2016 WI 48
SUPREME COURT OF WISCONSIN
CASE NO.: 2014AP1177
COMPLETE TITLE: John Doe 56, John Doe 57, a minor and Parents of
John Does 56 and 57,
Plaintiffs-Appellants-Petitioners,
v.
Mayo Clinic Health System - Eau Claire Clinic,
Inc., David A. Van de Loo, M.D., ProAssurance
Casualty Co. and Injured Patients and Families
Compensation Fund,
Defendants-Respondents.
REVIEW OF A DECISION OF THE COURT OF APPEALS
(Reported at 362 Wis. 2d 540, 885 N.W.2d 885)
(Ct. App. 2015 – Unpublished)
OPINION FILED: June 23, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: February 24, 2016
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Eau Claire
JUDGE: Michael A. Schumacher
JUSTICES:
CONCURRED:
DISSENTED: BRADLEY, A. W., J. and ABRAHAMSON, J. dissent
(Opinion filed).
NOT PARTICIPATING:
ATTORNEYS:
For the plaintiffs-appellants-petitioners, there were
briefs by Eric J. Magnuson and Robins Kaplan LLP, Minneapolis,
and Russell D. Nicolet, Adam L. Nicolet, and Nicolet Law Office,
S.C., Hudson. Oral argument by Eric J. Magnuson.
For the defendants-respondents David A. Van de Loo and
ProAssurance Casualty Company, there was a brief by Samuel J.
Leib, Brent A. Simerson and Wilson Elser Moskowitz Edelman &
Dicker, LLP, Milwaukee, and oral argument by Samuel J. Leib.
For the defendant-respondent Injured Patients & Families
Compensation Fund, there was a brief by Jeremy T. Gill and Nash,
Spindler, Grimstad & McCracken, LLP, Manitowoc.
For the defendants-respondents Mayo Clinic Health System-
Eau Claire Clinic, Inc. and ProAssurance Casualty Co., there was
a brief by Guy DuBeau, Timothy M. Barber, and Axley Brynelson,
LLP, Madison, and oral argument by Guy DuBeau.
2
2016 WI 48
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2014AP1177
(L.C. No. 13CV608 & 13CV13000)
STATE OF WISCONSIN : IN SUPREME COURT
John Doe 56, John Doe 57, a minor and Parents
of John Does 56 and 57,
Plaintiffs-Appellants-Petitioners,
FILED
v.
JUN 23, 2016
Mayo Clinic Health System - Eau Claire Clinic,
Inc., David A. Van de Loo, M.D., ProAssurance Diane M. Fremgen
Casualty Co. and Injured Patients and Families Clerk of Supreme Court
Compensation Fund,
Defendants-Respondents.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 REBECCA G. BRADLEY, J. Minors John Doe 56 and John
Doe 57 appeal from the decision of the court of appeals,1 which
affirmed the circuit court's2 dismissal of the Does' medical
malpractice claims based on the statute of limitations. The
1
John Doe 56 v. Mayo Clinic Health Sys.-Eau Claire Clinic,
Inc., No. 2014AP1177, unpublished slip op. (Wis. Ct. App. Apr.
1, 2015)(per curiam).
2
The Honorable Michael A. Schumacher of Eau Claire County
presided.
No. 2014AP1177
issue is whether the statute of limitations for medical
malpractice claims, Wis. Stat. § 893.55(1m)(a) (2013-14),3 bars
this action. More specifically, this case involves a
disagreement as to when the Does' claims for medical malpractice
accrued. The circuit court and court of appeals determined that
the Does' claims accrued on the last day Dr. David A. Van de Loo4
performed the genital examinations during which the medical
malpractice allegedly occurred. The Does contend their claims
3
Wisconsin Stat. § 893.55, in pertinent part provides:
(1m) Except as provided by subs. (2) and (3), an
action to recover damages for injury arising from any
treatment or operation performed by, or from any
omission by, a person who is a health care provider,
regardless of the theory on which the action is based,
shall be commenced within the later of:
(a) Three years from the date of the injury, or
(b) One year from the date the injury was discovered or,
in the exercise of reasonable diligence should have
been discovered, except that an action may not be
commenced under this paragraph more than 5 years from
the date of the act or omission.
All references to the Wisconsin Statutes are to the 2013-14
version unless otherwise indicated. We cite to the most recent
version of the statutes because no pertinent changes have been
made.
4
Dr. Van de Loo is no longer licensed to practice medicine
in Wisconsin. We refer to him with the title "Dr." throughout
the opinion because he was licensed at the time he rendered
treatment to the Does in this medical malpractice case, and
because the absence of his Wisconsin license to practice
medicine does not change the fact that he obtained a medical
degree.
2
No. 2014AP1177
for medical malpractice did not accrue until they learned in
news reports that the State had charged Dr. Van de Loo with
second-degree sexual assault of another boy for physically
manipulating that boy's penis during a genital examination very
similar to the Does' own examinations. The Does contend that
this knowledge caused them to suffer extreme emotional distress
and other psychological injuries because the boys then believed
that Dr. Van De Loo sexually assaulted them under the guise of a
genital examination. The Does are not arguing that the news
reports caused them to discover that they had been injured
during the genital examinations; rather, they are asserting that
no injury had occurred, and therefore, their claims did not
accrue, until they learned that Dr. Van de Loo's conduct during
the genital examinations might have involved a criminal sexual
assault.
¶2 At the outset, we address whether allegations of
sexual assault during a medical examination may lawfully be
pursued as a medical malpractice action. We are not convinced
that victims who are sexually assaulted by their physician
during an appointment can state an actionable claim for medical
malpractice. See Deborah S.S. v. Yogesh N.G., 175 Wis. 2d 436,
499 N.W.2d 272 (Ct. App. 1993)(improper sexual conduct by a
physician against a patient during a physical examination
constitutes intentional conduct, not medical malpractice).
Sexual assault is an intentional act and therefore should be
pursued as an intentional tort in the civil arena or as a
criminal matter, not under a claim of medical negligence. When
3
No. 2014AP1177
there exists, however, a legitimate medical purpose for a
genital examination, a claim can fall within medical
malpractice. See J.W. v. B.B., 2005 WI App 125, ¶10, 284
Wis. 2d 493, 700 N.W.2d 277 (digital-rectal prostate exams done
as part of a pre-employment physical properly fell within
medical malpractice where physician had a legitimate medical
purpose or reason for the allegedly inappropriate touching).
