Doe v. Mayo Clinic Health System—Eau Claire Clinic, Inc.

• Decision Date: 23 June 2016
• Docket Number: No. 2014AP1177.,2014AP1177.
• Citation: 880 N.W.2d 681,369 Wis.2d 351
• Parties: John DOE 56, John Doe 57, a minor and Parents of John Does 56 and 57, Plaintiffs–Appellants–Petitioners, v. MAYO CLINIC HEALTH SYSTEM—EAU CLAIRE CLINIC, INC., David A. Van de Loo, M.D., ProAssurance Casualty Co. and Injured Patients and Families Compensation Fund, Defendants–Respondents.
• Court: Wisconsin Supreme Court

369 Wis.2d 351

880 N.W.2d 681

John DOE 56, John Doe 57, a minor and Parents of John Does 56 and 57, Plaintiffs–Appellants–Petitioners,

v.MAYO CLINIC HEALTH SYSTEM—EAU CLAIRE CLINIC, INC., David A. Van de Loo, M.D., ProAssurance Casualty Co. and Injured Patients and Families Compensation Fund, Defendants–Respondents.

No. 2014AP1177.

Supreme Court of Wisconsin.

Argued Feb. 24, 2016.

Decided June 23, 2016.

For the plaintiffs-appellants-petitioners, there were briefs by Eric J. Magnuson and Robins Kaplan LLP, Minneapolis, and Russell D. Nicolet, Adam L. Nicolet, and Nicolet Law Office, S.C., Hudson. Oral argument by Eric J. Magnuson.

For the defendants-respondents David A. Van de Loo and ProAssurance Casualty Company, there was a brief by Samuel J. Leib, Brent A. Simerson and Wilson Elser Moskowitz Edelman & Dicker, LLP, Milwaukee, and oral argument by Samuel J. Leib.

For the defendant-respondent Injured Patients & Families Compensation Fund, there was a brief by Jeremy T. Gill and Nash, Spindler, Grimstad & McCracken, LLP, Manitowoc.

For the defendants-respondents Mayo Clinic Health System–Eau Claire Clinic, Inc. and ProAssurance Casualty Co., there was a brief by Guy DuBeau, Timothy M. Barber, and Axley Brynelson, LLP, Madison, and oral argument by Guy DuBeau.

REBECCA G. BRADLEY

, J.

¶ 1 Minors John Doe 56 and John Doe 57 appeal from the decision of the court of appeals,¹ which affirmed the circuit court's² dismissal of the Does' medical malpractice claims based on the statute of limitations. The issue is whether the statute of limitations for medical malpractice claims, Wis. Stat. § 893.55(1m)(a)

(2013–14),³ bars this action. More specifically, this case involves a disagreement as to when the Does' claims for medical malpractice accrued. The circuit court and court of appeals determined that the Does' claims accrued on the last day Dr. David A. Van de Loo⁴ performed the genital examinations during which the medical malpractice allegedly occurred. The Does contend their claims for medical malpractice did not accrue until they learned in news reports that the State had charged Dr. Van de Loo with second-degree sexual assault of another boy for physically manipulating that boy's penis during a genital examination very similar to the Does' own examinations. The Does contend that this knowledge caused them to suffer extreme emotional distress and other psychological injuries because the boys then believed that Dr. Van De Loo sexually assaulted them under the guise of a genital examination. The Does are not arguing that the news reports caused them to discover that they had been injured during the genital examinations; rather, they are asserting that no injury had occurred, and therefore, their claims did not accrue, until they learned that Dr. Van de Loo's conduct during the genital examinations might have involved a criminal sexual assault.

¶ 2 At the outset, we address whether allegations of sexual assault during a medical examination may lawfully be pursued as a medical malpractice action. We are not convinced that victims who are sexually assaulted by their physician during an appointment can state an actionable claim for medical malpractice. See Deborah S.S. v. Yogesh N.G., 175 Wis.2d 436, 499 N.W.2d 272 (Ct.App.1993)

(improper sexual conduct by a physician against a patient during a physical examination constitutes intentional conduct, not medical malpractice). Sexual assault is an intentional act and therefore should be pursued as an intentional tort in the civil arena or as a criminal matter, not under a claim of medical negligence. When there exists, however, a legitimate medical purpose for a genital examination, a claim can fall within medical malpractice. See

J.W. v. B.B., 2005 WI App 125, ¶ 10, 284 Wis.2d 493, 700 N.W.2d 277 (digital-rectal prostate exams done as part of a pre-employment physical properly fell within medical malpractice where physician had a legitimate medical purpose or reason for the allegedly inappropriate touching).

