Haferman v. St. Clare Healthcare Foundation, Inc.

DAVID T. PROSSER, J.

¶ 62. (dissenting). The issue presented in this case is what statute of limitations applies to a developmentally disabled person under the age of 18 who brings an action against a health care provider alleging that the provider's acts or omissions caused the person's developmental disability. The majority concludes that the legislature failed to set out an applicable statute of limitations for this situation. I conclude that a developmentally disabled person must bring his or her action within one of the time limitations under Wis. Stat. § 893.55, or by the time the person reaches the age of 10 years, whichever period is longer. Because my analysis produces a different result from the majority's analysis, I respectfully dissent.

ANALYSIS

¶ 63. This case exposes an obvious legislative mistake, which renders the legislature's blueprint for certain litigants ambiguous. Under the circumstances, this *649court is required to devise a response that will carry forward legislative objectives.1

¶ 64. Wisconsin Stat. § 893.55(1) (2003-04)2 provides:

893.55 Medical malpractice; limitation of actions; limitation of damages; itemization of damages.
(1) 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.

¶ 65. This is the statute of limitations that governs most malpractice actions against health care providers. It embodies a three-year limitation period "from the date of the injury," or a one-year limitation period "from the date the injury was discovered" so long as the discovery date is not "more than 5 years from the date of the act or omission." Under this statute, a claimant may opt for the more favorable of the two limitation periods.

¶ 66. The legislature has created exceptions to the limitation periods in this medical malpractice statute. See, e.g., Wis. Stat. §§ 893.22, 893.55(2) and (3), and *650893.56. It has also created statutes that toll these limitation periods. See, e.g., Wis. Stat. §§ 655.44(4) and 893.16(1).

¶ 67. This case involves the interplay among Wis. Stat. §§ 893.55, 893.56, and 893.16(1). Wisconsin Stat. § 893.56 creates an exception to § 893.55(1) for some medical malpractice actions by minors. It states:

893.56 Health care providers; minors actions. Any person under the age of 18, who is not under disability by reason of insanity, developmental disability or imprisonment, shall bring an action to recover damages for injuries to the person arising from any treatment or operation performed by, or for any omission by a health care provider within the time limitation under s. 893.55 or by the time that person reaches the age of 10 years, whichever is later. That action shall be brought by the parent, guardian or other person having custody of the minor within the time limit set forth in this section. (Emphasis added.)

¶ 68. Wisconsin Stat. § 893.16(1), a tolling statute for persons under a "disability," affects medical malpractice actions by persons who are mentally ill. It reads:

(1) If a person entitled to bring an action is, at the time the cause of action accrues, either under the age of 18 years, except for actions against health care providers; or mentally ill, the action may be commenced within 2 years after the disability ceases, except that where the disability is due to mental illness, the period of limitation prescribed in this chapter may not be extended for more than 5 years.

¶ 69. The underlined language in § 893.56 would make perfect sense if it tracked the tolling provisions in § 893.16. Unfortunately, it does not. Section 893.56 uses the term "insanity," whereas § 893.16 uses the terms *651"mentally ill" and "mental illness." Section 893.56 includes the terms "developmental disability" and "imprisonment" but these terms do not appear in § 893.16.

¶ 70. The historical record explains the inconsistency.3 In 1977 Representative Tom Hanson introduced 1977 Assembly Bill 705 at the request of "The Malpractice Committee." The bill sought to create a new section, 893.235, that would read:

893.235 Health Care Providers; Minors Actions. Any person under the age of 18, who is not under disability by reason of insanity or imprisonment, shall bring an action to recover damages for injuries to the person arising from any treatment or operation performed by, or for any omission by, a person who is licensed, certified, registered or authorized to practice as a health care provider under state law within the time limitation under s. 893.295(1) or by the time that person reaches the age of 8 years, whichever is later. That action shall be brought by the parent, guardian or other person having custody of the minor within the time limit set forth in this section.

This proposed section was to become the predecessor of § 893.56.

¶ 71. 1977 Assembly Bill 705 also amended an existing section, § 893.33, which would thereafter read in part:

893.33 Persons under disability. If a person entitled to bring an action mentioned in this chapter, except actions for the recovery of a penalty or forfeiture or against a sheriff or other officer for an escape, or for the *652recovery of real property or the possession thereof be, at the time the cause of action accrued, either
(1) Within the age of 18 years, except for actions against health care providers; or
(2) Insane; or
(3) Imprisoned on a criminal charge ... the time of such disability is not a part of the time limited for the commencement of the action, except that the period within which the action must be brought cannot be extended more than 5 years by any such disability, except infancy; nor can it be so extended in any case longer than one year after the disability ceases.

Wis. Stat. § 893.33 (1977-78) (emphasis added showing new language).4 This section was the predecessor of § 893.16. If Assembly Bill 705 had passed exactly as introduced, the predecessors to §§ 893.16 and 893.56 would have tracked each other perfectly to create a coherent system of limitations and tolling periods.

