893.54 Note
Judicial Council Committee's Note, 1979: This section is derived from previous s. 893.205 but was amended to eliminate language now covered by newly created s. 893.07. (See note to s. 893.07). [Bill 326-A]
893.54 Annotation
Because the parents' claim arising from an injury to their minor child was filed along with the child's claim within the time period for the child's claim under s. 893.18, the parents' claim was not barred by s. 893.54. Korth v. American Family Insurance Co.
115 Wis. 2d 326,
340 N.W.2d 494 (1983).
893.54 Annotation
This section and s. 893.80 both apply to personal injury actions against governmental entities. Schwetz v. Employers Insurance of Wausau,
126 Wis. 2d 32,
374 N.W.2d 241 (Ct. App. 1985).
893.54 Annotation
When a plaintiff's early subjective lay person's belief that a furnace caused the injury was contradicted by examining physicians, the cause of action against the furnace company did not accrue until the plaintiff's suspicion was confirmed by later medical diagnosis. Borello v. U.S. Oil Co.
130 Wis. 2d 397,
388 N.W.2d 140 (1986).
893.54 Annotation
While adoptive parents were aware of the possibility that their child might develop a disease in the future, a cause of action did not accrue until the child was diagnosed as having the disease. Meracle v. Children's Service Society,
149 Wis. 2d 19,
437 N.W.2d 532 (1989).
893.54 Annotation
When a doctor initially diagnosed a defective prosthesis, but advised surgery as the only way to determine what exactly was wrong, the plaintiff's cause of action against the prosthesis manufacturer accrued when the diagnosis was confirmed by surgery. S.J.D. v. Mentor Corp.
159 Wis. 2d 261,
463 N.W.2d 873 (Ct. App. 1990).
893.54 Annotation
A brain damaged accident victim's cause of action accrued when the victim discovered, or when a person of the same degree of mental and physical handicap under the same or similar circumstances should have discovered, the injury, its cause and nature, and the defendants' identities. Carlson v. Pepin County,
167 Wis. 2d 345,
481 N.W.2d 498 (Ct. App. 1992).
893.54 Annotation
Claimed ignorance of, and a blatant failure to follow, applicable regulations cannot be construed as reasonable diligence in discovering an injury when following the rule would have resulted in earlier discovery. Stroh Die Casting v. Monsanto Co.
177 Wis. 2d 91,
502 N.W.2d 132 (Ct. App. 1993).
893.54 Annotation
The discovery rule does not allow a plaintiff to delay the statute of limitations until the extent of the injury is known. The statute begins to run when the plaintiff has sufficient evidence that a wrong has been committed by an identified person. Pritzlaff v. Archdiocese of Milwaukee,
194 Wis. 2d 303,
533 N.W.2d 780 (1995).
893.54 Annotation
A claim of repressed memory does not indefinitely toll the statute of limitations nor delay the accrual of a cause of action, regardless of the victim's minority or the position of trust occupied by the alleged perpetrator. Doe v. Archdiocese of Milwaukee,
211 Wis. 2d 312,
565 N.W.2d 94 (1997).
893.54 Annotation
Parents' claims for injury resulting from the sexual assault of their child accrue when the child's claims accrue, regardless of when the parents learn of their claims. Joseph W. v. Catholic Diocese of Madison,
212 Wis. 2d 925,
569 N.W.2d 795 (Ct. App. 1997).
893.54 Annotation
Section 893.53 is the state's general and residual personal injury statute of limitations and is applicable to 42 USC 1983 actions. Hemberger v. Bitzer,
216 Wis. 2d 508,
574 N.W.2d 656 (1998).
893.54 Annotation
The diagnosis of a non-malignant asbestos-related lung pathology does not trigger the statute of limitations with respect to a later-diagnosed, distinct malignant asbestos-related condition. Because the malignancy could not have been predicted when an earlier action relating to the non-malignant condition was dismissed on the merits, the doctrine of claims preclusion was not applied to bar the plaintiff's action. Sopha v. Owens-Corning Fiberglass Corporation,
230 Wis. 2d 212,
601 N.W.2d 627 (1999).
893.54 Annotation
The statute of limitations for subrogation claims is the statute of limitations on the underlying tort. Schwittay v. Sheboygan Falls Mutual Insurance Co. 2001 WI App 140,
