGENSACK, J. We review an unpublished decision1 of the court of appeals that affirmed a decision of the circuit court2 granting summary judgment in favor of OHIC Insurance Company and other defendants (collectively, OHIC). Our review requires us to address two issues: (1) whether the claim of the Estate of Robert V. Genrich (the estate)
¶ 2. Because we conclude that Robert suffered an “injury” for purposes of
I. BACKGROUND
¶ 3. On July 23-24, 2003, Robert underwent surgery to have an ulcer repaired. The surgery appeared to have been successfully completed. However, Robert soon developed a fever and his white blood cell count became elevated, suggesting an infection. On August 8, 2003, it was determined that a sponge had been left inside Robert‘s abdominal cavity at the conclusion of the surgery on July 24, 2003, and that the sponge probably was the source of the infection. That same day, a second surgery was performed and the sponge was
¶ 4. On August 9, 2006, the estate and Kathy filed suit against the doctors and support staff involved in Robert‘s surgery, as well as OHIC Insurance Company and others. The estate alleged medical negligence in Robert‘s care and treatment, and made claims for damages. Kathy sued for wrongful death, also based on alleged medical negligence in Robert‘s care and treatment. OHIC moved for summary judgment, arguing that both the estate‘s and Kathy‘s claims were barred by the medical negligence statute of limitations,
[A]n action to recover damages for injury arising from any treatment or operation performed by, or from any omission by, a person who is a health care provider, regardless of the theory on which the action is based, shall be commenced within the later of:
(a) Three years from the date of the injury, or
(b) One year from the date the injury was discovered or, in the exercise of reasonable diligence should have been discovered, except that an action may not be commenced under this paragraph more than 5 years from the date of the act or omission.4
¶ 5. The estate and Kathy countered OHIC‘s motion by arguing that (1) under Paul v. Skemp, 2001 WI 42, 242 Wis. 2d 507, 625 N.W.2d 860, Robert‘s “injury”
¶ 6. The circuit court granted OHIC‘s motion, concluding that, under Fojut v. Stafl, 212 Wis. 2d 827, 569 N.W.2d 737 (Ct. App. 1997), Robert suffered an “injury” triggering the statute of limitations no later than August 8, 2003, when the second surgery to remove the sponge occurred. As a result, the circuit court dismissed the estate‘s claim, filed on August 9, 2006, as untimely under
¶ 7. The circuit court also rejected Kathy‘s argument that her wrongful death claim accrued on the date of Robert‘s death. Instead, the court concluded that Estate of Hegarty v. Beauchaine, 2001 WI App 300, 249 Wis. 2d 142, 638 N.W.2d 355, had decided that
¶ 9. We granted review and now affirm.
II. DISCUSSION
A. Standard of Review
¶ 10. This case requires us to review the circuit court‘s decision granting OHIC‘s motion for summary judgment. We review a decision on a motion for summary judgment independently, employing the same methodology as the circuit court. Blunt v. Medtronic, Inc., 2009 WI 16, ¶ 13, 315 Wis. 2d 612, 760 N.W.2d 396 (citing Acuity v. Bagadia, 2008 WI 62, ¶ 12, 310 Wis. 2d 197, 750 N.W.2d 817). Resolution of the questions presented requires us to interpret and apply
B. Medical Negligence
¶ 11. The estate‘s survival action is a claim for medical negligence asserted on Robert‘s behalf. The parties do not dispute, and we agree, that
¶ 12. The statute does not define “injury.” However, the parties point to decisions by Wisconsin courts that purportedly support their proposed interpretations of the term. The estate and Kathy cite to our decision in Paul to argue that an injury does not occur under
¶ 13. In Paul, we determined when an actionable “injury” based on medical negligence for misdiagnosis occurred, thereby causing the claim to accrue. Paul, 242 Wis. 2d 507, ¶¶ 12-13. We concluded that the estate‘s claim accrued, at the latest, on the date that the decedent‘s undiagnosed arteriovenous malformation ruptured. Id., ¶ 45. The estate and Kathy cite the
That actionable injury which resulted from the alleged misdiagnosis occurred either at the time that [the arteriovenous malformation] AVM ruptured, or at the time that [the] AVM could no longer be treated....
