Landis v. Physicians Ins. Co.

• Decision Date: 03 July 2001
• Docket Number: No. 00-0330.,00-0330.
• Citation: Landis v. Physicians Ins. Co., 2001 WI 86, 245 Wis.2d 1, 628 N.W.2d 893 (Wis. 2001)
• Parties: Phyllis M. LANDIS, individually, and as personal representative for the estate of Edward E. Landis, Plaintiffs-Respondents-Petitioners, v. PHYSICIANS INSURANCE COMPANY OF WISCONSIN, INC., Midelfort Clinic, Ltd., Mayo Health System, Luther Hospital and Wisconsin Patients Compensation Fund, Defendants-Appellants, M. Terry McENANY, M.D., Defendant.
• Court: Wisconsin Supreme Court

245 Wis.2d 1

2001 WI 86

628 N.W.2d 893

Phyllis M. LANDIS, individually, and as personal representative for the estate of Edward E. Landis, Plaintiffs-Respondents-Petitioners, v. PHYSICIANS INSURANCE COMPANY OF WISCONSIN, INC., Midelfort Clinic, Ltd., Mayo Health System, Luther Hospital and Wisconsin Patients Compensation Fund, Defendants-Appellants, M. Terry McENANY, M.D., Defendant.

No. 00-0330.

Supreme Court of Wisconsin.

Oral argument January 30, 2001.

Decided July 3, 2001.

For the plaintiffs-respondents-petitioners there were briefs by J. Drew Ryberg, Michael J. Happe and Kelly & Ryberg, S.C., Eau Claire, and oral argument by Michael J. Happe.

For the defendants-appellants there was a brief by Joy L. O'Grosky, Timothy J. Cesar and Axley Brynelson, LLP, Madison, and oral argument by Joy L. O'Grosky.

¶ 1. DAVID T. PROSSER, J.

This is a review of a published decision of the court of appeals. Landis v. Physicians Insurance Co. of Wisconsin, Inc., 2000 WI App 164, 238 Wis. 2d 190, 616 N.W.2d 910, reversing an order of the circuit court for Eau Claire County, Benjamin D. Proctor, Judge. The plaintiffs in this action are Phyllis M. Landis, individually, and as personal representative for the estate of her late husband Edward E. Landis. The defendants are Physicians Insurance Company of Wisconsin, Inc.; Midelfort Clinic; Mayo Health System; Luther Hospital; the Wisconsin Patients Compensation Fund; and a heart surgeon, M. Terry McEnany, M.D. Mrs. Landis is suing for alleged medical malpractice attributable to the defendants that resulted in the death of Edward Landis. One of the defendants, Dr. McEnany, performed heart surgery on Mr. Landis.

¶ 2. The circuit court denied the defendants' motion to dismiss the plaintiffs' medical malpractice complaint. The defendants' motion relied on Wis. Stat. § 893.55(1)(b)(1999-2000)¹ in asserting that the fiveyear time limit in this statute for filing a medical malpractice action expired before the commencement off the action. The circuit court disagreed, concluding that the mediation process mandated by Wis. Stat. § 655.44, in particular the tolling provision in subsection (4), tolled the five-year limitation for filing actions.

¶ 3. The court of appeals granted the defendants leave to appeal the circuit court's nonfinal order. It then reversed, determining that the § 655.44 mediation process did not toll the five-year limitation. The court of appeals concluded that the five-year limitation in § 893.55(1)(b), which operates as a statute of repose, was not tolled because § 655.44(4) tolls "[a]ny applicable statute of limitations" but does not toll any applicable statute of repose. Wis. Stat. § 655.44(4) (emphasis added). The court of appeals noted the difference between a statute of limitations and a statute of repose, basing its decision on: (1) statements made in cases and Black's Law Dictionary (7th ed. 1999) about the difference between statutes of limitations and statutes of repose; and (2) the interplay among Wis. Stat. §§ 655.44, 655.445, and 893.55. ¶ 4. The issue before this court is whether the five-year deadline for filing actions contained within Wis. Stat. § 893.55(1)(b) is tolled when a party requests mediation of a medical malpractice dispute pursuant to Wis. Stat. § 655.44.

¶ 5. We conclude that the § 655.44 mediation process tolls the five-year deadline for filing a medical malpractice action under § 893.55(1)(b). When the legislature wrote the language in § 655.44(4) tolling "[a]ny applicable statute of limitations," it intended to include any applicable statute of repose. In this subsection, the legislature made no distinction between a statute of limitations and a statute of repose. In numerous other statutes, the legislature has not differentiated with a precise statutory label whether a time limitation for commencing an action is a statute of limitations or a statute of repose. The term "statute of repose" is largely a judicial label for a particular type of limitation on actions. Accordingly, we reverse the decision of the court of appeals.

I

¶ 6. On March 17, 1994, Mr. Landis underwent heart surgery. Dr. McEnany performed the surgery, a septuple (7) coronary bypass. About two weeks later, on April 1, 1994, Mr. Landis died. Mrs. Landis alleges that Mr. Landis died "through the negligence of defendants in their failure to elicit informed consent and to provide reasonable care for Mr. Landis."

