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Paynter v. ProAssurance Wisconsin Insurance Co.

Supreme Court of Wisconsin

June 7, 2019

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

          CIRCUIT COURT ASHLAND COUNTY, L.C. No. 2015CV80 ROBERT E. EATON JUDGE

         REVIEW OF DECISION OF THE COURT OF APPEALS Reported at 381 Wis.2d 239, 911 N.W.2d374 PDC No:2018 WI app 27

          For the plaintiffs-appellants-petitioners, there were briefs filed by D. James Weis, Susan R. Tyndall, and Habush Habush & Rottier S.C., Waukesha. There was an oral argument by Eric J. Ryberg.

          For the defendants-respondents (James A. Hamp, M.D., and American Physicians Assurance Corporation), there was a brief filed by Jason J. Franckowiak, Lori Gendelman, and Otjen, Gendelman, Zitzer, Johnson & Weir, . S.C., Waukesha. There was an oral argument by Jason J. Franckowiak.

          For the defendants-respondents (Proassurance Wisconsin Insurance Company), there was a brief filed by Mark E. Larson, Bradley S. Foley, and Gutglass, Erickson, Bonville & Larson, S.C., Milwaukee. There was an oral argument by Mark E. Larson.

          SHIRLEY S. ABRAHAMSON, J.

         ¶1 This is a review of a published decision of the court of appeals affirming an order of the Circuit Court for Ashland County, Robert E. Eaton, Judge, granting summary judgment in favor of Defendant-Respondent Dr. James A. Hamp.

         ¶2 Plaintiffs-Appellants-Petitioners David and Kathryn Paynter live in Bessemer, Michigan, a city located near the Wisconsin-Michigan border. The Paynters sued Dr. Hamp, a medical doctor who practiced in both Wisconsin and Michigan, alleging that he negligently failed to diagnose Mr. Paynter with cancer. The Paynters also allege that Dr. Hamp violated Mr. Paynter's right to informed consent.

         ¶3 Dr. Hamp moved for summary judgment, arguing that the Paynters' claims are "foreign cause[s] of action" pursuant to Wisconsin's borrowing statute, Wis.Stat. § 893.07 (2015-16) [1]

         ¶4 Wisconsin's borrowing statute adopts the limitations rule of a foreign jurisdiction and applies it to any "foreign cause of action" as if it were Wisconsin's own statute, provided that the foreign period of limitation is shorter than Wisconsin's period of limitation.[2]

         ¶5 Dr. Hamp argues that pursuant to Wisconsin's borrowing statute, Michigan's statute of limitations applies to the Paynters' claims. It is undisputed that if Michigan's statute of limitations applies, the Paynters' claims are untimely.

         ¶6 The Paynters argue that their claims are not "foreign cause[s] of action" under the borrowing statute. Thus, they argue that Wisconsin's statute of limitations applies to their claims. It is undisputed that if Wisconsin's statute of limitations applies, the Paynters' claims are timely.

         ¶7 The circuit court granted Dr. Hamp's motion for summary judgment. It considered five factors that are traditionally used to resolve choice-of-law questions and concluded that those factors favored applying Michigan's statute of limitations. The Paynters appealed.

         ¶8 The court of appeals, applying a different analysis than the circuit court, affirmed the circuit court's order granting summary judgment to Dr. Hamp. The court of appeals announced that "in 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."[3]

         ¶9 The court of appeals held that because the Paynters lived in Michigan during the four-year period between Dr. Hamp's alleged misdiagnosis and Mr. Paynter's discovery of his injury, the Paynters' negligence claim was "foreign" for purposes of the borrowing statute. The court of appeals further held that the Paynters' informed consent claim was "foreign" for purposes of the borrowing statute because Mr. Paynter was located in Michigan at the time his right to informed consent was allegedly violated. Accordingly, the court of appeals applied the Michigan statute of limitations to both claims and affirmed the circuit court order granting summary judgment in favor of Dr. Hamp. The Paynters petitioned this court for review.