....
[B]ased on the information presented, the injury that resulted from the alleged misdiagnosis occurred when the rupture of the AVM in [decedent]‘s brain happened..., or it occurred at that point... when, more likely than not, [decedent]‘s AVM could not have been successfully treated.
Id. at ¶¶ 45, 53. In this case, the estate and Kathy contend that Robert‘s condition did not become untreatable until on or after August 9, 2003, resulting in the estate‘s medical negligence claim being timely-filed on August 9, 2006.
¶ 14. OHIC, on the other hand, asserts that Robert sustained an “injury” on the date he first suffered a “physical injurious change,” as that term was used by the court of appeals in Fojut. In Fojut, the court of appeals determined the date of “injury” for a woman who had undergone tubal ligation surgery. Fojut, 212 Wis. 2d at 830-31. The surgery was unsuccessful, and the woman subsequently became pregnant. Id. at 829. The court decided that the date of the plaintiff‘s unwanted conception, rather than the date of the surgery, was the “injury” that triggered
There is no evidence that on the date the tubal ligation was performed that [the plaintiff] suffered any physical
injury. The purpose of the surgery was to render [the plaintiff] infertile—to avoid pregnancy. There was no physical injurious change to [the plaintiff]‘s body until she became pregnant.... Using this date as the date of injury, [the plaintiff]‘s claim was untimely because the complaint was not filed within three years.
¶ 15. OHIC contends that Robert suffered an injury on July 24, 2003, when the sponge was left in his abdominal cavity and he developed an infection. This was a “physical injurious change” to Robert‘s body, as that term was used in Fojut. In the alternative, OHIC asserts that any “physical injurious change” could have occurred no later than August 8, 2003, when Robert underwent the second surgery to remove the sponge. As a result, because the claims were filed on August 9, 2006, and more than three years had passed, the estate‘s and Kathy‘s claims are time-barred by
¶ 16. In response, the estate and Kathy assert that Paul and Fojut are inconsistent, and that their interpretation of Paul should control the questions presented here. We disagree. Although the estate and Kathy have selected the language from Paul most favorable to their interpretation, Paul and Fojut are entirely consistent with one another. Neither of them concludes that an injury must be untreatable or irreversible to trigger the limitations period imposed by
¶ 17. Furthermore, our conclusion, that the determination of a “physical injurious change” is the appropriate benchmark for establishing the date of “injury” under
¶ 18. Applying Paul and Fojut to this case, we conclude that Robert‘s “injury” that triggered the three-year limitations period in
¶ 19. It was the negligence during the first surgery that resulted in an infection-producing sponge being present in Robert‘s abdomen. Stated otherwise, by leaving the sponge inside of Robert, the doctors “cause[d] a greater harm than existed at the time of the [negligent act].” Paul, 242 Wis. 2d 507, ¶ 25. Robert suffered an injury when the doctors left an infection-
¶ 20. Accordingly, the presence of an infection-producing sponge in Robert‘s abdominal cavity is the type of “physical injurious change” discussed in Fojut, and our conclusion that it constitutes an “injury” is consistent with Paul. When the doctors negligently left a sponge inside of Robert, which caused the sepsis that resulted in his death, he sustained an “injury” that triggered
¶ 21. Furthermore, accepting the estate‘s and Kathy‘s definition of “injury” would contradict the maxim that “[a] later injury from the same tortious act does not restart the running of the statute’ of limitations.” Fojut, 212 Wis. 2d at 832 (quoting Segall v. Hurwitz, 114 Wis. 2d 471, 482, 339 N.W.2d 333 (Ct. App. 1983)). That is, even though an infection-producing sponge was present inside of Robert‘s abdomen as a result of the first surgery, the estate and Kathy urge us to restart the statute of limitations by concluding that Robert sustained an injury only when his condition became irreversible. We decline to do so.
