Paynter v. Proassurance Wis. Ins. Co.
Paynter v. Proassurance Wis. Ins. Co.
Opinion of the Court
*242¶1 David and Kathryn Paynter sued Dr. James Hamp, alleging he negligently failed to diagnose David's cancer. The circuit court granted Hamp summary judgment. It concluded Wisconsin's borrowing statute, WIS. STAT . § 893.07 (2015-16),
¶2 The circuit court applied an incorrect legal standard in determining the Paynters' lawsuit was subject to the borrowing statute. Nonetheless, we agree with the court's ultimate conclusion that their lawsuit was not timely filed.
¶3 Here, the Paynters have alleged a negligent misdiagnosis. Our supreme court *377has previously held that, in such cases, an actionable injury occurs when the misdiagnosis causes a greater harm than existed at the time of the misdiagnosis. Paul v. Skemp ,
BACKGROUND
¶4 David and his wife, Kathryn, live in Bessemer, Michigan, a city located near the Wisconsin-Michigan border. In April 2010, David saw Dr. Peter Areson, a Wisconsin physician, regarding a growth on his upper right neck. Areson referred David to Hamp, an ear, nose and throat specialist who practiced in both Ashland, Wisconsin, and Ironwood, Michigan.
¶5 David had an initial consultation at Hamp's Ironwood office on May 13, 2010. He returned to the Ironwood office on June 10, 2010, for a second appointment, during which Hamp performed an aspiration of *245the growth on David's neck.
¶6 Hamp received the pathologist's report on June 14, 2010. On the same day, he called the Paynters' home telephone in Michigan and told David that the growth was not cancerous and David did not need any further treatment.
¶7 The Paynters mailed a request for mediation to Wisconsin's Medical Mediation Panels sometime during May 2015. On August 31, 2015, the Paynters filed the instant lawsuit against Hamp; his Michigan medical malpractice insurer, American *378Physicians Assurance Company; and his Wisconsin medical malpractice insurer, ProAssurance Wisconsin Insurance Company.
¶8 Hamp moved for summary judgment, arguing the Paynters' lawsuit was not timely filed. His motion was based on Wisconsin's borrowing statute, which 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.
WIS. STAT . § 893.07. Hamp contended the Paynters' lawsuit constituted a "foreign cause of action" under the borrowing statute because any injuries the *247Paynters sustained as a result of his conduct occurred in Michigan-their state of residence-rather than Wisconsin. He therefore argued the Paynters' lawsuit was untimely because the "foreign period of limitation"-i.e., Michigan's statute of limitations for medical malpractice claims-had expired. See § 893.07(1) (providing no action may be maintained in Wisconsin on a foreign cause of action where the foreign limitation period has expired).
¶9 In response to Hamp's summary judgment motion, the Paynters did not dispute that their lawsuit was untimely under the Michigan statute of limitations. Instead, they argued there was a genuine issue of material fact as to whether the borrowing statute applied to their claims in the first place. In support of that argument, they contended a plaintiff's cause of action is not foreign, under the borrowing statute, if he or she sustained some injury in Wisconsin, even if the plaintiff was also injured in another state. The Paynters argued that, in the instant case, David's injury was the growth of his cancer during the time period between the June 2010 misdiagnosis and the June 2014 surgery to remove the tumor. David submitted an affidavit, in which he averred he was "frequently" in Wisconsin during that time period. The Paynters therefore argued there was at least a genuine issue of material fact as to whether David sustained an injury-namely, the growth of his cancer-while he was in Wisconsin.
