David W. Paynter v. ProAssurance Wisconsin Insurance Company

2019 WI 65
SUPREME COURT OF WISCONSIN
CASE NO.: 2017AP739
COMPLETE TITLE: 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.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 381 Wis. 2d 239,911 N.W.2d374
PDC No:2018 WI app 27 - Published
OPINION FILED: June 7, 2019
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: February 1, 2019
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Ashland
JUDGE: Robert E. Eaton
JUSTICES:
CONCURRED: A.W. BRADLEY, J. concurs and dissents
(opinion filed).
R.G. BRADLEY, J. concurs and dissents, joined by
KELLY, J. (opinion filed).
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
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.
2
2019 WI 65
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2017AP739
(L.C. No. 2015CV80)
STATE OF WISCONSIN : IN SUPREME COURT
David W. Paynter and Kathryn M. Paynter,
Plaintiffs-Appellants-Petitioners,
v.
ProAssurance Wisconsin Insurance Company, James
A. Hamp and American Physicians Assurance FILED
Corporation,
Defendants-Respondents, JUN 7, 2019
Continental Casualty Company, Wisconsin Injured Sheila T. Reiff
Clerk of Supreme Court
Patients and Families Compensation Fund, Keith
A. Henry and Blue Cross Blue Shield of
Michigan,
Defendants.
REVIEW of a decision of the Court of Appeals. Affirmed in
part, reversed in part, and cause remanded.
¶1 SHIRLEY S. ABRAHAMSON, J. 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,
No. 2017AP739
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.
1
All subsequent references to the Wisconsin Statutes are to
the 2015-16 version unless otherwise indicated.
2
Wis. Stat. § 893.07; Guertin v. Harbour Assur. Co. of
Bermuda, Ltd., 141 Wis. 2d 622, 624 n.1, 415 N.W.2d 831.
2
No. 2017AP739
¶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
3
Paynter v. ProAssurance Wis. Ins. Co., 2018 WI App 27,
¶29, 381 Wis. 2d 239, 911 N.W.2d 374.
3
No. 2017AP739
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
4
No. 2017AP739
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 aspiration5 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.
4 Paynter, 381 Wis. 2d 239, ¶3 n.3 ("Because we conclude the
circuit court properly dismissed the Paynters' claims on other
grounds, we need not address the Paynters' insurance coverage
argument.").
5 In this context, the term "aspiration" refers to the
"[w]ithdrawal of fluid from a cavity by suctioning off with an
aspirator" for the purpose of "obtain[ing] specimens." Paynter,
381 Wis. 2d 239, ¶5 n.4.
5
No. 2017AP739
¶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 mediation7 to
Wisconsin's Medical Mediation Panels in May 2015.8 On August 31,
2015, the Paynters filed the instant lawsuit in Ashland County
6 As the court of appeals noted, certain facts relating to
the telephone call appear to be in dispute. In his briefing
before this court, Dr. Hamp does not appear to dispute that the
call was made, at least for purposes of our review.
We assume that the call was made on June 14, 2010, and we
note that Dr. Hamp's location at the time the call was made does
not affect our analysis.
7 Wisconsin Stat. § 655.44(4) tolls the statute of
limitations applicable to medical malpractice actions "on the
date of mailing if [the request is] sent by registered mail."
8 The parties dispute the exact date that the Paynters
mailed their request for mediation. The dispute does not affect
our analysis.
6
No. 2017AP739
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,
9 The Paynters' complaint named two other physicians and
their respective insurers as defendants. However, the Paynters
stipulated to the dismissal of their claims against one of those
physicians and his insurer, and they did not oppose the other
physician's motion for summary judgment, which the circuit court
granted.
7
No. 2017AP739
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.
8
No. 2017AP739
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 questions10 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
10
See State Farm Mut. Auto. Ins. Co. v. Gillette, 2002 WI
31, ¶53, 251 Wis. 2d 561, 641 N.W.2d 662 (setting forth the
following factors: (1) predictability of results; (2)
maintenance of interstate and international order; (3)
simplification of the judicial task; (4) advancement of the
forum's governmental interests; and (5) application of the
better rule of law).
9
No. 2017AP739
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
11 Paynter, 381 Wis. 2d 239, ¶29.
12Id., ¶3 (citing Paul v. Skemp, 2001 WI 42, ¶25, 242
Wis. 2d 507, 625 N.W.2d 860).
10
No. 2017AP739
[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
13 Id., ¶36.
14 Id., ¶39.
15
Before the court of appeals, the Paynters conceded that
the viability of Mrs. Paynter's derivative claims depends on the
viability of Mr. Paynter's claims. Because the court of appeals
concluded that Mr. Paynter's claims were untimely, it further
concluded that the circuit court properly granted summary
judgment to Dr. Hamp on Mrs. Paynter's claims. Paynter, 381
Wis. 2d 239, ¶44 n.13.
11
No. 2017AP739
¶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.
16 Paul, 242 Wis. 2d 507, ¶8.
17 Wis. Stat. § 802.08(2).
18 Paul, 242 Wis. 2d 507, ¶10 (citing Czapinski v. St.
Francis Hosp., 2000 WI 80, ¶12, 236 Wis. 2d 316, 613
N.W.2d 120).
12
No. 2017AP739
¶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
19State ex rel. Kalal v. Circuit Court for Dane Cty., 2004
WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110 (quoting Seider v.
O'Connell, 2000 WI 76, ¶43, 236 Wis. 2d 211, 612 N.W.2d 659).
13
No. 2017AP739
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
20Guertin v. Harbour Assur. Co. of Bermuda, Ltd., 141
Wis. 2d 622, 624-25, 415 N.W.2d 831 (1987).
21 Id. at 628; see also Kalal, 271 Wis. 2d 633, ¶50.
22 Guertin, 141 Wis. 2d at 628.
23 Wis. Stat. § 893.205(1) (1977-78); Guertin, 141 Wis. 2d
at 629.
14
No. 2017AP739
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
24
For example, the revisions changed the law of prior Wis.
Stat. § 893.205(1), which had provided that a resident in
Wisconsin could sue in Wisconsin state courts to recover damages
for personal injuries experienced outside of Wisconsin even if
the foreign period of limitation had expired. Guertin, 141
Wis. 2d at 629.
