May 6, 2022 – A statute that extends the time
limits for a mentally ill person to file a lawsuit against a long-term care
provider didn’t toll the statute of limitations for a lawsuit brought by the
estate of a mentally ill person, the Wisconsin Court of Appeals has ruled.
In Estate of Cohen v. Trinity Health Management, LLC, 2021AP1195 (April 14, 2022), the Court of Appeals District IV held that the statute didn’t apply because the decedent’s mental illness ended with his death.
Patient Dies from Burns
In February 2018, Mark Cohen was a permanent resident at Madison Heights Senior Community (MHSC), a community-based residential facility in Madison. Cohen suffered from a schizoaffective disorder and had been diagnosed as bipolar.
Jeff M. Brown is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by
email or by phone at (608) 250-6126.
On Feb. 2, 2018, Cohen was allowed to smoke unsupervised, without his protective smoking apron. His beard and clothing caught on fire and he sustained severe burns. On March 2, 2018, he died from his injuries.
Estate Files Lawsuit
Cohen’s estate filed a lawsuit in Dane County Circuit Court against the owners of MHSC and other entities and persons associated with it on Feb. 23, 2021.
Several of the defendants separately filed motions to dismiss, each claiming that estate’s lawsuit was barred by Wis. Stat. section 893.555(2). That statute sets a three-year statute of limitations for actions for damages arising from any treatment or omission by a long-term care provider (LTCP).
The Estate argued that section 893.16(1) tolled the statute of limitations.
Section 893.16(1) provides that if a person who sues a LTCP is mentally ill at the time the cause of action accrues, the action may commence within two years after the disability ends.
However, if the disability is a mental illness, under section 893.16(1) the period of limitation can be extended for a maximum of five years.
The circuit court concluded that the estate’s lawsuit was barred by the three-year statute of limitations and dismissed the lawsuit. The estate appealed.
Estate Relied Upon Caselaw
On appeal, the estate argued that under the Wisconsin Supreme Court’s holding in Storm v. Legion Insurance Company, 265 Wis. 2d 169, 665 N.W. 2d 353 (2003), section 893.16 tolled the three-year statute of limitations during the month that Cohen lived after he was burned.
In Storm, the plaintiff alleged that 1) health care providers had negligently treated her; 2) she was mentally ill at the time her claims accrued; and 3) she was still mentally ill.
The estate based its argument on the fact that in Storm, the supreme court referred to the five-year tolling provision in section 893.16(1) as a “‘disability tolling provision.’”
Additionally, the estate argued, in Storm the supreme court held that section 893.16(1) “toll[s] the period of limitation in section 893.555(1)(a).’”
No Tolling Under Storm
But the Storm decision does not mean that section 893.16(1) tolled the three-year limitation for the one month that Cohen lived after he was burned, Judge Fitzpatrick explained in an opinion for a three-judge panel.
“Rather, the supreme court’s use of the term ‘toll’ reflects the practical effect of section 893.16(1) under circumstances in which a claimant’s disability never ceases,” Judge Fitzpatrick wrote.
“In that event—as was the case in Storm—a period of limitation is never triggered by the cessation of the claimant’s disability, and the underlying period of disability can be effectively ‘tolled’ for up to five years.”
Judge Fitzpatrick noted that the supreme court in Storm conditioned the extension of the three-year limit imposed by section 893.155(1)(a) on two things: the plaintiff’s mental illness at the time her cause of action accrued, and the fact her mental illness hadn’t ceased more than two years before she filed the cause of action.
That wasn’t the case with Cohen, because his mental illness ceased when he died, more than three years before the estate filed the lawsuit.
“This language cannot be reconciled with the Estate’s interpretation of the analysis in Storm,” Fitzpatrick wrote.
Case Involving Minor’s Lawsuit Doesn’t Apply
The estate also argued the supreme court’s holding in Korth by Lukas v. American Family Insurance Co., 115 Wis. 2d 326, 340 N.W.2d 494 (1983) foreclosed any interpretation of section 893.16(1) that worked to bar its claim.
In Korth, a minor’s parents filed a lawsuit for medical expenses and loss of society and companionship three years and three days after the date of the minor’s injury. The lawsuit was combined with a lawsuit filed by the minor.
A statutory provision tolled the applicable three-year statute of limitations for lawsuits filed by a minor until one year after the minor’s 18th birthday.
The supreme court held that: 1) the parents’ claims should be filed with the minor’s claims; and 2) several policy reasons required a conclusion that the parents’ claims were timely filed.
Among those policy reasons was that combining the lawsuits and allowing the parents’ suit to continue would not impose any great burden on the defendant and would protect access to Wisconsin courts.
The estate argued that allowing its lawsuit to proceed would similarly impose no great burden on the plaintiff because if Cohen had not died, the estate’s lawsuit would have been timely.
But the policy reasons that underlay the Korth decision weren’t applicable in the instant case, Judge Fitzpatrick explained.
“We reject the Estate’s argument because we discern no basis to conclude that the unique circumstances and confluence of factors in Korth apply in this case, and the Estate’s argument gives us no basis to ignore the plain language of the applicable statutes,” Judge Fitzpatrick wrote.