¶10 The circuit court concluded the borrowing statute applied to the Paynters' claims. In reaching that conclusion, the court considered five factors that are traditionally used to resolve "choice of laws" questions: (1) predictability of results; (2)
*379maintenance of interstate and international order; (3) simplification of *248the judicial task; (4) advancement of the forum's governmental interests; and (5) application of the better rule of law. See State Farm Mut. Auto. Ins. Co. v. Gillette ,
STANDARD OF REVIEW
¶11 We independently review a grant of summary judgment, using the same methodology as the circuit court. Hardy v. Hoefferle ,
*249¶12 Here, our review of the circuit court's summary judgment decision also requires us to interpret and apply WIS. STAT . § 893.07. Statutory interpretation presents a question of law for our independent review. State v. Bergquist ,
DISCUSSION
¶13 In the instant case, it is undisputed the Paynters' lawsuit was timely filed under Wisconsin's statute of limitations for medical malpractice claims. With certain exceptions not applicable here, that statute requires medical malpractice actions to be commenced within the later of: (1) three years from the date of injury; or (2) one year from the date the injury was discovered, or in the exercise of reasonable diligence should have been discovered, but not more than five years from the date of the act or omission giving rise to the injury. WIS. STAT . § 893.55(1m). Hamp concedes the Paynters first discovered David's injury on June 19, 2014, the date of his surgery and cancer diagnosis. It is 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 David's injury-i.e., the June 14, 2010 misdiagnosis. See WIS. STAT . § 655.44(4) (stating "any applicable statute of limitations" is tolled on the date a medical malpractice plaintiff mails his or her request for mediation). The Paynters' lawsuit was therefore timely under the discovery prong of the Wisconsin statute.
¶14 Conversely, the undisputed facts show that the Paynters' lawsuit was not timely under Michigan's statute of limitations for medical malpractice claims.
*250That statute requires a plaintiff to file suit within the later of: (1) two years from the date his or her claim accrued-that is, the date of the negligent act or omission; or (2) six *380months after the plaintiff discovered or should have discovered the existence of his or her claim. MICH. COMP. LAWS ANN . § 600.5805(1), (6), § 600.5838a(1), (2) (West 2018). 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-the negligent act giving rise to their claim. 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.
¶15 Consequently, the only issue on appeal is whether the borrowing statute applies to the Paynters' lawsuit, such that the timeliness of their claims is governed by the Michigan statute of limitations, rather than the Wisconsin statute. As noted above, we agree with the circuit court's ultimate conclusion that the borrowing statute applies to the Paynters' lawsuit, but we disagree with the court's reasoning. The court used a "choice of laws" analysis when determining whether to apply the borrowing statute. However, as both sides conceded at oral argument, that approach was directly contrary to our supreme court's decision in Guertin .
¶16 The plaintiff in Guertin "was injured in the state of Illinois when he slipped and fell off a fuel tank of a semi-tractor he was employed to drive." Guertin ,
¶17 In order to determine whether the borrowing statute applied to the plaintiff's claims, our supreme court considered whether those claims constituted a "foreign cause of action."
¶18 Accordingly, the court looked to legislative history to determine the meaning of the phrase "foreign cause of action."
*252¶19 Guertin makes it clear that choice of laws considerations are not relevant *381to determining whether the borrowing statute applies to a particular lawsuit. Instead, a court must consider whether that lawsuit constitutes a "foreign cause of action"-in other words, a cause of action premised on an injury that occurred outside of Wisconsin.
¶20 The Paynters argue David's injury is the extent to which his cancer grew or spread between the June 2010 misdiagnosis and the June 2014 surgery to remove the tumor. The Paynters contend Hamp "admitted" during his deposition that David's tumor would have continued to grow or expand until surgically removed. They further allege there is evidence in the record indicating that, although the Paynters live in Michigan, David was "frequently" in Wisconsin between 2010 and 2014. On this record, the Paynters argue there is "at the very least" a question of fact as to whether David's injury occurred "in part" in Wisconsin. The Paynters contend that, as long as some portion of David's injury occurred in Wisconsin, their lawsuit does not qualify as a "foreign cause of action" under the borrowing statute.
¶21 The Paynters' argument in this regard rests almost entirely on Faigin v. Doubleday Dell Publishing Group, Inc. ,
*253The question on appeal was whether the defamation claim constituted a "foreign cause of action," such that Wisconsin's borrowing statute applied to the plaintiff's lawsuit.