25 Guertin, 141 Wis. 2d at 629.
26 Id. at 630.
27 Id. at 630-31.
15
No. 2017AP739
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 (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
28
Abraham v. General Cas. Co. of Wis., 217 Wis. 2d 294, ¶3,
576 N.W.2d 46 (1998).
29 Id., ¶¶4-7.
16
 No. 2017AP739
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.
30 Id., ¶¶7-8.
31 Id., ¶15.
32
Id., ¶21 (quoting Johnson v. Deltadynamics, Inc., 813
F.2d 944, 946 (7th Cir. 1987)).
33 See Abraham, 217 Wis. 2d 294, ¶¶21-31.
34
Id., ¶35; see also Mack Trucks, Inc. v. Bendix-
Westinghouse Auto. Air Brake Co., 372 F.2d 18 (3d Cir. 1966);
Terranova v. Terranova, 883 F. Supp. 1273 (W.D. Wis. 1995).
17
No. 2017AP739
§ 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.
35See Abraham, 217 Wis. 2d 294, ¶35 n.7 (recognizing "that
in certain factual situations," the final significant event test
"would not be without ambiguity," but emphasizing that, "as with
any judicial standard, no one 'test' can give complete certainty
to future litigants.'").
36 Id., ¶35.
37Faigin v. Doubleday Dell Pub. Grp., Inc., 98 F.3d 268,
269 (7th Cir. 1996).
18
No. 2017AP739
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
38 Id. at 269.
39 Id. at 273 (Evans, J., dissenting).
40 Id. at 269-70.
41 Id. at 270.
42 Id.
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No. 2017AP739
"[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 choices[.]"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
43 Id.
44 Id. at 272.
45 Id.
46 Id.
47 Id.
20
No. 2017AP739
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(1m).
¶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
48Paul v. Skemp, 2001 WI 42, ¶5, 242 Wis. 2d 507, 625
N.W.2d 860.
21
No. 2017AP739
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
49 Id., ¶1.
50 Id., ¶12.
51 Id., ¶13.
52 Id.
53 Id.
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No. 2017AP739
¶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
54Paul, 242 Wis. 2d 507, ¶25; see St. George v. Pariser,
484 S.E.2d 888, 891 (Va. 1997) (concluding that the plaintiff's
injury was not the failure to diagnose a mole as cancerous, but
rather, "the change in her cancerous condition" from a curable
state to a potentially fatal state).
55 Paul, 242 Wis. 2d 507, ¶25.
56 Id., ¶45.
57 Id.
23
No. 2017AP739
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
58 See id., ¶25.
59 See Faigin, 98 F.3d at 270-72.
60 Paynter, 381 Wis. 2d 239, ¶26.
24
No. 2017AP739
¶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
61 Guertin, 141 Wis. 2d at 631.
62 See supra ¶¶50-60 (describing Abraham and Faigin).
25
No. 2017AP739
"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
63 See Paul, 242 Wis. 2d 507, ¶25
64
In addition to being grounded in statutory history and
our prior cases interpreting Wisconsin's borrowing statute,
tying the application of the borrowing statute to the
plaintiff's place of first injury provides the highest degree of
certainty to the party most in need of that certainty, i.e., the
plaintiff bringing the action.
Plaintiffs need to know whether the borrowing statute
applies so that they can timely file their claims. Generally
speaking, plaintiffs are more likely to know where their injury
occurred because they are in control of their own movements and
actions. For example, if Mr. Paynter did not leave the state of
Michigan during the four-year period of time relevant to the
instant case, he would know that regardless of when his first
injury occurred, it occurred in Michigan because he never left
the state. He would know with a significant degree of certainty
that the borrowing statute applied to his claim.
However, in addition to lacking support in the statutory
history and our case law, alternative approaches also provide
lesser, not greater certainty from the perspective of a
plaintiff. If operation of the borrowing statute depended on
whether every element of the claim occurred outside of
Wisconsin, plaintiffs who first suffered an injury at a
reasonably discernable time and place outside of Wisconsin would
be left with the additional (and difficult) task of determining
where the other elements of their claim occurred.
26
No. 2017AP739
¶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
A
¶75 We first address the Paynters' negligence claim.
¶76 Dr. Hamp argues, and the court of appeals agreed, that
he made a prima facie showing that Mr. Paynter suffered his
first injury in Michigan by presenting evidence that the
Paynters lived continuously in Michigan during the four-year
period of time between Dr. Hamp's alleged misdiagnosis and Mr.
Paynter's discovery of his injury.
¶77 Dr. Hamp further argues, and the court of appeals
agreed, that Mr. Paynter's averment that he "was frequently in
Wisconsin in between the years 2010 and 2015" fails to rebut Dr.
Hamp's prima facie case because, as the court of appeals held,
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," and where Mr. Paynter was located when he
experienced that greater harm.65
65 See Paynter, 381 Wis. 2d 239, ¶36.
27
No. 2017AP739
¶78 We conclude that, on the record before the court, Mr.
Paynter's place of first injury is beyond ascertainment to any
reasonable, non-speculative degree. In such circumstances,
Wisconsin's borrowing statute does not apply.
¶79 In reaching this conclusion, we are guided by the
court of appeals' decision in Brusa v. Mercy Health System,
Inc., 2007 WI App 166, 304 Wis. 2d 138, 737 N.W.2d 1.
¶80 In Brusa, it was alleged that a negligent delay in
correctly diagnosing Mr. Brusa with colon cancer caused Mr.