The circuit court considered a number of different events that might have constituted an injury to Robert, but did not expressly find the date upon which Robert‘s injury occurred. Instead, the circuit court found that August 8, 2003, the date of Robert‘s second surgery, was the last possible date on which he could have suffered an injury triggering
However, it is an undisputed fact that the infection-causing sponge was present in Robert‘s abdomen on the date his first surgery concluded, and this is the date on which we conclude that Robert suffered an injury. We do not, contrary to Justice Bradley‘s assertions, find as a fact the date on which Robert‘s infection developed. Rather, because there was no dispute about the date on which the infection-causing sponge first was present in Robert‘s abdomen, we determine when the injury occurred as a question of law. State ex rel. Flores v. State, 183 Wis. 2d 587, 609, 516 N.W.2d 362 (1994) (explaining that when the facts are undisputed, a question of law is presented, which we decide independently).
C. Wrongful Death
¶ 23. Having concluded that the estate‘s medical negligence claim is time-barred by
¶ 24. The claim that she brings is a derivative claim, based on the injury that Robert suffered due to medical negligence. See Lornson v. Siddiqui, 2007 WI 92, ¶¶ 18-19, 302 Wis. 2d 519, 735 N.W.2d 55 (concluding that
¶ 25. OHIC has asserted the statute of limitations found in
Whenever the death of a person shall be caused by a wrongful act, neglect or default and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who would have been liable, if death had not ensued, shall be liable to an action for damages notwithstanding the death of the person injured; provided, that such action shall be brought for a death caused in this state.
¶ 27. Furthermore, because Kathy‘s claim for damages due to wrongful death is based on alleged medical negligence, we turn to the controlling statute of limitations for all claims arising from alleged medical negligence,
¶ 28. That Kathy‘s derivative claim for damages due to wrongful death is controlled by the specific statute of limitations for medical malpractice is further supported by
[A]ny patient or the patient‘s representative having a claim or any spouse, parent, minor sibling or child of
¶ 29. Furthermore, we disagree with Kathy‘s conclusion that, because a claim for damages due to wrongful death may be brought only if there is first a death, the claim for damages due to wrongful death must accrue on the date of death. As we have stated previously, “there is no logical distinction between injury and death claims arising out of medical malpractice. Once medical malpractice produces a loss, a remedy exists regardless whether the consequence is injury or death.” Rineck v. Johnson, 155 Wis. 2d 659, 671, 456 N.W.2d 336 (1990), overruled on other grounds, Chang v. State Farm Mut. Auto Ins. Co., 182 Wis. 2d 549, 566, 514 N.W.2d 399 (1994). Kathy‘s claim for damages due to wrongful death is based on Robert‘s underlying claim for medical negligence; therefore, Kathy‘s claim is a “death claim[] arising out of medical malpractice,” and it is governed by the statute of limitations in
damages accrued more than three years prior to when she filed her claim, it is time-barred.
30. The amicus curiae brief of the Wisconsin Association for Justice takes issue with this conclusion, arguing that
31. Furthermore, our conclusion, that the statute limiting pre-death medical malpractice claims also limits claims for damages due to wrongful death that arise from medical malpractice, is consistent with our conclusion in Czapinski. In Czapinski, we concluded that the class of claimants who are entitled to sue for damages due to wrongful death in a medical malpractice context differs from the class of claimants who may sue for damages due to wrongful death in other contexts. Czapinski, 236 Wis. 2d 316, ¶¶ 18-19.
32. We acknowledge that some of our past decisions, outside of the medical malpractice context, could be interpreted to conclude that claims for damages due to wrongful death accrue on the date of the decedent‘s death. See, e.g., Terbush v. Boyle, 217 Wis. 636, 640, 259 N.W. 859 (1935), overruled on other grounds, Pufahl v. Williams, 179 Wis. 2d 104, 111, 506 N.W.2d 747 (1993) (interpreting a former statute of limitations consistent with an even earlier statutory provision that provided,
33. However, as indicated above, we do not agree that
34. Finally, even though
Section 893.55 clearly is the more specific of the two statutes. Unlike sec. 893.54, it concerns itself not only with injury to the person, but also with a particular way in which the injury arises, i.e., resulting from an act or omission of a “health care provider.”
