Paynter v. Proassurance Wis. Ins. Co.

• Citation: 387 Wis.2d 278,2019 WI 65,929 N.W.2d 113
• Decision Date: 07 June 2019
• Docket Number: No. 2017AP739,2017AP739
• Parties: David W. PAYNTER and Kathryn M. Paynter, Plaintiffs-Appellants-Petitioners, v. PROASSURANCE WISCONSIN INSURANCE COMPANY, James A. Hamp and American Physicians Assurance Corporation, Defendants-Respondents, Continental Casualty Company, Wisconsin Injured Patients and Families Compensation Fund, Keith A. Henry and Blue Cross Blue Shield of Michigan, Defendants.
• Court: United States State Supreme Court of Wisconsin

387 Wis.2d 278

929 N.W.2d 113

2019 WI 65

David W. PAYNTER and Kathryn M. Paynter, Plaintiffs-Appellants-Petitioners,

v. PROASSURANCE WISCONSIN INSURANCE COMPANY, James A. Hamp and American Physicians Assurance Corporation, Defendants-Respondents,Continental Casualty Company, Wisconsin Injured Patients and Families Compensation Fund, Keith A. Henry and Blue Cross Blue Shield of Michigan, Defendants.

No. 2017AP739

Supreme Court of Wisconsin.

Oral Argument: February 1, 2019

Opinion Filed: June 7, 2019

For the plaintiffs-appellants-petitioners, there were briefs filed by D. James Weis, Susan R. Tyndall, and Habush Habush & Rottier S.C., Waukesha. There was an oral argument by Eric J. Ryberg.

For the defendants-respondents (James A. Hamp, M.D., and American Physicians Assurance Corporation), there was a brief filed by Jason J. Franckowiak, Lori Gendelman, and Otjen, Gendelman, Zitzer, Johnson & Weir, S.C., Waukesha. There was an oral argument by Jason J. Franckowiak.

For the defendants-respondents (Proassurance Wisconsin Insurance Company), there was a brief filed by Mark E. Larson, Bradley S. Foley, and Gutglass, Erickson, Bonville & Larson, S.C., Milwaukee. There was an oral argument by Mark E. Larson.

SHIRLEY S. ABRAHAMSON, J.

¶1 This is a review of a published decision of the court of appeals affirming an order of the Circuit Court for Ashland County, Robert E. Eaton, Judge, granting summary judgment in favor of Defendant-Respondent Dr. James A. Hamp.

¶2 Plaintiffs-Appellants-Petitioners David and Kathryn Paynter live in Bessemer, Michigan, a city located near the Wisconsin-Michigan border. The Paynters sued Dr. Hamp, a medical doctor who practiced in both Wisconsin and Michigan, alleging that he negligently failed to diagnose Mr. Paynter with cancer. The Paynters also allege that Dr. Hamp violated Mr. Paynter's right to informed consent.

¶3 Dr. Hamp moved for summary judgment, arguing that the Paynters' claims are "foreign cause[s] of action" pursuant to Wisconsin's borrowing statute, Wis. Stat. § 893.07 (2015-16).¹

¶4 Wisconsin's borrowing statute adopts the limitations rule of a foreign jurisdiction and applies it to any "foreign cause of action" as if it were Wisconsin's own statute, provided that the foreign period of limitation is shorter than Wisconsin's period of limitation.²

¶5 Dr. Hamp argues that pursuant to Wisconsin's borrowing statute, Michigan's statute of limitations applies to the Paynters' claims. It is undisputed that if Michigan's statute of limitations applies, the Paynters' claims are untimely.

¶6 The Paynters argue that their claims are not "foreign cause[s] of action" under the borrowing statute. Thus, they argue that Wisconsin's statute of limitations applies to their claims. It is undisputed that if Wisconsin's statute of limitations applies, the Paynters' claims are timely.

¶7 The circuit court granted Dr. Hamp's motion for summary judgment. It considered five factors that are traditionally used to resolve choice-of-law questions and concluded that those factors favored applying Michigan's statute of limitations. The Paynters appealed.

¶8 The court of appeals, applying a different analysis than the circuit court, affirmed the circuit court's order granting summary judgment to Dr. Hamp. The court of appeals announced that "in cases involving an injury or injuries that allegedly occurred in multiple states, the plaintiff's cause of action is not foreign, for purposes of the borrowing statute, when the first instance of injury occurred in Wisconsin."³

¶9 The court of appeals held that because the Paynters lived in Michigan during the four-year period between Dr. Hamp's alleged misdiagnosis and Mr. Paynter's discovery of his injury, the Paynters' negligence claim was "foreign" for purposes of the borrowing statute. The court of appeals further held that the Paynters' informed consent claim was "foreign" for purposes of the borrowing statute because Mr. Paynter was located in Michigan at the time his right to informed consent was allegedly violated. Accordingly, the court of appeals applied the Michigan statute of limitations to both claims and affirmed the circuit court order granting summary judgment in favor of Dr. Hamp. The Paynters petitioned this court for review.

¶10 On this issue of first impression, we hold that in medical malpractice cases involving a negligent misdiagnosis that results in a latent, though continuous, injury, whether the action is "foreign" for purposes of Wisconsin's borrowing statute is determined by whether the plaintiff's first injury occurred outside of Wisconsin.

