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Paynter v. ProAssurance Wisconsin Insurance Co.

Court of Appeals of Wisconsin, District III

March 27, 2018

David W. Paynter and Kathryn M. Paynter, Plaintiffs-Appellants,
v.
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.

          APPEAL from a judgment of the circuit court for Ashland County No. 2015CV80 ROBERT E. EATON, Judge.

          Before Stark, P.J., Hruz and Seidl, JJ.

          STARK, P.J.

         ¶1 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), [1] 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.

         ¶2 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.[2] 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."

         ¶3 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 Paynters' claims.[3]

         BACKGROUND

         ¶4 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.

         ¶5 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.[4] Hamp's staff transported the samples from David's growth to Ashland to be analyzed by a pathologist there.

         ¶6 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.[5]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.

         ¶7 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.[6] 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 future."

         ¶8 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).

         ¶9 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.

         ¶10 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.

         STANDARD OF REVIEW

         ¶11 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. § 802.08(2).

         ¶12 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 N.W.2d 179.

         DISCUSSION

         ¶13 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.

         ¶14 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 ...


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