¶3 In Deborah S.S., the patient underwent a neurological
examination during which the physician touched her vagina,
buttocks, and breast, and she felt the physician's penis become
erect against her body. Id., 175 Wis. 2d at 439. The parties
agreed the sexual acts "did not serve any medical reason related
to the examination" and were therefore "not part of the medical
treatment accorded to the patient." Id. at 443. Based on this
agreement, it was clear that Deborah S.S. did not have an
actionable medical malpractice claim because the sexual touching
was unrelated to the neurological treatment. In J.W., like the
instant case, this separation was not evident. The medical
malpractice alleged in J.W. consisted of an unnecessary digital-
rectal prostate examination as a part of a pre-employment
physical. Id., ¶¶2, 9-11. The patients asserted these
examinations were unnecessary and improper and may have been
done for sexual rather than medical reasons. Id., ¶¶10-12. The
J.W. court distinguished J.W. from Deborah S.S. because the J.W.
plaintiffs did not "allege the physician touched them in places
or in ways that served no medical purpose or reason, such that
the prostate exams were not a part of the medical treatment the
4
No. 2014AP1177
physician provided." J.W., ¶10. In other words, because there
was a medical purpose for conducting digital-rectal prostate
exams, the alleged conduct was part of the medical treatment and
the only issue was whether "performing digital-rectal prostate
exams on healthy, twenty-five-year-old males during pre-
employment physicals was 'unnecessary and improper treatment,'
thus constituting medical malpractice." Id. (citation omitted).
The J.W. court held that under these circumstances, J.W.'s case
properly fell within medical malpractice.
¶4 The Does' case is more akin to J.W. than Deborah S.S.
The Does alleged that the touching occurred during their medical
treatment——during their annual examinations. The Does allege
that Dr. Van de Loo asserts he had a legitimate medical purpose
for manipulating the boys' penises during their genital
examinations, and the Does claim that Dr. Van de Loo's
"touching" during the medical examination was "unnecessary and
improper treatment." These allegations could constitute an
actionable medical malpractice claim. Northwest Gen. Hosp. v.
Yee, 115 Wis. 2d 59, 61-62, 339 N.W.2d 583 (1983) (This court
has held that "unnecessary and improper treatment []
constitute[s] malpractice.").
¶5 Further, this case comes to us following a motion to
dismiss. Our review on a motion to dismiss requires us to
accept the facts alleged in the pleadings as true. See Kaloti
Enters., Inc. v. Kellogg Sales Co., 2005 WI 111, ¶11, 283
Wis. 2d 555, 699 N.W.2d 205. The Does' pleadings allege both
unnecessary and improper treatment and that Dr. Van de Loo
5
No. 2014AP1177
professes a medical reason for the manipulation of the Does'
genitals. Accordingly, we cannot hold as a matter of law that
no claim exists under medical malpractice law. We therefore
analyze whether the circuit court properly dismissed the Does'
medical malpractice claim based on the statute of limitations in
Wis. Stat. § 893.55(1m)(a). To decide whether the statute of
limitations bars the Does' medical malpractice claims, we must
determine whether their claims accrued on the date Dr. Van de
Loo last physically touched the Does during their genital
examinations or whether accrual occurred when the Does learned
that Dr. Van de Loo's genital examination may, in actuality,
have constituted a criminal act.
¶6 We hold that the Does' claims accrued on the date of
the last physical touching by Dr. Van de Loo because that is the
only moment at which a "physical injurious change" occurred.
This is consistent with the "physical injurious change" test we
use for determining accrual in medical malpractice cases. See
Estate of Genrich v. OHIC Ins. Co., 2009 WI 67, ¶17, 318 Wis. 2d
553, 769 N.W.2d 481 ("[T]he determination of a 'physical
injurious change' is the appropriate benchmark for establishing
the date of 'injury' under Wis. Stat. § 893.55(1m)(a)."). The
Does' last appointments with Dr. Van de Loo were December 31,
2008 for Doe 56 and December 31, 2009 for Doe 57. They did not
file this medical malpractice action until October 2013, more
than three years after each boy's last genital examination with
Dr. Van de Loo. Accordingly, the Does' claims for medical
malpractice are time-barred by the three-year medical
6
No. 2014AP1177
malpractice statute of limitations, Wis. Stat. § 893.55(1m)(a).5
Therefore, the decision of the court of appeals is affirmed.
I. BACKGROUND
¶7 On October 9, 2013, John Doe 56, John Doe 57, and
their parents filed suit against Dr. Van de Loo, Mayo Clinic
Health System, ProAssurance Casualty Company and the Injured
Patients and Families Compensation Fund alleging a variety of
claims, including a claim for medical malpractice, which is the
only claim involved in this appeal.6 The facts and any
reasonable inferences derived therefrom are taken from the Does'
complaint and are set forth below.
¶8 The complaint's first paragraph states that these boys
"may have been the victim[s] of sex crimes." From 2003 to 2008,
Dr. Van de Loo served as Doe 56's primary care physician.
During this timespan, while Doe 56 was 10 to 15 years old, he
received medical treatment from Dr. Van de Loo that included Dr.
Van de Loo touching Doe 56's genitals. Doe 57 also received
medical treatment from Dr. Van de Loo, including touching of Doe
57's genitals between 2003 to 2009 when Doe 57 was 8 to 14 years
5
Although the Does argued the discovery rule in the circuit
court, they abandoned this argument on appeal. They do not
argue that their claim was timely filed under Wis. Stat.
§ 893.55(1m)(b)'s one-year date-of-injury discovery rule, and
therefore we analyze only when the Does' claim accrued under
§ 893.55(1m)(a).
6
The Does' attorney vociferously emphasized during oral
argument that the only claim being argued here is the claim for
medical malpractice.
7
No. 2014AP1177
old. During the respective time periods, Dr. Van de Loo
"inflicted harmful bodily contact" on the Does "on multiple
occasions." As a result of this contact, the boys suffered
"great pain of mind and body" and Dr. Van de Loo's actions
"caused bodily harm." The Does do not provide specific dates
for their examinations, but instead give only a year range.
¶9 The Does' complaint further alleges: Dr. Van de Loo
"touched the genitals of additional minor male patients" and
"did not wear gloves while he was performing examinations of
minor male patients." The examinations included physical
manipulation of the penis. Dr. Van de Loo asked parents to
leave the room during the genital examination, leaving the
doctor and the minor patient alone in the room.
¶10 In August 2012, a minor male patient reported that Dr.
Van de Loo had touched his genitals during a physical
examination and this led to criminal charges being filed against
Dr. Van de Loo in October 2012 for "second[-]degree sexual
assault by an employee of an entity and one for exposing
genitals or pubic area." The State ultimately charged Dr. Van
de Loo with 16 felony counts based on his conduct with male
patients.7 The Does allege that Dr. Van de Loo claimed his
7
Dr. Van de Loo states in his brief that a jury acquitted
him on 14 of the 16 criminal counts with which he was charged,
and that the prosecutor agreed to dismiss the remaining two
counts in exchange for Dr. Van de Loo's agreement to stop
practicing medicine and surrender his medical license. This
information, however, is not contained in the record.
8
No. 2014AP1177
genital examinations served a medical purpose in furtherance of
professional medical services and denied that his conduct was
criminal.
¶11 The Does assert they did not discover any damages
until the October 2012 news report on the criminal case against
Dr. Van de Loo. At that time, they discovered that Dr. Van de
Loo's conduct caused them profound psychological damages.8 The
boys "now realize" they have suffered "and will continue to
suffer great pain of mind and body, including, but not limited
to: depression, anxiety, embarrassment, emotional distress,
self-esteem issues, and loss of enjoyment of life."
