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.
893.58 Note
Judicial Council Committee's Note, 1979: This section is previous s. 893.22 (2) renumbered for more logical placement in restructured ch. 893. [Bill 326-A]
893.58 Annotation
Since the mother's counterclaim was served within one year from the date alleged of the last alleged act of seduction, the cause of action was not barred by the one-year statute of limitations. Slawek v. Stroh,
62 Wis. 2d 295,
215 N.W.2d 9 (1974).
893.585
893.585
Sexual exploitation by a therapist. 893.585(1)
(1) Notwithstanding
ss. 893.54,
893.55 and
893.57, an action under
s. 895.70 for damages shall be commenced within 3 years after the cause of action accrues or be barred.
893.585(2)
(2) If a person entitled to bring an action under
s. 895.70 is unable to bring the action due to the effects of the sexual contact or due to any threats, instructions or statements from the therapist, the period of inability is not part of the time limited for the commencement of the action, except that this subsection shall not extend the time limitation by more than 15 years.
893.585 History
History: 1985 a. 275;
2003 a. 279.
893.587
893.587
Sexual assault of a child; limitation. An action to recover damages for injury caused by an act that would constitute a violation of
s. 948.02,
948.025,
948.06, or
948.095 or would create a cause of action under
s. 895.71 shall be commenced before the injured party reaches the age of 35 years or be barred.
893.587 Annotation
A victim's action was time barred when "flashbacks" more than 2 years prior to commencing suit made her aware of incest that allegedly occurred more than 50 years earlier. The action was barred despite evidence that the victim was unable to shift the blame from herself at the time of discovery. Byrne v. Brecker,
176 Wis. 2d 1037,
501 N.W.2d 402 (1993).
893.587 Annotation
An adult victim of incest, who at the time of the incestuous act was aware of the identity of the tortfeasor and the impropriety of the conduct did not qualify for tolling of the statute of limitations under the discovery rule because she was unaware of the psychological harm that might occur. Cheryl D. v. Estate of Robert D.B.
207 Wis. 2d 546,
559 N.W.2d 272 (Ct. App. 1996).
893.59
893.59
Actions concerning damage to highway or railroad grade. An action under
s. 88.87 (3) (b) to recover damages to a highway or railroad grade shall be commenced within 90 days after the alleged damage occurred or be barred.
893.59 History
History: 1979 c. 323.
893.59 Note
Judicial Council Committee's Note, 1979: This section has been created to place into ch. 893 the statute of limitations for an action to recover damages to a highway or railroad grade. (See note following s. 88.87 (3) (b)). [Bill 326-A]
ACTIONS RELATED TO FINANCIAL TRANSACTIONS
OR GOVERNMENTAL OBLIGATIONS
893.60
893.60
What actions not affected. Actions against directors or stockholders of a moneyed corporation or banking association or against managers or members of a limited liability company to recover a forfeiture imposed or to enforce a liability created by law shall be commenced within 6 years after the discovery by the aggrieved party of the facts upon which the forfeiture attached or the liability was created or be barred.
893.60 History
History: 1979 c. 323;
1993 a. 112.
893.60 Note
Judicial Council Committee's Note, 1979: This section is previous s. 893.51 renumbered for more logical placement in restructured ch. 893. [Bill 326-A]
893.61
893.61
Contract for payment of money; governmental subdivisions. An action upon any bond, coupon, interest warrant or other contract for the payment of money, whether sealed or otherwise, made or issued by any town, county, city, village, school district or technical college district in this state shall be commenced within 6 years after the cause of action accrues or be barred.
893.61 History
History: 1979 c. 323;
1993 a. 399.
893.61 Note
Judicial Council Committee's Note, 1979: This section is previous s. 893.19 (2) renumbered for more logical placement in restructured ch. 893. [Bill 326-A]
893.62
893.62
Action concerning usury. An action under
s. 138.06 (3) for interest, principal and charges paid on a loan or forbearance shall be commenced within 2 years after the interest which is at a rate greater than allowed under
s. 138.05 is paid or be barred.
893.62 History
History: 1979 c. 323.
893.62 Note
Judicial Council Committee's Note, 1979: This section has been created to place into ch. 893 the statute of limitations for an action concerning usury. (See note following s. 138.06 (3)). [Bill 326-A]
893.63
893.63
Actions on cashier's check, certified check, or bank money order. 893.63(1)(1) Upon the expiration of 2 years from the date of any cashier's check, certified check or bank money order, there having been no presentment for payment of the check or money order by a holder thereof, the maker shall, upon demand, return to the remitter noted thereon, if any, the full face amount of the cashier's check, certified check or bank money order, and thereafter shall be relieved of any and all liability upon the cashier's check, certified check or bank money order, to the remitter, the payee or any other holder thereof.
893.63(2)
(2) Subsection (1) applies to all cashier's checks, certified checks and bank money orders, which have been made before November 2, 1969 but were not presented for payment by a holder within 2 years of their date, but an action by the remitter of a cashier's check, certified check and bank money order, to recover moneys held by a bank beyond the time limited by
sub. (1) shall be subject to
s. 893.43.
893.63 History
History: 1979 c. 323.
893.63 Note
Judicial Council Committee's Note, 1979: This section is previous s. 893.215 renumbered for more logical placement in restructured ch. 893. [Bill 326-A]
893.64
893.64
Actions upon accounts. In actions brought to recover the balance due upon a mutual and open account current the cause of action shall be deemed to have accrued at the time of the last item proved in such account.
893.64 History
History: 1979 c. 323.
893.64 Note
Judicial Council Committee's Note, 1979: This section is previous s. 893.25 renumbered for more logical placement in restructured ch. 893. [Bill 326-A]
893.65
893.65
Bank bills not affected. This chapter does not apply to any action brought upon any bills, notes or other evidences of debt issued or put into circulation as money by a bank or other person.
893.65 History
History: 1979 c. 323.
893.65 Note
Judicial Council Committee's Note, 1979: This section is previous s. 893.29 renumbered for more logical placement in restructured ch. 893 and revised to reflect Lusk v. Stoughton State Bank, 135 Wis. 311, 115 N.W. 813 (1908). [Bill 326-A]
893.66
893.66
Certified public accountants; limitations of actions. 893.66(1)(1) Except as provided in
subs. (1m) to
(4), an action to recover damages, based on tort, contract or other legal theory, against any certified public accountant licensed or certified under
ch. 442 for an act or omission in the performance of professional accounting services shall be commenced within 6 years from the date of the act or omission or be barred.
893.66(1m)
(1m) If a person sustains damages covered under
sub. (1) during the period beginning on the first day of the 6th year and ending on the last day of the 6th year after the performance of the professional accounting services, the time for commencing the action for damages is extended one year after the date on which the damages occurred.
893.66(2)
(2) If a person sustains damages covered under
sub. (1) and the statute of limitations applicable to those damages bars commencement of the cause of action before the end of the period specified in
sub. (1), then that statute of limitations applies.
893.66(4)
(4) This section does not apply to any person who commits fraud or concealment in the performance of professional accounting services.
893.66 History
History: 1993 a. 310;
2001 a. 16.
