Aicher v. WI Patients Compensation Fund

Decision Date12 July 2000
Docket NumberNo. 98-2955.,98-2955.
Citation237 Wis.2d 99,2000 WI 98,613 N.W.2d 849
PartiesAme AICHER, minor, by her Guardian ad Litem, Gerald LaBarge, Esq. and Kathy Goelz, mother of Ame Aicher, Plaintiffs-Respondents, v. WISCONSIN PATIENTS COMPENSATION FUND and Wisconsin Health Care Liability Insurance Plan, Defendants-Appellants, PRIMECARE HEALTH PLAN, INC. and Waukesha County Department of Health and Social Services, Defendants.
CourtWisconsin Supreme Court

For defendants-appellants there were briefs by Michael P. Russart and Hinshaw & Culbertson, Milwaukee, and oral argument by Michael P. Russart.

For plaintiffs-respondents there was a brief (in the court of appeals) by Timothy J. Aiken, James C. Gallanis and Aiken & Scoptur, S.C., Milwaukee, and oral argument by Timothy J. Aiken.


This case is before the court on certification by the court of appeals pursuant to Wis. Stat. § (Rule) 809.61 (1993-94).1 Wisconsin Patients Compensation Fund and Wisconsin Health Care Liability Insurance Plan (Insurers) seek review of a decision of the Waukesha County Circuit Court, James R. Kieffer, Judge. The circuit court denied the Insurers' motion for summary judgment in a medical malpractice action filed on behalf of Ame Aicher by her Guardian ad Litem (Aicher).

¶ 2. Aicher alleged that she became blind in her right eye as a result of medical malpractice committed during her newborn examination on December 10, 1982. Aicher maintains that she did not discover the condition until September 10, 1993, after she reached her tenth birthday. Aicher initiated this action in 1996, when she was 13 years old.

¶ 3. The Insurers filed a motion to dismiss and then sought summary judgment, invoking Wis. Stat. §§ 893.55(1)(b)2 and 893.56.3 Section 893.55(1)(b) establishes a statute of limitations for medical malpractice actions of one year from the date of discovery of the injury. The provision also operates as a statute of repose, tolling at five years from the date of the act or omission. Section 893.56, another statute of repose, extends the time for minors to initiate medical malpractice claims to the tenth birthday.

¶ 4. The circuit court denied the summary judgment motion, holding that the statutes of repose were unconstitutional as applied to the factual circumstances of Aicher's case. The court relied on Estate of Makos v. Wisconsin Health Care Fund, 211 Wis. 2d 41, 564 N.W.2d 662 (1997), in which the court's lead opinion found Wis. Stat. § 893.55(1)(b) unconstitutional. The circuit court held that §§ 893.55(1)(b) and 893.56 violate procedural due process and the right to remedy because the statutes foreclose some claims before a plaintiff even has the opportunity to know that an injury occurred. The court observed that the statutes gave Aicher zero days to file her action and thereby denied her an opportunity to be heard in court.

¶ 5. The Insurers appealed. The court of appeals certified two issues to this court: (1) Does the Makos plurality opinion represent a consensus of the majority of the justices that is binding on the courts of this state? (2) If Wis. Stat. § 893.55(1)(b) is considered unconstitutional under Makos, can the time limitation for the discovery of a medical malpractice injury be severed from the repose portion of the statute?

¶ 6. We do not answer the first question certified by the court of appeals because our decision today expressly overrules Makos. We hold that Wis. Stat. §§ 893.55(1)(b) and 893.56 are constitutional for three reasons. First, the statutes do not violate the right-to-remedy provision of the Wisconsin Constitution. Second, §§ 893.55(1)(b) and 893.56 do not offend equal protection because the classification of minor medical malpractice claimants is related rationally to the legitimate legislative objectives of reducing health care costs. Third, the statutes do not violate Aicher's right to procedural due process because an unaccrued cause of action is not a property interest. Because we sustain the constitutionality of Wis. Stat. §§ 893.55(1)(b) and 893.56, we do not reach the second certified question. Accordingly, we hold that §§ 893.55(1)(b) and 893.56 preclude Aicher's cause of action, and we reverse the decision of the circuit court.


¶ 7. Most of the relevant facts are not in dispute. On September 10, 1993, when Aicher was three months shy of her eleventh birthday, she underwent a routine eye examination in anticipation of her transfer to a new school. The examination revealed that she had an untreatable cataract in her right eye that caused permanent blindness. The cataract appeared because a muscle in her right eye failed to develop properly as a result of a condition known as "poor red reflex." A physician told Aicher's mother that if the condition had been treated within six months after Aicher's birth, the problem would have been correctable. The parties do not dispute that the condition resulted in an injury during the first six months of Aicher's life. Aicher is now blind in her right eye.