¶12 The medical malpractice cause of action alleged Dr.
Van de Loo "failed to exercise reasonable care and medical skill
in . . . which he diagnosed, cared, treated and rendered medical
services to Doe 56, including, but not limited to providing
unnecessary and improper treatment."
¶13 The defendants filed motions to dismiss arguing the
medical malpractice statute of limitations expired, barring the
Does' claims based on medical malpractice.9 The circuit court
8
As noted, the Does are not arguing the discovery rule on
appeal. The Does use the term "discover" not in the sense that
they discovered that Dr. Van de Loo had injured them when he
touched their genitals, but to argue that the October 2012 news
about Dr. Van de Loo caused the actual injury.
9
The circuit court decided additional motions to dismiss
not pertinent here as this appeal involves only the Does'
dismissal of their medical malpractice claims. The parties
reported at oral argument that the Does' claim for sexual
battery against Dr. Van de Loo survived all of the motions to
dismiss and is still pending in the circuit court.
9
No. 2014AP1177
granted the motions to dismiss on statute of limitations grounds
and the court of appeals affirmed. We granted the Does'
petition for review.
II. STANDARD OF REVIEW
¶14 This case involves the review of a motion to dismiss,
which presents a question of law we review independently.
Alberte v. Anew Health Care Servs. Inc., 2000 WI 7, ¶6, 232
Wis. 2d 587, 605 N.W.2d 515. A motion to dismiss tests the
sufficiency of a complaint and will be upheld only when there
are no conditions under which a plaintiff may recover. Kaloti
Enters., Inc., 283 Wis. 2d 555, ¶11. Whether a plaintiff's
complaint fails to state a claim is a question of law we review
de novo. Id., ¶10. Moreover, in a review of a motion to
dismiss, we construe the pleadings liberally and accept as true
both the facts contained in the complaint and any reasonable
inferences arising from those facts. Id., ¶11. The motion to
dismiss here is based on whether the complaint was timely filed
under the applicable statute of limitations, Wis. Stat.
§ 893.55(1m)(a). This involves the interpretation and
application of a statute to an undisputed set of facts, which
also presents a question of law we review de novo. Genrich, 318
Wis. 2d 553, ¶10. If a complaint is not timely filed, the claim
is time-barred and dismissal will be upheld. See Pritzlaff v.
Archdiocese of Milwaukee, 194 Wis. 2d 302, 312, 533 N.W.2d 780
(1995).
¶15 In this case, whether the Does' medical malpractice
claims were timely filed is dependent upon when their claim
10
No. 2014AP1177
accrued. Accrual dates in medical malpractice claims are based
on the date of injury or, if applying the discovery rule, the
date the injury was or should have been discovered. See Wis.
Stat. § 893.55(1m).
III. ANALYSIS
A. Medical Malpractice Statute of Limitations
¶16 Wisconsin Stat. § 893.55(1m)(a) provides:
(1m) Except as provided by subs. (2) and (3), an
action to recover damages for injury arising from any
treatment or operation performed by, or from any
omission by, a person who is a health care provider,
regardless of the theory on which the action is based,
shall be commenced within the later of:
(a) Three years from the date of the injury[.]
¶17 Courts are repeatedly asked to apply this statute to a
particular set of facts to determine whether a medical
malpractice claim was timely filed. Although every case is
different, Wisconsin case law has over time developed a
consistent test for determining the date of injury in medical
malpractice claims under Wis. Stat. § 893.55(1m)(a): it is the
date of the "physical injurious change." Genrich, 318 Wis. 2d
553, ¶17. This test has worked in a variety of factual
scenarios and withstood the test of time. It was applied when
the negligent conduct was a misdiagnosis, see Paul v. Skemp,
2001 WI 42, 242 Wis. 2d 507, 625 N.W.2d 860 (physical injurious
change was when blood vessel ruptured); when the negligent
conduct was a failed tubal ligation, see Fojut v. Stafl, 212
Wis. 2d 827, 569 N.W.2d 737 (Ct. App. 1997)(physical injurious
change was the moment of conception), and when a foreign object
11
No. 2014AP1177
was left in the patient during surgery, see Genrich, 318 Wis. 2d
553 (physical injurious change was when a sponge was left inside
a surgical patient).
¶18 Thus, we must determine when the physical injurious
change occurred here. The Federal District Court for the
Western District of Wisconsin recently decided this exact issue
in Doe 52 v. Mayo Clinic Health System-Eau Claire Clinic, Inc.,
98 F. Supp. 3d 989, 994-95 (W.D. Wis. 2015). Doe 52 involved
similar allegations by another male, minor patient of Dr. Van de
Loo. Doe 52 alleged a medical malpractice claim against Dr. Van
de Loo based on "'unnecessary and improper [medical] treatment'
in the form of inappropriate touching." Id. (citation omitted;
brackets in original). Doe 52 had undergone the same genital
examinations as the Does while a patient of Dr. Van de Loo. See
id. at 990-91. Doe 52 made the same argument to the federal
district court that the Does make here: that no injury occurred
(and therefore no claim accrued) until he learned that the State
was charging Dr. Van de Loo criminally for the genital
examinations. Id. at 994. The Doe 52 court rejected this
argument and held that Doe 52's claims accrued at the time Dr.
Van de Loo last inappropriately touched Doe 52. Id. at 995-96.
The Doe 52 court reasoned that because the malpractice alleged
was unnecessary and improper treatment, specifically
inappropriate touching, "the 'physical injurious change'
plaintiff suffered was the touching, and any later emotional
distress was an additional injury[.]" Id. at 996 (emphasis
added). As a result, the Doe 52 court held that Doe 52's
12
No. 2014AP1177
claims, which were filed more than three years from the last
genital examination, were time-barred by Wis. Stat.
§ 893.55(1m)(a). We agree with this analysis.10
¶19 In a medical malpractice claim based on unnecessary
and improper treatment of inappropriate touching, the physical
injurious change occurs at the time of the touching. These boys
suffered an injury when Dr. Van de Loo physically touched their
genitals in an allegedly inappropriate way. To hold otherwise
runs contrary to existing case law and would defeat the purpose
behind the medical malpractice statute of limitations that
"prompt litigation ensures fairness." See Aicher ex rel.
LaBarge v. Wisconsin Patients Comp. Fund, 2000 WI 98, ¶¶51-54,
237 Wis. 2d 99, 613 N.W.2d 849.
¶20 The Does contend that there was no physical injurious
change at the time of the allegedly inappropriate touching
because they did not know at that time that the touching was
wrongful. Therefore, the Does argue their cause of action could
not have accrued at the time of the touching. Although we are
sympathetic to this argument, we are not persuaded by it.
