In its opinion filed on June 23, 2016, the Supreme Court of Wisconsin (“Wisconsin Supreme Court”) held that in a medical malpractice claim based on unnecessary and improper treatment of inappropriate touching, the “physical injurious change” occurs at the time of the touching. The Wisconsin Supreme Court rejected the plaintiffs’ argument that there was no physical injurious change at the time of the allegedly inappropriate touching because they did not know at that time that the touching was wrongful.
The Alleged Underlying Facts
One of the two plaintiffs contended that from 2003 to 2008, when he was 10 to 15 years old, the defendant physician was his primary care physician, during which time the defendant physician inappropriately touched his genitals. The second plaintiff contended that the defendant physician was his primary care physician from 2003 to 2009, when he was 8 to 14 years old, during which time the defendant physician inappropriately touched his genitals.
The plaintiffs alleged that the defendant physician performed examinations of them that included physical manipulation of their penises (the defendant physician allegedly asked parents to leave the room during the genital examination, leaving the doctor and the minor patients alone in the room). At the time of the alleged inappropriate sexual contact, the plaintiffs allege that they were unaware that the defendant’s actions were inappropriate.
In August 2012, another minor male patient reported that the defendant physician had touched his genitals during a physical examination, which led to criminal charges being filed against him in October 2012 for second-degree sexual assault by an employee of an entity and one for exposing genitals or pubic area. Wisconsin ultimately charged the defendant physician with 16 felony counts based on his conduct with male patients.
The plaintiffs alleged in their Wisconsin medical malpractice lawsuit that the defendant physician claimed his genital examinations served a medical purpose in furtherance of professional medical services and denied that his conduct was criminal. (The Wisconsin Supreme Court stated that the plaintiffs’ allegations constitute an actionable medical malpractice claim because they allege that the defendant physician asserts he had a legitimate medical purpose for manipulating the boys’ penises during their genital examinations, and the plaintiffs claim that the defendant physician’s “touching” during the medical examination was “unnecessary and improper treatment.”)
The plaintiffs contend that they did not discover any damages until the October 2012 news report on the criminal case against the defendant physician, at which time they discovered that the defendant physician’s conduct caused them profound psychological damages.
The defendant physician filed a motion to dismiss the plaintiffs’ Wisconsin medical malpractice lawsuit, arguing that the medical malpractice statute of limitations had expired, barring their claims based on medical malpractice. The trial court dismissed the plaintiffs’ Wisconsin medical malpractice lawsuit and the intermediate appellate court affirmed the dismissal.
The Wisconsin Supreme Court Decision
The Wisconsin Supreme Court stated that in this case, whether the plaintiffs’ Wisconsin medical malpractice claims were timely filed is dependent upon when their claim accrued, and that accrual dates in medical malpractice claims are based on the date of injury or, if applying the discovery rule, the date the injury was or should have been discovered.
The Wisconsin Supreme Court stated that its previous cases had developed a consistent test for determining the date of injury in medical malpractice claims under Wis. Stat. § 893.55(1m)(a): it is the date of the “physical injurious change.” The Wisconsin Supreme Court held that the plaintiffs in the present case suffered an injury when the defendant physician physically touched their genitals in an allegedly inappropriate way: to hold otherwise would run contrary to existing case law and would defeat the purpose behind the medical malpractice statute of limitations that “prompt litigation ensures fairness,” even though “[e]xpiration of the medical malpractice statute of limitations before a patient knows about the injury is unfortunately a consequence of the legislature’s policy reasons for enacting the medical malpractice statute of limitations.”
In responding to the plaintiffs’ specific arguments on appeal, the Wisconsin Supreme Court stated, “In essence, the [plaintiffs] are asking us to conclude that they had no injury until they learned about the criminal charges against [the defendant physician]. Stated otherwise, learning about the criminal charges caused them to be injured for the first time. This would mean that if no patient had ever reported [the defendant physician’s] genital examination as improper, or the State had declined to file criminal charges, or the media had not reported on the charges or the [plaintiffs] never saw the media reports, the [plaintiffs] would never have suffered an injury and their claim would never have accrued. The [plaintiffs’] position is not reasonable. The date of injury of a patient’s medical malpractice claims cannot be tethered to whether or when the media reports on an allegedly criminal act, nor can it be dependent on whether another patient makes a report. A physician’s actions either fall below the standard of care and cause injury or they do not. Knowledge that a physician is being charged criminally cannot be the causal factor in whether or not medical negligence results in injury. Moreover, adopting the [plaintiffs’] position could indefinitely extend the medical malpractice statute of limitations. Here, the news report about [the defendant physician] came only a few years after the [plaintiffs’] last examination, but what if the news report came 10 or 20 or 30 years after the last contact with [the defendant physician]? This would defeat the legislature’s purpose for enacting Wis. Stat. § 893.55, … and would be unreasonable. We will not interpret a statute in a way that renders it absurd or unreasonable.”
The Wisconsin Supreme Court held: “we conclude that the [plaintiffs’] medical malpractice claims accrued on the date of the last genital examination. It was on that date that each suffered the “physical injurious change” that triggered the start of the three-year statute of limitations. The psychological injuries, caused by the knowledge that [the defendant physician] had been criminally charged for similar touching of other boys, constituted a subsequent injury from the same tortious act (the inappropriate touching). This emotional manifestation based upon the previously completed physical injury (the improper touching of the boys’ genitals during the physical examination) does not restart the running of the statute of limitations.”
The dissenting opinion argued, however: ” I conclude that the [plaintiffs’] injuries did not occur simultaneously with the alleged negligence. Their claims accrued when they suffered severe emotional distress upon learning that they were the victims of child sexual assaults perpetrated by [the defendant] during their physical examinations. Thus, the [plaintiffs’] claims are not time-barred by the medical malpractice statute of limitations because the [plaintiffs] filed their claims within three years of the date they accrued. Accordingly, I respectfully dissent.”
Source John Doe 56 v. Mayo Clinic Health System – Eau Claire Clinic, Inc., 2014AP1177.
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