Brusa's death.66 Mr. Brusa's son, Joseph, who was four months
old at the time of his father's death, brought a derivative suit
against the doctor.67
¶81 The right to pursue a derivative claim for medical
malpractice is determined by the plaintiff's status at the time
of the patient's injury.68 The court of appeals, therefore, was
tasked with determining Mr. Brusa's "date of injury" and
deciding whether Joseph had been conceived by that date.69
¶82 After a discussion of this court's decision in Paul,70
the court of appeals stated:
66Brusa v. Mercy Health Sys., Inc., 2007 WI App 166, ¶1,
304 Wis. 2d 138, 737 N.W.2d 1.
67 Id., ¶1.
68Id. (citing Conant v. Physicians Plus Med. Group, Inc.,
229 Wis. 2d 271, 274, 600 N.W.2d 21 (Ct. App. 1999)).
69 Brusa, 304 Wis. 2d 138, ¶15.
70 See supra ¶¶64-68.
28
No. 2017AP739
Here, Brusa's date of injury has not been established
and is not ascertainable from the record. An
injurious change may have occurred shortly after Brusa
first consulted with Dr. Fasano, it may have occurred
four weeks later when Brusa was to have had a
colonoscopy, it may have occurred at some later date,
or it may be that Brusa's cancer was untreatable even
before he first consulted Dr. Fasano. Even if we
accept Dr. Fasano's concession of negligence, which
was offered only for the sake of argument on appeal,
this question remains: When did Dr. Fasano's
misdiagnosis cause Brusa "greater harm" than existed
on December 27, 2002?[71]
¶83 In this respect, the record in the instant case is
similar to Brusa. When Dr. Hamp's alleged negligent
misdiagnosis caused Mr. Paynter "greater harm" than existed at
the time of the misdiagnosis appears to be unknowable. We can
think of no test by which a finder of fact could determine the
location of Mr. Paynter's first injury without speculating.
¶84 Dr. Hamp admitted in his deposition that Mr. Paynter's
prognosis would have been improved had Mr. Paynter been treated
in 2010 as opposed to 2014; that is, it is undisputed that Mr.
Paynter suffered an injurious change in condition at some point
between June 2010, when Dr. Hamp is alleged to have negligently
failed to diagnose Mr. Paynter's cancer, and June 2014, when Mr.
Paynter discovered that his cancer had been present in June
2010.
¶85 Dr. Hamp's argument that Mr. Paynter suffered his
first injury in Michigan rests entirely upon the fact that the
Paynters resided in Michigan during the four-year period of time
71 Brusa, 304 Wis. 2d 138, ¶14.
29
No. 2017AP739
in which Mr. Paynter suffered his first injury. There is
nothing in the record showing that the Paynters were
continuously in the state of Michigan for four years. In fact,
the opposite is true. Mr. Paynter averred that he was
frequently in Wisconsin during that four-year period of time.
¶86 On the record before the court, when and where Mr.
Paynter suffered his first injury appears to be beyond
ascertainment to any reasonable, non-speculative degree. The
record is insufficient to make a reasonable inference one way or
the other.72 Wisconsin's borrowing statute applies only to
"foreign cause[s] of action," and if the plaintiff's place of
72
Although we acknowledge that the first injury test may
result in some degree of uncertainty in particular cases,
especially when the period of time between misdiagnosis and
discovery of the injury is extensive, no judicial standard can
give complete certainty to future litigants. Abraham, 217
Wis. 2d 294, ¶35 n.7.
Additionally, we note that not every fact scenario will
result in complete uncertainty as to the time and location of
the plaintiff's first injury. For example, in Paul, the period
of time between the last misdiagnosis and the plaintiff's first
injury was, at most, five weeks. It does not appear that it
would have been an impossible task to determine where the
plaintiff was located during those five weeks had it been
relevant to decide the issue.
However, the record before this court is an example of a
set of facts under which the plaintiff's place of first injury
is unknowable, and when the record is such that a fact finder
can only speculate as to the location of the plaintiff's first
injury, the borrowing statute does not apply.
30
No. 2017AP739
first injury is unknowable, as in the instant case, the
borrowing statute does not apply.73
¶87 Because the borrowing statute does not apply to the
Paynters' negligence claim, we apply Wisconsin's medical
malpractice statute of limitations to that claim.
¶88 Dr. Hamp concedes, and we agree, that the Paynters'
negligence claim is timely under Wisconsin's medical malpractice
statute of limitations, Wis. Stat. § 893.55(1m).
¶89 Section 893.55(1m) provides that:
73 That is not to say that every plaintiff whose place of
first injury is unknowable may bring an action in Wisconsin
courts.
Separate and apart from whether the borrowing statute
applies to the Paynters' claims, the jurisdictional requirements
set forth in International Shoe Co. v. State of Washington, 326
U.S. 310, 316 (1945), must still be met.
In International Shoe, the United States Supreme Court
explained that due process requires that a defendant "have
certain minimum contacts" with the forum state "such that the
maintenance of the suit does not offend 'traditional notions of
fair play and substantial justice'". Int'l Shoe, 326 U.S. at
316.
The parties did not brief this issue. Nonetheless, we have
no trouble concluding that Dr. Hamp had the requisite "minimum
contacts" with Wisconsin. Dr. Hamp is licensed to practice
medicine in Wisconsin. He maintains an office in Ashland,
Wisconsin. Although Dr. Hamp performed the aspiration on Mr.
Paynter's growth in his Michigan office, Dr. Hamp sent the
samples to Wisconsin where they were analyzed by a pathologist.
Given these contacts with the state of Wisconsin, it does not
offend "traditional notions of fair play and substantial
justice" to subject Dr. Hamp to the jurisdiction of Wisconsin
state courts.
31
No. 2017AP739
[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.
¶90 It is undisputed that Mr. Paynter first discovered his
injury on June 19, 2014. It is also undisputed that the
Paynters mailed their request for mediation to the Wisconsin
Medical Mediation Panels sometime during May 2015, which was
within one year of June 19, 2014, and was not more than five
years after the act giving rise to the Paynters' injury——i.e.,
the June 14, 2010 misdiagnosis.
¶91 Accordingly, the Paynters' negligence claim against
Dr. Hamp is timely. Dr. Hamp is not entitled to summary
judgment as to that claim.
B
¶92 Next, we address the Paynters' claim that Dr. Hamp
violated Mr. Paynter's right to informed consent.
¶93 Dr. Hamp argues that, to the extent Dr. Hamp violated
Mr. Paynter's right to informed consent, that injury occurred in
Michigan because Mr. Paynter was in Michigan when Dr. Hamp
allegedly informed him that his growth was not malignant and
needed no further treatment.
32
No. 2017AP739
¶94 The Paynters urge us to apply the reasoning set forth
in Abraham74 and conclude that their informed consent claim is
not foreign because the "last significant event" giving rise to
their claim——i.e., Dr. Hamp's conveyance of his incorrect
diagnosis——occurred in Wisconsin.
¶95 We agree with Dr. Hamp and conclude that the Paynters'
informed consent claim is a "foreign cause of action" for
purposes of Wisconsin's borrowing statute.