10
The dissent criticizes our reliance on this federal case
because a federal district court decision is not binding
authority. See dissent, ¶45. Although it is true we are not
bound by federal district court decisions, see State v. Mechtel,
176 Wis. 2d 87, 94, 499 N.W.2d 662 (1993), the opinion on which
we rely is highly persuasive. It is a 2015 decision from the
Western District of Wisconsin involving the same defendant as in
this case——Dr. Van de Loo; it addresses the same unique
circumstances presented here; and its analysis is reasonable,
logical, and consistent with Wisconsin case law.
13
No. 2014AP1177
Expiration of the medical malpractice statute of limitations
before a patient knows about the injury is unfortunately a
consequence of the legislature's policy reasons for enacting the
medical malpractice statute of limitations. See Aicher, 237
Wis. 2d 99, ¶¶2-6. In Aicher, a 13-year-old claimed she became
blind in one eye as a result of alleged medical malpractice
committed during an examination of Aicher when she was a
newborn. Id., ¶2. We held her claim was time-barred by Wis.
Stat. § 893.55. Id., ¶6. We explained that the medical
malpractice statute of limitations was enacted to promote prompt
litigation of claims, to put the alleged wrongdoer on notice to
defend a claim within a specified time period, and to avoid
stale or fraudulent claims "brought after memories have faded or
evidence has been lost." Id., ¶27 (citation omitted).
Sometimes Wis. Stat. § 893.55 expires before a patient knows an
injury occurred:
We see no distinction between closing the doors to the
courtroom for claimants when an injury has not been
discovered within a fixed period of time after some
act or omission and closing the doors to the courtroom
for a person whose injury has not yet occurred within
a fixed period of time after some act or omission.
The effect of extinguishing a remedy in court is the
same. This court has concluded many times that the
legislature may sever a person's claim by a statute of
limitations or a statute of repose when the person has
had no possibility of discovering the injury——when the
person has been blameless in every respect. These
decisions represent judicial deference to the stated
policy of the legislature.
Aicher, 237 Wis. 2d 99, ¶50. The physical injurious change here
occurred when Dr. Van de Loo allegedly inappropriately touched
14
No. 2014AP1177
the Does' genitals. The fact the Does may not have known at the
time that the touching was allegedly inappropriate or that the
manipulation of their genitals constituted the physical
injurious change does not change this fact. See Fojut, 212
Wis. 2d at 831-32 (physical injurious change from negligent
tubal ligation was moment of conception, a date the patient
could not have known).
¶21 We are further not persuaded by the Does' claim that
no physical injurious change occurred at all because Dr. Van de
Loo's physical manipulation of their penises with his bare hands
did not leave bruises, scrapes, or other physical damage. Lack
of a physical mark does not mean that no physical injury
occurred under the circumstances here. As the Does allege in
their complaint: Dr. Van de Loo's alleged inappropriate
touching "caused bodily harm" and was "harmful bodily contact."
The physical injurious change here was the alleged improper
sexual manipulation of the penis, a physical action. The boys'
genitals were physically touched in an allegedly inappropriate
sexual way, which had not occurred prior to Dr. Van de Loo's
allegedly negligent conduct. To conclude otherwise would result
in a holding that a patient who is wrongfully touched in a
sexual manner by his or her physician does not have an
actionable claim after the improper touching unless the
physician does physical damage to their genitals.
¶22 Further, accepting the Does' position that their claim
did not accrue until they learned that Dr. Van de Loo was being
charged criminally for similar genital examinations would result
15
No. 2014AP1177
in a limitless extension of the medical malpractice statute of
limitations and change the causation connection in medical
malpractice cases from the negligent act to a fortuitous event——
here the media reporting about the criminal charges against Dr.
Van de Loo.
¶23 In essence, the Does are asking us to conclude that
they had no injury until they learned about the criminal charges
against Dr. Van de Loo. Stated otherwise, learning about the
criminal charges caused them to be injured for the first time.
This would mean that if no patient had ever reported Dr. Van de
Loo's genital examination as improper, or the State had declined
to file criminal charges, or the media had not reported on the
charges or the Does never saw the media reports, the Does would
never have suffered an injury and their claim would never have
accrued. The Does' position is not reasonable. The date of
injury of a patient's medical malpractice claims cannot be
tethered to whether or when the media reports on an allegedly
criminal act, nor can it be dependent on whether another patient
makes a report. A physician's actions either fall below the
standard of care and cause injury or they do not. Knowledge
that a physician is being charged criminally cannot be the
causal factor in whether or not medical negligence results in
injury. Moreover, adopting the Does' position could
indefinitely extend the medical malpractice statute of
limitations. Here, the news report about Dr. Van de Loo came
only a few years after the Does' last examination, but what if
the news report came 10 or 20 or 30 years after the last contact
16
No. 2014AP1177
with Dr. Van de Loo? This would defeat the legislature's
purpose for enacting Wis. Stat. § 893.55, see Aicher, 237
Wis. 2d 99, ¶¶22-27, 29-32, 50-51, 53-54, and would be
unreasonable. We will not interpret a statute in a way that
renders it absurd or unreasonable. See State v. Ziegler, 2012
WI 73, ¶43, 342 Wis. 2d 256, 816 N.W.2d 238.
¶24 Thus, we conclude that the Does' medical malpractice
claims accrued on the date of the last genital examination. It
was on that date that each suffered the "physical injurious
change" that triggered the start of the three-year statute of
limitations. The psychological injuries, caused by the
knowledge that Dr. Van de Loo had been criminally charged for
similar touching of other boys, constituted a subsequent injury
from the same tortious act (the inappropriate touching). This
emotional manifestation based upon the previously completed
physical injury (the improper touching of the boys' genitals
during the physical examination) does not restart the running of
the statute of limitations. See Genrich, 318 Wis. 2d 553, ¶21
("later injury arising from the same tortious act does not
restart the running of the statute of limitations")(citations
and quotation marks omitted).
¶25 The Does do not provide the specific date of the last
genital examination in their complaint, but include only a year
range. The parties, however, agreed to use the last date of
each calendar year from the last year in the range given. For
Doe 56, that date was December 31, 2008 and for Doe 57 that date
was December 31, 2009. Thus, the three-year statute of
17
No. 2014AP1177
limitations for Doe 56 expired December 31, 2011, and the three-
year statute of limitations for Doe 57 expired December 31,
2012. Because the Does did not file their medical malpractice
complaint until October 2013, their claims are time-barred by
Wis. Stat. § 893.55(1m)(a). Accordingly, their complaints were
properly dismissed and the decision of the court of appeals is
affirmed.11
B. Reliance on John BBB Doe v. Archdiocese of
Milwaukee12 in a medical malpractice case
¶26 John BBB Doe involved seven cases alleging that
priests in the Milwaukee Archdiocese sexually assaulted the
minor victims. Id., 212 Wis. 2d 312, 318, 565 N.W.2d 94 (1997).
The issue involved determining the date on which the victims
discovered or should have in the exercise of reasonable
diligence discovered that the sexual abuse caused injury. Id.
at 318-19. We held that a victim of this clergy sexual abuse
either discovered or should have discovered "that he or she was
11
This does not leave the Does without a remedy. Pursuant
to Wis. Stat. § 893.587, the Does have claims for sexual assault
that are not barred until they are 35 years old. See id.
