David W. Paynter and Kathryn M. Paynter, Plaintiffs-Appellants,
ProAssurance Wisconsin Insurance Company, James A. Hamp and American Physicians Assurance Corporation, Defendants-Respondents, Continental Casualty Company, Wisconsin Injured Patients and Families Compensation Fund, Keith A. Henry and Blue Cross Blue Shield of Michigan, Defendants.
from a judgment of the circuit court for Ashland County No.
2015CV80 ROBERT E. EATON, Judge.
Stark, P.J., Hruz and Seidl, JJ.
David and Kathryn Paynter sued Dr. James Hamp, alleging he
negligently failed to diagnose David's cancer. The
circuit court granted Hamp summary judgment. It concluded
Wisconsin's borrowing statute, Wis . Stat . § 893.07
(2015-16),  applied to the Paynters' lawsuit, and
their claims were therefore subject to Michigan's statute
of limitations for medical malpractice actions. Applying the
Michigan statute of limitations, the court concluded the
Paynters' lawsuit was not timely filed.
The circuit court applied an incorrect legal standard in
determining the Paynters' lawsuit was subject to the
borrowing statute. Nonetheless, we agree with the court's
ultimate conclusion that their lawsuit was not timely
filed. The borrowing statute applies to actions
brought in Wisconsin "on a foreign cause of
action." See Wis. Stat. § 893.07(1), (2).
A cause of action is foreign, for purposes of the borrowing
statute, when it is premised on an injury that occurred
outside of Wisconsin. See Guertin v. Harbour Assurance
Co. of Bermuda, 141 Wis.2d 622, 630, 415 N.W.2d 831');">415 N.W.2d 831
(1987). In a case-like this one-in which the plaintiff claims
to have been injured in the same course of action in multiple
states, we conclude the plaintiff's location at the time
of his or her first injury controls whether the
plaintiff's cause of action is "foreign."
Here, the Paynters have alleged a negligent misdiagnosis. Our
supreme court has previously held that, in such cases, an
actionable injury occurs when the misdiagnosis causes a
greater harm than existed at the time of the misdiagnosis.
Paul v. Skemp, 2001 WI 42, ¶25, 242 Wis.2d 507,
625 N.W.2d 860');">625 N.W.2d 860. In his summary judgment submissions, Hamp
made a prima facie showing that all of David's injuries
occurred in Michigan. In response, the Paynters failed to
submit sufficient evidence to raise a genuine issue of
material fact as to whether David was located in Wisconsin
when Hamp's allegedly negligent misdiagnosis first caused
him greater harm than existed at the time of the
misdiagnosis. As a result, the Paynters' lawsuit is a
foreign cause of action and is therefore subject to the
borrowing statute. Under the borrowing statute, the
Paynters' lawsuit is untimely because it was not filed
within the period set forth in Michigan's statute of
limitations for medical malpractice claims. We therefore
affirm the circuit court's judgment dismissing the
David and his wife, Kathryn, live in Bessemer, Michigan, a
city located near the Wisconsin-Michigan border. In April
2010, David saw Dr. Peter Areson, a Wisconsin physician,
regarding a growth on his upper right neck. Areson referred
David to Hamp, an ear, nose and throat specialist who
practiced in both Ashland, Wisconsin, and Ironwood, Michigan.
David had an initial consultation at Hamp's Ironwood
office on May 13, 2010. He returned to the Ironwood office on
June 10, 2010, for a second appointment, during which Hamp
performed an aspiration of the growth on David's
neck. Hamp's staff transported the samples
from David's growth to Ashland to be analyzed by a
Hamp received the pathologist's report on June 14, 2010.
On the same day, he called the Paynters' home telephone
in Michigan and told David that the growth was not cancerous
and David did not need any further treatment.However, David
ultimately had surgery to remove the growth on June 19, 2014,
and was diagnosed with cancer the same day. The doctor who
performed the surgery requested that the pathology materials
from that procedure be compared to the slides from the
aspiration Hamp had performed in June 2010. The following
week, that doctor informed David his cancer had been present
in June 2010.
The Paynters mailed a request for mediation to
Wisconsin's Medical Mediation Panels sometime during May
2015. On August 31, 2015, the Paynters filed the instant
lawsuit against Hamp; his Michigan medical malpractice
insurer, American Physicians Assurance Company; and his
Wisconsin medical malpractice insurer, ProAssurance Wisconsin
Insurance Company. The Paynters' complaint asserted both
negligence and informed consent claims against Hamp. It
alleged that, as a result of Hamp's conduct, David had
"sustained permanent injuries and damages, including
past and future pain, suffering, disability, humiliation,
embarrassment, worry and mental distress, " as well as
"loss of enjoyment of life; past wage loss and
impairment of future earning capacity; past and future
medical expenses; and other compensable injuries." The
complaint further alleged that Kathryn had been
"deprived of the society and companionship of her
spouse, ha[d] provided nursing services, and ha[d] incurred
medical and other expenses relating to her spouse's
injuries, and will continue to incur such expenses in the
Hamp moved for summary judgment, arguing the Paynters'
lawsuit was not timely filed. His motion was based on
Wisconsin's borrowing statute, which provides:
(1) If an action is brought in this state on a foreign cause
of action and the foreign period of limitation which applies
has expired, no action may be maintained in this state.