¶96 In reaching our conclusion, we are guided by the
Eastern District of Wisconsin's decision in Studio & Partners,
s.r.l. v. KI, No. 06-C-628, 2007 WL 3342597 (E.D. Wis. Nov. 7,
2007).
¶97 In Studio & Partners, plaintiff Studio & Partners
(S&P), an Italian company, claimed that KI, a Wisconsin company,
unlawfully misappropriated S&P's design for a chair used in
schools and other academic settings.75 S&P argued that it
sustained injuries in Wisconsin because that is where KI
allegedly: (1) misappropriated S&P's design; (2) concealed its
misappropriation; (3) sold the products; (4) caused the filings
for fraudulent patents; and (5) earned profits on the stolen
design.76
74 See supra ¶¶50-55.
75Studio & Partners, s.r.l. v. KI, No. 06-C-628,
2007WL3342597, *1 (E.D. Wis. Nov. 7, 2007).
76 Id., *3.
33
 No. 2017AP739
¶98 The Eastern District of Wisconsin rejected S&P's
argument, explaining that "it is apparent that these events
reflect where the alleged injury was caused, not where it
occurred."77 The court in Studio & Partners concluded that the
injury occurs where it is felt rather than where it originates,
and it was undisputed that "S&P became poorer (if at all) in
Italy, not Wisconsin."78
¶99 We agree with the reasoning set forth in Studio &
Partners. To the extent Dr. Hamp violated Mr. Paynter's right
to informed consent, that injury was felt in Michigan because
Mr. Paynter was in Michigan when Dr. Hamp allegedly informed him
that his growth was not malignant and needed no further
treatment. As the court of appeals explained, "[b]ecause [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."79
77 Id. (emphasis in original).
78 Id.
79 Paynter, 381 Wis. 2d 239, ¶39.
(continued)
34
No. 2017AP739
¶100 Dr. Hamp proved that the Paynters' informed consent
claim is a "foreign cause of action" for purposes of Wisconsin's
borrowing statute. Accordingly, we apply Michigan's medical
malpractice statute of limitations.
¶101 Michigan's statute of limitations applicable to
medical malpractice actions requires a plaintiff to file suit
within the later of: (1) two years from the date his or her
claim accrued;80 or (2) six months after the plaintiff discovered
Basing the applicability of the borrowing statute on
whether the test in International Shoe is met is not helpful.
The jurisdictional test set forth in International Shoe
addresses a different issue than the borrowing statute, namely,
the former addresses a court's personal jurisdiction over a
particular defendant while the latter addresses what statute of
limitations applies to a claim that is lawfully brought in a
Wisconsin court. If the International Shoe test is met, then
the claim may be brought in Wisconsin, but that does not answer
the question of whether the borrowing statute applies to the
claim. If the International Shoe test is not met, then the
claim may not be brought in Wisconsin at all. Under such a
test, no claim lawfully brought in Wisconsin will ever be
considered a "foreign cause of action" under the borrowing
statute.
Moreover, as we explained more fully in footnote 64 supra,
our approach supplies the highest degree of certainty possible
to plaintiffs. Mr. Paynter knew where he was located when he
allegedly lost the opportunity to choose his course of
treatment. However, that certainty would be undermined if the
applicability of the borrowing statute turned on where Dr. Hamp
was located when he committed the allegedly tortious act. Given
the increased utilization of telemedicine in our healthcare
system, Mr. Paynter and similarly situated plaintiffs should not
be tasked with divining where their physician happened to be
located when the alleged tortious act was committed.
80 Mich. Comp. Laws § 600.5805(8) (2018).
35
No. 2017AP739
or should have discovered the existence of his or her claim.81
In Michigan, a claim for medical malpractice "accrues" when the
malpractice occurs.82
¶102 Again, it is undisputed that the Paynters mailed their
mediation request in May 2015, which was more than two years
after the June 14, 2010 misdiagnosis. It is further undisputed
that the Paynters discovered or should have discovered the
existence of their claim on June 19, 2014, but they did not mail
their mediation request within six months of that date.
¶103 Accordingly, the Paynters' informed consent claim
against Dr. Hamp is untimely. Dr. Hamp is entitled to summary
judgment as to this claim.
V
¶104 Finally, before concluding, we address the Paynters'
appeal from the circuit court's order determining that an
insurance policy issued to Dr. Hamp by Defendant-Respondent
ProAssurance Wisconsin Insurance Company did not provide
coverage for the Paynters' claims. The court of appeals did not
resolve the coverage issue because it concluded that all of the
Paynters' claims were time barred.
¶105 The Paynters' petition for review raised the insurance
coverage issue only to preserve it. Their petition states that
"[b]ecause the unique policy language in issue does not meet
81 Mich. Comp. Laws § 600.5838a(2) (2018).
82 Mich. Comp. Laws § 600.5838a(1) (2018).
36
No. 2017AP739
this court's criteria for review, the Paynters request that this
issue be remanded to the appellate court upon reinstatement of
their cause of action."
¶106 ProAssurance did not state a preference as to which
court (i.e., this court or the court of appeals) should resolve
the insurance coverage dispute, if the issue was reached at all.
To the extent ProAssurance did state a preference as to which
court should decide the issue if the issue were revived,
ProAssurance admitted that the insurance coverage issue "d[id]
not by itself warrant acceptance of the petition for review."
Dr. Hamp, ProAssurance's insured, did not address the issue at
all in his response to the Paynters' petition.
¶107 It was surprising, then, to see ProAssurance spend a
significant portion of its response brief83 addressing the merits
of the insurance coverage issue. The Paynters did not address
the merits of the coverage issue in their brief-in-chief. By
waiting until its response brief to raise arguments on the
merits of the insurance coverage issue, ProAssurance placed the
Paynters in the unenviable position of deciding whether to
address the merits of the insurance coverage issue in the
limited space available in their reply brief.84
¶108 More importantly, ProAssurance's actions deprived Dr.
Hamp of any opportunity to address the insurance coverage issue
83 Approximately 8 pages of a 20-page argument.
84 See Wis. Stat. §§ (Rules) 809.19(8)(c)2. & 809.63.
37
No. 2017AP739
to this court in writing. It is for this reason that arguments
raised for the first time in reply briefs are generally not
addressed——"[i]t prevents the opposing party from having an
adequate opportunity to respond."85
¶109 We therefore decline to address the insurance coverage
issue. We instruct the court of appeals to resolve this issue
on remand in such a fashion that is consistent with this
opinion.