Clark, 161 Wis. 2d at 436-37. The claim for the damages that Kathy seeks, like the estate‘s claim for damages, accrued on the date of Robert‘s “injury,” not on the date of his death, and because Robert‘s injury occurred more than three years prior to the filing of Kathy‘s claim, her claim is time-barred.
35. Kathy also contends that interpreting the wrongful death statute,
36. In Miller, as in this case, the plaintiffs were an estate, asserting a medical negligence claim on behalf of the decedent, and the decedent‘s surviving spouse, asserting a wrongful death claim. Miller, 170 Wis. 2d at 434. The underlying negligent act in Miller was the misdiagnosis and treatment of the decedent‘s skin cancer, which misdiagnosis and treatment occurred in 1982. Id. In 1984, the decedent learned of the
37. The court of appeals determined that the wife could not maintain her claim for damages due to wrongful death because, in order for a claim for damages due to wrongful death to be maintained, it is necessary that the decedent, at the time of death, “could have maintained an action and recovered damages had his death not ensued.” Id. at 438. Because the decedent‘s underlying claim for medical negligence was time-barred at the time of his death, his wife‘s claim for damages due to wrongful death was also barred. Id. at 439 (stating that if “the decedent‘s action was not barred by the applicable statute of limitation [at the time of the decedent‘s death], the wrongful death action is not barred.” (citing Holifield v. Setco Indus., Inc., 42 Wis. 2d 750, 168 N.W.2d 177 (1969))).
38. We acknowledge that Miller, like this case, dealt with a claim for damages due to wrongful death based on underlying medical malpractice, and that
39. However, Miller did not confront the issue presented to us in this review, i.e., whether a surviving relative‘s claim for damages due to wrongful death accrues on the same date as does the medical negligence action on which it is based. Miller‘s statements regarding the date of accrual of a claim for damages due to wrongful death based on underlying medical malpractice were dicta, as they were not necessary to the theory on which the court of appeals decided the case. State v. Sartin, 200 Wis. 2d 47, 60 n.7, 546 N.W.2d 449 (1996) (explaining that dictum “is a statement or language expressed in a court‘s opinion which extends beyond the facts in the case and is broader than necessary and not essential to the determination of the issues before it“). As a result, those statements have no precedential value. Id. at 65 (reasoning that “dicta does not amount to legal precedent“); DOR v. Howick, 100 Wis. 2d 274, 286, 303 N.W.2d 381 (1981) (concluding that “dicta does not have any precedential value“).
40. The conclusion upon which the Miller decision was based was that the decedent, himself, had no actionable claim for medical negligence at the time of his own death. Miller, 170 Wis. 2d at 441 (“[A] wrongful death action cannot be brought unless the decedent, at the time of his death, was entitled to maintain an action and recover damages.“). The court concluded that because a wrongful death claim cannot be maintained if a decedent had no claim at the time of his death, id., Miller‘s wife‘s claim was barred. Accordingly, the accrual
41. Our conclusions about Miller are further strengthened because Miller relied on our decision in Terbush to say that claims for damages due to wrongful death accrue on the date of death. Id. at 436 (citing Terbush, 217 Wis. at 640). Terbush is a case from 1935 that was decided long before the adoption of
42. Justice Crooks’ dissent/concurrence also relies on Holifield, a case cited in Miller, for the same
43. Finally, we note that, because the decision in Miller was exclusively based on the conclusion that the decedent had no actionable claim for medical negligence at the time of his death, Miller, 170 Wis. 2d at 441, the court of appeals did not answer a number of other questions that appear to have been posed by the facts of that case. Id. at 434-35 (noting that the defendants in Miller did challenge the wife‘s claim for damages due to wrongful death on the basis that it “was barred by the medical malpractice statute of limitations, sec. 893.55, Stats.“). For example, the underlying medical negli-
44. In addition,
One year from the date the injury was discovered or, in the exercise of reasonable diligence should have been discovered, except that an action may not be commenced under this paragraph more than 5 years from the date of the act or omission.
