Deborah S.S. v. Yogesh N.G., 92-2048

CourtCourt of Appeals of Wisconsin
Citation175 Wis.2d 436,499 N.W.2d 272
Docket NumberNo. 92-2048,92-2048
PartiesDEBORAH S.S., Plaintiff-Appellant, d v. YOGESH N.G., M.D., and WISCONSIN PATIENTS COMPENSATION FUND, Defendants-Respondents.
Decision Date24 March 1993


NETTESHEIM, Presiding Judge.

The issue on appeal is whether improper sexual conduct by a physician against a patient committed during the course of a physical examination is negligent or intentional conduct. Deborah S.S., the patient, alleged such conduct in her complaint against Dr. Yogesh N.G., the physician. 1 The patient alleged that the conduct constituted negligence. At summary judgment, the physician contended that the conduct, if true, was intentional. As a result, the physician argued that the patient's action was brought beyond the two-year statute of limitations governing intentional acts. The trial court agreed and dismissed the patient's complaint. 2 The patient appeals. We affirm the judgment dismissing the complaint.


The patient was referred to the physician for a neurological examination. The examination occurred on September 15, 1988. Part of this procedure required the physician to perform a sensory examination. During this portion of the examination, the patient alleges that the physician inappropriately touched the vaginal, buttock, and breast areas of her body. She also alleges that she felt the physician's erect penis against her body during this time. The parties agree that this alleged conduct did not serve any medical reason related to the examination which the physician was required to perform on the patient.

The patient filed her action on December 19, 1990. Her complaint alleges the physician's conduct was negligent and "[h]ad no medical purpose or reason."

The physician moved for summary judgment, arguing that the patient's action was barred by sec. 893.57, Stats., the two-year statute of limitations governing intentional torts. 3 The patient responded that her action was governed by sec. 893.55, Stats. the three-year statute of limitations governing medical malpractice actions. 4

The critical portions of the summary judgment record consist of the parties' depositions and their testimony given in a related proceeding before the Wisconsin Department of Regulation and Licensing Medical Examining Board. Although this record is extensive, it essentially boils down to what we have described above--the patient's allegations, the physician's denials, and the parties' agreement for purposes of the statute of limitations question that the alleged conduct must be taken as true.

The trial court agreed with the physician that the summary judgment record demonstrated his alleged conduct to be intentional. The court therefore dismissed the patient's complaint because she did not bring the action within the two-year statute of limitations governing intentional torts. She appeals.


We review a summary judgment under the same methodology as the trial court, and we are not bound by the trial court's ruling. Burch v. American Family Mut. Ins. Co., 171 Wis.2d 607, 612, 492 N.W.2d 338, 340 (Ct.App.1992).

We make an important preliminary observation. The patient agrees that the physician's actions were intentionally committed. Nonetheless, she contends that his actions should be governed by the three-year statute of limitations governing medical malpractice claims. We will now address her specific arguments in support of this claim.

The patient argues that the enactment of ch. 655, Stats., governing health care liability and patients' compensation, usurped the field regarding actions against health care providers and salvages her action. We agree with the patient that, in many respects, ch. 655 has usurped the field. For instance, in Rineck v. Johnson, 155 Wis.2d 659, 456 N.W.2d 336 (1990), cert. denied, 498 U.S. 1068, 111 S.Ct. 787, 112 L.Ed.2d 849 (1991), the supreme court ruled that the medical malpractice damage provisions of ch. 655 prevailed over the damage limitations set out in the wrongful death statute. Rineck, 155 Wis.2d at 665, 456 N.W.2d at 339. In so holding, the supreme court said:

Chapter 655, Stats.... established an exclusive procedure for the prosecution of malpractice claims against a health care provider.... Chapter 655 sets tort claims produced by medical malpractice apart from other tort claims, and parties are conclusively presumed to be bound by the provisions of the chapter regardless of injury or death.

Id. (citation omitted).

However, this language, standing alone, does not support the patient's argument that the three-year statute of limitations governing negligent acts should apply to this case. Chapter 655, Stats., contains no statute of limitations. Chapter 655 actions cannot stand in a statute of limitations vacuum; obviously, some statute of limitations must apply.

The patient argues that Rineck bridges this gap, serving to "conjoin" ch. 655, Stats., actions with sec. 893.55, Stats., the three-year statute of limitations governing medical malpractice acts. However, in Rineck, the supreme court noted that the legislature had expressly provided for the recovery of noneconomic damages in a ch. 655 malpractice proceeding. Rineck, 155 Wis.2d at 666-67, 456 N.W.2d at 340. Thus, the court concluded that this specific statute superseded the general ceiling on noneconomic damages set out in the wrongful death statute. Id. at 668, 456 N.W.2d at 341.

The same statement cannot be made in this case. As we have noted, ch. 655, Stats., is silent as to the applicable statute of limitations. Thus, we have no specific statement in ch. 655 which supersedes any other statute of limitations found elsewhere in the statutes. Thus, Rineck does not answer the statute of limitations question posed by this case.

The patient next argues that because this is not a classic nonconsent sexual assault case, the three-year medical malpractice statute of limitations should apply. She bases this argument on the fact that the physician's acts were unnecessary and improper.

The patient correctly observes that the Wisconsin Supreme Court has held that unnecessary and improper treatment constitutes malpractice. Northwest Gen. Hosp. v. Yee, 115 Wis.2d 59, 61-62, 339 N.W.2d 583, 585 (1983). However, that supreme court statement rests on the premise that the malpractice conduct is part of the medical treatment accorded to the patient. In discussing unnecessary and improper treatment, the Yee court cited to an earlier case, Kuechler v. Volgmann, 180 Wis. 238, 192 N.W. 1015 (1923), overruled on other grounds, Kerkman v. Hintz, 142 Wis.2d 404, 418 N.W.2d 795 (1988), which stated: "Malpractice may consist in a lack of skill or care in diagnosis as well as in treatment.... [T]hrough a lack of skill and care the defendant negligently undertook to treat plaintiff for a malady from which he was not suffering...." Kuechler, 180 Wis. at 242-43, 192 N.W. at 1017. Thus, where the form of malpractice is alleged to be unnecessary and improper treatment, such malpractice conduct must constitute part of the treatment.

Here, as we have noted, the parties agree that the acts alleged against the physician did not serve any medical reason related to the examination which the physician was required to perform upon the patient. Therefore, the physician's offending conduct was not part of the medical treatment accorded to the patient. Thus, this is not a case controlled by Yee. 5

The patient also cites to L.L. v. Medical Protective Co., 122 Wis.2d 455, 362 N.W.2d 174 (Ct.App.1984), in support of her argument. In L.L., a psychiatrist engaged in sexual activity with a female patient who was experiencing "difficulty in maintaining healthy interpersonal relationships, particularly relationships with men." Id. at 457, 362 N.W.2d at 175. The court of appeals concluded that such conduct fell within an insurance policy's definition of "professional services." Id. at 459, 362 N.W.2d at 176. 6

The court of appeals premised its holding on the "transference phenomenon" which exists in such a treatment relationship and setting. Id. at 461, 362 N.W.2d at 177.

The "transference" ... is the emotional reaction which the patient in therapy has toward the therapist.... The development of the transference "may be coincident with an identification with the therapist whereby the patient learns to think, style and model himself after the therapist." .... The patient "develops extreme emotional dependence on the therapist."

Id. (citations omitted).

Undoubtedly, every patient places trust in the treating physician. However, this case does not present the "transference phenomenon" unique to the treatment relationship between a psychiatrist and the patient. As such, L.L. does not...

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