Haferman v. St. Clare Healthcare Foundation, Inc.

Toby Sr., Kristy Haferman, Haferman, by his Toby minor, Haferman, Jr., Schulz, H. and Richard Litem, ad Guardian Plaintiffs-Respondents-Petitioners,

v. St. Clare d/b/a Inc. Foundation, Healthcare Hospital Hospital, Wisconsin

St. Clare Patients and Wisconsin Association Compensation Fund,

Defendants, Physicians M.D., Donald W. Vangor, Company Wisconsin, Insurance Defendants-Appellants. Court

Supreme 28, 2005. September argument Oral 2003AP1307. No. 30, 2005. December Decided 2005 WI 853.) (Also in 707 N.W.2d reported For plaintiffs-respondents-petitioners there were briefs by Young Jeremi K. and Law Rasansky Schulz, Schulz and Firm, Dallas, TX; and Richard argument by Duffey O'Brien, Milwaukee, and oral & Duffey. Sean by defendants-appellants there was a brief

For the Group, LLC, Madi- Law J. Pliner and Corneille David Naikang Sicklen, and Tsao son, and Michael B. Van argument by Foley LLP, and Madison, oral & Lardner Naikang Tsao. by filed David E. Mc-

An curiae brief was amicus Bell, & Farlane, and Gierhart Sheila M. Sullivan Moore, S.C., Madison, on behalf of Wisconsin Patients Compensation Fund. Hago- Mitchell

An curiae brief was filed amicus pian, Madison, of the Wisconsin Coalition on behalf Advocacy. by Lynn filed R. An amicus curiae brief was Laufen- Laufenberg

berg S.C., Milwaukee, on Hoefle, & and Lawyers, Academy Trial of The Wisconsin behalf Lynn Laufenberg. argument by R. there was oral petitioners, BRADLEY,J. The WALSH ANN ("the Hafermans"), Toby parents Haferman, Jr., and his published appeals decision of a court of seek review Toby's reversing allowed a circuit court order that timely proceed malpractice filed.1 action to as medical Toby though appeals that, even concluded The court of general three- child, disabled was year malpractice medical of limitations for untimely. applied It deter- to bar the action as applicable of limitations mined that other statutes language, apply plain not, did their children malpractice Toby's action. medical Found., 2004 WI v. Clare Healthcare See St. Haferman (reversing an order of 277 Wis. 2d 689 N.W.2d App George, Judge). County, Daniel S. circuit court for Sauk agree appeals

¶ 2. We with the court of that the precludes application. of text the other statutes their general three-year disagree However, we that the stat- applies. legisla- of ute limitations We conclude that the provided applicable ture not has statute of limita- against provider alleging for a claim a tions injury Therefore, disabled child. Toby's action is not time-barred. Wereverse court appeals and remand to the circuit court for further proceedings.

H Septem- ¶ 3. The Hafermans filed on this action including 4, 2002, ber defendants, several Dr. Vangor, Physicians Company Donald Insurance Wis- Hospital, Hospital consin, St. Clare and Wisconsin allegations According Association. to the in the com- plaint, Toby February making on was born years complaint him 11 old at the time the was filed. alleged ¶ 4. The that, Hafermans as a result negligence Toby's defendants' on or about the date of Toby developmental disability along birth, sustained According with other harm.2 Hafermans, to the disability Toby palsy, from which suffers is cerebral Toby oxygen which occurred because was denied to his just during brain critical moments before and after his birth. Hospital Hospital

¶ 5. St. Clare and the Wisconsin judgment, summary arguing Association for moved Toby's applicable action was barred Vangor Physicians of limitations. Dr. Insurance alleged The complaint by Toby's parents also a claim loss companionship and medical expenses. of Wisconsin also moved for

Company summary judg- ment and a statute of asserted limitations defense. motions, circuit court denied the after and oral briefing argument. recognized It that Toby's action potentially three statutes of limita- implicated tions, Stat. §§893.55, 893.56, Wis. 893.16 (2003-04).3 In order both the put circuit court's decision and the court of in context, decision appeals we set forth key of each of the portions statutes. 893.55(1) 7. Section is statute of general limitations for actions health care against It providers. a includes limitation three-year period from running the date of injury, along with a rule discovery is limited aby five-year of period repose:

Except by provided [subsections as that are not here], damages relevant an action to injury recover for arising any from treatment operation performed by, or any by, or from person omission a who is a health care provider, regardless theory on which action is based, shall be commenced within the later of:

(a) years Three from injury, the date of the (b) year One from the date the injury was discov- or, ered in the diligence exercise reasonable should discovered, have been except may that an action not be commenced under this paragraph years more than 5 from the date of the act or omission. 8. Section entitled "Health care provid-

ers; actions," minors generally that children provides

3All references to the Wisconsin are Statutes to the times, 2003-04 version unless otherwise noted. At we refer to 893.55, 893.16, §§ generically Wis. Stat. and as statutes limitations, though even at aspects least some of the statutes may properly be more characterized a repose as statute of or as tolling provision. bring

must claims either providers within time limits prescribed by by 893.55 or of 10 is age years, However, § whichever later. its specifically appears except purview from those children who are under a developmental disability. It as reads follows:

Any person age under the who is not under disability by insanity, reason developmental disabil- ity or imprisonment, bring shall action recover damages injuries person arising any to the operation treatment or performed by, or for omis- by sion care provider health within the time limita- tion under s. 893.55 or the time person reaches years, of 10 whichever later. That action shall brought parent, guardian be or other person having custody of the minor within the time set limit forth in this section. 893.16(1) 9. is a Section statute that tolling may

extend a limitation when period, person the including entitled to an bring action is a child. The text 893.16(1), however, § specifically provi- states that its do not to a sions child's action health apply against a care provider: (1) disability.