246 Wis. 2d 385,
630 N.W.2d 772.
893.54 Annotation
Even though a plaintiff might plead and testify to having suffered emotional distress on account of a lawyer's malpractice, that fact does not convert the claim into one seeking redress for injuries to the person. The underlying injuries in a legal malpractice claim are to rights and interests of a plaintiff that go beyond, or at least are different from, injuries to his or her person under s. 893.54. Hicks v. Nunnery, 2002 WI App 87,
253 Wis. 2d 721,
643 N.W.2d 809.
893.54 Annotation
Knowing that a particular product caused an injury, an injured party cannot extend the accrual date for a cause of action against the product's manufacturer due to the subsequent discovery of possible connections between that product and another manufacturer's product in causing the injury. Baldwin v. Badger Mining Corporation & Mine Safety Appliances Co. 2003 WI App 95,
264 Wis. 2d 301,
663 N.W.2d 382,
02-1197.
893.54 Annotation
Federal civil rights actions under 42 USC 1983 are best characterized as personal injury actions. Wilson v. Garcia,
471 U.S. 261 (1985).
893.54 Annotation
The residual or general personal injury statute of limitations applies to 42 USC 1983 actions. Owens v. Okure,
488 U.S. 235,
102 L. Ed. 2d 594 (1989).
893.54 Annotation
See also notes to s. 893.53 for additional treatments of 42 USC 1983.
893.55
893.55
Medical malpractice; limitation of actions; limitation of damages; itemization of damages. 893.55(1)
(1) Except as provided by
subs. (2) and
(3), an 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:
893.55(1)(a)
(a) Three years from the date of the injury, or
893.55(1)(b)
(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.
893.55(2)
(2) If a health care provider conceals from a patient a prior act or omission of the provider which has resulted in injury to the patient, an action shall be commenced within one year from the date the patient discovers the concealment or, in the exercise of reasonable diligence, should have discovered the concealment or within the time limitation provided by
sub. (1), whichever is later.
893.55(3)
(3) When a foreign object which has no therapeutic or diagnostic purpose or effect has been left in a patient's body, an action shall be commenced within one year after the patient is aware or, in the exercise of reasonable care, should have been aware of the presence of the object or within the time limitation provided by
sub. (1), whichever is later.
893.55(4)(a)(a) In this subsection, "noneconomic damages" means moneys intended to compensate for pain and suffering; humiliation; embarrassment; worry; mental distress; noneconomic effects of disability including loss of enjoyment of the normal activities, benefits and pleasures of life and loss of mental or physical health, well-being or bodily functions; loss of consortium, society and companionship; or loss of love and affection.
893.55(4)(b)
(b) The total noneconomic damages recoverable for bodily injury or death, including any action or proceeding based on contribution or indemnification, may not exceed the limit under
par. (d) for each occurrence on or after May 25, 1995, from all health care providers and all employees of health care providers acting within the scope of their employment and providing health care services who are found negligent and from the injured patients and families compensation fund.
893.55(4)(c)
(c) A court in an action tried without a jury shall make a finding as to noneconomic damages without regard to the limit under
par. (d). If noneconomic damages in excess of the limit are found, the court shall make any reduction required under
s. 895.045 and shall award as noneconomic damages the lesser of the reduced amount or the limit. If an action is before a jury, the jury shall make a finding as to noneconomic damages without regard to the limit under
par. (d). If the jury finds that noneconomic damages exceed the limit, the jury shall make any reduction required under
s. 895.045 and the court shall award as noneconomic damages the lesser of the reduced amount or the limit.
893.55(4)(d)
(d) The limit on total noneconomic damages for each occurrence under
par. (b) on or after May 25, 1995, shall be $350,000 and shall be adjusted by the director of state courts to reflect changes in the consumer price index for all urban consumers, U.S. city average, as determined by the U.S. department of labor, at least annually thereafter, with the adjusted limit to apply to awards subsequent to such adjustments.
893.55(4)(e)
(e) Economic damages recovered under
ch. 655 for bodily injury or death, including any action or proceeding based on contribution or indemnification, shall be determined for the period during which the damages are expected to accrue, taking into account the estimated life expectancy of the person, then reduced to present value, taking into account the effects of inflation.