("Sexual assault of a child; limitation. An action to recover
damages for injury caused by an act that would constitute a
violation of s. 948.02, 948.025, 948.06, 948.085, or 948.095 or
would create a cause of action under s. 895.442 shall be
commenced before the injured party reaches the age of 35 years
or be barred.") As explained in footnote 9, the Does' sexual
battery claim is still pending.
12
See John BBB Doe v. Archdiocese of Milwaukee, 211 Wis. 2d
312, 565 N.W.2d 94 (1997).
18
No. 2014AP1177
injured at the time of the alleged sexual assaults or by the
last date of the alleged multiple assaults." Id.
¶27 The circuit court in this case applied John BBB Doe to
Does 56 and 57's claims to conclude that both boys either
discovered or should have discovered that they were injured on
the date of the last inappropriate genital exam. The court of
appeals in this case also applied John BBB Doe to conclude that
the Does' negligence claims against Mayo Clinic accrued at the
time of the touching. See John Doe 56 v. Mayo Clinic Health
Sys.-Eau Claire Clinic, Inc., No. 2014AP1177, unpublished slip
op., ¶22 (Wis. Ct. App. Apr. 1, 2015)(per curiam). In this
court, however, the Does are not making a discovery-rule
argument. Thus, the John BBB Doe discovery-rule holding is not
pertinent to our analysis. See id., 211 Wis. 2d at 318-19.13
IV. CONCLUSION
¶28 We hold that the Does' claims accrued on the date of
the last physical touching by Dr. Van de Loo because that is the
moment at which the "physical injurious change" occurred in this
medical malpractice case. See Genrich, 318 Wis. 2d 553, ¶17.
13
We are not convinced that John BBB Doe should apply to a
medical malpractice case. There are significant differences
between clergy-abuse cases and alleged sexual abuse in a medical
malpractice case. Namely, there are medical reasons for a
physician to touch a patient's genitals in the course of a
legitimate physical examination. Although the line between an
inappropriate sexual touching and a medically necessary touching
of the body may not always be clear, a physician nevertheless is
in a very different position than a priest or clergy-person. A
priest or clergy-person has no legitimate reason to touch
another person's genitals.
19
No. 2014AP1177
Dr. Van de Loo's last physical contact with the Does' genitals
occurred when he manipulated each boys' penis in an allegedly
inappropriate and unnecessary manner. The dates of the last
genital examinations were December 31, 2008 for Doe 56 and
December 31, 2009 for Doe 57. The Does did not file these
medical malpractice claims until October 2013, more than three
years after each Doe had his last genital examination.
Accordingly, their medical malpractice claims are time-barred by
the medical malpractice statute of limitations, Wis. Stat.
§ 893.55(1m)(a). Further, we see no reason to extend John BBB
Doe to this medical malpractice case where the discovery rule is
not an issue.14
14
The dissent's analysis in support of its conclusion that
the Does' case is most like Paul v. Skemp, 2001 WI 42, ¶20, 242
Wis. 2d 507, 625 N.W.2d 860, is illogical.
Paul was a misdiagnosis case, where the negligence was an
omission leading to an injury that occurred two months after
Paul was last seen. See Paul, 242 Wis. 2d 507, ¶2, ¶¶4-5. The
physical injurious change did not occur at the same time as the
negligent act, but the Pauls' lawsuit was filed within the five-
year statute of repose. Id., ¶¶6, 12. The Does' case is not a
misdiagnosis case, Dr. Van de Loo's alleged negligent act was
the affirmative act of touching the boys' genitals (allegedly
unnecessary and improper treatment) rather than an omission, and
the Does' physical injurious change occurred at the time of the
touching. Attempting to analogize the Does' case to a
misdiagnosis case is simply wrong.
(continued)
20
No. 2014AP1177
The dissent's second point suggesting that this opinion
creates a statute of repose not found in Wis. Stat. § 893.55(1m)
is also unfounded. The statute of repose issue raised by the
dissent——and notably not by the parties——is unnecessary to
resolve the case presented to us; therefore we do not address
it. The dissent's statements misconstrue an issue not before
this court and warrant clarification. In dicta, Paul raised the
possibility that the date of injury under § 893.55(1m)(a) could
potentially exceed the five-year statute of repose in
§ 893.55(1m)(b) and urged the legislature to resolve the
potential conflict. Paul, 242 Wis. 2d 507, ¶¶48-49. The
legislature has not taken up that request. Isolated cases,
relying on Paul's dicta, have held that the five-year statute of
repose in § 893.55(1m) only applies to the discovery rule
paragraph (b) and is inapplicable to paragraph (a). See, e.g.,
Storm v. Legion Ins. Co., 2003 WI 120, ¶¶9-10, 265 Wis. 2d 169,
665 N.W.2d 353 (alleging medical malpractice against
psychologists where hypnosis was used to recover memories of
childhood sexual abuse that were later found to be untrue and
allegedly led to patient developing multiple personality
disorder; also involving tolling for mental illness); Forbes v.
Stoeckl, 2007 WI App 151, ¶1, 303 Wis. 2d 425, 735 N.W.2d 536
(doctrine of continuous treatment in dental malpractice case
applies, allowing claim timely made under Wis. Stat.
§ 893.55(1)(a) to include negligence that pre-dates the five-
year repose limitation under (1)(b)).
Before Wis. Stat. § 893.55 was enacted, there was no
discovery rule applicable to medical malpractice actions, see
Claypool v. Levin, 209 Wis. 2d 284, 292-94, 562 N.W.2d 584
(1997), and medical malpractice claimants had to file suit
within three years of their injury. See Aicher ex rel. LaBarge
v. Wisconsin Patients Comp. Fund, 2000 WI 98, ¶24, 237 Wis. 2d
99, 613 N.W.2d 849. As cases arose where claimants did not
discover their injuries until after three years had already
passed, we urged the legislature to amend the statute of
limitations because three years from the time of injury was "too
short." Id. (citations omitted). The legislature later enacted
the current statute of limitations:
(1m) Except as provided by subs. (2) and (3), an
action to recover damages for injury arising from any
treatment or operation performed by, or from any
omission by, a person who is a health care provider,
(continued)
21
No. 2014AP1177
By the Court.—The decision of the court of appeals is
affirmed.
regardless of the theory on which the action is based,
shall be commenced within the later of:
(a) Three years from the date of the injury, or
(b) One year from the date the injury was discovered
or, in the exercise of reasonable diligence should
have been discovered, except that an action may not be
commenced under this paragraph more than 5 years from
the date of the act or omission.
Wis. Stat. § 893.55.
Finally, we note the reasons the legislature enacted this
statute of limitations (as well as the statute of repose): to
promote fair and prompt litigation, protect defendants from
stale or fraudulent claims, and ensure claims are litigated
before the truth is "obfuscated by death or disappearance of key
witnesses, loss of evidence, and faded memories." Aicher, 237
Wis. 2d 99, ¶27. Adopting the Does' argument in this case would
eviscerate the three-year statute of limitations and flout the
legislative policy choices on which it is based by effectively
allowing a plaintiff to bring a medical malpractice claim
whenever he chooses simply by alleging his emotional distress
began even decades after the allegedly unnecessary and improper
treatment occurred.