Person If under to person entitled bring is, an action at the time the cause of action accrues, either under the of 18 years, except for against providers; ill, actions health mentally care may years action be within commenced after the ceases, disability except disability that where due illness, to mental period prescribed limitation may chapter this not years. be extended for more than 5 added.) (Emphasis 10. circuit court that the observed interplay

of these three statutes created a "very difficult conun- as drum" to It applied Toby. attempted to look to appar- had as the statute which 893.56 by young govern ently children created to providers, against determined health care hut Toby specifically apply because it could not 893.56 exempts developmental disabilities. minors with Ultimately, reasoned, court the circuit Toby apply in order to avoid what must three-year general if an result court viewed as absurd applied: §in were of limitations statute I think is statutory construction that The rule of is that particular in this situation appropriate the most leads to an interpretation an we should avoid illogical going provi- And in from the absurd or result. 893.56, if to resort back Section we were sions of that, and just an absurd we would achieve result, require because that would more illogical restrictive by a more disabled child to be controlled limitations, absolutely no and that makes statute of sense whatsoever. it viewed as Thus, in order to avoid what illogical felt com- result, the circuit court

absurd Specifically, pelled the court's con- to rewrite 893.16. 893.16(1) "except phrase excised from struction providers." inso It did for actions three-year general application of the order to avoid explained, court As the circuit statute of limitations. application general would have resulted subject Toby being of limitations to a shorter statute Toby applied if not devel- he were have to than would opmentally disabled.4 4 that court decision relied on a federal The circuit court nearly identical approach presenting in a case

used a similar Supp. F. Hosp., Mem'l 529 generally Zielke v. Wausau facts. See 1982). (W.D. Wis. Physicians Vangor

¶ 13. After Dr. and Insurance successfully Company sought appeal, leave to court the appeals split reversed circuit court a decision. appeals majority, court, The court of unlike the circuit 893.16(1) apply Toby determined not to that could plain language exempted because the of the statute providers children who sue health care from the tolling provisions. statute's majority appeals ¶ 14. Rather, court of con- general applied cluded, the statute of limitations Toby's long past action, which had been filed expiration three-year period prescribed by of the 893.55(l)(a). appeals majority court of nonethe- recognized application Toby less that produced "troubling" Specifically, result. that it noted "[t]he troubling given result in this case is through provided has, Wis. Stat. young malprac- more time for children file medical years provided tice than three suits in Wis. Stat. 893.55(l)(a)."5

f-HHH ¶ 15. The we issue must decide is what applies

limitations to a claim a health care provider injury alleging to a disabled requires interpret child. This issue apply seek to we and §§ presents ques- 893.16, 893.56, and 893.55. It language The quoted from the published comes final appeals Haferman, version court of decision. See 277 Wis. publication, 2d 13 n.5. Prior to appeals court of further, majority initially gone had characterizing the result as illogical." "absurd subject independent appellate

tion of law to review. Fernandez, ¶ 19, 36, 283, 2d Hess v. 2005 WI 278 Wis. 692 N.W.2d655. begin statutory our examination of the 16. We §

provisions by analyzing the constructions of 893.16 § defendants, and 893.56 that the Hafermans and the respectively, determining advance. After that those con supported plain language structions cannot be of history statutes, statutes, we turn to the previously which the court has discussed Storm v. Legion Co., 120, 169, Insurance 2003 WI 265 Wis. 2d 665 N.W.2d and Aicher v. Wisconsin Patients Com pensation Fund, 98, 237 2d WI Wis. 613 N.W.2d Ultimately, Toby's

¶ 17. determine we that action is not time-barred because the not has provided applicable statute limitations for claims provider alleging injury a health care to note, however, disabled child. We that even in limitations, the absence of a statute of may, appropriate common law doctrine of laches cases, be a bar to such claims.

HHHH HH dispute ¶ 18. There is no if 893.56 applies Toby, time- his cause action is Conversely, dispute if barred. there is no applies Toby, timely. his cause of action was disputed

¶ 19. which of the three What is is stat- applies Toby. utes of limitations The Hafermans applicable assert that the In con- statute is 893.16. applicable trast, the defendants assert that the party application 893.56. No advances the appeals 893.55 that the court of embraced. goal statutory interpre- ¶ 20. The fundamental legislature. Storm, tation is discern the to the intent of seeking goal, 169, 265 2d In Wis. 15. to achieve this begin statutory language. the Hess, we must with 2dWis.

¶ 21. We examine first the Hafermans' assertion § applies light and that test that in of assertion plain language the may 893.16, statute. Section which period

extend a limitation for a child to entitled bring an action that accrues the while child is under the age provides of as follows: (1) disability.

Person under If a person entitled to bring is, an action at the time the cause of action except for accrues, either years, under the of 18 against actions providers; mentally ill, may the years action be commenced within after ceases, disability except disability where is illness, due to mental the period of limitation pre- scribed in this chapter may be not extended for more than years. added.)

(Emphasis argue applies 22. The Hafermans Toby "person disability." They to as a under assert that (1) Toby disability is under two disabilities: of (2) minority, disability being developmentally plain language disabled. Under the Toby may bring assert, Hafermans his claim until two years disability" By disability," after "the ceases. "the apparently Toby's developmental Hafermans ability mean dis- they say only because that a child whose "dis- ability" subject minority is to 893.56. reality, In however, the Hafermans' con plain language

struction of 893.16 is not a construc Toby, apply all. tion at Were we 893.16 to either under the Hafermans1 construction or some other con struction, would, minimum, at a we have to rewrite the things. statute to do one of two Either we would have to "developmentally write in disabled" as additional category disability presently that is not included statutory language, or we would have to strike out "except phrase the entire care health providers" apply from 893.16 so that the statute could Toby "disability" minority. based on his We would rewriting appears thus be the statute a manner that directly legislative plain contravene the intent. The language of the statute manifests the intent to exclude tolling provisions brought by from its children providers.6 ¶ 24. turn to the We next defendants' assertion § applicable that 893.56 is the of limitations and light plain examine that assertion of the statute's appeals The court of determined that there were no facts establishing Toby ill, mentally of record is and the Hafermans disputing are not that determination in this court. We note that, 893.16, purposes for of mental illness is defined as "a functionally unable to person mental condition renders giving legal or to the appreciate understand situation rise person legal rights functionally claim so that can assert legal rights appreciate unable to understand and the need to Co., Legion them." Storm v. Ins. 120, 46, 2003 WI assert Wis. 2d 665 N.W.2d 353. The condition of mental illness may overlap concept developmental under of disability, congruent developmental "but it is not disabil with Id., ity."