¶ 72. The intended symmetry was short-lived, however, because of a legislative mistake that occurred on March 2, 1978. 1977 Assembly Bill 705 was introduced on April 27, 1977. It was debated and passed the Assembly on September 14, 1977, with one amendment. The Senate debated the bill on March 2, 1978. As in the Assembly, there was a heated dispute in the Senate over the age limitation in what is now § 893.56. Should it be 8, as in the original bill? Should it be 13, as provided in the amendment adopted by the Assembly? *653Or, should it be 10, as proposed in Senate Amendment 1? The controversy was so spirited in the Senate that a motion to refer the bill back to committee lost on a tie vote.

¶ 73. Immediately after the Senate adopted Senate Amendment 1, Senator Dale McKenna offered Senate Amendment 2, an unrelated, handwritten amendment adding "developmental disability" as a "disability" in proposed § 893.235 (now § 893.56). The amendment was adopted on a voice vote. Senator McKenna never attempted to amend then-existing § 893.33 (now § 893.16), so that the newly created section (§ 893.235) and the old statute (§ 893.33) would track each other and work together. His amendment destroyed any symmetry in the law.

¶ 74. The Assembly subsequently battled over Senate Amendment 1, ultimately concurring in it; but the Assembly either did not notice or did not act to fix the problem created by Senator McKenna's Senate Amendment 2.

¶ 75. We have no direct evidence of Senator McKenna's actual intent. He presumably intended that all minors with developmental disabilities have additional time to file their actions against health care providers. If this were his intent, he failed to effect that intent by also amending the tolling statute (§ 893.33).5 *654He could have intended simply to recognize "developmental disability" as a legal disability without thinking through the implications of his action.6 He could have intended to create a defect in the bill that would, when discovered, jeopardize its passage by requiring the bill to return to the Senate.7 He could have intended to legislate a shorter limitation period for minors with developmental disabilities than for other minors. Although this last motivation for the amendment is unlikely, the effect of the McKenna amendment was to treat part of the class of minors with developmental disabilities less favorably than all other classes of children.

¶ 76. This brings us to the issue at hand. The court of appeals concluded that the applicable statute in this case is Wis. Stat. § 893.55(1)(a). Haferman v. St. Clare Healthcare Found., 2004 WI App 206, ¶¶ 1, 13, 272 Wis. 2d 156, 689 N.W.2d 636. It noted that, "The result in this case is troubling given that the legislature has, through Wis. Stat. § 893.56, provided more time for young children to file medical malpractice suits than the three years provided in Wis. Stat. § 893.55(1)(a)." *655Id., ¶ 13, n.5. The dissenting judge, Charles Dykman, declared this result "absurd." Id., ¶ 15 (Dykman, J., dissenting).

¶ 77. The present majority provides a sound analysis until it reaches § 893.55:

The court of appeals majority avoided rewriting the statutes because it concluded that the general three-year statute of limitations, § 893.55, must apply to Toby [Haferman] in the absence of another applicable statute of limitations. ...
We disagree with the conclusion of the court of appeals majority that § 893.55 is applicable here. The legislature could not have intended that developmentally disabled children bringing actions against health care providers would be subject to a shorter statute of limitations than would other children bringing medical malpractice actions.

Majority op., ¶¶ 53-54.

¶ 78. "We are compelled to determine ..." the majority continues, "that § 893.55 does not apply to claims against health care providers alleging injury to a developmentally disabled child." Id., ¶ 57. "Accordingly, we further determine that the legislature has not provided a statute of limitations for claims against health care providers alleging injury to a developmentally disabled child." Id., ¶ 58.

¶ 79. The majority's resolution of the issue is unpersuasive and creates new problems.

¶ 80. First, it is a mistake to reject § 893.55 so quickly. Applying § 893.55(l)(a) or (b) to a developmentally disabled child for an alleged injury from medical malpractice that occurs on or after the child's seventh birthday is not discriminatory because the child will be treated exactly the same as all other minors who are not *656"insane." Moreover, § 893.55(2) and (3) will assist any minor in specific circumstances.

¶ 81. The only time a problem arises under § 893.55(l)(a) is when the statute is applied to a developmentally disabled child for an alleged injury from medical malpractice before the child's seventh birthday. In that situation, the developmentally disabled child is given less time to file suit than almost all other children of the same age. This result is indisputably discriminatory.

¶ 82. The statutory language that creates the "as applied" problem for young children is the phrase "developmentally disabled" in § 893.56 because that phrase excludes young developmentally disabled children from the benefits of the statute. The presumed good intentions behind the phrase cannot save it from its irrational and discriminatory effect in cases of developmentally disabled children under age seven. As applied to these children, the phrase is unconstitutional as a denial of equal protection of the law.

¶ 83. Second, the majority creates a new problem not because it wants to treat some developmentally disabled children the same as other children but because it decides to treat all developmentally disabled children more favorably than other children.