VI
¶110 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.
¶111 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 is 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.
¶112 However, we agree with the court of appeals that the
Paynters' informed consent claim is "foreign" for purposes of
85
A.O. Smith Corp. v. Allstate Ins. Cos., 222 Wis. 2d 475,
492, 588 N.W.2d 285 (Ct. App. 1998).
38
No. 2017AP739
Wisconsin's borrowing statute. Accordingly, 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.
¶113 Finally, we decline to address the Paynters' appeal
from the circuit court's order determining that an insurance
policy issued to Dr. Hamp by Defendant-Respondent ProAssurance
Wisconsin Insurance Company did not provide coverage for the
Paynters' claims. Instead, we remand the cause to the court of
appeals to resolve the insurance coverage issue in such a
fashion that is consistent with this opinion.
By the Court.—The decision of the court of appeals is
affirmed in part, reversed in part, and the cause is remanded to
the court of appeals for further proceedings consistent with
this opinion.
39
No. 2017AP739.awb
¶114 ANN WALSH BRADLEY, J. (Concurring in part,
dissenting in part). I agree with the majority that the
borrowing statute1 does not apply to the Paynters' negligence
claim. Majority op., ¶11. Additionally, I agree that the case
should be remanded to the court of appeals to address the
Paynters' argument that the circuit court erred in its
determination that Dr. Hamp's insurance policy did not provide
coverage for the Paynters' claims. Id., ¶13.
¶115 I part ways with the majority, however, in its
treatment of the Paynters' informed consent claim.2 In my view,
the majority's proffered test is unworkable.
¶116 Instead of applying Wisconsin's statute of limitations
to an informed consent claim when the injury is "felt" in
Wisconsin, I would turn to the familiar International Shoe test.3
Applying that test, I determine that the Paynters' informed
1 The borrowing statute, Wis. Stat. § 893.07, provides:
(1) If an action is brought in this state on a foreign
cause of action and the foreign period of limitation
which applies has expired, no action may be maintained
in this state.
(2) If an action is brought in this state on a foreign
cause of action and the foreign period of limitation
which applies to that action has not expired, but the
applicable Wisconsin period of limitation has expired,
no action may be maintained in this state.
2Accordingly, I join the majority opinion with the
exception of part IV.B.
3See International Shoe Co. v. Washington, 326 U.S. 310,
316 (1945).
1
No. 2017AP739.awb
consent cause of action is not a "foreign cause of action" for
purposes of the borrowing statute and therefore can proceed.
¶117 Accordingly, I concur in part and dissent in part.
I
¶118 The alleged violation of Mr. Paynter's right to
informed consent occurred during the phone call of June 14,
2010. Majority op., ¶33. During this phone call, Dr. Hamp told
Mr. Paynter that the growth on his neck was not cancerous and he
did not need any further treatment. Id., ¶17. It is undisputed
that Mr. Paynter was located in his Michigan home when he
received this phone call. Id., ¶33.
¶119 Analyzing these facts, the majority endeavors to
determine whether the informed consent cause of action is
"foreign" for purposes of the borrowing statute. In doing so,
it relies on an unpublished federal case setting forth the legal
test as follows: "the injury occurs where it is felt rather
than where it originates . . . ." Id., ¶98 (citing Studio &
Partners, s.r.l. v. KI, No. 06-C-628, 2007 WL 3342597, *3 (E.D.
Wis. Nov. 7, 2007)).
¶120 Applying this test, the majority determines that the
Paynters' informed consent claim is a "foreign cause of action"
pursuant to the borrowing statute. Majority op., ¶95. In the
majority's view, "[t]o the extent Dr. Hamp violated Mr.
Paynter's right to informed consent, that injury was felt in
Michigan because Mr. Paynter was in Michigan when Dr. Hamp
allegedly informed him that his growth was not malignant and
needed no further treatment." Id., ¶99. "Because [Mr. Paynter]
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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." Id.
¶121 In my view, the majority's proffered test is
unworkable. Given the rise of telemedicine, the majority's
focus on where the injury is "felt" creates unreasonable and
unpredictable results.
¶122 For example, what if a patient gets a call from the
doctor while traveling in another country? Does that mean the
foreign country's statute of limitations applies? What if the
call comes in when the patient is on an airplane? What if
medical test results are transmitted electronically? What if
the notice that those results have been transmitted is received
in one state but the results are first viewed in another?
¶123 Patients and doctors are more mobile than ever before,
and technology now allows us to be connected worldwide at all
times of the day and night. Rather than tethering the statute
of limitations for a patient's informed consent cause of action
to the patient's location at the time of the alleged violation,
I would use a predictable and familiar guide. Namely, I would
answer this question using the test set forth in International
Shoe Co. v. Washington, 326 U.S. 310, 316 (1945).
¶124 Thus, I conclude that Wisconsin's statute of
limitations applies to a cause of action premised on a violation
of a patient's right to informed consent if the defendant has
"certain minimum contacts with [Wisconsin] such that the
maintenance of the suit does not offend traditional notions of
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fair play and substantial justice." See id. (citations
omitted). This approach provides predictability and workability
that the majority's "where the injury is felt" standard lacks.
¶125 Applying the International Shoe test to the facts of
this case, I determine that Dr. Hamp had the requisite minimum
contacts so as to make Wisconsin's statute of limitations
applicable to the informed consent cause of action. As the
majority acknowledges, Dr. Hamp is licensed to practice medicine
in Wisconsin and maintains an office in Ashland. Majority op.,
¶86 n.73 (explaining that "we have no trouble concluding that
Dr. Hamp had the requisite 'minimum contacts' with Wisconsin"
based on his medical licensure and maintenance of an office
within the state).
¶126 Accordingly, I conclude that Wisconsin's statute of
limitations applies to the informed consent cause of action in
addition to the negligence cause of action. Thus, the Paynters
should be able to continue their pursuit of both of these
claims.
¶127 For the foregoing reasons, I respectfully concur in
part and dissent in part.
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¶128 REBECCA GRASSL BRADLEY, J. (concurring in part,
dissenting in part). I agree with the majority that the
borrowing statute does not bar the Paynters' negligence claim,
but not with the tests the majority adopts for determining
whether Wisconsin's borrowing statute applies in medical
malpractice cases alleging a negligent failure to diagnose or a
violation of a patient's right to informed consent. The tests
embraced by the majority lack statutory support and will result
in absurdities. Unlike the majority, I would remand the
informed consent claim to the circuit court to consider whether
the Paynters state a claim upon which relief may be granted.
