Estate of Makos by Makos v. Wisconsin Masons Health Care Fund

• Decision Date: 20 June 1997
• Docket Number: No. 96-0174,96-0174
• Citation: 211 Wis.2d 41,564 N.W.2d 662
• Parties: ESTATE OF Cheryl MAKOS, by the Personal Representative, Calvin MAKOS and Calvin Makos Individually, Amanda Makos, Cody Makos and Ashley Makos, by their Guardian Ad Litem, Gary R. Weidner, Esq., Plaintiffs-Appellants, v. WISCONSIN MASONS HEALTH CARE FUND, Associates In Pathology, S.C., Dr. Steven E. Bodemer and Wisconsin Patients Compensation Fund, Defendants-Respondents, d ABC Insurance Company and DEF Insurance Company, Defendants.
• Court: Wisconsin Supreme Court

Page 662

564 N.W.2d 662

211 Wis.2d 41

ESTATE OF Cheryl MAKOS, by the Personal Representative,

Calvin MAKOS and Calvin Makos Individually, Amanda Makos, Cody Makos and Ashley Makos, by their Guardian Ad Litem, Gary R. Weidner, Esq., Plaintiffs-Appellants, v. WISCONSIN MASONS HEALTH CARE FUND, Associates In Pathology,

S.C., Dr. Steven E. Bodemer and Wisconsin Patients

Compensation Fund,

Defendants-Respondents, ^d

ABC Insurance Company and DEF Insurance Company, Defendants.

No. 96-0174.

Supreme Court of Wisconsin.

Argued March 6, 1997.

Decided June 20, 1997.

For the plaintiffs-appellants there were briefs (in the Supreme Court) by Timothy J. Aiken, Kelly L. Centofanti and Aiken & Scoptur, S.C., Milwaukee and oral argument by Timothy J. Aiken.

For the defendants-respondents there was a brief (in the Supreme Court) by Samuel J. Leib, Christine A. Koehler and Leib and Associates, S.C., Milwaukee and oral argument by Samuel J. Leib.

Amicus curiae brief was filed by David M. Skoglind, Edward E. Robinson and Warshafsky, Rotter, Tarnoff, Reinhardt, & Bloch, S.C., Milwaukee for the Wisconsin Academy of Trial Lawyers.

¶1 DONALD W. STEINMETZ, Justice

The issue in this case is whether Wis. Stat. § 893.55(1)(b), ¹ a statute of repose that bars medical malpractice actions commenced more than five years from the date of the alleged act or omission without regard to the date of discovery, is constitutional. We hold that this statute is unconstitutional beyond a reasonable doubt as applied in this case because it was in violation of procedural due process as guaranteed by the Fourteenth Amendment to the United States Constitution ² and in violation of the right to remedy provision of Article I, § 9 of the Wisconsin Constitution ³ to eliminate Cheryl Makos' claim for injury before she knew or had the opportunity to know that she was injured.

¶2 The relevant facts in this case are undisputed. Cheryl Makos ("Makos" or "Cheryl Makos estate") had a growth on her left leg biopsied on February 13, 1985. Dr. Steven E. Bodemer of Associates in Pathology examined the growth and diagnosed it as non-malignant. Cheryl Makos was later diagnosed with metastatic malignant melanoma on May 27, 1994. At this time, the growth that was biopsied in 1985 was re-examined and found to be malignant.

¶3 Cheryl Makos filed this medical malpractice action in the Circuit Court for Marinette County against Dr. Bodemer and others on May 3, 1995. The action was filed within the one-year discovery rule set forth in Wis. Stat. § 893.55(1)(b), but more than five years after the expiration of the five-year statute of repose set forth in that section. Cheryl Makos died on May 19, 1995, due to illness and disease. Her estate and her family continue as parties in this action.

¶4 The defendants filed a motion to dismiss the complaint on the grounds that the statute of limitations had expired. The Circuit Court for Marinette County, Judge Charles D. Heath, granted the motion to dismiss on November 6, 1995. A judgment for the defendants was entered on December 11, 1995. The plaintiffs filed their notice of appeal on January 12, 1996, and the court of appeals certified the appeal to this court on July 30, 1996. We accepted the certification, and we now reverse the order and judgment of the trial court and remand for a trial.

¶5 We address the single issue of whether Wis. Stat. § 893.55(1)(b) is constitutional. Whether a statute is constitutional is a question of law that this court reviews de novo. Association of State Prosecutors v. Milwaukee County, 199 Wis.2d 549, 557, 544 N.W.2d 888 (1996) (citation omitted). Statutes are presumed to be constitutional; therefore, "[w]hen attacking the constitutionality of a statute, the contesting party must prove the unconstitutionality of the statute beyond a reasonable doubt." Id. (citations omitted).

¶6 Makos asserts that Wis. Stat. § 893.55(1)(b) is unconstitutional because it violates, inter alia, her procedural due process rights as guaranteed by the Fourteenth Amendment because she was never given her day in court. In State ex rel. Strykowski v. Wilkie, 81 Wis.2d 491, 261 N.W.2d 434 (1978), this court explained as follows the right that every person has to his or her day in court:

Whatever the precise status of the right of access to the courts, it is clear that due process is satisfied if the statutory procedures provide an opportunity to be heard in court at a meaningful time and in a meaningful manner. Due process is flexible and requires only such procedural protections as the particular situation demands.