893.55(4)(f)
(f) Notwithstanding the limits on noneconomic damages under this subsection, damages recoverable against health care providers and an employee of a health care provider, acting within the scope of his or her employment and providing health care services, for wrongful death are subject to the limit under
s. 895.04 (4). If damages in excess of the limit under
s. 895.04 (4) are found, the court shall make any reduction required under
s. 895.045 and shall award the lesser of the reduced amount or the limit under
s. 895.04 (4).
893.55(5)
(5) Every award of damages under
ch. 655 shall specify the sum of money, if any, awarded for each of the following for each claimant for the period from the date of injury to the date of award and for the period after the date of award, without regard to the limit under
sub. (4) (d):
893.55(5)(a)
(a) Pain, suffering and noneconomic effects of disability.
893.55(5)(b)
(b) Loss of consortium, society and companionship or loss of love and affection.
893.55(6)
(6) Damages recoverable under this section against health care providers and an employee of a health care provider, acting within the scope of his or her employment and providing health care services, are subject to the provisions of
s. 895.045.
893.55(7)
(7) Evidence of any compensation for bodily injury received from sources other than the defendant to compensate the claimant for the injury is admissible in an action to recover damages for medical malpractice. This section does not limit the substantive or procedural rights of persons who have claims based upon subrogation.
893.55 Note
Judicial Council Committee's Note, 1979: This section has been created to precisely set out the time periods within which an action to recover damages for medical malpractice must be commenced. The time provisions apply to any health care provider in Wisconsin.
893.55 Annotation
Sub. (1) contains the general time limitations for commencing a malpractice action. The subsection requires that such an action be commenced not later than 3 years from the event constituting the malpractice or not more than one year from the time the malpractice is discovered by the patient or should have been discovered by the patient. The patient has either the 3-year general time period or the one-year time period from the date of discovery, whichever is later. Subsection (1) further provides that in no event may a malpractice action be commenced later than 6 [5] years from the time of the alleged act or omission.
893.55 Annotation
Subs. (2) and (3) provide 2 exceptions to the one-, three-, and six-year time limitations contained in subsection (1). Subsection (2) provides that when a health care provider becomes aware of an act or omission constituting possible malpractice and intentionally conceals the act or omission from the patient, the patient has one year from the time he or she discovers the concealment or should have discovered the concealment to commence a malpractice action.
893.55 Annotation
Sub. (3) gives a patient one year from the time of discovery of a foreign object left in the patient's body or the time in which discovery should have occurred to commence a malpractice action. The subsection also contains a definition of a foreign object similar to the definition recently enacted by the state of California. [Bill 326-A]
893.55 Annotation
The "continuum of negligent treatment" doctrine is not limited to a single negligent actor. Robinson v. Mt. Sinai Medical Center,
137 Wis. 2d 1,
402 N.W.2d 711 (1987).
893.55 Annotation
While an unsubstantiated lay belief of an injury is not sufficient for discovery under sub. (1) (b), if the plaintiff has information that constitutes a basis for an objective belief of the injury and its cause, whether or not that belief resulted from "official" diagnosis from an expert, the injury and its cause are discovered. Clark v. Erdmann,
161 Wis. 2d 428,
468 N.W.2d 18 (1991).
893.55 Annotation
A physician's intentional improper sexual touching of a patient was subject to s. 893.57 governing intentional torts, not s. 893.55 governing medical malpractice. Deborah S.S. v. Yogesh N.G.
175 Wis. 2d 436,
499 N.W.2d 272 (Ct. App. 1993).
893.55 Annotation
Parents who did not obtain a medical opinion until more than 3 years after their child's death did not exercise reasonable diligence as required by the discovery rule under sub. (1) (b). Awve v. Physicians Ins. Co.
181 Wis. 2d 815,
512 N.W.2d 216 (Ct. App. 1994).
893.55 Annotation
Minors may bring separate actions for loss of companionship when malpractice causes a parent's death, including when the decedent is survived by a spouse. Jelinik v. St. Paul Fire & Casualty Ins. Co.