22
No. 2014AP1177.awb
¶29 ANN WALSH BRADLEY, J. (dissenting). I agree with
the majority that in this case "we cannot hold as a matter of
law that no claim exists under medical malpractice law."
Majority op., ¶5. The majority is correct that the Does'
allegations against Dr. Van de Loo constitute actionable medical
malpractice claims because the alleged conduct was part of the
Does' medical treatment during their annual examinations.
Majority op., ¶4.
¶30 Additionally, I agree that "the John BBB Doe
discovery-rule holding is not pertinent to our analysis" because
the Does are not making a discovery-rule argument. Majority
op., ¶26 (citing John BBB Doe v. Archdiocese of Milwaukee, 211
Wis. 2d 312, 565 N.W.2d 94 (1997). Like the majority, I also am
"not convinced that John BBB Doe should apply to a medical
malpractice case." Majority op. n.12.
¶31 I write separately, however, because I disagree with
the conclusion that the Does' claims for medical malpractice are
time-barred by the three-year medical malpractice statute of
limitations. Majority op., ¶6. The majority opinion suffers
from two analytical missteps:
(1) It muddles Wisconsin's medical malpractice
jurisprudence by failing to distinguish between cases
in which injury and negligence occurred simultaneously
and those in which the injury occurred after the
negligence. As a result it erroneously concludes that
1
No. 2014AP1177.awb
the Does' injuries occurred at the same time as the
allegedly negligent medical examinations; and
(2) It conflates the statute of repose under Wis. Stat. §
893.55(1m)(b) with the statute of limitations for the
Does’ claims pursuant to Wis. Stat. § 893.55(1m)(a),
thereby judicially creating a statute of repose that
contravenes the plain language of the statute and our
case law.
¶32 Contrary to the majority, I conclude that the Does'
injuries did not occur simultaneously with the alleged
negligence. Their claims accrued when they suffered severe
emotional distress upon learning that they were the victims of
child sexual assaults perpetrated by Dr. Van de Loo during their
physical examinations. Thus, the Does' claims are not time-
barred by the medical malpractice statute of limitations because
the Does filed their claims within three years of the date they
accrued. Accordingly, I respectfully dissent.
I
¶33 At issue in this case is whether the Does' claims
accrued at the time of Dr. Van de Loo's allegedly negligent
genital examinations or whether they accrued when the Does
suffered severe emotional distress upon learning that they were
the victims of child sexual assault.
¶34 The Does allege that Dr. Van de Loo committed medical
malpractice when he sexually assaulted them under the guise of a
genital examination. They were children at the time, as young
as eight and ten years old, when Dr. Van de Loo performed some
2
No. 2014AP1177.awb
of the examinations. Accordingly, they assert that they did
not immediately understand that Dr. Van de Loo's conduct
constituted sexual assault.
¶35 Rather, the Does contend that they realized Dr. Van de
Loo's examinations were improper years later after learning that
he had been criminally charged with sexual assault for
conducting a sexually gratifying genital examination on another
minor patient. The complaint against Dr. Van De Loo alleges
they suffered physical injury in the form of severe emotional
distress, including depression, anxiety, embarrassment,
emotional distress, self-esteem issues, and loss of enjoyment of
life, upon learning that they had been sexually assaulted by
their trusted physician.1
¶36 The Does bring their medical malpractice claims
against Dr. Van de Loo pursuant to Wis. Stat. § 893.55(1m)(a),
which provides for a three-year statute of limitations from the
date of the injury. Although the Does filed medical malpractice
1
The majority acknowledges that the Does' suffered
"psychological injuries," but asserts that their severe
emotional distress constituted a subsequent injury to the
"inappropriate touching." Majority op., ¶24; see also Bowen v.
Lumbermens Mut. Cas. Co., 183 Wis. 2d 627, 632, 517 N.W.2d 432
(1994) ("[I]n a cause of action for negligent infliction of
emotional distress the injury a plaintiff must prove is severe
emotional distress; but the plaintiff need not prove physical
manifestation of that distress."); see also Camp ex rel.
Peterson v. Anderson, 2006 WI App 170, ¶21, 295 Wis. 2d 714, 721
N.W.2d 146 (Bowen recognizes direct claims for negligent
infliction of emotional distress, as long as a plaintiff's claim
satisfies the elements of negligent conduct, causation and
injury (severe emotional distress) and is not otherwise barred
by public policy.").
3
No. 2014AP1177.awb
claims against Dr. Van de Loo more than three years after the
date of their last examinations, they allege that their claims
were filed within three years of the date they suffered alleged
physical injury in the form of severe emotional distress.
¶37 Wisconsin's medical malpractice law provides for two
alternative statutes of limitations depending on whether the
plaintiff brings a claim under Wis. Stat. § 893.55(1m)(a) or
(b). The former provides a three-year statute of limitations
with no statute of repose and the latter sets forth Wisconsin's
discovery of injury rule with a five-year statute of repose:
[A]n action to recover damages for injury arising from
any treatment or operation performed by, or from any
omission by, a person who is a health care provider,
regardless of the theory on which the action is based,
shall be commenced within the later of:
(a) Three years from the date of the injury, or
(b) One year from the date the injury was
discovered or, in the exercise of reasonable
diligence should have been discovered, except
that an action may not be commenced under this
paragraph more than 5 years from the date of the
act or omission.
Wis. Stat. § 893.55 (1m).
¶38 In this case, the Does do not allege that they
discovered an existing injury years after it occurred.
Consequently, they do not pursue a "discovery" claim under Wis.
Stat. § 893.55(1m)(b). Rather, the Does assert that they did
not suffer physical injury until they experienced severe
emotional distress upon learning that they were victims of child
sexual assault perpetrated by Dr. Van de Loo during their
genital examinations.
4
No. 2014AP1177.awb
II
¶39 The majority muddles Wisconsin's medical malpractice
jurisprudence by failing to distinguish between cases in which
injury and negligence occur simultaneously and those in which
injury occurs after the negligent act, enabling it to assert
that the Does' injuries occurred at the same time as the
allegedly negligent medical examinations.
¶40 According to the majority, "Wisconsin case law has
over time developed a consistent test for determining the date
of injury in medical malpractice claims under Wis. Stat.
§ 893.55(1m)(a): it is the date of the 'physical injurious
change.'" Majority op., ¶17 (quoting Estate of Genrich v. OHIC
Ins. Co., 2009 WI 67, ¶17, 318 Wis. 2d 553, 769 N.W.2d 481). The
majority concludes that "the Does' claims accrued on the date of
the last physical touching by Dr. Van de Loo because that is the
only moment at which a 'physically injurious' change occurred."
Majority op., ¶6.
