Kohnke v. St. Paul Fire & Marine Insurance , 140 Wis. 2d 80 ( 1987 )

LaROCQUE, J.

Brian Kohnke appeals a summary judgment barring his medical malpractice action against the Midelfort Clinic, S.C, for failure to file his claim within the statute of limitations. Because under the applicable statute, sec. 893.55(l)(b), Stats., the claim expired before Brian could have with reasonable diligence discovered his injury, he is deprived of a remedy for his injuries contrary to art. I, sec. 9, of the Wisconsin Constitution. We therefore declare the statute unconstitutional in its application and reverse.

Brian was allegedly rendered sterile during bilateral hydrocele surgery performed five and one-half months after his birth in 1961. A segment of his epididymis, the structure wherein sperm is stored, was apparently accidentally removed during the operation. He first discovered his injury when, as a married man some twenty-two years later, he sought medical advice for a suspected fertility problem. No claim is made that he lacked diligence in making the discovery.

We first reject a contention that the controlling statutes of limitation were those that existed at the time of Brian’s injury. Those earlier statutes, part of ch. 330, Stats. (1959),¹ were partially repealed and recreated and amended as part of ch. 323, Laws of 1979, effective July 1, 1980.

It is the clinic’s premise that Brian’s cause of action accrued at the time of his injury, not at the time of discovery, and therefore his claim expired prior to the repeal of the prior statute of limitations.

Under the prior statutes, sec. 330.33, Stats. (1959), allowed a person under disability as a minor, whose cause of action had accrued, to commence the action one year beyond the age of majority. If, as the clinic maintains, Brian’s cause of action accrued at the time of injury, his claim expired on April 28,1980, one year beyond his eighteenth birthday.² The present statute of limitations, sec. 893.55(l)(b), first effective July 1, 1980, would therefore be of no relevance to an already expired cause of action.

The clinic’s premise, however, is not correct. Brian’s claim did not accrue at the time of the injury. It accrued only after discovery. Under the holding of Hansen v. A.H. Robins, Inc., 113 Wis. 2d 550, 560, 335 N.W.2d 578, 583 (1983), a cause of action does not accrue until the claim is either discovered or with reasonable diligence should have been discovered. The Hansen rule was made retroactive to cases that accrued before the date of the decision, July 1, 1983, by Borello v. U.S. Oil Co., 130 Wis. 2d 397, 423-24, 388 N.W.2d 140, 151 (1986). Unfortunately, Borello was decided after the trial court’s decision in this case. Since the discovery principle, adopted in "the interest of justice and fundamental fairness,” by Hansen, 113 Wis. 2d at 560, 335 N.W.2d at 583, applies to all cases that accrued before July 1,1983, surely it applies here where the alleged malpractice occurred before that date, although the cause of action accrued after that date.

The clinic argues that the retroactive application of Hansen to define "accrue” violates its constitutional right to due process and equal protection. This same argument was made and rejected in Borello.

As the clinic did here, the defendant in Borello relied upon a principle best stated in Maryland Cas. Co. v. Beleznay, 245 Wis. 390, 393, 14 N.W.2d 177, 179 (1944):

In Wisconsin the running of the statute of limitations absolutely extinguishes the cause of action for in Wisconsin limitations are not treated as statutes of repose. The limitation of actions is a right as well as a remedy, extinguishing the right on one side and creating a right on the other, which is as of high dignity as regards judicial remedies as any other right and it is a right which enjoys constitutional protection.

Borello held that Hansen did not violate the foregoing principle because Hansen did not reinstate a claim that had already run. Rather, it decided that Hansen never had an enforceable claim in the first place until that claim accrued. Borello, 130 Wis. 2d at 418-19, 388 N.W.2d at 149. We are bound by decisions of the supreme court. State ex rel. McCaffrey v. Shanks, 124 Wis. 2d 216, 221, 369 N.W.2d 743, 747 (Ct. App. 1985).

If the Hansen-Borello principle applies retroactively to Brian’s claim, then the prior statutes of limitation, repealed prior to the discovery of the injury, are inapplicable to this case. This is so because the saving provisions of sec. 990.06, Stats., do not apply in this situation.³ Section 990.06 provides that a repealed statute of limitations continues in force, absent express provision to the contrary, only if the repealed act "shall have begun to run before such repeal.” Because Brian’s claim had not begun to run prior to repeal of secs. 330.205 and 330.33 (1959), those statutes did not remain in force.

Brian also asserts the viability of the former statute of limitations but to an opposite conclusion. He argues that the former three-year limit for all personal injury actions, sec. 330.205, Stats. (1959), did not begin to run until discovery of his injury in 1983. We reject his argument in view of the terms of sec. 990.06. The provisions of secs. 330.205 and 330.33, Stats. (1959), were repealed in 1980 precisely because the statutes had not "begun to run" within the meaning of sec. 990.06. Even if we accepted the jointly held position of the parties and applied the provisions of the former statutes, it would not change the result. Since Hansen-Borello would delay the accrual of Brian’s claim until discovery on December 6,1983, he would have had three years from that date to file his complaint. We decline to apply the terms of the repealed statutes since they raise questions not addressed either in the briefs on in oral argument.