¶ 3 In Deborah S.S., the patient underwent a neurological examination during which the physician touched her vagina, buttocks, and breast, and she felt the physician's penis become erect against her body. Id., 175 Wis.2d at 439, 499 N.W.2d 272

. The parties agreed the sexual acts “did not serve any medical reason related to the examination” and were therefore “not part of the medical treatment accorded to the patient.” Id. at 443, 499 N.W.2d 272. Based on this agreement, it was clear that Deborah S.S. did not have an actionable medical malpractice claim because the sexual touching was unrelated to the neurological treatment. In J.W., like the instant case, this separation was not evident. The medical malpractice alleged in J.W. consisted of an unnecessary digital-rectal prostate examination as a part of a pre-employment physical. Id., ¶¶ 2, 9–11. The patients asserted these examinations were unnecessary and improper and may have been done for sexual rather than medical reasons. Id., ¶¶ 10–12. The J.W. court distinguished J.W. from Deborah S.S. because the J.W. plaintiffs did not “allege the physician touched them in places or in ways that served no medical purpose or reason, such that the prostate exams were not a part of the medical treatment the physician provided.” J.W., ¶ 10. In other words, because there was a medical purpose for conducting digital-rectal prostate exams, the alleged conduct was part of the medical treatment and the only issue was whether “performing digital-rectal prostate exams on healthy, twenty-five-year-old males during pre-employment physicals was ‘unnecessary and improper treatment,’ thus constituting medical malpractice.” Id. (citation omitted). The J.W. court held that under these circumstances, J.W.'s case properly fell within medical malpractice.

¶ 4 The Does' case is more akin to J.W. than Deborah S.S. The Does alleged that the touching occurred during their medical treatment—during their annual examinations. The Does allege that Dr. Van de Loo asserts he had a legitimate medical purpose for manipulating the boys' penises during their genital examinations, and the Does claim that Dr. Van de Loo's “touching” during the medical examination was “unnecessary and improper treatment.” These allegations could constitute an actionable medical malpractice claim. Northwest Gen. Hosp. v. Yee, 115 Wis.2d 59, 61–62, 339 N.W.2d 583 (1983)

(This court has held that “unnecessary and improper treatment [ ] constitute[s] malpractice.”).

¶ 5 Further, this case comes to us following a motion to dismiss. Our review on a motion to dismiss requires us to accept the facts alleged in the pleadings as true. See Kaloti Enters., Inc. v. Kellogg Sales Co., 2005 WI 111, ¶ 11, 283 Wis.2d 555, 699 N.W.2d 205

. The Does' pleadings allege both unnecessary and improper treatment and that Dr. Van de Loo professes a medical reason for the manipulation of the Does' genitals. Accordingly, we cannot hold as a matter of law that no claim exists under medical malpractice law. We therefore analyze whether the circuit court properly dismissed the Does' medical malpractice claim based on the statute of limitations in Wis. Stat. § 893.55(1m)(a). To decide whether the statute of limitations bars the Does' medical malpractice claims, we must determine whether their claims accrued on the date Dr. Van de Loo last physically touched the Does during their genital examinations or whether accrual occurred when the Does learned that Dr. Van de Loo's genital examination may, in actuality, have constituted a criminal act.

¶ 6 We hold that the Does' claims accrued on the date of the last physical touching by Dr. Van de Loo because that is the only moment at which a “physical injurious change” occurred. This is consistent with the “physical injurious change” test we use for determining accrual in medical malpractice cases. See Estate of Genrich v. OHIC Ins. Co., 2009 WI 67, ¶ 17, 318 Wis.2d 553, 769 N.W.2d 481

(“[T]he determination of a ‘physical injurious change’ is the appropriate benchmark for establishing the date of ‘injury’ under Wis. Stat. § 893.55(1m)(a).”). The Does' last appointments with Dr. Van de Loo were December 31, 2008 for Doe 56 and December 31, 2009 for Doe 57. They did not file this medical malpractice action until October 2013, more than three years after each boy's last genital examination with Dr. Van de Loo. Accordingly, the Does' claims for medical malpractice are time-barred by the three-year medical malpractice statute of limitations, Wis. Stat. § 893.55(1m)(a).⁵ Therefore, the decision of the court of appeals is affirmed.

I. BACKGROUND

¶ 7 On October 9, 2013, John Doe 56, John Doe 57, and their parents filed suit against Dr. Van de Loo, Mayo Clinic Health System, ProAssurance Casualty Company and the Injured Patients and Families Compensation Fund alleging a variety of claims, including a claim for medical malpractice, which is the only claim involved in this appeal.⁶ The facts and any reasonable inferences derived therefrom are taken from the Does' complaint and are set forth below.

¶ 8 The complaint's first paragraph states that these boys “may have been the victim[s] of sex crimes.” From 2003 to 2008, Dr. Van de Loo served as Doe 56's primary care physician. During this timespan, while Doe 56 was 10 to 15 years old, he received medical treatment from Dr. Van de Loo that included Dr. Van de Loo touching Doe 56's genitals. Doe 57 also received medical treatment from Dr. Van de Loo, including touching of Doe 57's genitals between 2003 to 2009 when Doe 57 was 8 to 14 years old. During the respective time periods, Dr. Van de Loo “inflicted harmful bodily contact” on the Does “on multiple occasions.” As a result of this contact, the boys suffered “great pain of mind and body” and Dr. Van de Loo's actions “caused bodily harm.” The Does do not provide specific dates for their examinations, but instead give only a year range.

¶ 9 The Does' complaint further alleges: Dr. Van de...