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07/01/83 KATHLEEN M. HANSEN v. A.H. ROBINS COMPANY

July 1, 1983

KATHLEEN M. HANSEN, PLAINTIFF-APPELLANT,
v.
A.H. ROBINS COMPANY, INC., DEFENDANT-APPELLEE



Certification of a question of law from the United States Court of Appeals for the Seventh Circuit. On certification from United States Court of Appeals for the Seventh Circuit.

William G. Callow, J.

The opinion of the court was delivered by: Callow

This is a certification of a question of law from the United States Court of Appeals for the Seventh Circuit, pursuant to Chapter 821, Stats. *fn1 The issue certified for determination is:

"When does the cause of action accrue within the meaning of the Wisconsin statute of limitations for personal injury actions, Wis. Stat. secs. 893.04, .54, when the injury to the plaintiff was caused by a disease which may have been contracted as a result of protracted exposure to a foreign substance?" (Footnote omitted.)

The facts giving rise to this question of law can be briefly stated. On May 28, 1974, Kathleen M. Hansen had a "Dalkon Shield" intrauterine device (IUD) *fn2 inserted into her uterus by Dr. Fabiny. The "Dalkon Shield" is manufactured and sold by A.H. Robins Company, Inc. In late May, 1978, Hansen began experiencing various problems, including bleeding between menstrual periods, inability to digest food comfortably, nausea, diarrhea, nervousness, cramping, abdominal pain, and occasional fever. On June 13, 1978, she consulted Dr. Macken about her condition. After conducting an examination, he concluded that Hansen's symptoms could be related to gastroenteritis. He added that it was unlikely she had pelvic inflammatory disease (PID). *fn3 On June 16, 1978, Dr. Macken notified Hansen that her test results were normal and noted that she was asymptomatic on that day. On June 26, 1978, Hansen again sought medical attention, this time from Dr. Fabiny. He removed the Dalkon Shield and concluded that she probably had PID. Hansen recovered from the PID infection. However, the disease left her fallopian tubes blocked, rendering her sterile.

On June 24, 1981, Hansen commenced a diversity action against Robins in the United States District Court for the Western District of Wisconsin to recover damages for personal injuries arising out of her use of the Dalkon Shield. She alleged that the Dalkon Shield had a defective design which caused her to contract PID. On March 5, 1982, Robins moved for summary judgment, alleging that Hansen's claim was barred by Wisconsin's three-year statute of limitations for personal injury actions. The United States District Court concluded that under Wisconsin law a personal injury claim accrues and the statute of limitations begins to run when, as a result of a negligent act, the plaintiff sustains some injury -- no matter how slight. The court determined that Hansen was injured "sometime prior to June 13, 1978," and, therefore, her claim accrued before that date. Since the complaint was not filed until June 24, 1981, the court held that Hansen's claim was barred by the statute of limitations. Hansen appealed to the United States Court of Appeals for the Seventh Circuit which certified the aforementioned question of law to this court for determination.

The applicable statute of limitations for this action is set forth in secs. 894.14 and 893.205(1), Stats., 1977. *fn4 Those sections provide in pertinent part:

"893.14 Actions, time for commencing. The following actions must be commenced within the periods respectively hereinafter prescribed after the cause of action has accrued. . . ."

"893.205 Within 3 years. Within 3 years: (1) An action to recover damages for injuries to the person for such injuries sustained. . . ."

Whether Hansen's claim is barred or preserved depends upon when it accrued and thereby commenced the running of the statute of limitations.

Basically, there are three points in time when a tort claim may be said to accrue: (1) when negligence occurs, (2) when a resulting injury is sustained, and (3) when the injury is discovered. Holifield v. Setco Industries, Inc., 42 Wis. 2d 750, 759, 168 N.W.2d 177 (1969); Denzer v. Rouse, 48 Wis. 2d 528, 532, 180 N.W.2d 521 (1970). We have held that the time of the negligent act alone is not the key to accrual of tort claims. Traditionally, under Wisconsin law "' cause of action accrues where there exists a claim capable of present enforcement, a suable party against whom it may be enforced, and a party who has a present right to enforce it.'" Barry v. Minahan, 127 Wis. 570, 573, 107 N.W. 488 (1906). A tort claim is not capable of enforcement until both a negligent act and an accompanying injury have occurred. Holifield v. Setco Industries, Inc., 42 Wis. 2d at 755-56. Although the negligence and resulting injury are often simultaneous, occasionally an injury will not be sustained until a subsequent date. Therefore, we have held that tort claims accrue on the date of injury. Peterson v. Roloff, 57 Wis. 2d 1, 4, 203 N.W.2d 699 (1973); Holifield v. Setco Industries, Inc., 42 Wis. 2d at 755-56; Olson v. St. Croix Valley Memorial Hospital, 55 Wis. 2d 628, 632, 201 N.W.2d 63 (1972).

The foregoing rule equitably regulates the statute of limitations in the majority of cases. Most often a claimant is aware of an injury when it occurs. Therefore, the claimant has the full statutory period in which to initiate an action. In some instances, however, the negligence may cause an injury which is initially latent. Such an injury may not be discovered until it is manifested at a later date. Nevertheless, under the current rule the claim accrues when the injury occurs. The result being that the statutory period for initiating an action may have partially, or in some instances totally, expired before the claimant knows of the injury. This situation has arisen in several Wisconsin cases.

Rod v. Farrell, 96 Wis. 2d 349, 291 N.W.2d 568 (1980), was a medical malpractice action involving the surgical repair of a congenital hernia on a four-year-old boy, Michael Rod. No one was aware of any problems with the operation when it was performed in 1955. In 1975 Rod discovered that portions of his vasa had been surgically removed, rendering him sterile. The severed vasa was linked to the hernia surgery Rod had undergone in 1955. In 1976 Rod commenced an action against the doctor who performed the hernia operation. The doctor moved for summary judgment on the ground that Rod's claim was time barred. The circuit court denied the motion but was reversed by the court of appeals. On review this court adhered to the rule that a claim accrues and the statute of limitations begins to run at the time of injury. Finding that Rod was injured during the hernia operation in 1955, the court held that his claim was barred by the three-year statute of limitations.

In Peterson v. Roloff, supra, the defendant, Dr. Kritter, operated on Winnie Peterson in 1954 to remove her gall bladder. Dr. Kritter negligently performed the surgery by failing to completely remove the gall bladder and the cystic duct. In addition, he left a piece of gauze in Peterson's abdomen. Peterson was unaware of these problems until 1971 when she began to experience abdominal pain. She consulted another physician who eventually performed a second operation. During the course of this surgery, the medical problems caused by Dr. Kritter's negligence were discovered. In 1971 Peterson brought a medical malpractice action against the coadministrators of Dr. Kritter's estate. The defendants moved for summary judgment on the ground that the complaint was untimely. The trial court granted the motion. On appeal, this court found that Peterson was injured at the time of the surgery in 1954, and therefore her claim accrued and the three-year statute of limitations began to run on that date. Accordingly, the court held that Peterson's claim was barred even ...


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