45. As a result, because of the limited and exclusive basis for the court of appeals’ decision, the lack of any discussion regarding
46. As a final contention, Kathy asserts that to reject Miller‘s statements regarding the accrual date of claims for damages due to wrongful death in the medical negligence context, and to hold that her claim for damages due to wrongful death accrued on the date of Robert‘s “injury,” will lead to unduly harsh results. Specifically, Kathy argues that our interpretation of the statute as applied to her wrongful death claim will mean that some claims may accrue before they can be brought. We acknowledge that this may be a result of our decision. However, harshness is not a permissible basis for reaching a different conclusion. Scott v. Savers Prop. & Cas. Ins. Co., 2003 WI 60, ¶ 37, 262 Wis. 2d 127, 663 N.W.2d 715 (rejecting plaintiffs’ claims even though “[t]he outcome of this case is harsh, and the harshness of our holding is especially palpable because the negligence is so clear“).
47. In addition, it is not our place to question the policy decisions of the legislature. Hoida, Inc. v. M&I Midstate Bank, 2006 WI 69, ¶ 24, 291 Wis. 2d 283, 717 N.W.2d 17 (reasoning that “[t]he legislature . . . establishes public policy for the state through the statutes it enacts, and we are limited ‘to applying the policy the legislature has chosen to enact, and may not impose [our] own policy choices’ ” (quoting Fandrey v. Am. Family Mut. Ins. Co., 2004 WI 62, ¶ 16, 272 Wis. 2d 46, 680 N.W.2d 345)). It is apparent that “the legislature intended to set medical malpractice cases involving death apart from other death cases.” Rineck v. Johnson, 155 Wis. 2d 659, 671, 456 N.W.2d 336 (1990). The preamble of
48. We have concluded that Kathy‘s wrongful
III. CONCLUSION
49. Because we conclude that Robert suffered an “injury” for purposes of
We appreciate Justice Crooks’ concern that it may appear that one could be required to file a claim for damages due to wrongful death before the death occurs. However, this concern is misplaced because a claim for wrongful death damages is a derivative claim for damages that may be added by amending a complaint for medical negligence that was brought before the patient dies.
By the Court.—The decision of the court of appeals is affirmed.
50. ANN WALSH BRADLEY, J. (concurring in part and dissenting in part). Is death a condition precedent to a wrongful death claim? It seems pretty obvious that the answer should be “yes.”
51. Yet, the majority answers this question “no.” Acknowledging some displeasure with its own response, the majority attempts to blame the legislature for the majority‘s interpretation. See majority op., ¶¶ 46, 47 n.11. The legislature could not have intended such a result.
52. I instead conclude that a wrongful death claim accrues upon death—not before death—and therefore join Justice Crooks in dissenting. As he aptly discusses, it is impossible to read the language of
53. I write separately, however, to address two additional infirmities of the majority opinion. First, although I agree with the majority that Robert‘s estate‘s claim for medical malpractice is barred by the statute of limitations, I do not join its analysis. In determining that Robert suffered an injury on the date that an
54. Second, I write separately to comment on the majority‘s discussion of dicta. Instead of providing a clear definition of dicta, the majority provides multiple incomplete definitions. It fails to acknowledge as we have previously explained that Wisconsin has two lines of cases defining dicta, and the majority does not even mention one of them. Rather, with minimal analysis, it dismisses as dicta a difficult proposition from a previous case, avoiding any meaningful discussion. Such an approach fosters an end run around stare decisis and undermines our common law tradition of fidelity to precedent.
I
55. The circuit court correctly observed that under Wisconsin law, the cause of action accrues on the date of injury and injury is defined as a “physical injurious change.” See Fojut v. Stafl, 212 Wis. 2d 827, 831, 569 N.W.2d 737 (Ct. App. 1997). The court explained that in this case, there were three events which were advanced as the possible dates of a physical injurious change to the plaintiff‘s body: (1) the date “when the sponge was left inside him,” (2) the undetermined date, sometime “shortly after the first surgery and prior to the second, when Mr. Genrich developed infection and was running a fever,” and (3) the date of the second surgery which “involved an invasive procedure of Mr. Genrich being cut open to remove the sponge. . . .”