182 Wis. 2d 1,
512 N.W.2d 764 (1994).
893.55 Annotation
When continuous negligent treatment occurs, the statute begins to run from the date of last negligent conduct. The amount of time that passes between each allegedly negligent act is a primary factor in determining whether there has been a continuum of negligent care. Westphal v. E.I. du Pont de Nemours,
192 Wis. 2d 347,
531 N.W.2d 361 (Ct. App. 1995).
893.55 Annotation
Once a person discovers or should have discovered an injury, nothing, including a misleading legal opinion, can cause the injury to become "undiscovered." Claypool v. Levin,
209 Wis. 2d 284,
562 N.W.2d 584 (1997).
893.55 Annotation
The date of injury under sub. (1) (a) from a failed tubal ligation was the date on which the plaintiff became pregnant. Fojut v. Stafl,
212 Wis. 2d 827,
569 N.W.2d 737 (Ct. App. 1997).
893.55 Annotation
This section applies to persons who are licensed by a state examining board and are involved in the diagnosis, treatment, or care of patients. Chiropractors fall within this definition. Arenz v. Bronston,
224 Wis. 2d 507,
592 N.W.2d 295 (Ct. App. 1999).
893.55 Annotation
Optometrists are health care providers under this section. The coverage of this section is not restricted to those included under s. 655.002, but applies to all who provide medical care and are required to be licensed. Webb v. Ocularra, Inc. 2000 WI App 25,
232 Wis. 2d 495,
606 N.W.2d 552.
893.55 Annotation
Sub. (4) (f) makes the limits on damages applicable to medical malpractice death cases, but does not incorporate classification of wrongful death claimants entitled to bring such actions, which is controlled by s. 655.007. As such, adult children do not have standing to bring such an action. The exclusion of adult children does not violate the guarantee of equal protection. Czapinski v. St. Francis Hospital, Inc. 2000 WI 80,
236 Wis. 2d 316,
613 N.W.2d 120.
893.55 Annotation
Sub. (1) (b) does not violate Art. I, s. 9, of the state constitution, the right to remedy clause, nor does it offend equal protection or procedural due process principles. Aicher v. Wisconsin Patients Compensation Fund, 2000 WI 98,
237 Wis. 2d 99,
613 N.W.2d 849.
893.55 Annotation
The statutory cap on the recovery of noneconomic damages in medical malpractice cases is constitutional. Guzman v. St. Francis Hospital, Inc. 2001 WI App 21,
240 Wis. 2d 559,
623 N.W.2d 776.
893.55 Annotation
A misdiagnosis, in and of itself, is not, and cannot be, an actionable injury. The injury arises when the misdiagnosis causes a greater harm than existed at the time of the misdiagnosis. The misdiagnosis may or may not result in the injury, and the injury may occur concurrently or there may be a delay between the misdiagnosis and the injury. Paul v. Skemp, 2001 WI 42,
242 Wis. 2d 507,
625 N.W.2d 860.
893.55 Annotation
The limitation periods under sub. (1) (a) and (b) are both tolled by the filing of a request for mediation under s. 655.44 (4). Landis v. Physicians Insurance Company of Wis. Inc., 2001 WI 86,
245 Wis. 2d 1,
628 N.W.2d 893.
893.55 Annotation
Wrongful death claims caused by medical malpractice are subject to the statute of limitations concerning medical malpractice in sub. (1). Estate of Hegarty v. Beauchaine, 2001 WI App 300,
249 Wis. 2d 142,
638 N.W.2d 355.
893.55 Annotation
Under sub. (1) (b), the 5-year repose period applies only to actions brought pursuant to the discovery rule in par. (b). Paragraph (b) is an alternative limitations period to that in par. (a). Storm v. Legion Insurance Company, 2003 WI 120,
265 Wis. 2d 169,
665 N.W.2d 353,
01-1139.
893.55 Annotation
Section 893.16 tolls the period of limitations in sub. (1) (a) for medical malpractice actions involving qualified claimants, extending the 3-year limitations period up to 5 additional years. Storm v. Legion Insurance Company, 2003 WI 120,
265 Wis. 2d 169,
665 N.W.2d 353,
01-1139.
893.55 Annotation
For purposes of determining when a cause accrues for negligently prescribing medication, a physician's duty to monitor a patient after a final visit does not continue through some vague and indefinite period during which prescriptions may or may not be filled. Any claim of an omission is for an omission that occurred in the distinct time frame the doctor either intentionally or unintentionally did not require follow-up when giving the prescription or seeing the patient. Wiegert v. Goldberg, 2004 WI App 28,
269 Wis. 2d 695,
676 N.W.2d 522,
03-0891.