Id. at 512, 261 N.W.2d 434, citing Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 901-02, 47 L.Ed.2d 18 (1976). ⁴ ¶7 As quoted above, this court has consistently held that procedural due process requires that an individual who has life, liberty, or property at stake must be afforded the "opportunity to be heard at a meaningful time and in a meaningful manner." See, e.g., State v. Achterberg, 201 Wis.2d 291, 300, 548 N.W.2d 515 (1996); State v. Nordness, 128 Wis.2d 15, 34, 381 N.W.2d 300 (1986); In Interest of S.D.R., 109 Wis.2d 567, 572, 326 N.W.2d 762 (1982); Mid-Plains Telephone, Inc. v. Public Service Commission, 56 Wis.2d 780, 785-86, 202 N.W.2d 907 (1973). This opportunity to be heard, this day in court, is essential to the principles of fundamental fairness that are behind the Due Process Clause. See generally Martin v. Richards, 192 Wis.2d 156, 197-98, 531 N.W.2d 70 (1995)(retroactive cap on damages with little notice to potential plaintiffs violates due process when notions of fundamental fairness are considered); ⁵ State v. Heft, 185 Wis.2d 288, 302-03, 517 N.W.2d 494 (1994) (Due Process Clause requires that "prevailing notions of fundamental fairness" be considered). The question in the case at bar is whether, in keeping with the prevailing notions of fundamental fairness, Cheryl Makos was provided with a full and fair opportunity to be heard after she discovered that she had been injured. ⁶

¶8 The fundamental fairness approach was recently taken by this court in another medical malpractice case, Martin v. Richards, 192 Wis.2d 156, 531 N.W.2d 70. In Martin, a jury found that a physician negligently failed to inform the parents of a minor patient of the existence of alternate forms of care and treatment. The jury awarded the parents almost $5 million in damages. However, during the time period after the injury to the minor and before her parents filed suit, the legislature published a law that took effect only one day later. This law provided for a cap on noneconomic damages and was written so as to apply retroactively. This court found the retroactive application of the cap to be in violation of due process partly because such application offended notions of fundamental fairness. See Martin, 192 Wis.2d at 197-98, 531 N.W.2d 70.

¶9 In Martin, this court found the one-day time limit in which the plaintiffs had to file their action so as not to lose their right to unlimited damages "inherently unfair." Id. at 209, 531 N.W.2d 70. In this case, Cheryl Makos was allowed zero days to file her action. Consistent with the holding in Martin, we find this to be fundamentally unfair and in violation of principles of due process. Cheryl Makos' estate is entitled to an opportunity to be heard.

¶10 On February 13, 1985, Cheryl Makos was told by Dr. Bodemer that the growth on her leg that had been biopsied was not malignant. Over nine years later, in May of 1994, she was diagnosed with metastatic malignant melanoma. It was not until this time when the growth from 1985 was re-examined that Cheryl Makos learned of Dr. Bodemer's initial misdiagnosis of her growth. Under the medical malpractice statute at issue in this case, Wis. Stat. § 893.55(1)(b), the statute of repose for filing an action against Dr. Bodemer for the misdiagnosis in 1985 expired in February of 1990. This was over four years before Cheryl Makos was injured by the alleged negligence (leaving untreated malignancy in her system) or could have proven an injury. She did not and could not have discovered the alleged negligence of Dr. Bodemer within the five-year statutory limit.

¶11 We find that to preclude this action was in violation of Cheryl Makos' procedural due process rights. There is no basic fairness to eliminate her claim for injury before she knew or could have known that she was injured. The operation of the statute of repose effectively denied Cheryl Makos her opportunity to be heard because the doors of the courtroom were closed before she was even injured. Because her procedural due process rights as guaranteed by the Fourteenth Amendment were violated, we find Wis. Stat. § 893.55(1)(b) to be unconstitutional beyond a reasonable doubt as applied in this case. ⁷

¶12 The defendants cite to two court of appeals' cases in which challenges to the constitutionality of Wis. Stat. § 893.55(1)(b) failed, Miller v. Kretz, 191 Wis.2d 573, 531 N.W.2d 93 (Ct.App.1995) and Halverson v. Tydrich, 156 Wis.2d 202, 456 N.W.2d 852 (Ct.App.1990), in support of their argument that Makos' claim should be barred by the statute of repose. We find that the reasoning in these cases is not applicable to the case at bar.

¶13 In Halverson, the court of appeals held that Wis. Stat. §§ 893.55(1) and 893.56 were constitutional "as applied to Halverson." Halverson, 156 Wis.2d at 206, 456 N.W.2d 852 (emphasis added). Halverson claimed that the statutes as applied to him violated his equal protection and due process rights because of his status as a minor. The court disagreed, finding that "Halverson's minority is irrelevant under the facts of this case." Id. at 215, 456 N.W.2d 852. The court explained that "Halverson is identically situated with the adult who fails within five years to discover an injury caused by medical malpractice." Id. Consequently, Halverson's constitutional challenges to the statute failed.

¶14 In Miller, the plaintiff...