         ¶10 On this issue of first impression, we hold that in medical malpractice cases involving a negligent misdiagnosis that results in a latent, though continuous, injury, whether the action is "foreign" for purposes of Wisconsin's borrowing statute is determined by whether the plaintiff's first injury occurred outside of Wisconsin.

         ¶11 We disagree with the court of appeals' conclusion that the borrowing statute applies to the Paynters' negligence claim. On the record before the court, Mr. Paynter's place of first injury appears to be beyond ascertainment to any reasonable, non-speculative degree. When the plaintiff's place of first injury is unknowable, as in the instant case, Wisconsin's borrowing statute does not apply.

         ¶12 However, we agree with the court of appeals that the Paynters' informed consent claim is "foreign" for purposes of Wisconsin's borrowing statute. Therefore, we apply Michigan's statute of limitations to the Paynters' informed consent claim and conclude that the claim is untimely. Dr. Hamp is entitled to summary judgment as to that claim.

         ¶13 Accordingly, the court of appeals' decision is affirmed in part and reversed in part. We remand the cause to the court of appeals in order to address the Paynters' argument that the circuit court erred by determining that an insurance policy issued to Dr. Hamp by Defendant-Respondent ProAssurance Wisconsin Insurance Company did not provide coverage for the Paynters' claims.[4]

         I

         ¶14 Unless otherwise noted, the following facts are undisputed.

         ¶15 David Paynter and his wife, Kathryn Paynter, live in Bessemer, Michigan, a city located near the Wisconsin-Michigan border. In April 2010, Mr. Paynter saw Dr. Peter Areson, a Wisconsin physician, regarding a growth on the upper right side of his neck. Dr. Areson referred Mr. Paynter to Dr. Hamp, an ear, nose, and throat specialist, who practiced both in Ashland, Wisconsin, and Ironwood, Michigan.

         ¶16 On June 10, 2010, Dr. Hamp performed an aspiration[5] of the growth on Mr. Paynter's neck. The aspiration was performed in Dr. Hamp's Michigan office. Dr. Hamp's staff transported the samples from Mr. Paynter's growth to Wisconsin to be analyzed by a pathologist.

         ¶17 On June 14, 2010, Dr. Hamp's office received the pathologist's report, which indicated that Mr. Paynter's growth was cancerous. That same day, Dr. Hamp called the Paynters' home telephone in Michigan and told Mr. Paynter that the growth was not cancerous and that Mr. Paynter did not need any further treatment.[6]

         ¶18 Four years later, on June 19, 2014, Mr. Paynter had surgery to remove the growth and was diagnosed with cancer the same day. The doctor who performed the surgery requested that the pathology materials from the procedure be compared to the slides from the aspiration Dr. Hamp performed in June 2010. The following week, the doctor informed Mr. Paynter that his cancer had been present in June 2010.

         ¶19 The Paynters mailed a request for mediation[7] to Wisconsin's Medical Mediation Panels in May 2015.[8] On August 31, 2015, the Paynters filed the instant lawsuit in Ashland County Circuit Court against Dr. Hamp; his Michigan medical malpractice insurer, American Physicians Assurance Company; and his Wisconsin medical malpractice insurer, ProAssurance Wisconsin Insurance Company.[9]

         ¶20 Mr. Paynter alleged that as a result of Dr. Hamp's negligent failure to diagnose his cancer in June 2010, he was required to undergo extensive surgery and radiation, resulting in permanent injuries and damages, including facial paralysis. Mrs. Paynter alleged that as a result of injuries sustained by Mr. Paynter, she was deprived of the society and companionship of her spouse.

         ¶21 During his deposition, Dr. Hamp admitted that "[Mr. Paynter's] survival and prognosis would be improved if he had been treated in 2010 versus 2014." On this point, Dr. Hamp was confident, testifying: "I'm not guessing."

