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  • WisBar News
    March 29, 2018

    Negligent Misdiagnosis Lawsuit Not Timely Filed, Appeals Court Rules

    Joe Forward

    Medical Malpractice Lawsuit

    March 29, 2018 – A state appeals court recently ruled that a couple cannot proceed on negligent misdiagnosis claims against a physician because the lawsuit was not timely filed, applying Michigan’s statute of limitations under Wisconsin’s “borrowing statute.”

    David and Kathryn Paynter are Michigan residents who live in the Upper Peninsula, close to the Wisconsin-Michigan border north of Ironwood.

    In a Wisconsin lawsuit filed in 2015, in Ashland County, they alleged that Dr. James Hamp negligently failed to diagnose David’s cancer in 2010.

    They said Dr. Hamp – an ear, nose, and throat doctor with offices in both Michigan and Wisconsin, took a sample from David’s neck and sent it to a pathologist for analysis.

    After receiving the pathology report, Dr. Hamp called David to inform him that the growth on his neck was not cancerous and no treatment was needed.

    Four years later, in 2014, David had surgery to remove the growth on his neck, and he was diagnosed with cancer. The doctor who performed surgery compared the 2014 pathology slides with the 2010 slides to determine David’s cancer was present in 2010.

    The 2015 lawsuit followed. Dr. Hamp moved for summary judgment, relying on Wisconsin’s “borrowing statute,” Wis. Stat. section 893.07, to argue the lawsuit was not timely filed. Section 893.07 applies to a “foreign cause of action.”

    Foreign Cause of Action

    An action is foreign if premised on an injury that occurs outside Wisconsin. Under the borrowing statute, a plaintiff who brings a foreign cause of action in Wisconsin is subject to the shorter of the statute of limitations period in Wisconsin or the foreign jurisdiction.

    Dr. Hamp argued that the alleged injury occurred in Michigan, not Wisconsin, and the statute of limitations period for medical malpractice cases in Michigan had expired.

    Under Michigan law, the Paynters’ had six months to file the lawsuit after discovering that David had cancer. They did not file the suit within six months. They filed the lawsuit in 2015, more than a year after the surgeon informed David he had cancer.

    Paynter argued that the borrowing statute did not apply; it was not a foreign cause of action since some of the injury – the growth of the cancer after alleged misdiagnosis – occurred in Wisconsin as David was frequently in Wisconsin during that period.

    Joe ForwardJoe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6161.

    Under the Wisconsin limitations period for medical malpractice, the claim was timely filed because the Paynters had five years from the date they discovered the injury. They discovered the injury in 2014, when David had surgery to remove the tumor.

    But the circuit court ruled that the borrowing statute applied and Michigan’s statute of limitations barred the claim. In Paynter v. ProAssurance Wisconsin Insurance Co., 2017AP739 (March 27, 2018), a three-judge panel for the District III Wisconsin Court of Appeals affirmed, but on different grounds than the circuit court.

    In deciding the case, the appeals court clarified application of the borrowing statute when a party claims injuries occurred from the same course of action in multiple states.

    “[T]he plaintiff’s location at the time of his or her first injury controls whether the plaintiff’s cause of action is ‘foreign,’” Judge Lisa Stark wrote.

    Borrowing Statute Applied

    The issue on appeal was whether the borrowing statute applied to trigger Michigan’s more restrictive statute of limitations period for medical malpractice claims.

    In concluding the borrowing statute applied, the court clarified the proper test: whether David’s injury occurred outside of the state. The appeals court rejected the Paynters claim that the borrowing statute does not apply if part of the injury occurs in Wisconsin.

    “Permitting plaintiff to file suit in Wisconsin as long as he or she sustained some injury in this state – even if that injury was minimal and the plaintiff suffered far greater injuries in another state – would subvert the borrowing statute’s goals of reducing forum shopping and encouraging the expedient litigation of controverted matters,” Judge Stark wrote.

    The appeals court established a bright-line rule on the borrowing statute when claims allegedly arose in multiple states. “[I]n cases involving an injury or injuries that allegedly occurred in multiple states, the plaintiff’s cause of action is not foreign, for purposes of the borrowing statute, when the first instance of injury occurred in Wisconsin.”

    Thus, the appeals court decision came down to where David was located when the first injury occurred, where he was located when the alleged misdiagnosis “caused greater harm than existed at the time of the misdiagnosis.”

    The panel noted that the Paynters lived in Michigan between 2010 and 2014 and did not bring forth evidence that they were present in Wisconsin during that time. The panel also noted that Hamp gave the alleged misdiagnosis while David was in Michigan.

    “[T]he Paynters failed to submit sufficient evidence to create a genuine issue of material fact as to whether David was first injured in Wisconsin,” Judge Stark wrote.

    The appeals court panel also rejected the Paynters argument that the case should be remanded so they can present evidence to show David’s presence in Wisconsin, because they could not have anticipated the borrowing statute’s application.

    The panel concluded that they should have anticipated the arguments in this case, based on prior decisions that either favored or worked against their case.

    “The Paynters had the opportunity to address that issue with their prior summary judgment submissions. [W]e decline the Paynters’ request to give them a second chance to present evidence related to that issue,” Judge Stark wrote.

    Finally, the Paynters argued that Hamp violated his duty of informed consent by misdiagnosing David, depriving him of an opportunity to choose a course of treatment. Dr. Hamp did this, the Paynters argued, from Wisconsin since he called from Wisconsin.

    For purposes of the borrowing statute, the panel explained, an injury occurs “at the first moment in time when the plaintiff sustains an injury,” and David sustained the alleged injury of a right to be informed about treatment while he was located in Michigan.

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