¶ 7. In the late winter and early spring of 1999, Dr. McEnany received significant media attention in the Eau Claire area. For example, according to newspaper articles in the record, the Eau Claire Leader-Telegram reported that there was a high patient death rate in connection with Dr. McEnany's surgeries. This was almost five years after Mr. Landis died. According to Mrs. Landis, she learned from media reports that her husband's death might have been caused by Dr. McEnany's negligence.² Mrs. Landis claims she discovered this alleged negligence in February 1999, about one month short of five years after the surgery.

¶ 8. During the following month, on March 8, 1999, Mrs. Landis filed a request for mediation pursuant to Wis. Stat. § 655.44. This was about one week short of the five-year limitation for commencing an action concerning the alleged act of negligence in the Landis surgery (namely, March 17, 1999).³

¶ 9. Wisconsin Stat. § 655.43 requires that a claimant and all respondents in a medical malpractice dispute participate in "mediation" to assist in the "informal, inexpensive and expedient" resolution of disputes.⁴ Wis. Stat. § 655.42(1). Section 655.44 allows a plaintiff alleging medical malpractice to request mediation before filing an action in circuit court.⁵ A parallel provision, Wis. Stat. § 655.445, allows a plaintiff to file a request for mediation after filing an action in circuit court.⁶ Mrs. Landis chose to request mediation before filing an action in circuit court. Thus, she proceeded under § 655.44. Under either § 655.44 or § 655.445, when a plaintiff files a request for mediation, the filing triggers a mandatory 90-day mediation period.⁷

¶ 10. During the 90-day mediation period in this case, the parties did not reach a settlement. During this period, Mrs. Landis was prohibited by Wis. Stat. § 655.44(5) from filing an action in circuit court, even though the five-year deadline from Mr. Landis's surgery passed.

¶ 11. The plaintiffs believe that the tolling provision in Wis. Stat. § 655.44(4) tolled the five-year time limitation in Wis. Stat. § 893.55(1)(b). The defendants disagree, reasoning that the five-year time limitation in § 893.55(1)(b) was not tolled because § 655.44(4) applies only to statutes of limitations, not statutes of repose. After Mrs. Landis filed a complaint in circuit court, the defendants moved to dismiss the complaint. The circuit court denied the motion, but the court of appeals reversed, adopting the defendants' reading of § 655.44(4).

II

[1]

¶ 12. This case involves the application of a statute to undisputed facts. This is a question of law that we review de novo. Nelson v. McLaughlin, 211 Wis. 2d 487, 495, 565 N.W.2d 123 (1997). In addition, this disagreement requires us to engage in statutory interpretation.

[2]

¶ 13. Statutory interpretation presents a question of law that this court reviews de novo, Reyes v. Greatway Insurance Co., 227 Wis. 2d 357, 364-65, 597 N.W.2d 687 (1999), benefiting from the analyses of the circuit court and the court of appeals. Meyer v. Sch. Dist. of Colby, 226 Wis. 2d 704, 708, 599 N.W.2d 339 (1999).

[3, 4]

¶ 14. The purpose of statutory interpretation is to discern the intent of the legislature. McEvoy v. Group Health Coop., 213 Wis. 2d 507, 528, 570 N.W.2d 397 (1997). To determine this intent, we look first to the plain language of the statute. Id. If the language of the statute clearly and unambiguously sets forth the legislative intent, it is our duty to apply that intent to the case at hand and not look beyond the statutory language to ascertain its meaning. Reyes, 227 Wis. 2d at 365.

[5-7]

¶ 15. If the language of the statute is ambiguous and does not clearly set forth the legislative intent, the court will resort to judicial construction. Kelley Co. v. Marquardt, 172 Wis. 2d 234, 247-48, 493 N.W.2d 68 (1992). We ascertain legislative intent through judicial construction in relation to a number of extrinsic factors, including the legislative object intended to be accomplished, id. at 248, and the statute's scope, history, context, and subject matter. Beard v. Lee Enters., Inc., 225 Wis. 2d 1, 10, 591 N.W.2d 156 (1999). A statute is ambiguous if it is capable of being understood by a reasonably well-informed person in either of two senses. Reyes, 227 Wis. 2d at 365. Depending on the facts of a case, the same statute may be ambiguous in one setting and unambiguous in another. Id.

[8, 9]

¶ 16. In addition, although "it is true that statutory interpretation begins with the language of the statute, it is also well established that courts must not look at a single, isolated sentence or portion of a sentence, but at the role of the relevant language in the entire statute." Alberte v. Anew Health Care Serv., 2000 WI 7, ¶ 10, 232 Wis. 2d 587, 605 N.W.2d 515. Moreover, in interpreting a statute, courts must attempt to give effect to every word of a statute, so as not to render any portion of the statute superfluous. County of Jefferson v. Renz, 231 Wis. 2d 293, 305, 603 N.W.2d 541 (1999).

III

¶ 17. Wisconsin Stat. § 893.55 places various restrictions on medical malpractice actions, including time limitations for commencing an action. Section 893.55(1) allows a plaintiff to commence a medical malpractice action within the later of the following two options:

(a) Three years from the date of injury, or (b) One year from the date the injury was discovered, or, in the exercise of reasonable diligence should have been discovered, except that an action may not be

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