56. Ultimately, the court made a finding that the physical injurious change in this case occurred on the date of the second surgery: “[T]he Court finds that
57. The majority, however, determines otherwise. It states, “It was the negligence during the first surgery that resulted in an infection-producing sponge being present in Robert‘s abdomen.” Majority op., ¶ 19. Further, “the presence of an infection-producing sponge in Robert‘s abdominal cavity is the type of ‘physical injurious change’ discussed in [our case law.]” Id., ¶ 20. The majority concludes: “When the doctors negligently left a sponge inside of Robert, which caused the sepsis that resulted in his death, he sustained an ‘injury’ that triggered
58. In focusing on the first surgery, it is unclear whether the majority intends to be making a finding of fact or a conclusion of law. To the extent that the majority is finding the fact of when the physical injurious change occurred, the majority ignores the well-established principle that an appellate court will not disturb a finding of fact of the circuit court unless it is clearly erroneous. The majority offers no analysis as to why it can supplant its finding for that of the circuit court.
59. If the majority‘s determination is a conclusion of law, then it fails to elucidate a clear test and confuses the law. I cannot join the majority opinion because I do not understand what the majority holds.
60. Under the majority‘s test, when is there a “physical injurious change“? That is, when does the cause of action accrue?
62. Does the majority‘s conclusion mean that when there is no subsequent physical change, sponges and other foreign objects can be left in a patient‘s body with impunity? I don‘t know. But if so, how could the law countenance such a conclusion?
63. Throughout the opinion, the majority repeatedly refers to the sponge as “infection-producing.” See majority op., ¶¶ 18, 19, 20, 20 n.7. This grammatical construction suggests that it is not the leaving of a foreign object in the body that is the injury—rather, an injury occurs when a foreign object is left and the object produces an infection.
64. This begs the question. The majority finds that “the infection-causing sponge was present in Robert‘s abdomen” on the date of the first surgery. Majority op., ¶ 20 n.7. The majority states further that there is no dispute that “the infection-causing sponge first was present in Robert‘s abdomen” on the date of the first surgery. Id.
65. The majority‘s assertion is only half correct. Certainly, there is no dispute that the sponge was present on the date of the first surgery. Yet, there are no facts in the record that indicate that the sponge was “infection-producing” when the first surgery was performed.
66. There is nothing in the record that indicates whether the doctors selected a clean, sterile sponge to use during surgery, or whether the sponge was infected when it was initially left in Robert‘s abdomen. Arguably,
67. The majority can point to no facts in the record that demonstrate that the sponge was “infection-producing” the moment it was initially left in Robert‘s abdomen.2 The majority‘s unfounded factual assumption that the events occurred simultaneously allows it to evade a more thorough examination of its new test.
68. Consider the facts of a California case where the events were not simultaneous.3 A curved surgical needle was left in the soft tissue of the patient‘s
69. If the majority‘s test was applied to the facts of that case, would the cause of action accrue on the date that the surgeon left the needle which caused the subsequent rupture, peritonitis, and fever? I think so, but am unsure. It seems odd that the cause of action could accrue two and one-half years before the injury even occurs. How could the law support such an incongruous result? The answer is that it does not. Such a result would be contrary to well-established Wisconsin law.
70. For years, Wisconsin cases have repeatedly held that “the date of the negligent act and the date of the injury in medical malpractice cases are not always one and the same.” Fojut, 212 Wis. 2d at 830; see also Paul v. Skemp, 2001 WI 42, ¶ 20, 242 Wis. 2d 507, 625 N.W.2d 860 (“The plain language of
71. There are strong policy reasons for keeping negligence and injury analytically separate. “If a negligent act or omission . . . triggered the limitations pe-
72. What is particularly troublesome is that all of the uncertainty engendered by the majority‘s analysis is unnecessary. The majority has no need to determine that “the presence of an infection-causing sponge” is an injury.
73. The estate‘s claim for medical malpractice was not filed until August 9, 2006, three years and one day after the circuit court determined that the action accrued. Even if Robert‘s injury occurred as late as August 8, 2003, the estate‘s medical malpractice claim accrued more than three years before the claim was filed. Thus, I agree that the claim is barred by the statute of limitations.