         ¶22 Dr. Hamp claimed in his deposition that he did not see the pathologist's report, but that if he had, he would have recommended that Mr. Paynter have the growth on his neck surgically removed regardless of whether it was malignant because even benign growths will continue to expand and, eventually, get to the point where they will break down the skin.

         ¶23 Mr. Paynter also alleged that Dr. Hamp violated his right to informed consent, resulting in permanent injuries and damages. Mrs. Paynter alleged that as a result of Dr. Hamp's violation of Mr. Paynter's right to informed consent, she was deprived of the society and companionship of her spouse.

         ¶24 The Paynters asserted in their complaint that Mr. Paynter first knew or should have known of his injury on or after June 19, 2014.

         ¶25 ProAssurance moved for summary judgment, arguing that the policy it issued to Dr. Hamp did not provide coverage for the Paynters' claims. The circuit court denied ProAssurance's motion, stating that "if there was failure to provide information that fell short of the standard of care that failure occurred in Wisconsin, and it wasn't because the biopsy was done in a manner that fell beyond the professional standard. It is clearly the interpretation and communication of the results. And none of that happened in Michigan . . . ."

         ¶26 Based on these statements, the Paynters and Dr. Hamp believed that they were entitled to summary judgment on the coverage issue. The Paynters moved for summary judgment, and Dr. Hamp joined the Paynters' motion.

         ¶27 This time, however, the circuit court concluded that a "professional incident" occurred in Michigan because Dr. Hamp gave Mr. Paynter a preliminary opinion that the growth was benign immediately after the aspiration was performed. Accordingly, the circuit court granted summary judgment to ProAssurance. After additional arguments regarding what actions Dr. Hamp took in Wisconsin, the circuit court indicated that the Paynters should file a motion for reconsideration.

         ¶28 Before the circuit court decided the Paynters' motion for reconsideration, Dr. Hamp moved for summary judgment, arguing that Wisconsin's borrowing statute required the application of Michigan's statute of limitations to the Paynters' claims, and under Michigan's statute of limitations, the Paynters' claims were untimely.

         ¶29 The circuit court granted Dr. Hamp's motion for summary judgment. It considered five factors that are traditionally used to resolve choice of law questions[10] and concluded that those factors favored applying Michigan's statute of limitations. Having granted Dr. Hamp's motion for summary judgment, the circuit court never addressed the Paynters' motion for reconsideration regarding whether the ProAssurance policy covered their claims against Dr. Hamp. The Paynters appealed.

         ¶30 The court of appeals affirmed the circuit court's order, but on different grounds. The court of appeals announced that "in 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."[11]

         ¶31 Before determining where the "first injury" occurred, the court of appeals first sought to determine when the first injury occurred. In determining when Mr. Paynter's first injury occurred, the court of appeals observed that in negligent misdiagnosis cases, "an actionable injury occurs when the misdiagnosis causes a greater harm than existed at the time of the misdiagnosis."[12]

         ¶32 The court of appeals concluded that in the instant case, Dr. Hamp made a prima facie showing that Mr. Paynter's first injury occurred in Michigan because the record showed that the Paynters resided in Michigan during the four-year period of time between Dr. Hamp's alleged misdiagnosis and Mr. Paynter's discovery of his injury. The court of appeals further concluded that Mr. Paynter's averment that he "was frequently in Wisconsin in between the years 2010 and 2015" failed to rebut Dr. Hamp's prima facie case that the Paynters' suit was a "foreign cause of action" under Wisconsin's borrowing statute. The court of appeals stated that the Paynters did not provide sufficient evidence to "establish-or even suggest-at what point in time [Mr. Paynter] first experienced a greater harm than that which existed at the time of the misdiagnosis."[13]

         ¶33 The court of appeals further concluded that the Paynters' informed consent claim was "foreign" for purposes of the borrowing statute. The court noted that Dr. Hamp first allegedly violated Mr. Paynter's right to informed consent during the June 14, 2010 phone call, and it is undisputed that Mr. Paynter was located in his Michigan home when he received that call. "Because [Mr. Paynter] was located in Michigan at that time, his alleged injury-i.e., the loss of the opportunity to choose his course of treatment-occurred in Michigan, not Wisconsin. "[14]

