The date of injury under sub. (1) (a) [now sub. (1m) (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
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
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
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
Sub. (1) (b) [now sub. (1m) (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
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
The limitation periods under sub. (1) (a) and (b) [now sub. (1m) (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
Wrongful death claims caused by medical malpractice are subject to the statute of limitations concerning medical malpractice in sub. (1) [now sub. (1m)]. Estate of Hegarty v. Beauchaine, 2001 WI App 300
, 249 Wis. 2d 142
, 638 N.W.2d 355
Under sub. (1) (b) [now sub. (1m) (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) [now sub. (1m) (a)]. Storm v. Legion Insurance Co., 2003 WI 120
, 265 Wis. 2d 169
, 665 N.W.2d 353
Section 893.16 tolls the period of limitations in sub. (1) (a) [now sub. (1m) (a)] for medical malpractice actions involving qualified claimants, extending the 3-year limitations period up to 5 additional years. Storm v. Legion Insurance Co., 2003 WI 120
, 265 Wis. 2d 169
, 665 N.W.2d 353
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
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
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
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
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
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
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
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
The 5-year limit in sub. (1) (b) [now sub. (1m) (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) [now sub. (1m) (a)]. The continuum of negligent treatment doctrine modifies the 3-year limit of sub. (1) (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
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 Co., 2009 WI 67
, 318 Wis. 2d 553
, 769 N.W.2d 481
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
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
, 326 Wis. 2d 234
, 784 N.W.2d 740
Evidence of collateral source payments is admissible under sub. (7) only if the evidence is relevant. In a medical malpractice action, evidence of collateral source payments is relevant if it is probative of any fact that is of consequence to the determination of damages. Weborg v. Jenny, 2012 WI 67
, 341 Wis. 2d 668
, 816 N.W.2d 191
In a medical malpractice claim based on unnecessary and improper treatment of inappropriate touching, the “physical injurious change," for purposes of determining the date of injury under sub. (1m) (a), occurs at the time of the touching. The fact that the patient may not have known at the time that the touching was inappropriate does not change this fact. John Doe 56 v. Mayo Clinic Health System-Eau Claire Clinic, Inc., 2016 WI 48
, 369 Wis. 2d 351
, 880 N.W.2d 681
The $750,000 cap on noneconomic damages in medical malpractice judgments and settlements under sub. (4) (d) 1. is constitutional based on equal protection and due process grounds. Mayo v. Wisconsin Injured Patients and Families Compensation Fund, 2018 WI 78
, 383 Wis. 2d 1
, 914 N.W.2d 678
Constitutionality of Wisconsin's Noneconomic Damage Limitation. 72 MLR 235 (1989).
Wisconsin's Caps on Noneconomic Damages in Medical Malpractice Cases: Where Wisconsin Stands (and Should Stand) on “Tort Reform." Kenitz. 89 MLR 601 (2005).
Bartholomew: The Wisconsin Supreme Court's Latest Foray into the Medical-Malpractice Thicket. Spencer. 2007 WLR 1121.
Tort Reform: It's Not About Victims ... It's About Lawyers. Scoptur. Wis. Law. June 1995.
Limitation of damages; long-term care providers. 893.555(1)(a)
“Long-term care provider" means any of the following:
Except as provided in sub. (3)
, an action to recover damages for injury arising from any treatment or operation performed by, or from any omission by, a long-term care provider, regardless of the theory on which the action is based, shall be commenced within the later of:
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.
If a long-term care provider conceals from a patient a prior act or omission of the provider that 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. (2)
, whichever is later.
The total noneconomic damages recoverable for bodily injury arising from care or treatment performed, or from any omission, by a long-term care provider, including any action or proceeding based on contribution or indemnification and any action for a claim by a person other than the injured person for noneconomic damages recoverable for bodily injury, may not exceed the limit under s. 893.55 (4) (d)
for each occurrence on or after February 1, 2011, from all long-term care providers and all employees of long-term care providers acting within the scope of their employment and providing long-term care services who are found negligent.
A court in an action tried without a jury shall make a finding as to noneconomic damages without regard to the limit under s. 893.55 (4) (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 s. 893.55 (4) (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.
Notwithstanding the limits on noneconomic damages under this section, damages recoverable against a long-term care provider, and an employee of a long-term care provider acting within the scope of his or her employment and providing long-term 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)
Damages recoverable under this section against a long-term care provider, and an employee of a long-term care provider acting within the scope of his or her employment and providing long-term care services, are subject to the provisions of s. 895.045
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 negligence by a long-term care provider. This section does not limit the substantive or procedural rights of persons who have claims based upon subrogation.
History: 2011 a. 2
; 2013 a. 165
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.
History: 1977 c. 390
; 1979 c. 323
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]
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
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
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.
History: 1979 c. 323
; 2009 a. 120
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]
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
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
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).
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
A breach of the fiduciary duty of loyalty is an intentional tort subject to the statute of limitations in this section. Zastrow v. Journal Communications, Inc. 2006 WI 72
, 291 Wis. 2d 426
, 718 N.W.2d 51
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
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
, 327 Wis. 2d 503
; 787 N.W.2d 429
This section applies to a claim alleging intentional trespass. Given that the phrase “to the person” must be given meaning, it may seem to connote a personal injury that is physical in nature. However, 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. Intentional trespass is a personal tort: It is an offense against another's possession, including the person's right to exclude others from his or her real property, and the corresponding feeling of security the person may achieve in doing so. Munger v. Seehafer, 2016 WI App 89
, 372 Wis. 2d 749
, 890 N.W.2d 22
This section governed the plaintiff's claim for intentional interference with contract. Tilstra v. Bou-Matic, LLC, 1 F. Supp. 3d 900
Actions concerning seduction.
All actions for damages for seduction shall be commenced within one year after the cause of action accrues or be barred.
History: 1979 c. 323
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]
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
Sexual exploitation by a therapist. 893.585(1)(1)
Notwithstanding ss. 893.54
, 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.
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.
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
, 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.
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
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
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
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.
History: 1979 c. 323
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
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.
History: 1979 c. 323
; 1993 a. 112