¶11 We disagree with the court of appeals' conclusion that the borrowing statute applies to the Paynters' negligence claim. On the record before the court, Mr. Paynter's place of first injury appears to be beyond ascertainment to any reasonable, non-speculative degree. When the plaintiff's place of first injury is unknowable, as in the instant case, Wisconsin's borrowing statute does not apply.

¶12 However, we agree with the court of appeals that the Paynters' informed consent claim is "foreign" for purposes of Wisconsin's borrowing statute. Therefore, we apply Michigan's statute of limitations to the Paynters' informed consent claim and conclude that the claim is untimely. Dr. Hamp is entitled to summary judgment as to that claim.

¶13 Accordingly, the court of appeals' decision is affirmed in part and reversed in part. We remand the cause to the court of appeals in order to address the Paynters' argument that the circuit court erred by determining that an insurance policy issued to Dr. Hamp by Defendant-Respondent ProAssurance Wisconsin Insurance Company did not provide coverage for the Paynters' claims.⁴

I

¶14 Unless otherwise noted, the following facts are undisputed.

¶15 David Paynter and his wife, Kathryn Paynter, live in Bessemer, Michigan, a city located near the Wisconsin-Michigan border. In April 2010, Mr. Paynter saw Dr. Peter Areson, a Wisconsin physician, regarding a growth on the upper right side of his neck. Dr. Areson referred Mr. Paynter to Dr. Hamp, an ear, nose, and throat specialist, who practiced both in Ashland, Wisconsin, and Ironwood, Michigan.

¶16 On June 10, 2010, Dr. Hamp performed an aspiration⁵ of the growth on Mr. Paynter's neck. The aspiration was performed in Dr. Hamp's Michigan office. Dr. Hamp's staff transported the samples from Mr. Paynter's growth to Wisconsin to be analyzed by a pathologist.

¶17 On June 14, 2010, Dr. Hamp's office received the pathologist's report, which indicated that Mr. Paynter's growth was cancerous. That same day, Dr. Hamp called the Paynters' home telephone in Michigan and told Mr. Paynter that the growth was not cancerous and that Mr. Paynter did not need any further treatment.⁶

¶18 Four years later, on June 19, 2014, Mr. Paynter had surgery to remove the growth and was diagnosed with cancer the same day. The doctor who performed the surgery requested that the pathology materials from the procedure be compared to the slides from the aspiration Dr. Hamp performed in June 2010. The following week, the doctor informed Mr. Paynter that his cancer had been present in June 2010.

¶19 The Paynters mailed a request for mediation⁷ to Wisconsin's Medical Mediation Panels in May 2015.⁸ On August 31, 2015, the Paynters filed the instant lawsuit in Ashland County Circuit Court against Dr. Hamp; his Michigan medical malpractice insurer, American Physicians Assurance Company; and his Wisconsin medical malpractice insurer, ProAssurance Wisconsin Insurance Company.⁹

¶20 Mr. Paynter alleged that as a result of Dr. Hamp's negligent failure to diagnose his cancer in June 2010, he was required to undergo extensive surgery and radiation, resulting in permanent injuries and damages, including facial paralysis. Mrs. Paynter alleged that as a result of injuries sustained by Mr. Paynter, she was deprived of the society and companionship of her spouse.

¶21 During his deposition, Dr. Hamp admitted that "[Mr. Paynter's] survival and prognosis would be improved if he had been treated in 2010 versus 2014." On this point, Dr. Hamp was confident, testifying: "I'm not guessing."

¶22 Dr. Hamp claimed in his deposition that he did not see the pathologist's report, but that if he had, he would have recommended that Mr. Paynter have the growth on his neck surgically removed regardless of whether it was malignant because even benign growths will continue to expand and, eventually, get to the point where they will break down the skin.

¶23 Mr. Paynter also alleged that Dr. Hamp violated his right to informed consent, resulting in permanent injuries and damages. Mrs. Paynter alleged that as a result of Dr. Hamp's violation of Mr. Paynter's right to informed consent, she was deprived of the society and companionship of her spouse.

¶24 The Paynters asserted in their complaint that Mr. Paynter first knew or should have known of his injury on or after June 19, 2014.

¶25 ProAssurance moved for summary judgment, arguing that the policy it issued to Dr. Hamp did not provide coverage for the Paynters' claims. The circuit court denied ProAssurance's motion, stating that "if there was failure to provide information that fell short of the standard of care that failure occurred in Wisconsin, and it wasn't because the biopsy was done in a manner that fell beyond the professional standard. It is clearly the interpretation and communication of the results. And none of that happened in Michigan ...."

¶26 Based on these statements, the Paynters and Dr. Hamp believed that they were entitled to summary judgment on the coverage issue. The Paynters moved for summary judgment, and Dr. Hamp joined the Paynters' motion.

¶27 This time, however, the circuit court concluded that a "professional incident" occurred in Michigan because Dr. Hamp gave Mr. Paynter a preliminary opinion that the growth was benign immediately after the aspiration was performed. Accordingly, the circuit court granted summary judgment to...