¶ 84. If a health care provider's negligence caused a child to become developmentally disabled at birth and the child brought suit eight years later, the members of this court would have no difficulty striking down the "developmentally disabled" exclusion in § 893.56 because the disparate treatment of developmentally disabled children would be obvious and correctable. We would employ the same equal protection analysis that *657Amy Aicher attempted to use to challenge § 893.56, although she was not developmentally disabled.8

¶ 85. The majority resolves the issue here by giving Toby Haferman more time to file suit than we gave Amy Aicher. Indeed, the majority opinion gives all developmentally disabled children more favorable treatment than other children. To illustrate, when a 12-year-old is injured through medical malpractice, the child is governed by the provisions of § 893.55. When a 12-year-old developmentally disabled child is injured through medical malpractice, the child now has no statute of limitations at all.

¶ 86. In contrast, if we were to strike the phrase "developmentally disabled" in § 893.56, we would put developmentally disabled children on the same footing as other children. The legislature could grant these children more generous treatment if it enacted legislation to do so.

¶ 87. Third, by creating a special category for developmentally disabled persons under the age of 18, the court disregards the legislative finding that "the interests of very young minor children can be adequately and fully protected by extending the time limits in which actions may be brought to age 10." See Majority op., ¶ 40 (quoting 1977 A.B. 705, § 1). The court also creates a potential problem in relation to "imprisoned" minors who are injured from malpractice, inasmuch as these minors now have the same status as developmentally disabled children; that is, they are excepted from § 893.56 but are not covered in § 893.16.

¶ 88. Although it relies on the ambiguity of the statutes to reach its decision, the majority fails to provide any policy rationale why developmentally dis*658abled children should be treated more favorably than other children. A developmentally disabled child is not expected to file suit personally. Rather, an action in behalf of such a child will be brought by the parent, guardian, or other person having custody of the child, as provided in § 893.56. The majority provides no explanation of why the parent, guardian, or other person having custody of a developmentally disabled child should not be bound by a statute of limitations in filing a medical malpractice suit.

¶ 89. Application of § 893.55 to developmentally disabled children under 7 violates equal protection of the law. But § 893.55 applies only because § 893.56 excepts minors with developmental disabilities from its purview. Therefore, the exception in § 893.56 is unconstitutional as applied. Striking this exception would eliminate the constitutional infirmity of these statutes and sidestep the bizarre conclusion that no statute of limitations applies to minors with developmental disabilities.

¶ 90. The majority authorizes suit in this case more than IIV2 years after the child's alleged injury and boasts in doing so that it has avoided rewriting the statute. Majority op., ¶ 58. This is not judicial restraint. It is not judicial restraint because it disregards completely the purpose of statutes of limitation in medical malpractice actions.9 Excising unconstitutional *659language from an obviously defective statute is the common sense solution and is no more problematic than removing a ruptured appendix from an otherwise healthy body.

¶ 91. I therefore respectfully dissent.

¶ 92. I am authorized to state that Justices JON E WILCOX and PATIENCE DRAKE ROGGENSACK join this opinion.

See discussion in ¶ 75, infra.

All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

1997 Wisconsin Act 133 amended Wis. Stat. § 893.16(1) by changing "insane" and "insanity" to "mentally ill" and "mental illness" and striking the words "imprisoned" and "imprisonment."

Subsections (2) and (3) of the section are printed above to show the new language in context. Because these two subsections had been enacted previously, they did not appear in 1977 Assembly Bill 705. This helps to explain the legislative "mistake" described in ¶ 73, infra.

In 2000 in Aicher v. Wisconsin Patients Compensation Fund, 2000 WI 98, ¶ 73, 237 Wis. 2d 99, 613 N.W.2d 849, the court stated: "We suspect that this discrepancy is the result of oversight rather than purposeful discrimination. It is likely that the legislature's intent was to extend the period of filing for persons with developmental disabilities, not reduce it." If these speculative comments were correct, the McKenna amendment would represent a classic example of good intentions not being sufficient to overcome contradictory statutory language.

The Chapter 51 mental health statutes were revised in 1976, during Senator McKenna's senate term. This legislation included the first definition of "developmental disability." See § 11, ch. 430, Laws of 1975; Wis. Stat. § 51.01(5). In 1978 the legislature was still in the process of working the term "developmental disability" into the statutes.

This possibility is not implausible. Senator McKenna voted to reject Senate Amendment 1 (meaning that he favored age 13 over age 10 in proposed Wis. Stat. § 893.235); he voted to refer the bill back to the Committee on Judiciary and Consumer Affairs; and he voted to non-concur in 1977 Assembly Bill 705, meaning that he voted to defeat the bill. See Wis. S. Journal 1873-74 (Mar. 2, 1978).

See Aicher, 237 Wis. 2d 99.

The majority opinion correctly recounts the five legislative findings that accompanied ch. 390, Laws of 1977. Majority op., ¶ 40. Although the majority notes the legislative intent to limit actions by minors against health care providers, it finds "noteworthy" that these legislative findings do not "provide a shorter statute of limitations for children who are developmentally disabled[.]" Id., ¶ 42. Equally noteworthy, however, is that the findings do not provide a longer statute of limitations for *659developmentally disabled children. By focusing on a finding that does not exist, the majority lays the foundation upon which it disregards the overriding legislative intent at work in the late 1970s: limiting the time period in which all persons could bring medical malpractice actions.