¶22 The United States Court of Appeals for the Seventh Circuit concluded the plaintiff's claim was not a foreign cause of action. The court began by citing Guertin for the proposition that "a cause of action is 'foreign' if the underlying injury occurred outside the state." Faigin ,
¶23 Based on Faigin , the Paynters argue a cause of action is not "foreign," for purposes of the borrowing statute, as long as the plaintiff sustained some injury in Wisconsin, even if the plaintiff was also injured in other states. They therefore contend that, if David's cancer grew at any point while he was in Wisconsin between June 2010 and June 2014, that growth was an injury in Wisconsin and, as a result, the Paynters' lawsuit is not a foreign cause of action under the borrowing statute.
*254¶24 We do not find this argument convincing. As Hamp correctly notes, Faigin *382is not binding authority.
¶25 First, Faigin is inapt because its holding appears to be limited to the context of multistate defamation actions. The Faigin court conceded its reasoning rested on a "quirk" of defamation law-i.e., that a plaintiff is generally considered to have been injured wherever the defamatory writing was published. See Faigin ,
¶26 Second, even if Faigin could, as a general matter, be applied in contexts other than multistate defamation actions, an important factual dissimilarity precludes its application here. Specifically, Faigin involved *256multiple, discrete injuries in different states. Here, in contrast, the Paynters have asserted a single, continuous injury, *383which 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. The Paynters have not developed a convincing argument or cited any legal authority indicating that Faigin 's holding should apply to this type of "continuous" injury.
¶27 Third, applying Faigin in this case would be contrary to two of the purposes of WIS. STAT . § 893.07. Our supreme court has explained that, in enacting the borrowing statute, the legislature intended
to adopt the shortest possible limitation period for actions litigated in this state potentially subject to more than one statute of limitations. The policies advanced by such a statute include the reduction of forum shopping, the prevention of stale claims, the expedient litigation of controverted matters, and the avoidance of uncertainty in assessing the timeliness of bringing an action in this state without the necessity of a court hearing to make such a determination, thereby preserving scarce judicial resources.
Guertin ,
*257¶28 For all of these reasons, we reject the Paynters' invitation to hold, based on Faigin , that their lawsuit is not a foreign cause of action as long as David sustained some injury in Wisconsin, even if he was also injured in Michigan. Having rejected that argument, however, we must select an alternative framework for determining whether the Paynters' lawsuit constitutes a foreign cause of action. The Faigin court identified two such possible alternatives: (1) that a cause of action is not foreign if the plaintiff's first injury occurred in Wisconsin; and (2) that a cause of action is not foreign if most of the plaintiff's injury occurred in Wisconsin. See Faigin ,
¶29 Our supreme court has indicated that it favors establishing bright-line rules when interpreting and applying the borrowing statute. See Abraham v. General Cas. Co. of Wis. ,
¶30 As a result, determining where David was located at the time he was first injured by Hamp's misdiagnosis necessarily requires an initial determination of when that injury occurred. Our supreme court's decision in Paul governs that issue. In Paul , the plaintiffs' daughter died following the rupture of an arteriovenous malformation, which the defendant physician had failed to diagnose. Paul ,
¶31 Our supreme court rejected the physician's argument, explaining a misdiagnosis "in and of itself, is not, and cannot, be an actionable injury."
¶32 Based on Paul , we conclude David first sustained an injury as a result of Hamp's conduct at the point in time when the misdiagnosis "cause[d] a greater harm than existed at the time of the misdiagnosis." See
¶33 With the above framework in mind, we now turn to the parties' summary judgment submissions to determine whether Hamp was, in fact, entitled to summary judgment based on the borrowing statute.