II
74. I also write separately to comment on the majority‘s categorization of a previous court of appeals statement as “dicta.” See majority op., ¶¶ 39, 40 n.8 (discussing Miller v. Luther, 170 Wis. 2d 429, 489 N.W.2d 651 (Ct. App. 1992)).
75. The contours of a jurisprudence are shaped in part by how dicta is defined and applied. Yet, it has recently been observed that because judges often select definitions as needed for the resolution of a particular case, the definitions of dicta vary from jurisdiction to jurisdiction and across courts: “Through a loose set of practices that vary considerably across jurisdictions, and, perhaps more problematically, across courts and cases, judges, entirely on their own, define such terms as needed to assist in the task of resolving particular cases.” Michael Abramowicz & Maxwell Stearns, Defining Dicta, 57 Stan. L. Rev. 953, 958 (2005).
77. It first describes dicta as a statement that is “not necessary to the theory on which the court . . . decided the case.” Majority op., ¶ 39. Next, it employs a three-part test defining dicta as a statement “which [1] extends beyond the facts in the case and [2] is broader than necessary and [3] not essential to the determination of the issues before it.” Id. Then, focusing on the “relevan[cy]” and the “reasoning,” it defines dicta as a statement that is “not relevant to the reasoning of the court in deciding the case.” Id., ¶ 40. Finally, it focuses on the necessity and the holding and defines dicta as a statement that is “not necessary to the holding.” Id., ¶ 40 n.8.
78. The majority fails to acknowledge, as we have previously explained, that in Wisconsin there are two lines of cases defining dicta. State v. Leitner, 2002 WI 77, ¶ 22 n.16, 253 Wis. 2d 449, 646 N.W.2d 341. Under one line of cases, a court‘s discussion of a question “germane to . . . the controversy” is not dicta:
It is deemed the doctrine of the cases is that when a court of last resort intentionally takes up, discusses, and decides a question germane to, though not necessarily decisive of, the controversy, such decision is not a dictum but is a judicial act of the court which it will thereafter recognize as a binding decision.
State v. Picotte, 2003 WI 42, ¶ 61, 261 Wis. 2d 249, 661 N.W.2d 381 (quoting Chase v. Am. Cartage Co., 176 Wis. 235, 238, 186 N.W. 598 (1922)); see also State v. Kruse, 101 Wis. 2d 387, 392, 305 N.W.2d 85 (1981) (“While the statement in [a prior case] was not decisive to the primary issue presented, it was plainly germane to that issue and is therefore not dictum.“).
79. The court of appeals has also noted that “[w]hen an appellate court intentionally takes up, discusses and decides a question germane to a controversy, such decision is not a dictum but is a judicial act of the court which it will thereafter recognize as a binding decision.” State v. Holt, 128 Wis. 2d 110, 123, 382 N.W.2d 679 (Ct. App. 1985); see also State v. Sanders, 2007 WI App 174, ¶ 25, 304 Wis. 2d 159, 737 N.W.2d 44; State v. Rushing, 2007 WI App 227, ¶ 12, 305 Wis. 2d 739, 740 N.W.2d 894.
80. A competing line of cases defines dicta as “a statement or language expressed in a court‘s opinion which extends beyond the facts in the case and is broader than necessary and not essential to the determination of the issues before it.” State v. Sartin, 200 Wis. 2d 47, ¶ 60 n.7, 546 N.W.2d 449 (1996). This is one of the four definitions of dicta used by the majority in this case. See majority op., ¶¶ 39, 40.
81. Yet, the majority never discusses whether the statement it dismisses as dicta was “germane to the controversy before the court.” It never acknowledges the line of cases quoted above. Instead, it simply ignores the question.4
82. How a court defines and applies dicta is important to our common law tradition of fidelity to prior cases. The principle of stare decisis—the obligation to adhere to past opinions——“promotes the evenhanded, predictable, and consistent development of legal principles.” Jordan Wilder Connors, Treating Like Subdecisions Alike: The Scope of Stare Decisis as Applied to Judicial Methodology, 108 Colum. L. Rev. 681 (2008). The constraint placed on courts by stare decisis inhibits courts from acting arbitrarily and capriciously.
