Wisc. High Court Finds ‘Borrowing Statute’ Doesn’t Bar Malpractice Claim

By Jim Sams | June 11, 2019

Wisconsin’s “borrowing statute,” which in malpractice cases instructs the courts to use the statute of limitations in the state where the injury occurred, does not apply to a negligence claim if the location of the injury cannot be known, the state Supreme Court ruled.

In a 4-3 decision, the high court found that Michigan’s statute of limitations cannot be used to bar a negligence claim filed in Wisconsin by a Michigan resident whose doctor did not inform him that a growth on his skin was cancerous. However, the court held that Michigan law did apply to an informed consent claim filed by the same plaintiffs.

The court left unsettled the question of whether the defendant’s Wisconsin insurer is liable for the claim, remanding that issue back to the Court of Appeals.

David W. Paynter and his wife, Kathryn, lived in Bessemer, Michigan, near the border with Wisconsin and frequently traveled between the two states. In April 2010 he visited a Wisconsin doctor to check a growth on his neck. That doctor referred Paynter to James A. Hamp, an ear, nose and throat doctor who practices in both Michigan and Wisconsin.

Hamp sent a tissue sample to a pathologist, who reported that the growth was cancerous. However, on the same day that his office received the report, Hamp told Paynter that the growth was not cancerous. He testified that he never saw the pathologist’s report.

(The parties disputed whether Hamp was at his Michigan office or in Wisconsin when he made that call, but the Supreme Court said in a footnote that the location didn’t matter.)

Paynter did not learn that he had cancer until four years later, in June 2014, when he had the growth removed. In May 2015, the Paynters filed a malpractice action in Ashland County, Wisconsin against Hamp and his insurers, which included ProAssurance Wisconsin Insurance Co. He claimed that because of the delay in treatment, he had to undergo extensive surgery and radiation that led to permanent injuries, including facial paralysis.

Mrs. Paytner alleged she was deprived of companionship. Husband and wife both claimed that Hamp was negligent and had deprived them of their right to informed consent. Under Wisconsin law, physicians must inform patients of alternative treatments available and the risks of the recommended treatment.

Hamp filed a motion for summary judgment, arguing that Wisconsin law required that Michigan’s statute of limitations be applied to the Paynters’ claim because the treatment took place in Michigan. The circuit court agreed and dismissed the case.

Under Michigan law, a plaintiff must file a request for mediation within two years of the date the malpractice occurred, or within six months of learning that harm had been done. Wisconsin law allows plaintiffs to file negligence claims within five years after the harm was done.

The Court of Appeals affirmed the order granting summary judgment to the defendants, but for different reasons. The appellate court said that Michigan law applied because the Paynters lived in Michigan. The court said it didn’t matter that Paynter testified that he was frequently in Wisconsin after the misdiagnosis.

ProAssurance argued that it was not liable for the malpractice claim, but the circuit and appellate courts did not address that issue because they ruled that the claims were barred by Michigan law.

Hamp and ProAssurance appealed the Supreme Court, which took up the case as a “case of first impression.”

A bare majority of the Supreme Court justices found that Michigan law does not apply to the Paynters’ negligence claim. Wisconsin’s borrowing statute applies to malpractice cases only if they are “foreign causes of action,” the court said. A cause of action is foreign if the first injury occurred in another state.

The Supreme Court said Paynter’s lawsuit is not “foreign” because it is impossible to know, with a latent condition such as cancer, exactly where the first injury occurred. As long as Paynter was in Wisconsin at some point after the misdiagnosis, he could pursue a negligence claim.

“Wisconsin’s borrowing state applies only to foreign causes of action, and if the plaintiff’splace of first injury is unknowable, as in the instant case, the borrowing statute does not apply,” the majority opinion states.

The majority found that the informed consent claim, on the other hand, did arise in Michigan because Paynter was in Michigan when Hamp told him that the growth was no cancerous in June 2014. Unlike negligence actions, which depend on where a harm occurred, Wisconsin’s informed consent law is tied to specific acts, in this case where the misdiagnosis occurred.

Even though Paynter learned about the alleged misdiagnosis in June 2014, he did not file a claim until 11 months later. Michigan law required the action to be filed within six months after the harm was discovered, or should have been discovered.

The court declined to address ProAssurance’s arguments the the alleged malpractice was not covered under its policy because it occurred in Michigan, which was specifically excluded from coverage.The majority said the carrier did not raise the coverage issue until it filed reply briefs.

Justices Rebecca Grassl Bradley and Daniel Kelly dissented to a portion of the majority decision. They said in a separate opinion that the court should have also remanded the informed consent complaint back to the Court of Appeals.

Justice Ann Walsh Bradley also dissented, saying in her own separate opinion that the informed consent claim should be allowed to proceed because Michigan law does not apply.

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