I
¶129 If a plaintiff brings a foreign cause of action into a
Wisconsin court, Wisconsin's borrowing statute, Wis. Stat.
§ 893.07, commands the application of whichever statute of
limitations——Wisconsin's or the foreign state's——is shorter:
(1) If an action is brought in this state on a
foreign cause of action and the foreign period of
limitation which applies has expired, no action may be
maintained in this state.
(2) If an action is brought in this state on a
foreign cause of action and the foreign period of
limitation which applies to that action has not
expired, but the applicable Wisconsin period of
limitation has expired, no action may be maintained in
this state.
The purpose of Wisconsin's borrowing statute is to reduce forum
shopping, preclude stale claims, encourage expedient litigation,
and ensure litigants know whether their claims are timely
without having to ask a court to decide. Guertin v. Harbour
Assurance Co., 141 Wis. 2d 622, 631-32, 415 N.W.2d 831 (1987).
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The statute discourages suits arising in other states from being
filed in Wisconsin courts when they would be time-barred in the
foreign venue. The statute does not define "foreign cause of
action."
¶130 The majority says whether a medical malpractice
misdiagnosis-of-cancer action is "foreign" for purposes of
Wisconsin's borrowing statute is determined "by whether the
plaintiff's first injury occurred outside of Wisconsin."
Majority op., ¶10. Consequently, if the plaintiff happens to be
outside of Wisconsin when the injury caused by the misdiagnosis
arises, the case will be considered a foreign cause of action
even if the plaintiff resides in Wisconsin and the allegedly
negligent physician treated the plaintiff in Wisconsin. The
majority derives this test not from the text of the statute but
from three cases applying the borrowing statute but having
nothing else in common with medical malpractice misdiagnosis-of-
cancer cases: (1) Guertin, 141 Wis. 2d 622; (2) Abraham v.
General Cas. Co., 217 Wis. 2d 294, 576 N.W.2d 46 (1998); and (3)
Faigin v. Doubleday Dell Publ'g Grp., Inc., 98 F.3d 268 (7th
Cir. 1996).
¶131 Guertin involved a resident of Wisconsin who was
injured during a slip and fall in Illinois. Guertin, 141
Wis. 2d at 624-25. Abraham extended the borrowing statute to
contract cases, holding that the action is foreign if the "final
significant event giving rise to a suable claim occurs outside"
Wisconsin, reasoning that in a contract dispute, "location [in a
contract case] is not easily pinned to a particular state."
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Abraham, 217 Wis. 2d at 305, 311 (quoted source and internal
quotation marks omitted). Faigin involved a multi-state
defamation action in which the Seventh Circuit held that because
some injury occurred in Wisconsin, the cause of action was not
foreign. Faigin, 98 F.3d at 272. None of these cases support
adopting a place-of-first-injury test for applying the borrowing
statute in a medical malpractice misdiagnosis-of-cancer case.
¶132 The typical impossibility of pinpointing when the
injury first occurs following a cancer misdiagnosis makes a
place-of-first-injury test unworkable. When cancer goes
undiagnosed, it is often unfeasible to know the exact moment the
patient suffers a "greater harm"1 than existed at the time of the
misdiagnosis. Whether the cancer cells multiplied seconds,
minutes, hours, days, or months after the misdiagnosis is
generally unknowable. All that can be established is that the
injury surfaced sometime between the date of misdiagnosis and
the date on which the plaintiff was later diagnosed with cancer.
Even if the moment of greater harm could be ascertained to any
degree of certainty, the physical location of the patient at
that exact moment should not determine whether the patient's
case constitutes a foreign cause of action under Wis. Stat.
§ 893.07. The statutory text does not suggest such a test and
logic counsels against it.
1
The majority, citing Paul v. Skemp, 2001 WI 42, ¶25, 242
Wis. 2d 507, 625 N.W.2d 860, correctly notes that in medical
malpractice cases involving misdiagnoses, Wisconsin law holds
that the test for "actionable injury" is the time "when the
misdiagnosis causes a greater harm than existed at the time of
misdiagnosis." Majority op., ¶67 & n.55.
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¶133 For example, if a patient was on vacation in Florida
at the time of "first injury," then under the majority's test,
the action would be foreign even if the patient was a resident
of Wisconsin, all treatment occurred in Wisconsin, and the
doctor practiced only in Wisconsin. So too for the patient who
is retired and spends half the year in Arizona, was treated only
in Wisconsin by a doctor practicing only in Wisconsin, but who
was first injured while in Arizona. And for the patient who is
a Wisconsin resident, was treated in Wisconsin by a Wisconsin
doctor, but is a college student studying abroad when the injury
emerges. Under the majority's test, a lifelong Wisconsin
resident, treated in Wisconsin by a Wisconsin-licensed
physician, would have his medical misdiagnosis case deemed a
foreign cause of action just because the date of his first
injury coincides with his presence on a cruise ship touring the
world. Consider the inconsistency of the borrowing statute's
application under the following scenario: a Wisconsin doctor
sees two patients in his Wisconsin office on the same day and
the doctor fails to diagnose each patient's cancer. Each
patient's injury first appears four years after the missed
diagnosis. At that time, the first patient is in Wisconsin, so
he can seek redress in a Wisconsin court applying the Wisconsin
statute of limitations. But the second patient's injury arises
while visiting relatives in Michigan so his case would be deemed
a foreign cause of action. Limitless scenarios demonstrate the
irrationality of the place-of-injury test adopted by the
majority in medical malpractice misdiagnosis-of-cancer cases.
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¶134 Extending a "place-of-first-injury" test to medical
malpractice misdiagnoses-of-cancer cases contravenes the
judicially-divined purpose of the statute by elevating the
physical location of the patient at the moment the misdiagnosis
causes "greater harm" above every other element comprising a
medical malpractice claim. A Wisconsin patient who treats only
with Wisconsin physicians would be barred from pursuing a claim
that is timely under the Wisconsin statute of limitations simply
because her injury surfaced when she happened to be on vacation
in another place with a shorter statute of limitations.