¶41 Given the nature of the Does' claims, the application
of the Genrich test appears to be an odd fit here. Even
assuming that Genrich's physically injurious change test
properly fits, its application merely begs the question: when
did the Does' suffer a physical injurious change?
¶42 The majority conclusively states that touching
constitutes a physically injurious change. Majority op., ¶19.
But what’s the change? The majority doesn’t tell us.
¶43 Describing a touching as constituting a physical
injurious change seems at odds also with common parlance. Does
5
No. 2014AP1177.awb
it make sense to state as a matter of law that when there is a
touching a physical injurious change occurs? I don’t think so.
¶44 It also does not make sense as a matter of good
policy. Will future cases deem a claim to be sufficiently
stated if together with a negligent act all that need be alleged
is that one was touched on the arm or the leg or some part of
the torso? Where is the stopping point?
¶45 Without giving the reader a clue about what changed or
how it changed, the majority relies solely on a federal district
court decision for its conclusion that the physically injurious
change the plaintiff suffered occurred simultaneously to the
allegedly negligent examination. Majority op., ¶18 (citing Doe
52 v. Mayo Clinic Health System-Eau Claire Clinic, Inc., 98 F.
Supp. 3d 989, 996 (W.D. Wis. 2015). Although this court
benefits from the analysis of a federal district court's
interpretation of State law, it is not binding authority. The
majority’s reliance on a sole federal district court decision is
not an adequate substitute for its failure to apply the facts of
this case to established Wisconsin precedent.
¶46 Because the majority completely fails to do so, I will
first set forth the case law relevant to the Does' claims.
Under Wisconsin law, "[a] tort claim is not capable of
enforcement until both a negligent act and an accompanying
injury have occurred." Paul v. Skemp, 2001 WI 42, ¶20, 242 Wis.
2d 507, 625 N.W.2d 860 (quoting Hansen v. A.H. Robins Inc., 113
Wis. 2d 550, 554, 335 N.W.2d 578 (1983). Thus, it is not the
6
No. 2014AP1177.awb
negligence, but the injury resulting from the negligent act that
begins the three-year statute of limitations period. Id.
¶47 In Fojut v. Stafl, 212 Wis. 2d 827, 829, 569 N.W.2d
737 (Ct. App. 1997), the plaintiff underwent elective tubal
litigation surgery in order to prevent pregnancy, but then
became pregnant a few months later. At issue was whether Fojut
suffered physical injury on the date of the surgery, which the
parties agreed was the date of the alleged negligent act, or the
later date of conception. Id. at 829-30.
¶48 Fojut concluded that the date of the injury triggering
the three-year medical malpractice statute of limitations was
the date of conception, rather than the date of the surgery.
Id. at 830-31. The Fojut court explained that there was no
evidence that the plaintiff suffered physical injury on the date
the surgery was performed. Id. at 831. Instead, it determined
that Fojut suffered physical injury on the date she became
pregnant. Id. Thus, the three-year medical malpractice statute
of limitations began to run from the later date of conception,
rather than the date of the alleged negligent act. Id.
¶49 Similarly, in Paul, the plaintiffs claimed that the
misdiagnosis of the cause of their daughter's recurring
headaches resulted in a ruptured blood vessel in her brain,
which caused her death. 242 Wis. 2d 507, ¶1. This court
concluded that "[t]he Pauls' claim for medical malpractice did
not, and could not, accrue until [their daughter] suffered an
injury." Id., ¶2. The Paul court explained that "[a]
7
No. 2014AP1177.awb
misdiagnosis may be a negligent omission, but it is not, in and
of itself, an injury." Id.
¶50 Based on the plain language of Wis. Stat. § 893.55(1),
Paul concluded that the legislature did not intend that
"omission" and "injury" should be conflated. Id., ¶20.
According to the Paul court, "[t]he plain language of Wis. Stat.
§ 893.55(1)(a) indicates that it is not the negligence, but the
injury resulting from the negligent act or omission which
initiates the limitations period."2 Id. Paul explained that
"[a]s our long-time precedent has established, the negligence
and its result——and injury——should be considered separately.
The negligence must cause an injury before there is an accrual
of a claim." Id., ¶34 (citing Meracle v. Children's Serv.
Soc'y, 149 Wis. 2d 19, 26, 437 N.W.2d 532 (1989)).
¶51 In contrast, in Genrich, the alleged negligence
occurred when doctors left a sponge in Genrich's abdominal
cavity after performing surgery. 318 Wis. 2d 553, ¶3. However,
the surgical sponge in Genrich's abdomen was not discovered
until approximately two weeks after the surgery when he
developed a fatal infection. Id. This court concluded that
Genrich experienced an injury triggering the statute of
limitations when the doctors left the sponge in his abdomen on
2
The majority attempts to explain away the import of Paul
v. Skemp, 2001 WI 42, ¶20, 242 Wis. 2d 507, 625 N.W.2d 860.
Majority op., ¶28 n.14. Yet, there is no explaining away Paul's
clear conclusion cited above, which explicitly applies to both
"negligent acts or omissions." Thus, the majority's attempt to
distinguish Paul as a case addressing only an "omission" is a
non-starter.
8
No. 2014AP1177.awb
the date of the surgery. Id., ¶18. Thus, in Genrich, the
negligence and the injury occurred simultaneously.
¶52 The Does' claims are more analogous to Fojut and Paul,
than to Genrich. They do not allege that they were physically
injured at the time of the examination. Instead, the Does argue
that they were physically injured when they suffered severe
emotional distress upon learning that they had been sexually
assaulted by Dr. Van de Loo. As the Does' counsel explained at
oral argument, there are no allegations in the complaint that
the Does were physically different after Dr. Van de Loo's
examination.
¶53 Despite the fact that the majority fails to apply the
facts of this case to the law set forth in Wisconsin precedent,
the majority summarily asserts that "[t]o hold otherwise runs
contrary to existing case law. . . ." Majority op., ¶19. After
applying the facts of this case to Wisconsin's well-established
case law, I reach the opposite conclusion of the majority and
determine that the Does' claims did not accrue until they
suffered severe emotional distress upon learning that they were
victims of child sexual assault perpetrated by Dr. Van de Loo
during their physical examinations.
III
¶54 Not only does the majority muddle Wisconsin case law,
its analysis of the statute of limitations conflates the statute
of repose under Wis. Stat. § 893.55(1m)(b) with the statute of
limitations for the Does’ claims pursuant to Wis. Stat. §
893.55(1m)(a), thereby judicially creating a statute of repose
9
No. 2014AP1177.awb
that contravenes the plain language of the statute and our case
law.
¶55 The plain language of Wis. Stat. § 893.55(1m)(b) sets
forth the one-year discovery statute of limitations together
with a five-year statute of repose for plaintiffs who allege
that they did not discover their injury at the time the
negligence occurred:
One year from the date the injury was discovered or,
in the exercise of reasonable diligence should have
been discovered, except that an action may not be
commenced under this paragraph more than 5 years from
the date of the act or omission.