language. provid- Section entitled care "Health provides: ers; actions," minors Any age person under the who not is under disability by insanity, developmental disability reason of or imprisonment, bring shall an action to recover dam- ages injuries arising person any treat- operation performed by, ment or or for omission a health care provider within the time limitation under s. or by person the time that age reaches the years, whichever later. That action shall be brought by guardian the parent, person having or other custody the minor within the time limit set forth in this section. added.)

(Emphasis plainly unambiguously 25. Section 893.56 disability by excludes children who are "under reason developmental disability." apply of. .. In order to Toby, would, 893.56 to we minimum, at a have to "developmental disability" strike out words from the Again, rewriting statute. we would be the statute a legisla- appears directly manner that contravene the plain tive intent as manifest from the statute's lan- guage, here to exclude chil- disabled dren from the statute's reach. Despite reading plain language our applies 893.56, the defendants maintain that 893.56 Toby,thereby barring Toby's cause of action because They argue

it was filed after he reached the of 10. given that 893.56 can be "alternative" construction subjects Toby that to the statute but avoids need the for court to rewrite the statute. Specifically, begin

¶ 27. the defendants their "al- § premise ternative" construction of with the 893.56 §§ that the intended 893.56 and 893.16 be complementary they in a read that, fashion. Next assert

634 minority) 893.16(3), "disability" (including § for under tolling predate § purposes the accrual must of 893.16 According defendants, to the the of action.7 the cause Toby had a not ask whether court therefore should disability developmental in- suit; the time he filed at Toby they assert, court must ask whether stead, the disability developmental the cause of at the time had a not, he did the defendants action accrued. Because argue, § "drops exclusionary phrase out," in § 10-year period applies. repose in 893.56 and the argument, defendants further oral 28. At They developed construction. asserted their "alternative" disability by phrase reason of is not under that the insanity, developmental "who disability imprisonment" legislature. merely "placeholder" § 893.56 was legislature's According defendants, this was to the showing way other that a minor with some "inartful" disability may tolling under receive additional be able to disability predated § only if 893.16, but the other of action. of the child's cause accrual argument asserted at oral 29. The defendants no to the stat- "does violence" that their construction requires court to rewrite truth, however, In it utes. § and 893.56. both 893.16 893.16(3) disability not "[a] does provides Section section,

exist, it existed when purposes for the of this unless one appeals has on at least of action accrues." The court of cause 893.16(3). interpretation to prior given occasion the defendants' 345, 352, 481 County, Wis. 2d N.W.2d Pepin See Carlson v. (Ct. 1992). Here, relied on appeals the court of App. 893.16(3) secondary why as a reason interpreted as Carlson Toby. question need not reach the apply could not We 893.16(3)'s based on the because we determine applicability 893.16(1) history legislative language and plain statute's 893.16(3). §of regardless operation apply cannot here First, the defendants' "alternative" construc- require tion would the court to write the "at the phrase time his or her § cause of action accrued" into 893.56. construction, § Under the defendants' 893.56 would read as actually follows:

Any person age under the who is not under disability by of'insanity, developmental reason disabil- at the time his or her cause of ity imprisonment or accrued, action bring shall an action to recover dam- ages injuries person arising any for to the treat- or operation performed by, ment or for omission provider a health care within the time limitation under s. 893.55 or person age time that reaches the years, whichever is later.... Second, the defendants' construction would require court to write disabled" as a "developmentally disabil- ity § under generally eligible tolling 893.16. 893.16(1) defendants, § to the According should actu- ally provide as follows: person bring is,

If a entitled to an action at the time accrues, the cause of action either under the of 18 years, except providers; for actions disabled, or mentally ill the action may years disability be commenced within 2 after the ceases, except disability that where the is due to mental illness, the period prescribed of limitation in this chap- may ter years. not be extended for more than 5 Thus, the defendants' "alterna- proffered tive" construction of 893.56 us to requires rewrite not 893.56 but also only rejected 893.16. Just as we have Hafermans' assertion that applies Toby by its we also plain language, reject defendants' assertion that 893.56 can be applied Toby without In rewriting short, the statutes. neither the Hafermans' construc- the defendants' nor of 893.16 construction language plain passes § under the muster of 893.56 tion of the statutes. parties, recognize, do the