         ¶34 Accordingly, the court of appeals applied the Michigan statute of limitations to both claims and affirmed the circuit court order granting summary judgment in favor of Dr. Hamp.[15]The Paynters petitioned this court for review. II

         ¶35 This court applies the same method of analysis to a motion for summary judgment as does the circuit court.[16] Summary judgment is appropriate under Wis.Stat. § 802.08(2) 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."[17]

         ¶36 Our review of the instant case also requires us to interpret and apply Wisconsin's borrowing statute, Wis.Stat. § 893.07. "[S]tatutory construction is a question of law, which we review de novo, even though we benefit from the analyses of the circuit court and the court of appeals."[18]

         III

         A

         ¶37 Dr. Hamp argues that the Paynters' claims are "foreign cause[s] of action" pursuant to Wisconsin's borrowing statute, Wis.Stat. § 893.07. As such, Dr. Hamp contends that Michigan's statute of limitations applies to the Paynters' claims. It is undisputed that if Michigan's statute of limitations applies, the Paynters' claims are time barred.

         ¶38 "[S]tatutory interpretation 'begins with the language of the statute. If the meaning of the statute is plain, we ordinarily stop the inquiry.'"[19]

         ¶39 Wisconsin's borrowing statute, Wis.Stat. § 893.07, provides as follows:

(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 has not expired, but the applicable Wisconsin period of limitation has expired, no action may be maintained in this state.

         ¶40 The meaning of the phrase "foreign cause of action" is far from plain. The phrase "foreign cause of action" is not, and has never been, expressly defined in Wisconsin's borrowing statute. The phrase also appears to be unique to the borrowing statute; that is, the phrase appears nowhere else in the Wisconsin statutes.

         ¶41 In Guertin v. Harbour Assurance Company of Bermuda, Ltd., 141 Wis.2d 622, 415, N.W.2d 831 (1987), this court was required to determine whether the plaintiff's cause of action constituted a "foreign cause of action" pursuant to Wisconsin's borrowing statute. The plaintiff, Frank Guertin, was a Wisconsin resident who was injured in the state of Illinois when he slipped and fell off the fuel tank of a semi-trailer he was employed to drive.[20]

         ¶42 We determined that the phrase "foreign cause of action" was ambiguous, and therefore, we turned "to extrinsic sources to determine what the legislature meant by the phrase."[21]Before turning to extrinsic sources, however, we examined the statutory history of Wisconsin's borrowing statute.

         ¶43 We observed that "[i]n 1979, the legislature restructured Chapter 893, Limitations of Commencement of Actions and Proceedings and Procedure for Claims Against Governmental Units."[22] In that revision, the Judicial Council redrafted Wisconsin's borrowing statute, then numbered Wis.Stat. § 893.205, and renumbered it Wis.Stat. § 893.07.

         ¶44 Former Wis.Stat. § 893.205(1) did not use the phrase "foreign cause of action," but instead referred to "injuries to the person, received without this state."[23]

         ¶45 We then examined the Judicial Council Committee's Note to Wis.Stat. § 893.07 to help us determine the significance of the changes to the statutory text and derive meaning from the newly enacted language. Although the revised version of the statute substantively changed the borrowing statute in ways that are not relevant to the present case, [24] the Committee observed that other provisions of ch. 893 retained the same form in which they had previously existed and were "redrafted only for greater clarity and ease of application[.]"[25]

         ¶46 We concluded that it was "apparent from the Committee's comments that the Council considered the phrase 'foreign cause of action' to be synonymous with the language of the former borrowing statute, sec. 893.205(1), Stats. (1977), which barred actions 'for injuries to the person, received without this state.'"[26]

         ¶47 Accordingly, we declared that a cause of action is "foreign" for purposes of Wisconsin's borrowing statute if the plaintiff's injury occurred outside of Wisconsin.[27]

         ¶48 We then applied the "place of injury" test. This was a simple task, given that the injury in Guertin was immediate and discrete. Mr. Guertin fell off his semi-trailer and sustained injuries in Illinois. Therefore, Mr. Guertin's claims were "foreign cause[s] of action" pursuant to Wisconsin's borrowing statute. The Illinois statute of limitations for personal injury actions applied to his claims, and therefore, they were properly dismissed as untimely.

