2009 Chapter 893

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), 96-1676.

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), 98-1357.

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, 99-0979.

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, 98-2437.

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, 98-2955.

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, 99-1810.

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, 00-0330.

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, 00-2144.

893.55 Annotation Under sub. (1) (b), the 5-year repose period applies only to actions brought pursuant to the discovery rule in sub. (1) (b). Sub. (1) (b) is an alternative limitations period to that in sub. (1) (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 A mother who suffers the stillbirth of her infant as a result of medical malpractice has a personal injury claim involving negligent infliction of emotional distress, which includes the distress arising from the injuries and stillbirth of her daughter, in addition to her derivative claim for wrongful death of the infant. That the sources of the mother's emotional injuries cannot be segregated does not mean that there is a single claim of medical malpractice subject to the single cap for noneconomic damages. Pierce v. Physicians Insurance Co. 2005 WI 14, 278 Wis. 2d 82, 692 N.W.2d 558, 01-2710.

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. 2005 WI 85, 282 Wis. 2d 69, 698 N.W.2d 643, 03-0580

893.55 Annotation Sub. (7) explicitly allows evidence of collateral source payments to be introduced in medical malpractice actions. If evidence of collateral source payments from sources including Medicare, other state or federal government programs, medical insurance or write-offs, and discounted or free medical services is presented to the fact-finder, the parties must be allowed to furnish the jury with evidence of any potential obligations of subrogation or reimbursement. The circuit court must instruct the fact-finder that it must not reduce the reasonable value of medical services on the basis of the collateral source payments. Lagerstrom v. Myrtle Werth Hospital-Mayo Health System, 2005 WI 124, 285 Wis. 2d 1, 700 N.W.2d 201, 03-2027

893.55 Annotation The $350,000 cap, as adjusted for inflation, on noneconomic medical malpractice damages set forth in ss. 655.017 and 893.55 (4) (d), 2001 stats., violates the equal protection guarantees of the Wisconsin Constitution. Ferdon v. Wisconsin Patients Compensation Fund, 2005 WI 125, 284 Wis. 2d 573, 701 N.W. 2d 440, 03-0988.

893.55 Annotation This section does not apply to a negligence claim alleging injury to a developmentally disabled child caused by a health care provider. The legislature has not provided a statute of limitations for claims against health care providers alleging injury to a developmentally disabled child. Haferman v. St. Clare Healthcare Foundation, Inc. 2005 WI 171, 286 Wis. 2d 621, 707 N.W.2d 853, 03-1307.

893.55 Annotation The jury award of noneconomic damages for pre-death pain and suffering, and the jury award for pre-death loss of society and companionship are governed by the cap set forth in the medical malpractice statutes, this section, and not the wrongful death statute, s. 895.04. Bartholomew v. Wisconsin Patients Compensation Fund, 2006 WI 91, 293 Wis. 2d 38, 717 N.W.2d 216, 04-2592.

893.55 Annotation When the applicability of sub. (7) to one of the physicians whose negligence caused the patient's injuries and death is unknown, the fact that the other causally negligent physician was an undisputed ch. 655 health care provider dictates the application of sub. (7). Hegarty v. Beauchaine, 2006 WI App 248, 297 Wis. 2d 70, 727 N.W.2d 857, 04-3252.

893.55 Annotation When negligent acts of malpractice are continuous and the cause of action is not complete until the last date on which the malpractice occurred, the entire course of negligent malpractice is within the court's jurisdiction. A plaintiff must show 4 elements to for this "continuum of negligent treatment" doctrine to apply: 1) a continuum of care; 2) a continuum of negligent care; 3) the care is related to a single condition; and 4) the precipitating factor in the continuum is the original negligent act. Forbes v. Stoeckl, 2007 WI App 151, 303 Wis. 2d 425, 735 N.W.2d 536, 06-1654.

893.55 Annotation The 5-year limit in sub. (1) (b) applies only to claims brought under the "discovery rule" of sub. (1) (b) and not to claims brought under the "injury rule of accrual" in sub. (1) (a). The continuum of negligent treatment doctrine modifies the 3-year limit of par. (a) and is unaffected by sub. (1) (b), which comes into play only when a plaintiff claims that, because of a delayed discovery of an injury, he or she is entitled to file an action beyond the 3-year time limit in sub. (1) (a). Forbes v. Stoeckl, 2007 WI App 151, 303 Wis. 2d 425, 735 N.W.2d 536, 06-1654.