¶ course, of as 32. We §§ legislature 893.16 and 893.56 intended for that ¶ together. Storm, 169, 2d 26 265 Wis. See to work strongly § § ("[l]anguage in . . . 893.56 in 893.16 tandem"); apply they id., in to are meant indicates that 893.16(1) ("the § exception creates ¶ symmetry for minors 30 statutes"). two between these reading Unfortunately, the stat- ¶ however, 33. plain-language supply together answer does not utes legislature question for intended of whether the to § apply § in a case such as to 893.16 or 893.56 either previously noted the Aicher, In the court this one. gap apparent "Aicher are now faced: with which we § correctly exclude the devel- 893.56 to reads Wis. Stat. correctly opmentally notes that she also disabled, and developmen- provide § does not Stat. 893.16 Wis. filing tally medical extension for with an disabled ¶ malpractice Aicher, 99, 2d 73. 237 Wis. actions." recognized gap in Zielke v. was also 34. This (W.D. Supp. Hospital, Wis. F. Memorial Wausau 1982), In relied. circuit court on which the the case "[t]he Zielke, court observed a federal district interplay abstruse statutes is somewhat of these two disability' 'developmental is not one of because [the is now under covered disabilities Supp. § 893.16] Zielke, at 577. F. . . . ." gap problem as identi- created this 35. left court is without is that the in Aicher and Zielke fied language guidance to the statutes as in the clear regard the limi- intended with what providers against period claims for tation alleging injury children. In disabled to discern the attempt intent, we legislative must delve into the deeper of the statutes history as dis- cussed in Storm and Aicher. 1977, Before there was no statute like

§ However, 893.56. a predecessor 893.16(1), statute to Wis. Stat. did exist prior 1977. It provided for tolling all children in actions, most includ- types ing against actions health care providers, until the age one majority plus year.8 Then, the legislature simulta- (now 893.16(1)) neously amended and cre- (now 893.56). ated Wis. Stat. See ch. amended, § Laws 1977. As 893.33 excluded tolling health care chil- providers brought by dren: disability.

893.33 Persons under Ifapersonentitled bring an action mentioned in chapter, except this recovery penalty actions for the of a or forfeiture or against a sheriff or other escape, officer for an or for the statute, The predecessor (1975), Wis. Stat. 893.33 read as follows: disability. person 893.33 bring Persons under If a entitled to chapter, except recovery action mentioned in this actions the for penalty against of a or forfeiture or a sheriff or other officerfor an escape, recovery property possession or for the of real or the be, accrued,

thereof at the time the cause of action either (1) age years; Within the of 18 or (2) Insane; or (3) .., Imprisoned. disability part the time of such is not a action, of the time limited for except the commencement of the period brought that the within which action must be cannot be years by any disability, except infancy; extended more than 5 such any longer year

nor can it be so in extended case than one after the disability ceases. be, thereof possession or the property real recovery of accrued, either of action the cause at the time (1) years, except of 18 Within providers; care health (2) Insane; or

(3) charge or in execu- on a criminal Imprisoned less for a term a criminal court tion under sentence disability is not life, time of such his natural than limited for the commencement the time part of the action which period within action, except that years more than extended brought cannot be be must it be so infancy; nor can disability, except by any such year after the than one longer case extended disability ceases. added.)

(Emphasis Aicher, the bill that observed this court 38. As 893.235) (then § "tracked of 893.56 creation led to the precisely" language bill in that insanity imprisonment no made but referred to disability." Aicher, "developmental 237 Wis. reference inserted However, the Senate ¶ 73 n.19. 99, 2d phrase added the amendment floor handwritten disability" en- final bill was "developmental before Legislative Laws of id.; ch. See rolled. drafting file. simultaneously created act 893.16(1) 893.235) (then and amended

(then 893.33), one-page "AN It was entitled act. ais 893.33(1); create 893.235 and to to amend ACT relating actions on time limitations statutes, brought mi- of providers on behalf care health nors." accompanied findings legislative Five

act:

(a) The number of suits damages and claims for arising professional care patient has increased tremendously years in the past several and the size of judgments and settlements in connection therewith has substantially, more especially increased even the case minors. of

(b) increasing The effect of the frequency judg- of increasing ment and and settlements size of these judgments settlements, particularly and in the case of minors, been to industry has cause the insurance uniformly substantially and to increase the reserves it has provide potential liability established to for arising from suits on by and minors. behalf of

(c) These increased reserves have resulted in in- creased insurance costs which have been passed on to health care providers higher premiums in the form of and to in the patients higher charges form of for health care services and facilities. (d) That the interests minor children can be

adequately fully protected and by adopting the same adults, time bringing limit actions applies as for except very young in the case children. (e) very That the young interests minor children can adequately fully be protected extending the time limits in which bemay brought to age 10. added.) (Emphasis 41. What is most noteworthy about the act's

title and the legislative findings do not they indicate any intent provide shorter limitations for children who are developmentally dis- abled than for those who are not time, disabled. At the same the findings indicate that the legislature viewed the act as first limiting the overall time applicable period medical malpractice children, these "extending" newly- but then actions by limits for children." "very young created time much This court has summarized previously in Storm: this history legislature express has indicated an intent The malprac- § 893.16 medical application curtail the to minors. Section 893.16 respect tice actions with children are bringing under the of 18 that excludes tolling the against providers health care actions 893.16(1). The provisions of the statute. See Wis. Stat. specific a this is that there is reason for exclusion minors[,] by malpractice medical statute for exception Wis. Stat. 893.56.... The claims added when providers was minors 390, Ch. was created. See [then 893.235] Laws of 1977. (footnotes omitted).9

Storm, 2d 169, 265 Wis. "de legislature's insertion of The dissent focuses on the disability" any corresponding § 893.56 without velopmental into mistake," "legislative as change Describing § 893.16. this a by staging its attempts response" to "devise dissent then Dissent, 63, 70-75. re-enactment of historical events. ¶¶ own end, is In the the dissent's re-enactment of historical events analysis it statutory employs little assistance because See, interpretation. statutory our case law on inconsistent with Court, 45-52, v. 2004 WI e.g., State ex rel. Kalal Circuit ¶¶ describing After 271 Wis. 2d 681 N.W.2d 110. handwrit McKenna, ten floor amendment offered Senator the dissent have no direct evidence of Senator McKenna's laments: 'We Dissent, explores The dissent then several actual intent." focusing In on "actual of the senator. possible motivations senate, the dissent answers intent" one member of the the intent of a wrong question. question is not: what was single legislator? Rather, question is: what was intended whole, given language by the as statutes? light history, ¶ 43. In of this we return to the issue of what statute of limitations the intended apply provider to to a claim a health care alleging injury developmentally to a disabled child. As our citations above to Aicher and indicate, Storm this previously legislative court has addressed the intent §§ behind 893.56 and 893.16.