Wisconsin residents treated only by Wisconsin doctors but who
happen to be beyond Wisconsin's borders when their injuries
arise are not forum shoppers. Nevertheless, under the rule the
majority adopts, each patient's cause of action will be deemed
foreign and subject to the shorter statute of limitations
controlled by the physical place each patient happened to be at
the moment their injuries materialize. The majority's
interpretation of the borrowing statute will thereby deprive
Wisconsin residents of the benefit of Wisconsin laws whenever
they happen to be outside of Wisconsin at the time their
respective injuries surface. A fortuitous event will lead to
different statutes of limitation for identically situated
patients, depending solely upon the geographic location of each
patient when the misdiagnosis causes "greater harm." The rule
of law cannot be based upon such happenstance.
¶135 Instead of squeezing medical malpractice misdiagnosis-
of-cancer cases into an ill-fitting test designed for immediate,
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discrete, and visible injuries, the unique nature of
misdiagnosis-of-cancer cases demands a different test. In the
context of a missed cancer diagnosis, the test could be linked
to the easily-ascertainable location of the actual alleged
negligent treatment. Alternatively, only when every element of
the claim occurred outside of Wisconsin would the cause of
action be deemed foreign. Given the fact that Wis. Stat.
§ "893.07 operates as a legislative choice of law" the test
could appropriately employ a choice-of-law analysis. Wenke v.
Gehl Co., 2004 WI 103, ¶14, 274 Wis. 2d 220, 682 N.W.2d 405.
Nothing in the borrowing statute's text suggests the fluke of
wherever a patient happens to be physically located at the
moment of first injury as its foundation, no case commands a
test based on pure happenstance, and using the place-of-first-
injury test in misdiagnosis-of-cancer cases defies common sense
and reasonableness.
¶136 The majority asserts the place-of-first-injury test
"provides the highest degree of certainty to the party most in
need of that certainty, i.e., the plaintiff bringing the
action." Majority op., ¶73 n.64. The majority reasons that
"plaintiffs are more likely to know where their injury occurred
because they are in control of their own movements and actions."
Id. This rationale for the majority's test contradicts the
majority's conclusion that the borrowing statute does not apply
to the Paynters' negligence claim because the moment of
Paynter's injury is unknowable. Id., ¶¶74, 83. The majority
"can think of no test by which a finder of fact could determine
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the location of Mr. Paynter's first injury without speculating,"2
thereby undermining the suitability of the majority's place-of-
first-injury test in cancer misdiagnosis cases. The nature of
missed cancer diagnosis cases makes detecting the moment the
cancer creates a "greater harm" virtually impossible.
Consequently, perhaps the borrowing statute is incapable of
being applied in any cases involving a misdiagnosis of cancer.3
¶137 I agree with the majority that the borrowing statute
does not apply to the Paynters' medical malpractice claim and
therefore the Paynters' negligence claim is not time-barred. I
reject the majority's adoption of a place-of-first-injury test
in misdiagnosis-of-cancer cases. The majority "cannot accept
the ease with which a negligent misdiagnosis claim could be
transformed from a 'foreign' cause of action to a non-foreign
one" if the patient entered Wisconsin between the time of the
misdiagnosis and the time of its discovery. Majority op., ¶71.
The majority's concern applies equally to the ease with which
its test results in a Wisconsin resident having her claim
transformed into a foreign cause of action based merely on her
temporary absence from Wisconsin at the time her injury happens
to emerge.
II
2 Majority op., ¶83.
3Although the majority notes that the moment of "greater
harm" in some misdiagnosis cases may be possible to determine,
citing Paul v. Skemp, that case did not involve a cancer
misdiagnosis. See majority op., ¶86 n.72.
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¶138 The majority also errs in basing the application of
the borrowing statute to medical malpractice informed consent
claims on where the resulting injury was "felt." The majority
deems the Paynters' informed consent claim foreign because
Paynter "felt" the effect of Dr. Hamp's alleged violation of
Paynter's right to informed consent in Michigan where he
received a phone call from the doctor, who allegedly told
Paynter the pathology report revealed no malignancy. The
majority takes this test from an unpublished federal district
court case, Studio & Partners, s.r.l. v. KI, No. 06-C-628, 2007
WL 3342597 (E.D. Wis. Nov. 7, 2007), involving a dispute between
two feuding businesses over economic losses. The majority's
"injury is felt" test makes no more sense than the majority's
place-of- first-injury test.
¶139 Besides being an unpublished federal district court
case and therefore not binding on this court, Studio & Partners
is inapposite. Studio & Partners involved a dispute between KI,
a Wisconsin furniture manufacturer/seller, and Studio &
Partners, a furniture design company based in Italy, over a
chair. Id. at *1. Studio & Partners sued KI in Wisconsin
alleging KI misappropriated its chair design, illegally patented
the design, and profited $50 million from selling the chairs.
Id. at *1-*2. The district court concluded the case constituted
a foreign cause of action and applied Italy's statute of
limitations because Studio & Partners' injuries were economic
losses suffered in Italy, not in Wisconsin. Id. at *3. Under
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this holding, when the injury is economic, courts look to where
the "economic effects were felt." See id.
¶140 An informed consent claim does not involve lost
profits. Paynter characterizes his injury as a "loss of the
opportunity to choose his course of treatment." Majority op.,
¶33. Lost opportunity to choose treatment is not an economic
loss and should therefore not be controlled by where the loss is
"felt." Using a test based on where an injury is "felt" may
make sense for an economic loss, but in the context of medical
malpractice informed consent cases it results in the same
randomness and suffers from the same irrationality as the place-
of-first-injury test in medical misdiagnosis cases.
¶141 Wisconsin Stat. § 448.30 governs informed consent and
provides:
Any physician who treats a patient shall inform the
patient about the availability of reasonable alternate
medical modes of treatment and about the benefits and
risks of these treatments. The reasonable physician
standard is the standard for informing a patient under
this section. The reasonable physician standard
requires disclosure only of information that a
reasonable physician in the same or a similar medical
specialty would know and disclose under the
circumstances. The physician's duty to inform the
patient under this section does not require disclosure
of:
(2) Detailed technical information that in all
probability a patient would not understand.
(3) Risks apparent or known to the patient.
(4) Extremely remote possibilities that might
falsely or detrimentally alarm the patient.
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(5) Information in emergencies where failure to
provide treatment would be more harmful to the patient
than treatment.