         B

         ¶49 Although it was clear how to apply the "place of injury" test under the facts of Guertin, application of the test in subsequent cases proved more difficult. The test needed additional gloss to cleanly apply to other claims and fact scenarios where the plaintiff's "place of injury" was not easily pinned down to one particular time and location.

         ¶50 For example, in Abraham v. General Casualty Company of Wisconsin, 217 Wis.2d 294, 576 N.W.2d 46');">576 N.W.2d 46 (1998), we had to decide whether Wisconsin's borrowing statute applied to contract actions.

         ¶51 In the Abraham case, the plaintiff, Paul Abraham, was injured by an automobile while riding his bicycle in the state of Florida.[28] After exhausting the tortfeasor's liability insurance policy limits, Mr. Abraham notified his insurer, General Casualty Company of Wisconsin, that he intended to seek underinsured motorist benefits.[29] When General Casualty refused to pay the underinsured motorist benefits, Mr. Abraham sued General Casualty in Wisconsin for breach of contract.[30]

         ¶52 We held that the borrowing statute applied to contract actions, [31] but we were mindful that determining the location of the plaintiff's injury "may be more difficult 'in the case of a dispute over a contract, whose 'location' is not easily pinned to a particular state if, for example, as is common, the contract is negotiated in one state, signed in another, and performed in a third.'"[32]

         ¶53 After "wad[ing] into [a] morass of arguments and precedent, "[33] we determined that the location of "the final significant event giving rise to a suable claim" should be the determinative factor in deciding whether a claim sounding in contract constitutes a "foreign cause of action" for purposes of the borrowing statute.[34]

         ¶54 We explained that this standard was "not only consistent with Guertin's interpretation of Wis.Stat. § 893.07," but also clarified, if imperfectly, [35] how that interpretation was to apply "to causes of action sounding in contract where it is frequently difficult to attach the plaintiff's contractual 'injury' to any one locale."[36]

         ¶55 Applying this framework to the facts of Abraham, we concluded that the "final significant event" giving rise to a suable claim for underinsured motorist benefits was the insurance company's refusal to pay the benefits upon Mr. Abraham's request. That denial occurred in Wisconsin, and therefore, Mr. Abraham's claim for underinsured motorist benefits was not a "foreign cause of action" under Wisconsin's borrowing statute.

         ¶56 Likewise, in Faigin v. Doubleday Dell Publishing Group, Inc., 98 F.3d 268 (7th Cir. 1996), it was not obvious how to properly apply Wisconsin's borrowing statute and our "place of injury" test in the context of a multi-state defamation suit.

         ¶57 In Faigin, sports agent A.J. Faigin represented James E. Kelly, a former quarterback for the National Football League's Buffalo Bills.[37] Mr. Kelly spoke unfavorably of Mr. Faigin in an autobiography published by the defendant, Doubleday Dell Publishing Group.[38] Of the 28, 600 copies of the autobiography that were sold to bookstores, only 41 of them were sold to bookstores in Wisconsin; that is, "a staggering 99.86 percent occurred outside Wisconsin."[39]

         ¶58 When Mr. Faigin sued Doubleday for defamation in the Eastern District of Wisconsin, Doubleday argued that Mr. Faigin's suit was a "foreign cause of action" under Wisconsin's borrowing statute. The district court agreed and granted summary judgment to Doubleday, concluding "that when the plaintiff's injury has occurred in more than one state, it amounts to a 'foreign' cause of action governed by Wisconsin's borrowing statute, notwithstanding the fact that Wisconsin is one of the states in which injury occurred."[40]