(2) If an action is brought in this state on a foreign cause
of action and the foreign period of limitation which applies
to that action has not expired, but the applicable Wisconsin
period of limitation has expired, no action may be maintained
in this state.
Wis. Stat. § 893.07. Hamp contended the Paynters'
lawsuit constituted a "foreign cause of action"
under the borrowing statute because any injuries the Paynters
sustained as a result of his conduct occurred in
Michigan-their state of residence-rather than Wisconsin. He
therefore argued the Paynters' lawsuit was untimely
because the "foreign period of limitation"-i.e.,
Michigan's statute of limitations for medical malpractice
claims-had expired. See § 893.07(1) (providing
no action may be maintained in Wisconsin on a foreign cause
of action where the foreign limitation period has expired).
In response to Hamp's summary judgment motion, the
Paynters did not dispute that their lawsuit was untimely
under the Michigan statute of limitations. Instead, they
argued there was a genuine issue of material fact as to
whether the borrowing statute applied to their claims in the
first place. In support of that argument, they contended a
plaintiff's cause of action is not foreign, under the
borrowing statute, if he or she sustained some injury in
Wisconsin, even if the plaintiff was also injured in another
state. The Paynters argued that, in the instant case,
David's injury was the growth of his cancer during the
time period between the June 2010 misdiagnosis and the June
2014 surgery to remove the tumor. David submitted an
affidavit, in which he averred he was "frequently"
in Wisconsin during that time period. The Paynters therefore
argued there was at least a genuine issue of material fact as
to whether David sustained an injury- namely, the growth of
his cancer-while he was in Wisconsin.
The circuit court concluded the borrowing statute applied to
the Paynters' claims. In reaching that conclusion, the
court considered five factors that are traditionally used to
resolve "choice of laws" questions: (1)
predictability of results; (2) maintenance of interstate and
international order; (3) simplification of the judicial task;
(4) advancement of the forum's governmental interests;
and (5) application of the better rule of law. See State
Farm Mut. Auto. Ins. Co. v. Gillette, 2002 WI 31,
¶53, 251 Wis.2d 561, 641 N.W.2d 662. The court concluded
these factors favored applying Michigan's statute of
limitations. The court further concluded the Paynters'
lawsuit was untimely under the Michigan statute, and it
therefore granted Hamp's motion for summary judgment. The
Paynters now appeal.
We independently review a grant of summary judgment, using
the same methodology as the circuit court. Hardy v.
Hoefferle, 2007 WI.App. 264, ¶6, 306 Wis.2d 513,
743 N.W.2d 843. "Under that methodology, the court,
trial or appellate, first examines the pleadings to determine
whether claims have been stated and a material factual issue
is presented." Preloznik v. City of Madison,
113 Wis.2d 112, 116, 334 N.W.2d 580 (Ct. App. 1983). If so,
we then examine the moving party's submissions to
determine whether they establish a prima facie case for
summary judgment. Id. If the moving party has made a
prima facie showing, we examine the opposing party's
affidavits to determine whether a genuine issue exists as to
any material fact. Id. Ultimately, summary judgment
is appropriate where "the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law." Wis.Stat.
Here, our review of the circuit court's summary judgment
decision also requires us to interpret and apply Wis.Stat.
§ 893.07. Statutory interpretation presents a question
of law for our independent review. State v.
Bergquist, 2002 WI.App. 39, ¶6, 250 Wis.2d 792, 641
In the instant case, it is undisputed the Paynters'
lawsuit was timely filed under Wisconsin's statute of
limitations for medical malpractice claims. With certain
exceptions not applicable here, that statute requires medical
malpractice actions to be commenced within the later of: (1)
three years from the date of injury; or (2) one year from the
date the injury was discovered, or in the exercise of
reasonable diligence should have been discovered, but not
more than five years from the date of the act or omission
giving rise to the injury. Wis.Stat. § 893.55(1m). Hamp
concedes the Paynters first discovered David's injury on
June 19, 2014, the date of his surgery and cancer diagnosis.
It is undisputed that the Paynters mailed their request for
mediation to the Wisconsin Medical Mediation Panels sometime
during May 2015, which was within one year of June 19, 2014,
and was not more than five years after the act giving rise to
David's injury-i.e., the June 14, 2010 misdiagnosis.
See Wis. Stat. § 655.44(4) (stating "any
applicable statute of limitations" is tolled on the date
a medical malpractice plaintiff mails his or her request for
mediation). The Paynters' lawsuit was therefore timely
under the discovery prong of the Wisconsin statute.
Conversely, the undisputed facts show that the Paynters'
lawsuit was not timely under Michigan's statute of
limitations for medical malpractice claims. That statute
requires a plaintiff to file suit within the later of: (1)
two years from the date his or her claim accrued-that is, the
date of the negligent act or omission; or (2) six months
after the plaintiff discovered or should have discovered the
existence of his or her claim. Mich. Comp. Laws Ann. §
600.5805(1), (6), § 600.5838a(1), (2) (West 2018).
Again, it is undisputed that the Paynters mailed their
mediation request in May 2015, which was more than two years
after the June 14, 2010 misdiagnosis-the negligent act giving
rise to their claim. It is ...