83. Yet, loose and unpredictable standards for determining whether a statement is dicta can undermine stare decisis and the principles of judicial restraint. As Judge Brown of the court of appeals has stated, “[t]he term ‘dicta’ . . . is often too broadly defined, usually by a lawyer who is searching for a way not to be bound by a prior published decision.” Sanders, 304 Wis. 2d 159, ¶ 41 (Brown, J., concurring).
85. Here, the majority fails to elucidate a clear standard for determining whether a court‘s statement is dicta. Instead, it employs the term dicta selectively to dismiss a difficult proposition from a prior decision without meaningful analysis. This end run around stare decisis undermines our common law tradition of fidelity to precedent.
86. For the reasons discussed above, I respectfully concur in part and dissent in part.
87. I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON and Justice N. PATRICK CROOKS join this concurrence/dissent.
88. N. PATRICK CROOKS, J. (dissenting in part, concurring in part). There are undoubtedly statute of limitations cases where the crucial question of the date the claim accrued is a close question that requires a court to make a difficult decision. A wrongful death case, however, should not be such a case.
89. The approach adopted by the majority in this case—that a three-year statute of limitations on a wrongful death claim somehow runs before three years have elapsed after the date of death1—unfortunately may foster a public perception that common sense sometimes is lacking in court decisions.
90. Because long-standing precedent in Wisconsin establishes the date of death as the date on which a
91. I agree with the majority, however, that the estate‘s claim for injury to Robert Genrich allegedly caused by medical malpractice is time-barred because of the application of
92. In regard to the wrongful death action of Kathy Genrich, as the surviving spouse of Robert Genrich, the place to start the analysis is with the wrongful death entitlement statute,
Recovery for death by wrongful act. Whenever the death of a person shall be caused by a wrongful act, neglect or default and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who would have been liable, if death had not ensued, shall be liable to an action for damages notwithstanding the death of the person injured; provided, that such action shall be brought for a death caused in this state.
93. The statute seems quite clear that in order to recover for a death, the party responsible for the injury resulting in death may be sued for damages despite the death of the person injured. It seems impossible to me to read the statute in any way other than that death is a condition precedent, which must be met, before there can be such a lawsuit for wrongful death.
94. That conclusion is consistent with Wisconsin case law. An action for wrongful death did not exist at common law, but rather is a statutory remedy,
95. In Terbush, the question was when did the claim accrue: (1) on the date of injury; (2) on the date of death; or (3) when the administrator was appointed. This court, in a unanimous opinion authored by then Chief Justice Marvin B. Rosenberry, clearly answered the question: “The action for wrongful death accrues at time of death. . . .” Id. at 640.
96. In Holifield v. Setco Indus., Inc., 42 Wis. 2d 750, 168 N.W.2d 177 (1969), we were asked to answer the question of when the statute of limitations began to run in a wrongful death action based on product liability or negligent manufacture. We focused on the language in
97. In the case of Miller v. Luther, 170 Wis. 2d 429, 440-41, 489 N.W.2d 651 (Ct. App. 1992), a case involving allegations of medical malpractice, it was stated:
Section 895.03 is not a statute of limitation, but rather is an entitlement statute. Although a wrongful death action accrues at the time of the decedent‘s death, a beneficiary is not even entitled to bring a wrongful death action unless the conditions in sec. 895.03 exist. Section 895.03 mandates that a wrongful death action cannot be brought unless the decedent, at the time of his death, was entitled to maintain an action and recover damages. [Emphasis added.]
98. In Miller, the court of appeals went on to emphasize, again, that “a wrongful death action accrues at the time of death. . . .” Id. at 442.2
99. In the case before the court, since Robert Genrich had a claim at the time of his death on August 11, 2003, his surviving spouse, Kathy Genrich, had a claim for wrongful death that accrued on that date—the date of his death. This wrongful death claim, therefore, was brought within the applicable statute of limitations when commenced on August 9, 2006.
101. I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON and Justice ANN WALSH BRADLEY join this opinion.