¶ 8. Aicher was born on December 10, 1982. Dr. Beryl Harris, who performed Aicher's newborn examination, made a notation in her medical record that she had "poor red reflex on the right eye." Aicher contends that Dr. Harris conducted no follow-up treatment for the eye condition, and he never spoke with Aicher's mother about further testing or treatment. Aicher's mother testified at her deposition that Aicher had a red spot in her eye since birth. Aicher displayed several instances of unexplained clumsiness in her childhood. She fell a few times and split her chin open twice. After these incidents, neither the treating doctors nor hospitals suggested to Aicher's mother that anything was wrong with Aicher's vision. There is no evidence that Aicher's mother sought medical attention to uncover the cause of these episodes. In addition, Aicher testified that she cheated during some of her eye examinations in school by looking at the eye chart with her good eye when her right eye was being tested. Dr. Harris died on April 26, 1986, ten years before Aicher sought recovery in this action.


¶ 9. Aicher initiated this claim on April 30, 1996, alleging that Dr. Harris committed malpractice when he performed her newborn examination. The Insurers initially filed a motion to dismiss, arguing that Wis. Stat. §§ 893.55 and 893.56 bar Aicher's action.

¶ 10. Wisconsin Stat. §§ 893.55(1)(b) and 893.56 set forth the statutes of repose at issue in this case. Section 893.55(1)(b) provides that a medical malpractice claim must be filed within one year of the date of discovery of the injury (the one-year-after-discovery statute of limitations), provided that five years have not passed since the act or omission (the five-year statute of repose).4 Section 893.56 extends the filing time for minors pursuing medical malpractice claims, allowing recovery if the minor initiates the lawsuit before reaching the age of 10 (the 10-year statute of repose for minors).

¶ 11. The interplay between both statutes of repose operated to preclude this suit. Under the broader provisions of Wis. Stat. § 893.56, Aicher would have had to file the malpractice claim by her tenth birthday, roughly nine months before she claims to have discovered her condition. When governed only by Wis. Stat. § 893.55(1)(b), Aicher's action tolled when she was five years old, or just under six years before the discovery. This time line illustrates the critical dates in this action:

December 10, 1982: Aicher born. December 10, 1982: Dr. Harris performed the newborn examination. June 10, 1982: End of six-month period during which Aicher's injury accrued. June 9, 1985: Tolling date for Wis. Stat § 893.55(1)(a), under which plaintiffs file no later than three years from the date of injury. December 9, 1987: Tolling date for Wis. Stat § 893.55(1)(b), the five-year statute of repose, that precludes actions brought "more than 5 years from the date of the act or omission." December 10, 1992: Aicher turns 10 and Wis Stat. § 893.56, the ten-year statute of repose for minors, bars her claim. September 10, 1993: Aicher discovers the injury. September 9, 1994: If the one-year-after-discovery statute of limitation set forth in Wis. Stat § 893.55(1)(b) were severable from the § 893.55(1)(b) five-year statute of repose this is tolling date for filing suit.

April 30, 1996: Aicher files this action.

¶ 12. After the Insurers filed the motion to dismiss, this court decided Makos, 211 Wis. 2d 41, a case that addressed the constitutionality of Wis. Stat. § 893.55(1)(b). The Insurers sought summary judgment, maintaining that "the fractured majority" of Makos found § 893.55(1)(b) unconstitutional only as to the particular facts of that case.

¶ 13. The circuit court, relying on the lead opinion in Makos, denied the summary judgment motion. The court held that §§ 893.55(1)(b) and 893.56 were unconstitutional when applied to the unique factual circumstances of Aicher's case. The court reasoned that the statutes violated procedural due process by denying Aicher an opportunity to be heard "because the doors of the courtroom were closed before she even discovered she was injured." The court likened Aicher to the claimant in Makos, concluding that it was fundamentally unfair to allow the statute to toll on a claim before the plaintiff knew or could have known about the injury. The circuit court found that granting summary judgment was inappropriate because the case presented a question of fact for the jury, namely whether Aicher should have discovered her injury before her tenth birthday.5

¶ 14. The circuit court also held that Wis. Stat. §§ 893.55(1)(b) and 893.56 were unconstitutional because they violated the "right to remedy" clause of art. I, § 9 of the Wisconsin Constitution, a provision that "guarantees that every person shall be afforded a remedy for wrongs...

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