The dissent suggests that Borello is not applicable to a medical malpractice case. The language of Borello explicitly says otherwise:

A case frequently cited for the pr e-Hansen rule concerning the accrual of the statute of limitations is McCluskey v. Thranow, 31 Wis. 2d 245, 142 N.W.2d 787 (1966). ... McCluskey was a malpractice case ....

We overruled McCluskey and a host of other decisions ... in Hansen_

Borello, 130 Wis. 2d at 405, 407, 388 N.W.2d at 143-44.

The statute applicable to Brian’s claim is sec. 893.55. It was created by the same legislation that repealed the prior limits. It provides in part:

Limitation of actions; medical malpractice

(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.

(2) If a health care provider conceals from a patient a prior act or omission of the provider which has resulted in injury to the patient, an action shall be commenced within one year from the date the patient discovers the concealment or, in the exercise of reasonable diligence, should have discovered the concealment or within the time limitation provided by sub. (1), whichever is later.

Under this statute, because a medical malpractice action may never be commenced more than five years from the act or omission, Brian’s claim would have been barred as of October 16, 1966. This is nearly fourteen years before the statute was adopted, and more than seventeen years before the injury was discovered.⁴ That result is unacceptable because it violates art. I, sec. 9, of the Wisconsin Constitution: "Every person is entitled to a certain remedy in the laws for all injuries, or wrongs which he may receive in his person, property, or character; ....” See Kallas Millwork Corp. v. Square D Co., 66 Wis. 2d 382, 393 n. 1, 225 N.W.2d 454, 460 n. 1 (1975).

Our decision holds only that sec. 893.55 is void as applied to the peculiar facts of this case. A statute may be unconstitutional in its application to the time and specific circumstances of a given case. State ex rel. Commissioners of Public Lands v. Anderson, 56 Wis. 2d 666, 672, 203 N.W.2d 84, 87 (1973). We therefore do not decide whether sec. 893.55 is void on its face nor whether it violates equal protection provisions of the state and federal constitutions. Nor do we address the issues not raised in the pleadings, concealment and equitable estoppel.

Finally, we summarily reject Erin Kohnke’s claim for loss of society and companionship. Her claim, based upon an alleged disability that occurred prior to her marriage to Brian, was not argued in her appellate brief. Issues raised but not briefed are deemed abandoned. Reiman Assocs. v. R/A Adver., 102 Wis. 2d 305, 306 n. 1, 306 N.W.2d 292, 294 n. 1 (Ct. App. 1981).

By the Court. — Judgment reversed.

1 The relevant provisions of ch. 330, Stats. (1959), renumbered as ch. 893 by sec. 2, ch. 66, Laws of 1965, provided as follows:

330.14 Actions, time for commencing. The following actions must be commenced within the periods ... prescribed after the cause of action has accrued ....

330.48 Computation of time, basis for. The periods of limitation ... must be computed from the time of the accruing of the right to relief ....

330.205 Within 3 years. ... An action to recover damages for injuries to the person ....

330.33 Persons under disability. (1) If a person entitled to bring an action ... be, at the time the cause of action accrued,

(a) Within the age of twenty-one years; ...

(2) 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 ... in any case longer than one year after the disability ceases.

2 The Age of Majority Act, ch. 213, Laws of 1971, effective March 22,1972, lowered the age of majority from 21 to 18 years in Wisconsin. The effect of that change reduced the period of disability accorded minors under then sec. 893.33.

Although the Act shortened by three years the time within which Brian could file an action, since it still gave him a year after his 18th birthday to pursue his claim, the Act was not unconstitutional. See Feest v. Allis Chalmers Corp., 68 Wis. 2d 760, 763-64, 229 N.W.2d 651, 653 (1975).

3 Section 990.06 provides:

Repeal or change of law limiting time for bringing actions. In any case when a limitation or period of time prescribed in any act which shall be repealed for the acquiring of any right, or barring of any remedy, or for any other purpose shall have begun to run before such repeal and the repealing act shall provide any limitation or period of time for such purpose, such latter limitation or period shall apply only to such rights or remedies as shall accrue subsequently to the time when the repealing act shall take effect, and the act repealed shall be held to continue in force and be operative to determine all such limitations and periods of time which shall have previously begun to run unless such repealing act shall otherwise expressly provide.

The provisions of secs. 990.06 and 991.07, Stats., are virtually identical and have been interpreted that way. Feest, 68 Wis. 2d at 762-63, 229 N.W.2d at 653.

4 The following chronology summarizes the events in this case:

Brian born 4/28/61

Surgery performed 10/15/61

Claim expires under 10/15/66 sec. 893.55 if applied to Brian

Brian turns 18 4/28/79

Claim expires under secs. 4/28/80 330.14, 330.205, 330.33, and 330.48, Stats. (1959), (without application of a discovery rule)

Section 893.55 is created 7/1/80 and former statutes of limitation repealed or amended

Brian discovers his injury 12/6/83

Brian files suit 4/4/84