Betthauser v. Medical Protective Co.

• Decision Date: 15 December 1992
• Docket Number: No. 90-2687,90-2687
• Citation: 493 N.W.2d 40,172 Wis.2d 141
• Parties: Michael J. BETTHAUSER, Gene Betthauser and Mary Betthauser, Plaintiffs-Appellants, v. The MEDICAL PROTECTIVE COMPANY, a foreign corporation; St. Paul Fire & Marine Insurance Company, a foreign corporation; Pamela Kruse, a/k/a Pamela Eickhorst; Peter A. Gardetto; and the Kurten Medical Group, a/k/a the Kurten Clinic, a partnership of the following persons: Peter A. Gardetto, Donald R. Burke, Donald F. Cohill, H.E. DeGroot, Joseph C. Fralich, John W. Foreman, Howard Gass, William C. Harris, K.H. Kolmeier, William J. Madden, Richard Minton, Charles H. Patton, and Stanley M. Englander, Defendants-Respondents-Petitioners, v. WISCONSIN PHYSICIANS SERVICE INSURANCE CORP., a Wisconsin corporation; and Continental Casualty Co., a foreign corporation, Involuntary-Plaintiffs.
• Court: Wisconsin Supreme Court

Page 40

493 N.W.2d 40

172 Wis.2d 141

Michael J. BETTHAUSER, Gene Betthauser and Mary Betthauser, Plaintiffs-Appellants, v. The MEDICAL PROTECTIVE COMPANY, a foreign corporation; St.

Paul Fire & Marine Insurance Company, a foreign corporation;

Pamela Kruse, a/k/a Pamela Eickhorst; Peter A. Gardetto;

and the Kurten Medical Group, a/k/a the Kurten Clinic, a

partnership of the following persons: Peter A. Gardetto,

Donald R. Burke, Donald F. Cohill, H.E. DeGroot, Joseph C.

Fralich, John W. Foreman, Howard Gass, William C. Harris,

K.H. Kolmeier, William J. Madden, Richard Minton, Charles H.

Patton, and Stanley M. Englander, Defendants-Respondents-Petitioners, v. WISCONSIN PHYSICIANS SERVICE INSURANCE CORP., a Wisconsin

corporation; and Continental Casualty Co., a

foreign corporation, Involuntary-Plaintiffs.

No. 90-2687.

Supreme Court of Wisconsin.

Submitted on Briefs Oct. 8, 1992.

Opinion Filed Dec. 15, 1992.

For defendants-respondents-petitioners there were briefs by Paul R. Erickson, Colleen M. Fleming and Gutglass, Erickson & Bonville, S.C., Milwaukee.

For plaintiffs-appellants there was a brief by John R. Orton, W.T. Curran and Curran, Hollenbeck & Orton, S.C., Mauston.

Amicus Curiae brief was filed by Virginia M. Antoine and Habush, Habush & Davis, S.C., Milwaukee for Wisconsin Academy of Trial Lawyers.

DAY, Justice.

The Medical Protective Company, et al. (hereinafter referred to as "defendants") seek review of a published opinion of the court of appeals ¹ which reversed the judgment of the circuit court for Racine County, Honorable Stephen A. Simanek, Judge. This medical malpractice case, brought by the plaintiffs, Michael Betthauser and his parents (hereinafter referred to as "Betthausers"), was filed on March 23, 1990, and arises out of an injury suffered by Michael in 1972. The circuit court granted the defendants' motion for dismissal on the grounds that sec. 893.56, Stats.1989-90, ² which was enacted in 1977, bars the Betthausers' claim. The court of appeals reversed the circuit court on the grounds that sec. 893.33, Stats.1971-72, ³ which was in place at the time the Betthausers' cause of action accrued but was replaced by sec. 893.56, Stats. in 1977, allows the Betthausers' claim.

The issue is which of these two statutes governs this medical malpractice case. Since this case involves the application of various statutes to an undisputed set of facts, the issue is a question of law which this court reviews de novo. State ex rel. Stedman v. Rohner, 149 Wis.2d 146, 150, 438 N.W.2d 585 (1989).

The facts are not in dispute. On April 10, 1972, Dr. Gardetto treated Michael Betthauser, who was nine months old and suffering from an upper respiratory infection, at the Kurten Clinic. Dr. Gardetto prescribed and nurse Pamela Kruse administered an intramuscular injection of Bicillin. The injection allegedly resulted in injury requiring the amputation of Michael Betthauser's lower right leg.

At the time of injury, sec. 893.33, Stats. authorized the Betthausers to bring an action at any time before Michael's nineteenth birthday. In 1977, when Michael Betthauser was five years old, the Legislature replaced sec. 893.33, with sec. 893.56, Stats. Section 893.56, if applied to the present case, required the Betthausers to bring this action before Michael's tenth birthday.

The Betthausers filed this claim when Michael was eighteen years and nine months old. The circuit court, applying sec. 893.56, Stats., dismissed the claim. The court of appeals, applying sec. 893.33, Stats., reversed the circuit court and remanded the case. We hold that sec. 893.33 in effect when this cause of action accrued, governs this case and therefore affirm the court of appeals.