¶ 44. Aicher, In we concluded that the correct § interpretation developmen- of 893.56 reveals that the tally disabled are excluded from the statute. After reviewing tracing legis- the text of the statute and history, lative the Aicher court stated:

Wisconsin Stat. 893.56 has unchanged remained July 1, 1980, from present. until the provides It in part that, "Any person age under the of who is not under disability by insanity, reason developmental disability imprisonment, bring shall an action . .. within the time limitations under s. 893.55 or the time that person years, reaches the of 10 whichever is later." Aicher, (emphasis ¶ original). 237 Wis. 2d 99, 71 in Relying

¶ 45. on the text of the statute and its legislative history, correctly we concluded: "Aicher reads Wis. Stat. developmentally 893.56 to exclude the added). (emphasis ¶ Id., disabled . . . ." Shortly again 46. oppor- Aicher, after we had an tunity interpret 893.56, this time in the context of examining exception disability "insanity" for the (mental illness). interpretation Our remained the same. specifically We exempts concluded that "the statute suffering disability by minors under a reason mental Storm, illness added). (emphasis ...." Wis. 2d change Now, the defendants would have us interpretation. They our would have us conclude that in we determined that in error Aicher when we were excepted from are 893.56. disabled interpretation they us retract our Likewise, would have suffering from we concluded those § in Storm where exempted are from 893.56. mental illness good no reason confess error see We plain interpretation in Storm. The or retract our Aicher legislative language together with its his- tory, interpretation of Aicher the statute in dictated our language legislative plain Storm, and and interpretation today. history Those the same dictate by developmental men- are disabilities or who disabled set forth illness not covered limitation tal are they be, are, and were intended 893.56 because exempted specifically statute. § interpreted 893.16 in both 49. The court also We determined in Aicher that "Wis.

Aicher and Storm. developmentally § provide does not the Stat. filing malprac- medical disabled with extension Aicher, Then, 2d tice 237 Wis. actions." Storm, we as follows: determined express indicated an intent to

The has malprac- § 893.16 medical application curtail the of to Section 893.16 respect tice actions with minors. age bringing 18 that are excludes children under of tolling providers care against actions health provisions the statute. added). (emphasis Storm, 2d 265 Wis. have Hafermans, however, would now They § change interpretation 893.16. court our that we were mistaken us conclude

would have § not 893.16 does Aicher when we determined they developmentally apply Further, disabled. in Storm our determination would have us overrule § apply age that 893.16 does not to children under the bringing providers. ¶ 51. Just as we see no reason to confess error in interpretation Aicher or retract our in Storm with § respect to 893.56, we see no reason to think we were

mistaken in Aicher or to overrule our determination in § respect Storm with to 893.16. Neither those who are developmentally

under the of 18 nor the disabled by tolling provisions are covered set forth in § 893.16. Accordingly,

¶ 52. we decline to rewrite either by 893.16 or plain 893.56. We determine that language legislative history, of the statutes and their applies neither negligence 893.16 nor to a alleging injury claim to a disabled provider. child caused a health care appeals majority 53. The court of avoided re- writing the statutes because it concluded that general three-year statute of limitations, 893.55, must apply Toby applicable in the absence of another party statute of limitations. We note that no advances appeals this majority. conclusion the court of Even appeals majority acknowledged the court of its "troubling." conclusion was disagree ¶ 54. We with the conclusion of the court appeals majority applicable that 893.55 is here. The legislature developmen- could not have intended that tally bringing against disabled children health providers subject care would be to a shorter statute of bringing limitations than would other children medical malpractice actions. already

¶ 55. This court has observed that developmentally exclusion of disabled children from

644 give intended to likely 893.56 was both less time rather than time: children more such discrepancy is the result of over- suspect that this We likely discrimination. It is sight purposeful rather than extend the legislature's period intent to that was disabilities, not filing developmental with persons it. reduce

Aicher, 99, 237 2d Wis. like dissent Thus, appeals much the court court, that application

and the circuit we determine health § 893.55 claims care providers to child disabled developmentally to alleging injury result that illogical work an absurd and would not have intended. We follow could construction that "fundamental rule of statutory must be avoided." result absurd unreasonable 155, 162, v. 207 Wis. 2d City City Lake Corp. of Mequon, Hamilton, (1997); Hamilton v. N.W.2d 100 accord 558 832; 50, 458, 661 39, WI 261 Wis. 2d N.W.2d 2003 427 Zielke, 39, 51, 403 v. 137 Wis. 2d N.W.2d State (1987). relegates Patients Com Aicher v. Wisconsin dissent 849, Fund, to 2d 2000 WI Wis. N.W.2d

penation significance. note in to its We attempt downplay footnote intent forth in legislative as set interpretation that our today. Five differs that advanced dissent Aicher from legislative Aicher that the ago, concluded years the court more time disabled children give developmentally intent was children. given non-developmentally than disabled to file con Now, language the dissent striking out give legislative intent cludes that the was dissent, children. See children the same time as other disabled compelled ¶ are determine, We to on based apply against rule, this that 893.55 does not to claims providers alleging injury developmen health care to a tally disabled child. South Milwaukee Sav. Bank v. Cf. (Ct. Barczak, App. 521, 535, 229 2dWis. N.W.2d 1999) (quoting Int'l, Inc., Saunders v. DEC 85 Wis. 2d (1978)) ("Reviewing 70, 74, 270 N.W.2d176 courts must interpret person's statutes of limitations so that 'no clearly cause of action will be barred unless mandated ").11 legislature.' Accordingly, ¶ 58. we further determine that the legislature provided has not a statute of limitations for against providers injury alleging claims health care to a developmentally disabled child. This determination is only determination the court is able to reach rewriting working without either the statutes or illogical absurd and result. legislature's