(6) Information in cases where the patient is
incapable of consenting.
(7) Information about alternate medical modes of
treatment for any condition the physician has not
included in his or her diagnosis at the time the
physician informs the patient.
Informed consent is unique to the medical field. The injury
from a physician's failure to comply with the informed consent
statute is not lost profits or other economic loss. The injury
is a patient's inability to make an informed treatment choice
because the physician failed to fully present all options. Any
test for applying the borrowing statute to an informed consent
claim must be linked to the treating physician's alleged
tortious act. A "feel" test is imponderable.
¶142 The "feel" test in Studio & Partners may be suitable
in cases involving economic losses because where the economic
losses a business suffers may be objectively measured. "Feel"
in the informed consent context cannot. By "feel," the majority
really means where Paynter happened to be when he took the phone
call from Dr. Hamp. This test produces the same fortuity
problem as the majority's place-of-first-injury test for
misdiagnosis claims.
¶143 The Defendants-Respondents allege in their Answers to
the Paynters' complaint that the Paynters' informed consent
claim fails to state a claim upon which relief can be granted.
Because the issues presented to this court relate solely to the
borrowing statute, none of the parties address whether Paynter
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can assert an informed consent claim under these facts (namely
that Dr. Hamp did not treat him because Dr. Hamp believed there
was no malignancy) and the majority does not decide it.
Accordingly, I decline to address it further. I would remand
this claim to the circuit court to do so.
III
¶144 Although I agree with the majority's decision to
remand the insurance coverage issue to the court of appeals, I
disagree with the majority's decision to base this disposition
on (1) ProAssurance's decision to brief the merits of coverage
despite Dr. Hamp's failure to address the issue in his response
to the Paynters' petition for review and (2) ProAssurance's
statement in its response to the petition that the insurance
coverage issue alone did not warrant this court's review.
ProAssurance is the Wisconsin insurer for Dr. Hamp, but Dr. Hamp
and ProAssurance have separate counsel because of the insurance
coverage dispute.
¶145 The majority expresses "surpris[e]" that ProAssurance
spent "a significant portion of its response brief addressing
the merits of the insurance coverage issue." Majority op., ¶107
(footnote omitted). The majority suggests that by doing so,
ProAssurance prevented the other parties from having an
opportunity to respond. The majority's criticism of
ProAssurance is unwarranted.
¶146 The circuit court granted summary judgment to
ProAssurance on coverage. The operative policy language in
ProAssurance's policy provides:
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We will neither defend nor pay damage for any
liability arising from, relating to, or in any way
connected with the rendering or failure to render
professional services by James A. Hamp, M.D., at the
following location(s): in the State of Michigan
and/or outside the State of Wisconsin.
(Emphasis added.) The court of appeals did not address coverage
because it disposed of the case on other grounds. The Paynters'
petition for review to this court raised the coverage issue
solely to preserve it:
The Paynters also raise an insurance coverage issue
not addressed by the appellate court (see Paynter,
2018 WL 1512092, ¶3, n. 3) to preserve this issue.
Because the unique policy language in issue does not
meet this court's criteria for review, the Paynters
request that this issue be remanded to the appellate
court upon reinstatement of their cause of action.
¶147 In its response to the Paynters' petition for review,
ProAssurance refuted the substance of the Paynters' claims based
on Wis. Stat. § 893.07 and asserted "the issue of insurance
coverage is moot and does not by itself warrant acceptance of
the petition for review."
¶148 In their initial brief, the Paynters do not argue the
merits of the coverage issue: "The Paynters have raise[d] the
insurance coverage issue to preserve this issue and request that
this issue be remanded to the appellate court upon reinstatement
of their cause of action." In response, ProAssurance devoted
relatively little of its response brief to the merits of the
coverage issue.
¶149 It is disingenuous for the majority to ground its
decision to remand the coverage determination to the court of
appeals on the basis that ProAssurance included an insurance
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coverage argument in its merits brief to this court despite
asserting in its response to the Paynters' petition for review
that the coverage issue alone did not warrant granting of the
petition. There was no reason for ProAssurance to make a
coverage argument at the petition-for-review stage of the
proceedings. The Paynters did not argue coverage existed, but
simply preserved the issue. ProAssurance, at that point, had a
coverage determination in its favor from the circuit court, as
well as a favorable court of appeals decision that did not
address coverage because the court of appeals disposed of the
case under Wis. Stat. § 893.07 and the statute of limitations.
¶150 When this court granted the Paynters' petition for
review, however, ProAssurance's counsel had no reasonable choice
but to argue the merits of coverage even though the Paynters and
Dr. Hamp did not. Insurance coverage is an issue of law, which
this court reviews independently. Water Well Sols. Serv. Grp.,
Inc. v. Consolidated Ins. Co., 2016 WI 54, ¶12, 369 Wis. 2d 607,
881 N.W.2d 285. Although neither the Paynters nor Dr. Hamp
argued the merits of coverage, it was among the issues presented
in the Paynters' petition this court granted for review.
Accordingly, this court could have chosen to decide insurance
coverage. A reasonable reading of ProAssurance's brief reveals
that it included its insurance coverage argument so that if this
court chose to decide the issue, ProAssurance's position was
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presented. ProAssurance did not ask this court to decide
coverage; instead, it asked us to affirm the court of appeals.4
¶151 Given the procedural posture of this case, it is
proper to remand the insurance coverage decision to the court of
appeals, before which the issue can be thoroughly briefed and
argued before a decision is rendered. It is unreasonable for
the majority to suggest that ProAssurance's presentation of the
issue somehow necessitated remand.
¶152 For these reasons, I respectfully concur with the
majority in allowing the Paynters' negligence claim to proceed
although I do not join its reasoning. I also agree that the
insurance coverage issue should be remanded to the court of
appeals. I dissent from the majority's application of the
borrowing statute to bar the informed consent claim. I would
instead remand the issue of whether the Paynters' informed
consent claim states a claim upon which relief may be granted.
¶153 I am authorized to state that JUSTICE DANIEL KELLY
joins this concurrence/dissent.
4 The majority criticizes an insurer's lawyer for spending
eight pages of a 32-page brief arguing against coverage, based
on the language of the policy. The only thing "surprising" is
the majority's expectation that an insurance coverage lawyer
would not make a coverage argument.
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1