*385It is undisputed that the Paynters' complaint stated a cognizable claim, and that Hamp's answer joined issue. See Preloznik ,
¶34 "A prima facie case is established ... when evidentiary facts are stated which[,] if they remain uncontradicted by the opposing party's affidavits[,] resolve all factual issues in the moving party's favor." Walter Kassuba, Inc. v. Bauch ,
¶35 We conclude Hamp sufficiently established a prima facie case for summary judgment. Hamp presented evidence showing that the Paynters lived in Michigan at the time of David's deposition. In addition, other evidence in the record at the time Hamp moved for summary judgment demonstrated that David received *261the June 14, 2010 phone call on his "home phone" at a telephone number with a Michigan area code. At the time Hamp moved for summary judgment, there was no evidence in the record indicating the Paynters had lived anywhere else during the period from the misdiagnosis until its discovery, and the only reasonable inference was therefore that the Paynters continuously resided in Michigan during that time period. Moreover, there was no evidence in the record indicating that the Paynters were present in Wisconsin at any point during the relevant time period. If uncontradicted, these facts would establish that, regardless of the precise date David's injury occurred, he was not injured in Wisconsin. Hamp therefore made a prima facie showing that the Paynters' cause of action was foreign and, as such, was subject to the borrowing statute.
¶36 In response to Hamp's summary judgment motion, the Paynters failed to submit sufficient evidence to create a genuine issue of material fact as to whether David was first injured in Wisconsin. "A factual issue is 'genuine' if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Strasser v. Transtech Mobile Fleet Serv., Inc. ,
¶38 The Paynters also argue that, even if they failed to produce evidence supporting a reasonable inference that David sustained a physical injury in Wisconsin for purposes of the borrowing statute, their informed consent claim is nevertheless viable. They *264allege Hamp violated his duty of informed consent by misdiagnosing David on June 14, 2010, in that the misdiagnosis deprived David "of the opportunity to choose his course of treatment." The Paynters contend this violation constituted an injury-distinct from any physical injury David may have sustained-because the term "injury" encompasses the violation of a person's legal rights. See Liebovich v. Minnesota Ins. Co. ,
¶39 We disagree. We have already concluded that an injury occurs, for purposes of the borrowing statute, at the first moment in time when the plaintiff sustains an injury. Here, the Paynters have conceded Hamp first violated David's right to informed consent during the June 14, 2010 phone call. It is undisputed that David was located in Michigan when he received that call. Because David 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. David's informed consent claim therefore constitutes a foreign cause of action.
¶40 Studio & Partners, s.r.l. v. KI , No. 06-C-628,
¶41 The Paynters rely on Abraham in support of their argument that the injury David sustained as a result of Hamp's informed consent violation occurred in Wisconsin, where Hamp was located, rather than in Michigan, where David was located. The issue in Abraham was "how to apply WIS. STAT . § 893.07 to cases in which the underlying cause of action sounds in contract," rather than tort. Abraham ,
*266¶42 The Paynters note that, in Abraham , the defendant insurer's "conveyance" of its decision to deny the plaintiff's claim "occurred in Wisconsin." See
CONCLUSION
¶43 In summary, we conclude that, in assessing where a plaintiff's injury occurred for purposes of the borrowing statute, the operative question is where the plaintiff was located when he or she first sustained an injury as a result of the defendant's conduct. In a medical malpractice case alleging a negligent misdiagnosis, the initial injury occurs at the first point in time when the misdiagnosis causes a greater harm than that which existed at the time of the misdiagnosis. Here, Hamp submitted sufficient evidence to make a prima facie showing that David's initial injury did not occur in Wisconsin. In response, the Paynters failed to raise a genuine issue of material fact on that issue. While the Paynters argue Hamp's violation of David's right to informed consent constituted a separate injury *267for purposes of the borrowing statute, the summary judgment record conclusively establishes that injury occurred in Michigan.
¶44 For these reasons, we conclude the Paynters' lawsuit constitutes a foreign cause of action and is therefore subject to the borrowing statute. Under the borrowing statute, the Michigan statute of limitations governs the timeliness of the Paynters' claims. As explained above, the Paynters claims are clearly untimely under the Michigan statute. Accordingly, the circuit court properly granted Hamp summary judgment.
By the Court.-Judgment affirmed.
All references to the Wisconsin Statutes are to the 2015-16 version unless otherwise noted.