893.55 Annotation Neither Fojut or Paul concludes that an injury must be untreatable or irreversible to trigger the limitations period imposed by sub. (1m) (a). The determination of a "physical injurious change" (when the negligent act or omission causes a greater harm than that which existed at the time of the negligent act or omission) is the appropriate benchmark for establishing the date of injury. A later injury from the same tortious act does not restart the running of the statute of limitations. Estate of Genrich v. OHIC Insurance Company, 2009 WI 67, 318 Wis. 2d 553, 769 N.W.2d 481, 07-0541.

893.55 Annotation Because an unlicensed 1st-year resident physician was a borrowed employee of the hospital where the resident allegedly performed negligent acts, the relation of employer and employee existed between the resident and hospital, and accordingly, the resident was an employee of a health care provider within the meaning of ch. 655 and sub. (4). Phelps v. Physicians Insurance Company of Wisconsin, Inc. 2009 WI 74, 319 Wis. 2d 1, 768 N.W.2d 615, 06-2599.

893.55 Annotation A fact finder cannot reasonably infer concealment under sub. (2) when a defendant has no contact with the plaintiff after an alleged negligent act or omission. Pagoudis v. Korkos, 2010 WI App 83, ___ Wis. 2d ___, 784 N.W.2d 740, 09-2965.

893.55 Annotation Constitutionality of Wisconsin's Noneconomic Damage Limitation. 72 MLR 235 (1989).

893.55 Annotation Wisconsin's Caps on Noneconomic Damages in Medical Malpractice Cases: Where Wisconsin Stands (and Should Stand) on "Tort Reform." Kenitz. 89 MLR 601 (2005).

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.

893.55 Annotation Bartholomew: The Wisconsin Supreme Court's Latest Foray into the Medical-Malpractice Thicket. Spencer. 2007 WLR 1121.

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 applies only to living minors. Awve v. Physicians Ins. Co. 181 Wis. 2d 815, 512 N.W.2d 216 (Ct. App. 1994).

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, 98-2955.

893.56 Annotation This section does not apply to a negligence claim alleging injury to a developmentally disabled child caused by a health care provider. The legislature has not provided a statute of limitations for claims against health care providers alleging injury to a developmentally disabled child. Haferman v. St. Clare Healthcare Foundation, Inc. 2005 WI 171, 286 Wis. 2d 621, 707 N.W.2d 853, 03-1307

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 3 years after the cause of action accrues or be barred.

893.57 History History: 1979 c. 323; 2009 a. 120.

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), 97-1922.

893.57 Annotation This section is applicable to a breach of fiduciary duty claim. Beloit Liquidating Trust v. Grade, 2004 WI 39, 270 Wis. 2d 356, 677 N.W.2d 298, 02-2035.

893.57 Annotation A breach of the fiduciary duty of loyalty is an intentional tort subject to the two-year statute of limitations in this section. Zastrow v. Journal Communications, Inc. 2006 WI 72, 291 Wis. 2d 426, 718 N.W.2d 51, 04-0276.

893.57 Annotation The notion that each "hit" or viewing of information on the Internet should be considered a new publication of allegedly defamatory statements that retriggers the statute of limitations is rejected. Ladd v. Uecker, 2010 WI App 28, 323 Wis. 2d 798, 780 N.W.2d 216, 09-0596.

893.57 Annotation A tort to the person is a tort involving or consisting in an injury to one's person, reputation, or feelings, as distinguished from an injury or damage to real or personal property. Because malicious prosecution is an intentional tort to the person, the 2-year statute of limitations in this section applies. Turner v. Sanoski, 2010 WI App 92, ___ Wis. 2d___, ___ N.W.2d ___, 09-1319.

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. 895.441 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. 895.441 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(3) (3) This section does not apply to damages incurred under s. 895.442.

893.585 History History: 1985 a. 275; 2003 a. 279; 2005 a. 155.

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, 948.085, or 948.095 or would create a cause of action under s. 895.442 shall be commenced before the injured party reaches the age of 35 years or be barred.

893.587 History History: 1987 a. 332; 2001 a. 16; 2003 a. 279; 2005 a. 155, 277; 2007 a. 97.

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), 95-3510.

893.587 Annotation Claims for injury caused by an Archdiocese's alleged fraudulent misrepresentation that an Archdiocese did not know that priests it assigned had histories of sexually abusing children and did not know the priests were dangerous to children was not barred by this section. None of the listed statutes in this section refers to fraudulent misrepresentations. John Doe v. Archdiocese of Milwaukee, 2007 WI 95, 303 Wis. 2d 34, 734 N.W.2d 827, 05-1945.

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]

subch. VI of ch. 893 SUBCHAPTER VI

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]

893.64 Annotation There must be mutual debts or setoff before this section applies. Estate of Demos, 50 Wis. 2d 262, 184 N.W.2d 117.

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.