         ¶59 The Seventh Circuit reversed. It stated that determining the locations of Mr. Faigin's injuries was "straightforward enough."[41] There was evidence supporting the conclusion that Mr. Faigin was injured in Wisconsin, albeit minimally, and there was also evidence supporting the conclusion that Mr. Faigin was injured in other states where the autobiography was sold.[42] The Faigin court explained that "[t]his is a quirk of libel law: the plaintiff is generally considered to be injured wherever the defamatory writing is published. In other words, although it is clear where Faigin allegedly was injured, the place of injury cannot be narrowed to one state. "[43]

         ¶60 This "quirk of libel law" forced the Seventh Circuit "to decide between a rule that deems all multi-state libel claims foreign or all of them not[.]"[44] The Faigin court ultimately decided "that the latter is the better of two imperfect choicest.]"[45] "As it stands," the Faigin court explained, "the Wisconsin statute asks one question: did the injury occur inside Wisconsin?"[46] Because the answer in Faigin was "yes, if not exclusively[, ]" Mr. Faigin's defamation claim did not constitute a foreign cause of action for purposes of the borrowing statute.[47]

         C

         ¶61 Our discussion of the case law above illustrates that both state and federal courts construing Wisconsin's borrowing statute have focused on the location of the plaintiff's injury in determining whether a cause of action is "foreign" for purposes of the borrowing statute. Generally speaking, the plaintiff's injury is the "final significant event" giving rise to a cause of action, and it is the plaintiff's location when that injury is sustained that determines whether the cause of action is "foreign" for purposes of Wisconsin's borrowing statute. Although the "place of injury" test has not always been easy to apply, the focus has always remained on identifying the location in which the plaintiff suffered his or her injury.

         ¶62 Like Abraham and Faigin, the instant case provides another example of a category of cases in which the "place of injury" test requires more gloss. Unlike the single, discrete injury at issue in Guertin (the plaintiff's fall from his truck in Illinois) and the multiple, discrete injuries in Faigin (the sale of libelous books in multiple states, including Wisconsin), the instant case involves an alleged negligent misdiagnosis that resulted in a latent, though continuous, injury.

         ¶63 We have previously determined what constitutes an actionable "injury" in negligent misdiagnosis cases for purposes of triggering the medical malpractice statute of limitations, Wis.Stat. § 893.55(lm).

         ¶64 In Paul v. Skemp, 2001 WI 42, 242 Wis.2d 507, 625 N.W.2d 860, an arteriovenous malformation (AVM) in Jennifer Paul's brain ruptured, causing extensive hemorrhaging and, eventually, her death.[48] Jennifer's parents and Jennifer's estate sued two of Jennifer's doctors, claiming that the doctors misdiagnosed the cause of Jennifer's recurring headaches, resulting in the ruptured AVM.[49]

         ¶65 The doctors maintained that Jennifer's "injury" was the alleged misdiagnosis.[50] They argued that because the Pauls' claims were not brought within three years of Jennifer's last complaint about her headaches, the Pauls' claims were time barred.

         ¶66 The Pauls, on the other hand, maintained that what triggered the statute of limitations was not the alleged misdiagnosis, but rather the rupture of the AVM and the resultant hemorrhaging.[51] They argued that their claims were timely because they were brought within three years of the rupture of Jennifer's AVM.[52] The Pauls additionally submitted, in opposition to the doctors' motion for summary judgment, an affidavit from an expert witness, who concluded to a reasonable degree of medical certainty that had Jennifer's AVM "been properly diagnosed at any time prior to May 1, 1995, it [was] more likely than not that [Jennifer] would not have sustained the injury and disability she ultimately experienced on May 22, 1995. "[53]