In order to hold that sec. 893.56, Stats. applies to the present case, we would have to apply sec. 893.56, retroactively. "The general rule in Wisconsin is that legislation is presumptively prospective unless the statutory language clearly reveals either expressly or by necessary implication an intent that the statute apply retroactively." United States Fire Ins. Co. v. E.D. Wesley Co., 105 Wis.2d 305, 319, 313 N.W.2d 833 (1982). If, however, a statute is procedural or remedial, rather than substantive, the statute is generally given retroactive application unless retroactive application would impair contracts or disturb vested rights. Steffen v. Little, 2 Wis.2d 350, 357-58, 86 N.W.2d 622 (1957).

Defendants argue that sec. 893.56, Stats. is a procedural or remedial statute. On the other hand, the Betthausers argue, and we agree, that sec. 893.56, is a statute of limitation and statutes of limitation are substantive statutes.

Although defendants correctly point out that sec. 893.33, Stats. contains a tolling provision, we do not agree with the claim that sec. 893.56, Stats. merely shortened the tolling period set forth in sec. 893.33. The Legislature, when enacting sec. 893.56, specifically stated that the tolling period set forth in sec. 893.33, no longer applies to actions against health care providers. ⁴ The Legislature replaced the tolling period set forth in sec. 893.33, with a new statute of limitation set forth in sec. 893.56.

Defendants maintain that statutes of limitations are procedural or remedial in nature. The court of appeals, in City of Madison v. Town of Madison, 127 Wis.2d 96, 377 N.W.2d 221 (Ct.App.1985), explained the distinction between substantive and procedural or remedial laws:

If a statute simply prescribes the method--the 'legal machinery'--used in enforcing a right or remedy, it is procedural. If, however, the law creates, defines or regulates rights or obligations, it is substantive--a change in the substantive law of the state. A remedial statute is one which is 'related to remedies or modes of procedure which do not create new or take away vested rights, but only operate in furtherance of a remedy or confirmation of rights already existing.' Id. at 102, 377 N.W.2d 221. (citations omitted).

Defendants cite several cases from other states wherein statutes of limitation have been held to be remedial or procedural, not substantive. ⁵ Defendants also point out that, in Chase Securities Corp. v. Donaldson, 325 U.S. 304, 65 S.Ct. 1137, 89 L.Ed. 1628 (1945), the United States Supreme Court stated that, as a matter of constitutional law, "statutes of limitation go to matters of remedy, not to destruction of fundamental rights." Id. at 314, 65 S.Ct. at 1142. This court, however, has not followed the rationale set forth in the cases cited by the defendants.

Although this court, in Steffen, acknowledged the United States Supreme Court's decision in Chase, this court has not followed the rationale set forth in Chase. In Haase v. Sawicki, 20 Wis.2d 308, 121 N.W.2d 876 (1963), decided after Chase, this court said:

this court, by a long line of cases, has followed the construction that our statutes of limitation extinguish the right as well as the remedy.... [i]n Wisconsin the running of the statute of limitations absolutely extinguishes the cause of action for in Wisconsin limitations are not treated as statutes of repose. The limitation of actions is a right as well as a remedy, extinguishing the right on one side and creating a right on the other, which is as of high dignity as regards judicial remedies as any other right and it is a right which enjoys constitutional protection. Id. 20 Wis.2d at 311, 121 N.W.2d 876, quoting Maryland Casualty Co. v. Beleznay, 245 Wis. 390, 393, 14 N.W.2d 177 (1944) (emphasis added).

This court views statutes of limitation as substantive statutes because they create and destroy rights.

This court recently treated a statute of limitation as substantive rather than procedural or remedial in Gutter v. Seamandel, 103 Wis.2d 1, 17-19, 308 N.W.2d 403 (1981). In Gutter, this court, after noting the distinction between substantive and procedural or remedial statutes, stated:

This court has previously held that in the absence of express language in a statute which imposes a new statute of limitations stating that the statute has retroactive effect and in the absence of any legislative intent that a new statute of limitations be applied retroactively to a cause of action that accrued prior to the effective date of the statute, this court would not apply the new statute of limitations to causes of action accruing prior to the effective date of the statute. Id. at 18, 308 N.W.2d 403, citing Hunter v. School Dist. Gale-Ettrick-Trempealeau, 97 Wis.2d 435, 445, 293 N.W.2d 515 (1980).

Applying the Gutter /Hunter test to the present case, we examine the language and legislative history of sec. 893.56, Stats. to determine whether the Legislature intended retroactive application. The statute itself contains no language suggesting retroactive application. Additionally, the drafting record does not contain any indication that the Legislature intended sec. 893.56, to apply retroactively.

Furthermore, we are required to avoid construing a statute in such a way as would render that statute unconstitutional. Lewis Realty v. Wisconsin R.E. Brokers' Board, 6 Wis.2d 99, 108, 94 N.W.2d 238 (1959). Section 990.05, Stats.1977-78 provides that "[e]very law or act which does not expressly prescribe the time when it takes effect shall take effect on the day after its publication." Since Chapter 390, Laws of 1977, the act which created sec. 893.56, Stats., does not set forth a grace period or otherwise prescribe the time it takes effect, sec. 893.56, became effective on May 24, 1978, the day after publication. On May 24, 1978, sec. 893.56, established a limitation period of three years after the injury or the age of ten, whichever came later.

If applied retroactively, sec. 893.56, Stats. would have, on its effective date, immediately extinguished the claims of children between the ages of ten and nineteen who were injured at least three years before the effective date. For example, a child born in 1966 and injured in 1967...