¶56 In contrast, under Wis. Stat. § 893.55(1m)(a), there
plainly is a three-year statute of limitations but no statute of
repose. Storm v. Legion Ins. Co., 2003 WI 120, ¶19, 265 Wis. 2d
169, 665 N.W.2d 353 ("We conclude under a plain reading of
§ 893.55(1)(b) that the five-year repose period applies only to
actions brought pursuant to the discovery rule in paragraph
(b)); Forbes v. Stoeckl, 2007 WI App 151, ¶1, 303 Wis. 2d 425,
735 N.W.2d 536 (five-year statute of repose under Wis. Stat.
§ 893.55(1m)(b) does not apply to accrual claims brought under
Wis. Stat. § 893.55(1m)(a)).3
3
The majority embraces a two-pronged approach in an attempt
to rebut the assertion that it is judicially creating a statute
of repose that contravenes case law. Both prongs fail.
(continued)
10
No. 2014AP1177.awb
¶57 The majority's discussion conflates the three-year
statute of limitations applicable to the Does' claims with the
five-year statute of repose applicable to discovery rule claims.
It contends that "[s]ometimes Wis. Stat. § 893.55 expires before
a patient knows an injury occurred . . ." Majority op., ¶20.
According to the majority, "[e]xpiration of the medical
malpractice statute of limitations before a patient knows about
the injury is unfortunately a consequence of the legislature's
policy reasons for enacting the medical malpractice statue of
limitations." Majority op., ¶20. However, the issue in this
case is not whether the Does knew about their injuries, but when
they were injured.
¶58 As set forth above, the Does argue that they were not
injured and that therefore their claims did not accrue until
they suffered severe emotional distress upon learning that they
First, the majority attempts to discredit clear Wisconsin
Supreme Court precedent by labeling its conclusion as "dicta."
Majority op., ¶28 n.14. As the court of last resort in this
state, our conclusions cannot be dicta. State v. Picotte, 2003
WI 42, ¶61, 261 Wis. 2d 249, 661 N.W.2d 381; State v. Kruse, 101
Wis. 2d 387, 392, 305 N.W.2d 85 (1981); Chase v. American
Cartage Co., 176 Wis. 235, 238, 186 N.W. 598 (1922) ("[W]hen a
court of last resort intentionally takes up, discusses, and
decides a question germane to, though not necessarily decisive
of, the controversy, such decision is not a dictum, but is a
judicial act of the court which it will thereafter recognize as
a binding decision.").
Second, noting that the parties did not raise a statute of
repose issue, the majority takes the dissent to task for
discussing it. Admittedly, the parties did not raise a statute
of repose issue——but the discussion and analysis of the majority
opinion most certainly did. See, e.g., majority op., ¶20.
Accordingly, I respond to that discussion and analysis.
11
No. 2014AP1177.awb
had been victimized as children by the sexual assaults
perpetrated by Dr. Loo. This is distinguishable from a claim
brought under Wis. Stat. § 893.55(1m)(b), in which a plaintiff
may bring a claim if an injury is not discovered at the time it
occurs.
¶59 The majority acknowledges that "[t]he Does are not
arguing that the news reports caused them to discover that they
had been injured during the genital examinations; rather, they
are asserting that no injury had occurred, and therefore, their
claims did not accrue, until they learned that Dr. Van de Loo’s
conduct during the genital examinations might have involved a
criminal sexual assault." Majority op., ¶1 (emphasis in
original); see also Majority op., ¶11 n.8 ("The Does use the
term 'discover' not in the sense that they discovered that Dr.
Van de Loo had injured them when he touched their genitals, but
to argue that the October 2012 news about Dr. Van de Loo caused
the actual injury.") (emphasis in original).
¶60 Not only does the majority's analysis contravene the
plain language of Wis. Stat. § 893.55, it also contravenes
Wisconsin case law by failing to distinguish between cases
addressing the discovery rule's statute of repose and cases
addressing accrual claims such as the Does. Relying on Aicher
ex rel. LaBarge v. Wisconsin Patients Comp. Fund, 2000 WI 98,
237 Wis. 2d 99, 613 N.W.2d 849, the majority asserts that "the
legislature may sever a person's claim by a statute of
limitations or a statute of repose when the person has had no
possibility of discovering the injury . . ." Majority op., ¶20
12
No. 2014AP1177.awb
(citing Aicher, 237 Wis. 2d 99, ¶50). Remarkably, the majority
fails to acknowledge that Aicher addressed a discovery claim
brought under Wis. Stat. § 893.55(1m)(b), not an accrual claim
like the Does' claims brought under Wis. Stat. § 893.55(1m)(a).
¶61 In contrast to the Does’ case, the plaintiff in Aicher
alleged that she became blind in her right eye as a result of
medical negligence that occurred during her newborn examination,
but that she did not discover the condition until a decade
later. 237 Wis. 2d 99, ¶2. Aicher is also distinguishable from
this case because the parties did not dispute that the condition
resulted in an injury during the first six months of Aicher's
life. Id.
¶62 The majority further asserts that "[t]he fact the Does
may not have known at the time that the touching was allegedly
inappropriate or that the manipulation of their genitals
constituted the physical injurious change does not change this
fact." Majority op., ¶20 (citing Fojut, 212 Wis. 2d at 831-32
for the proposition that "physical injurious change from
negligent tubal ligation was moment of conception, a date the
patient could not have known."). Again, the majority conflates
the accrual rule set forth in Fojut, with the discovery rule set
forth under Wis. Stat. § 893.55(1m)(a).
¶63 Neither Fojut nor Paul limit the time period within
which a medical malpractice claim might accrue, yet the majority
contends the opposite, thereby judicially creating a statute of
repose for accrual claims. Although the plaintiff in Fojut
became pregnant a few months after her surgery, it is just as
13
No. 2014AP1177.awb
possible that she could have become pregnant years later.
Likewise, in Paul, the failure to diagnose the patient's
condition began nearly a decade before she passed away. 242
Wis. 2d 507, ¶3-4. This was a much longer period of time than
the few years at issue in this case, yet the Paul court found
that the plaintiff's claim did not accrue until she suffered
actual physical injury. Id., ¶2.
¶64 As the Does' counsel aptly stated at oral argument,
the legislature could have chosen to enact a statute of repose
that applied to Wis. Stat. § 893.55(1m)(a), but it chose not to
do so. Unlike the majority, I refuse to endorse a judicially
created statute of repose that contravenes the plain language of
the statute and well-established Wisconsin case law.
¶65 In sum, I conclude that the Does' injuries did not
occur simultaneously with the alleged negligence. Their claims
accrued when they suffered severe emotional distress upon
learning that they were the victims of child sexual assaults
perpetrated by Dr. Van de Loo during their physical
examinations. Thus, the Does' claims are not time-barred by the
medical malpractice statute of limitations because the Does'
filed their claims within three years of the date they accrued.
Accordingly, I respectfully dissent.
¶66 I am authorized to state that Justice SHIRLEY S.
ABRAHAMSON joins this dissent.
14
No. 2014AP1177.awb
1