         ¶67 In resolving what event constituted the actionable "injury," we relied on persuasive authority from other jurisdictions that had previously faced the same issue and concluded that" [a] misdiagnosis, in and of itself, is not, and cannot, be an actionable injury[]" because "[t]he misdiagnosis is the negligent omission, not the injury."[54] We explained that "[t]he actionable injury arises when the misdiagnosis causes a greater harm than existed at the time of the misdiagnosis."[55]

         ¶68 Applying this standard to the facts of the case, the Paul court concluded that Jennifer's actionable injury occurred "either at the time that Jennifer's AVM ruptured, or at the time that Jennifer's AVM could no longer be treated."[56] Because both of these events would have occurred within the applicable three-year statute of limitations, we held that the Pauls' claims were timely. [57] D

         ¶69 The Paynters maintain that the Seventh Circuit's reasoning in Faigin should apply to their medical malpractice claims. That is, because Dr. Hamp admitted that Mr. Paynter's growth would continue to expand unless and until it was surgically removed, Mr. Paynter was essentially suffering one continuous injury as his growth expanded. Put another way, "the misdiagnosis cause[d] greater harm than existed at the time of the misdiagnosis" in a continuous fashion as the cancer grew.[58]Thus, they argue, if Mr. Paynter entered Wisconsin during the four-year period of time between the misdiagnosis on June 10, 2010 and the growth's removal on June 19, 2014, "at least some" of Mr. Paynter's injury occurred in Wisconsin.[59]

         ¶70 We reject the Paynters' invitation to apply Faigin's reasoning to the facts of the instant case. While we do not comment on the merits of the Seventh Circuit's legal analysis in Faigin as applied to multi-state libel suits, it is clear to us that Faigin's analysis turned on the unique "quirk" of libel law that generally considers a plaintiff to be injured wherever the defamatory writing is published. That is, as the court of appeals correctly pointed out, "Faigin involved multiple, discrete injuries in different states [, ]" whereas here, "the Paynters have asserted a single, continuous injury, which they allege was ongoing for the entire period between June 2010 and June 2014, during which time David was physically present in both Michigan and Wisconsin."[60]

         ¶71 The Paynters' proposed analysis, if adopted, would render non-foreign virtually all medical malpractice cases involving the failure to diagnose cancer. Given that one of the primary purposes underlying Wisconsin's borrowing statute is to prevent forum shopping, [61] we cannot accept the ease with which a negligent misdiagnosis claim could be transformed from a "foreign" cause of action to a non-foreign one under the Paynters' theory. Such an interpretation would, without limitation, apply the Wisconsin statute of limitations to anyone who simply travels to Wisconsin, regardless of the frequency or duration of such travel.

         ¶72 Instead, we agree with the court of appeals that in medical malpractice cases involving a negligent misdiagnosis that results in a latent, though continuous, injury, whether the action is "foreign" for purposes of Wisconsin's borrowing statute is determined by whether the plaintiff's first injury occurred in Wisconsin.

         ¶73 In our view, the "first injury" test best comports with the case law construing Wisconsin's borrowing statute and the case law describing when a plaintiff suffers an actionable "injury" in the context of a negligent misdiagnosis. As in other cases in which the phrase "foreign cause of action" needed additional gloss to determine whether and how Wisconsin's borrowing statute should apply in a particular context, [62] the "first injury" test focuses on when a misdiagnosed plaintiff has a suable claim. A tort becomes "complete" when the plaintiff is injured, and the plaintiff in a negligent misdiagnosis case becomes injured when he or she first experiences greater harm as a result of the misdiagnosis than existed at the time of the misdiagnosis.[63] If the plaintiff is located outside of Wisconsin when this occurs, the action is "foreign" for purposes of Wisconsin's borrowing statute.[64]

         ¶74 As we explain more fully below, however, the time and location of plaintiff's "first injury" must be capable of ascertainment to a reasonable, non-speculative degree. When the plaintiff's place of first injury is unknowable, but could have occurred within or outside of Wisconsin, Wisconsin's borrowing statute does not apply.

         IV

...


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