¶ 59. We cannot act in the stead. The previously gap in the statutes of limitations was brought legislature Zielke, to the attention of the Supp again again bring F. 571, and in Aicher. onceWe gap statutory the attention of the this scheme.12

11The application §of claims providers alleging injury disabled children may also be equal protection foreclosed clauses of the Having federal and state determined, however, constitutions. not apply does here because application its would produce an avoided, absurd result that must be we need not address this constitutional question. 12The lacking dissent attacks our conclusion as in "judicial Dissent, restraint." think ¶ We this odd under the circum for at stances least three reasons. note, that, even in the As a final we observe affirmative defense of action, the legislative

absence of case. The an appropriate remains available laches follows: elements for laches as court has stated the arise, be laches there must unreasonable For knowledge part party delay, on the lack party the that the other would assert asserting defense suit, and right prejudice on which he bases his the in the event that the asserting the defense party the maintained. suit is Comm'n, 88 Civil Serv. County

Watkins v. Milwaukee (1979). More 422, recently, N.W.2d 775 411, Wis. 2d 276 similarly: elements the stated the appeals court claim, delay unreasonable laches bar For and occur, know the facts take plaintiff must must action, plaintiff no must not know defendant based, and right on which the suit is would assert the occur. prejudice to the defendant must v. Milwau City & Fund Policemen's Annuity Benefit kee, 196, 144, 20, 246 2d 630 Wis. App 2001 WI Sand & Jensen v. Janesville (quoting 236 N.W.2d (Ct. Co., 559 529, 2d 415 Gravel 521, 141 N.W.2d Wis. 1987)). App. unnecessarily decides

First, dissent reaches out questions. constitutional statutory

Second, scheme. it rewrites legislature's Third, makes a choice in policy the dissent this is the acknowledging that it is unclear whether stead while Apparently, the legislature have made. dissent choice the would is not meant its recent admonition that court forgotten has v. Ferdon ex rel. Petrucelli "super-legislature." as a to function 204, Fund, WI Wis. Comp. Patients Wisconsin (Prosser, J., dissenting). 2d N.W.2d440

IV sum, In we conclude that the has provided not a statute of limitations for a claim provider alleging injury developmen- to a tally Toby's disabled child. Therefore, action is not appeals time-barred. We reverse the court of and re- proceedings mand to the circuit court for further con- opinion. sistent with this

By appeals the Court.—The decision of the court of is reversed, and the cause is remanded to the circuit proceedings opin- court for further consistent with this ion. (dissenting). 62. DAVID T. PROSSER, J. The presented

issue in this case is what statute of limita- applies developmentally person tions ato disabled un- age brings against der the of 18 who an action a health provider alleging provider's care that the or acts omis- person's developmental disability. sions caused the majority concludes that the failed to set out applicable an limitations for this situation. I person conclude that a disabled must bring his or her action within one of the time limita- tions under Wis. Stat. or the time the person years, period reaches the of 10 whichever is longer. my analysis produces Because a different result majority's analysis, respectfully from the I dissent.

ANALYSIS exposes legislative 63. This case an obvious mis- legislature's blueprint take, which renders the for cer- litigants ambiguous. tain Under the circumstances, this carry a that will to devise response court is required objectives.1 legislative forward 893.55(1) (2003-04)2 pro- 64. Wisconsin Stat. vides: actions; limitation of limi- malpractice;

893.55 Medical damages. damages; tation itemization (2) (1) (3), an Except provided as subs. arising any damages injury for from action to recover by, or from operation performed treatment or provider, is a care by, person who health omission based, regardless theory of the on which the action of: be commenced within later shall (a) years injury, of the or Three from the date (b) injury date was discov- year One from the diligence or, of reasonable should ered in the exercise may discovered, action not be except have been paragraph years more than 5 commenced under this date of act or omission. gov- of limitations 65. This is the statute pro- malpractice erns most "from period limitation three-year It viders. embodies limitation one-year period or a injury," the date of the discovered" so as long was injury "from date date from the years is not "more than 5 discovery date statute, a claimant act omission." Under this two limitation the more favorable of the may opt periods. to exceptions has created

¶ in medical statute. malpractice this limitation periods 893.55(2) and (3), and See, e.g., §§ Stat. Wis. 1 in See discussion infra. 2 to the Statutes are All the Wisconsin references unless otherwise noted. 2003-04 version 893.56. It has also created statutes toll these See, 655.44(4) limitation periods. e.g., §§ Wis. Stat. and 893.16(1). 67. This case involves interplay among Wis. 893.16(1).

Stat. 893.55, 893.56, §§ Wisconsin Stat. 893.55(1) § 893.56 an exception creates for some medical malpractice by minors. It states: providers;

893.56 Health care minors actions. Any person age under the who is not under by disability insanity, reason developmental disability imprisonment, or bring shall an action to recover dam- ages injuries for to the person arising any treat- or operation by, ment performed or for omission a health care provider within the time limitation under s. 893.55 or person age time that reaches the years, whichever is later. That action shall be brought by parent, guardian person having or other custody of minor within the time limit set forth in added.) (Emphasis this section. 893.16(1), Wisconsin Stat. a tolling under a persons "disability," affects medical malprac-

tice actions by persons who are mentally ill. It reads:

(1) If person bring entitled is, an action at the accrues, time the cause of action either under the years, except for actions against health care provid- ers; mentally ill, may the action be commenced 2 years ceases, within after disability except that disability illness, where is due to mental the period prescribed of limitation in chapter may this not be years. extended for more than 5 69. The underlined language 893.56 would make if it perfect sense tracked the tolling provisions § 893.16. Unfortunately, it does not. Section 893.56 uses the term "insanity," whereas 893.16 uses the terms in- ill" "mental illness." Section 893.56 and "mentally and disability" "impris- "developmental the terms cludes §in do not 893.16. appear but these terms onment" inconsis- record explains 70. The historical Tom Hanson introduced In Representative tency.3 Malprac- at "The request Bill 705 Assembly section, create new The bill to sought tice Committee." read: 893.235, that would Providers; Minors Actions. Health Care age is not under

Any who person under disability insanity imprisonment, or shall by reason of injuries damages for to the bring an to recover action any operation per- or arising from treatment person by, a by, person who formed or for omission licensed, certified, registered practice or authorized state law within provider a health care under as 893.295(1) by the time that under s. or time limitation later. years, of 8 whichever is reaches the person guardian brought or parent, be That action shall the minor having custody of within person other limit in this section. time forth set the predecessor was to become This section proposed § 893.56. also amended Assembly Bill 705 71. 1977 read thereafter section, § which would

existing in part: disability. person If a entitled under

893.33 Persons chapter, except in this bring an action mentioned recovery of or forfeiture penalty for the escape, for an or for against a sheriff or other officer 893.16(1) by Stat. Act 133 amended Wis. 1997 Wisconsin "mental "insanity" "mentally ill" and changing "insane" and "imprison striking "imprisoned" illness" and the words ment."

recovery be, of real or property possession the thereof accrued, at the time the cause of action either (1) age years, Within the of 18 except providers; or (2) Insane;

(3) Imprisoned charge on a criminal ... the time of such disability part is not a of the time limited for the action, commencement of the except period brought within which the action must be cannot be years any extended more than 5 such disability, except infancy; nor can it be so extended in case longer year disability than one after the ceases. (1977-78) § (emphasis showing Stat. Wis. 893.33 added predecessor language).4 new This section was Assembly passed exactly 893.16. If Bill 705 had as predecessors §§ introduced, the 893.16 and 893.56 perfectly would have tracked each other a to create system tolling periods. coherent of limitations and symmetry 72. The intended short-lived, was legislative however, a because of mistake that occurred Assembly 2, on March 1978. 1977 Bill 705 was intro- April passed on 27, duced 1977. It was debated and Assembly September on 14, with 1977, one amend- ment. The Senate debated the 2, bill on March 1978. As Assembly, dispute in the there a was heated in the Senate over the limitation in what is now 893.56. original 8, Should it be in the as bill? 13, Should it be as provided adopted Assembly? in the amendment (2) (3) Subsections and printed are section above to language show new in context. Because these two subsec had tions been previously, they enacted appear did not in 1977 Assembly Bill helps 705. This to explain legislative "mis 73, take" described in ¶ infra. proposed in Senate Amendment Or, it as should be controversy spirited in the that a so Senate 1? The was to committee lost on tie refer the bill back motion to vote. Immediately adopted Sen- after the Senate Dale McKenna offered Sen-

ate Amendment Senator unrelated, amend- 2, an handwritten ate Amendment disability" "disability" adding "developmental as a ment 893.56). (now proposed amendment adopted McKenna never on voice vote. Senator was (now then-existing attempted amend (§ 893.235) 893.16), newly created section so that the 893.33) (§ each other the old would track destroyed sym- together. His amendment and work metry in the law. Assembly subsequently The battled over ultimately concurring in 1, it; but

Senate Amendment Assembly to fix either did not notice did not act problem created Senator McKenna's Senate Amendment of Senator have no direct evidence 75. We presumably that

McKenna's actual intent. He intended developmental have addi- all disabilities minors with against to file their actions tional time providers. intent, If his he failed to effect this were (§ 893.33).5 amending tolling statute intent also 5 Compensation Patients In 2000 in Aicher v. Wisconsin 99, 849, Fund, 98, 73, 2d 613 N.W.2d 2000 WI Wis. discrepancy is the result of that this suspect court stated: "We likely It is oversight purposeful than discrimination. rather filing period to extend the legislature's intent was disabilities, it." not reduce If these persons developmental with correct, amendment were the McKenna speculative comments being example good intentions not represent would classic contradictory statutory language. sufficient to overcome simply recognize "develop- He could have intended legal disability" disability thinking mental aas without through implications of his action.6 He could have intended to create a defect in would, the bill that when jeopardize passage by requiring discovered, its the bill to return to the Senate.7 He could have intended to legislate period a shorter limitation for minors with developmental disabilities than for other Al- minors. though this last motivation for the amendment unlikely, the effect of the McKenna amendment was to part developmental treat of the class of minors with favorably disabilities less than all other classes of children. brings

¶ 76. This us to the issue at The hand. appeals applicable court concluded that the 893.55(1)(a). this case is Wis. Stat. v. St. Haferman App Found., ¶¶ Clare Healthcare 1, 13, WI 272 Wis. 2d 689 N.W.2d 636. It that, noted "The troubling given result in this case is that the through provided has, Wis. Stat. more time for young malpractice children file medical suits than 893.55(1)(a)." years provided the three in Wis. Stat. Chapter 51 mental health statutes were revised in 1976, during Senator McKenna's senate legislation term. This included first definition of "developmental disability." See 51.01(5). § 11, 430, 1975; § ch. Laws Wis. Stat. In 1978 the legislature process working was still the term "devel opmental disability" into the statutes.