We may affirm a circuit court's decision if it reached the right result for the wrong reason. See State v. Holt ,
The Paynters also argue the circuit court erred by determining an insurance policy that ProAssurance Wisconsin Insurance Company issued to Hamp did not provide coverage for the Paynters' claims. Because we conclude the circuit court properly dismissed the Paynters' claims on other grounds, we need not address the Paynters' insurance coverage argument. See Turner v. Taylor ,
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." Aspiration , Taber's Cyclopedic Medical Dictionary (19th ed. 2001).
The Paynters contend Hamp made the June 14, 2010 call from his Ashland office. However, the portions of the record that they cite in support of that assertion do not indicate where Hamp was located when he made that call. Nonetheless, Hamp and ProAssurance do not appear to dispute that Hamp made the June 14 call from Wisconsin.
The Paynters' complaint also named two other physicians and their respective insurers as defendants. However, the Paynters ultimately 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 ultimately granted.
The Paynters have not cited, and we have not located, any Wisconsin case applying or adopting the Seventh Circuit's holding in Faigin v. Doubleday Dell Publishing Group, Inc. ,
The Eastern District of Wisconsin has distinguished Faigin on this basis, stating Faigin 's holding was "compelled by a 'quirk' of state libel law which deemed injury to occur in any state in which the offending material was published." Studio & Partners, s.r.l. v. KI , No. 06-C-628,
The Paynters argue the Eastern District applied Faigin in the medical malpractice context in Stupak v. Hoffman-La Roche, Inc. ,
Moreover, as the Studio & Partners court noted, plaintiffs will frequently be able to "concoct some negligible or inchoate injury occurring in Wisconsin that would render the injury non-foreign" under Faigin . See Studio & Partners ,
The Paynters argue Paul v. Skemp ,
The Paynters cite two excerpts from Hamp's deposition testimony in support of their claim that Hamp "admitted" David's tumor would have continued to grow or expand until it was surgically removed. In the first excerpt, the Paynters' attorney stated:
[O]ne of the things that we allege in this suit is that had Mr. Paynter been told in 2010 that he had a malignancy and had received prompt treatment [for] that malignancy that his condition today would be much improved from his actual condition. Do you have any opinions with respect to whether or not Mr. Paynter's condition is worse due to the delay?
Hamp responded, "His survival and prognosis would be improved if he had been treated in 2010 versus 2014."
In the second excerpt, Hamp testified he would have recommended that David have the growth on his neck removed, regardless of whether it was malignant. Hamp subsequently explained that, even if the pathology report indicated no malignant cells were present, he would have told David "[i]f we don't take it out, it's going to continue to expand, and get to the point it will break down."
We are not convinced these excerpts constitute an admission that David's tumor would have continued to grow or expand until surgically removed. Regardless, even construing Hamp's deposition testimony as admitting that fact, we conclude the Paynters have failed to show a genuine issue of material fact as to whether David was first injured in Wisconsin, for purposes of the borrowing statute.
At oral argument, the Paynters contended the microscopic growth of David's tumor, in and of itself, was an injury for purposes of the borrowing statute. We are not convinced that is the case. It is not self-evident that the tumor's microscopic growth, without more, caused David greater harm than that which existed at the time of the misdiagnosis. Nonetheless, even assuming the microscopic growth of David's tumor could constitute an injury under the borrowing statute, nothing in the record indicates at what point in time following the misdiagnosis the first instance of that microscopic growth occurred.
As noted above, in addition to asserting negligence and informed consent claims on David's behalf, the Paynters' complaint asserted derivative claims on Kathryn's behalf. The Paynters conceded at oral argument that the viability of Kathryn's derivative claims depends on the viability of David's claims. Based on that concession, and because we conclude David's claims were untimely, we conclude the circuit court properly granted Hamp summary judgment on Kathryn's claims.
Reference
- Full Case Name
- David W. PAYNTER and Kathryn M. Paynter 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
- Cited By
- 3 cases
- Status
- Published