893.55 Annotation
First-year medical residents who have their M.D. degrees but are not yet licensed are not health care providers under this section and not subject to the limitations on the recovery of noneconomic damages in subs. (4) and (5). Phelps v. Physicians Insurance Company of Wisconsin, Inc. 2004 WI App 91, ___ Wis. 2d ___,
681 N.W.2d 571,
03-0580 893.55 Annotation
When medical malpractice leads to death, the wrongful death cap applies in lieu of, not in addition to, the medical malpractice cap. Noneconomic damages in a medical malpractice wrongful death case are capped by s. 895.04 (4) to limit the liability of health care providers by requiring that any noneconomic damages that would have been subject to the cap in s. 893.55 (4) (d) and awarded to the deceased personally if he or she had lived, are instead subject to the limit in s. 895.04 (4) and shared by survivors who are normally the plaintiffs in a wrongful death action. Maurin v. Hall, 2004 WI 100, ___ Wis. 2d ___,
682 N.W.2d 866,
00-0072.
893.55 Annotation
Constitutionality of Wisconsin's Noneconomic Damage Limitation. 72 MLR 235 (1989).
893.55 Annotation
The statute of limitations in medical malpractice actions. 1970 WLR 915.
893.55 Annotation
Recent developments in Wisconsin medical malpractice law. 1974 WLR 893.
893.55 Annotation
Tort Reform: It's Not About Victims. . .It's About Lawyers. Scoptur. Wis. Law. June 1995.
893.56
893.56
Health care providers; minors actions. Any person under the age of 18, who is not under disability by reason of insanity, developmental disability or imprisonment, shall bring an action to recover damages for injuries to the person arising from any treatment or operation performed by, or for any omission by a health care provider within the time limitation under
s. 893.55 or by the time that person reaches the age of 10 years, whichever is later. That action shall be brought by the parent, guardian or other person having custody of the minor within the time limit set forth in this section.
893.56 History
History: 1977 c. 390;
1979 c. 323.
893.56 Note
Judicial Council Committee's Note, 1979: This section is previous s. 893.235 renumbered for more logical placement in restructured ch. 893. [Bill 326-A]
893.56 Annotation
This section does not violate Art. I, s. 9, the right to remedy clause, nor does it offend equal protection or procedural due process principles. Aicher v. Wisconsin Patients Compensation Fund, 2000 WI 98,
237 Wis. 2d 99,
613 N.W.2d 849.
893.57
893.57
Intentional torts. An action to recover damages for libel, slander, assault, battery, invasion of privacy, false imprisonment or other intentional tort to the person shall be commenced within 2 years after the cause of action accrues or be barred.
893.57 History
History: 1979 c. 323.
893.57 Note
Judicial Council Committee's Note, 1979: This section is previous s. 893.21 (2) renumbered for more logical placement in restructured ch. 893. [Bill 326-A]
893.57 Annotation
This section governs the intentional tort of bad faith by an insurer. Warmka v. Hartland Cicero Mut. Ins.
136 Wis. 2d 31,
400 N.W.2d 923 (1987).
893.57 Annotation
A cause of action does not accrue until the plaintiff knows the tortfeasor's identity or reasonably should have discovered it. Spitler v. Dean,
148 Wis. 2d 630,
436 N.W.2d 308 (1989).
893.57 Annotation
A physician's intentional improper sexual touching of a patient was subject to s. 893.57 governing intentional torts, not s. 893.55 governing medical malpractice. Deborah S.S. v. Yogesh N.G.
175 Wis. 2d 436,
499 N.W.2d 272 (Ct. App. 1993).
893.57 Annotation
A claim involving excessive use of force in an arrest constitutes an intentional tort subject to s. 893.57. Kofler v. Florence,
216 Wis. 2d 41,
573 N.W.2d 568 (Ct. App. 1997).
893.58
893.58
Actions concerning seduction. All actions for damages for seduction shall be commenced within one year after the cause of action accrues or be barred.
893.58 History
History: 1979 c. 323.