7 possibility This implausible. is not Senator McKenna reject to voted (meaning Senate Amendment 1 that he favored age 13 proposed over 10 in 893.235); § Wis. Stat. he voted to refer the bill back to the Judiciary Committee on and Consumer Affairs; and he to voted non-concur in Assembly Bill meaning that he to voted defeat the bill. See Wis. S. Journal (Mar. 1978). 1873-74 Dykman, judge, dissenting Charles Id., ¶ The 13, n.5. (Dykman, ¶ J., Id., "absurd." declared this result dissenting). majority provides present a sound

¶ 77. The analysis 893.55: until it reaches rewriting the majority avoided appeals The court of general three- it concluded that statutes because limitations, apply to must year statute applicable another in the absence of Toby [Haferman] ... of limitations. of the court the conclusion disagree with We here. majority applicable 893.55 is appeals developmen- intended that could not have against health bringing actions tally disabled children statute of subject be to a shorter would providers care bringing medical children than other limitations would actions. malpractice

Majority op., ¶¶ 53-54. compelled ..." to determine are 78. "We apply

majority not 893.55 does continues, "that injury alleging providers against claims developmentally "Accordingly, Id., child." 57. disabled legislature has not determine that further we provided for claims of limitations a statute developmen- injury alleging providers to a care health tally Id., ¶ child." disabled majority's issue is resolution 79. The problems. unpersuasive new and creates reject 893.55 so First, it is a mistake (b) 893.55(l)(a) developmen- Applying quickly. to a injury alleged medical tally for an child disabled malpractice child's seventh occurs on or after discriminatory birthday child will be because is not exactly are not minors who all other the same as treated 893.55(2) (3) Moreover, "insane." will assist specific minor in circumstances. only problem

¶ 81. The time arises under 893.55(l)(a) applied is when the to a devel- opmentally injury alleged disabled child for an malpractice birthday. medical the child's seventh before developmentally situation, In that disabled child is given almost less time to file suit than all other children age. indisputably of the same This result is discrimina- tory. statutory language

¶ 82. The that creates the "as applied" problem young phrase children is the "developmentally disabled" in 893.56 because that phrase young developmentally excludes chil- disabled presumed dren from the benefits the statute. The good phrase intentions behind the cannot save it from discriminatory its irrational and developmentally effect in cases of disabled children under seven. As applied phrase children, to these is unconstitutional equal protection as a denial of of the law. majority problem Second, creates new developmentally

not because it wants to treat some disabled children the as same other children but be- developmentally cause it decides to treat all disabled favorably children more than other children. provider's negligence If a health care caused developmentally a child to become disabled at birth and brought eight years the child later, suit members difficulty striking this court would have no down "developmentally disabled" exclusion be- disparate cause treatment of dis- abled children would be obvious and correctable. We employ equal protection analysis would the same § challenge attempted Amy 893.56, Aicher to use developmentally although disabled.8 she was not by majority here ¶ the issue The resolves 85. giving Toby to file suit than we Haferman more time majority gives opinion gave Amy all Indeed, the Aicher. developmentally children more favorable disabled a illustrate, To when than other children. treatment malpractice, injured through 12-year-old medical § governed by provisions a of 893.55. When child is injured developmentally 12-year-old child is disabled through malpractice, now has no the child medical all. of limitations at phrase

¶ if to strike the contrast, 86. In we were § put "developmentally in we would disabled" footing developmentally children on the same disabled grant legislature could these children. The as other legisla- generous if it enacted more treatment children tion to do so. category by creating special Third, a 87. age persons

developmentally of under the disabled finding disregards legislative that "the the court very young ad- minor children can be interests extending fully protected equately the time may brought to 10." See be limits in which actions Majority op., 1).§ (quoting A.B. 1977 problem potential in relation to also creates court "imprisoned" injured malpractice, are minors who the same status as minors now have inasmuch as these they developmentally is, are children; that disabled excepted in are not covered 893.16. from 893.56 but ambiguity Although on the it relies majority decision, the fails reach its statutes to developmentally why provide any policy dis- rationale Aicher, See 2d 99. 237 Wis. favorably abled children should be treated than more developmentally other children. A expected disabled child is not personally. Rather, to file suit an action in brought by parent, behalf of such a child will be guardian, person having custody or other of the child, provided majority provides as explanation 893.56. The no why parent, guardian, or other having person custody developmentally of a disabled child filing should not be bound statute of limitations malpractice a medical suit. Application to equal protection 893.55

disabled children under violates only applies the law. But because excepts developmental minors with disabilities from its purview. exception Therefore, the in 893.56 is uncon- applied. Striking exception stitutional as this would infirmity eliminate the constitutional of these statutes sidestep and the bizarre conclusion that no statute of applies developmental limitations with minors dis- abilities. majority

¶ 90. The authorizes suit in this case years alleged injury more than after the child's IIV2 doing rewriting and boasts in so that it has avoided Majority op., judicial ¶ statute. 58. This is not re- judicial disregards It straint. is not restraint because it completely purpose of statutes of limitation in malpractice Excising medical actions.9 unconstitutional majority correctly opinion legisla recounts the five findings accompanied tive ch. Majority Laws 1977. op., Although majority 40. legislative notes the intent limit minors health care providers, it finds "noteworthy" that these legislative findings "provide do not a shorter statute of limitations for children who are developmen Id., tally however, Equally noteworthy, disabled[.]" 42. is that findings longer do not provide statute of limitations defective statute is the obviously language no sense solution and is more problematic common from an otherwise removing appendix than ruptured body. healthy I respectfully therefore dissent. I am JON E authorized to state that Justices join DRAKE

WILCOX PATIENCE ROGGENSACK this opinion. finding By focusing children. on a

developmentally disabled exist, lays the which majority upon not foundation that does it in the late disregards overriding legislative intent at work bring all could limiting period persons 1970s: time which malpractice medical actions.

Case Details

Case Name: Haferman v. St. Clare Healthcare Foundation, Inc.

Court Name: Wisconsin Supreme Court

Date Published: Dec 30, 2005

Citation: 707 N.W.2d 853

Docket Number: 2003AP1307

Court Abbreviation: Wis.