Storm v. Legion Ins. Co.

• Decision Date: 18 July 2003
• Docket Number: No. 01-1139.,01-1139.
• Parties: Sheri J. STORM, Tiffany J. Storm, by her guardian ad litem, William Smoler, and Justin S. Storm, by his guardian ad litem, William Smoler, Plaintiffs-Appellants, SELF INSURED SERVICES COMPANY, Involuntary-Plaintiff, Joe LEEAN, Secretary, Department of Health and Family Services, State of Wisconsin, Subrogated-Plaintiff, v. LEGION INSURANCE COMPANY, Kenneth C. Olson, M.D., Joanne Cooper, Cooper Resource Center, Inc. and Wisconsin Patients Compensation Fund, Defendants-Respondents, ABC INSURANCE COMPANY, Defendant, Marcelo CASTILLO, M.D., Defendant-Respondent.
• Court: Wisconsin Supreme Court

265 Wis.2d 169

2003 WI 120

665 N.W.2d 353

Sheri J. STORM, Tiffany J. Storm, by her guardian ad litem, William Smoler, and Justin S. Storm, by his guardian ad litem, William Smoler, Plaintiffs-Appellants, SELF INSURED SERVICES COMPANY, Involuntary-Plaintiff, Joe LEEAN, Secretary, Department of Health and Family Services, State of Wisconsin, Subrogated-Plaintiff, v. LEGION INSURANCE COMPANY, Kenneth C. Olson, M.D., Joanne Cooper, Cooper Resource Center, Inc. and Wisconsin Patients Compensation Fund, Defendants-Respondents, ABC INSURANCE COMPANY, Defendant, Marcelo CASTILLO, M.D., Defendant-Respondent.

No. 01-1139.

Supreme Court of Wisconsin.

Oral argument April 8, 2003.

Decided July 18, 2003.

For the plaintiffs-appellants there were briefs by William Smoler, Pamela J. Smoler and Smoler Law Office, LLC, Madison, and oral argument by William Smoler.

For defendants-respondents, Legion Insurance Company and Kenneth C. Olson, M.D., there was a brief by Patricia C. White and David D. Patton & Associates, P.C., Bloomfield Hills, Michigan, and Virginia L. Newcomb and Borgelt, Powell, Peterson & Frauen, Madison, and oral argument by Virginia L. Newcomb.

For defendant-respondent, Dr. Marcelo Castillo, there was a brief by Michael J. Hogan, Ellen L. Wiesner, and Hogan, Ritter, Minix & Pasholk, Milwaukee, and oral argument by Michael J. Hogan.

¶ 1. DAVID T. PROSSER, J.

This case is before the court on certification by the court of appeals. Sheri Storm appeals a decision of the Winnebago County Circuit Court, Bruce K. Schmidt, Judge, dismissing a number of the defendants in this action on the basis that her claims alleging medical malpractice were not timely filed.¹

¶ 2. Storm's suit alleges that various psychiatric and psychological health care providers negligently treated her or negligently supervised her treatment between 1990 and 1993. Some of these care providers assert that Storm's suit is time-barred under both the three-year statute of limitations in Wis. Stat. § 893.55(1)(a) (2001-02)² and the five-year statute of repose in § 893.55(1)(b) for medical malpractice actions. Storm argues that the statute of repose applies only to the discovery rule of accrual in paragraph (b) of § 893.55(1) and is inapplicable to the injury rule of accrual in § 893.55(1)(a), upon which she relies. She also maintains that she was mentally ill at the time her causes of action accrued, permitting the three-year period to file an action under § 893.55(1)(a) to be extended up to five additional years by application of the disability tolling provision in Wis. Stat. § 893.16. Storm's last day of treatment from the two mental health care providers who are the subject of this appeal was more than five years—but less than eight years— before she filed claims against each of them.

¶ 3. We address multiple issues in accepting certification of this appeal. First, does the five-year statute of repose in § 893.55(1)(b) apply to the injury rule of accrual in § 893.55(1)(a)? Based on the plain language of § 893.55(1), we conclude that the five-year repose period in paragraph (b) of that subsection is limited to the discovery accrual rule in § 893.55(1)(b) and has no application to the injury accrual rule in § 893.55(1)(a).

¶ 4. Second, can any of the periods of limitation in § 893.55(1) be extended by application of the disability tolling provisions in § 893.16(1)? We conclude that a person who is mentally ill at the time his or her cause of action for medical malpractice accrues under § 893.55(1)(a) may toll the limitations period under the strictures of § 893.16. We do not reach the issue of whether, or how, the tolling provisions in § 893.16 may extend the periods of limitation defined in § 893.55(1)(b), including its statute of repose.

¶ 5. Third, since § 893.16(1) may toll the period of limitation in § 893.55(1)(a), does use of § 893.16(1) require a factual finding that the plaintiff's mental illness caused him or her to fail to understand a claim so as to timely file it. We conclude that such a finding is required. A mental illness for purposes of § 893.16 is a mental condition that renders a person functionally unable to understand or appreciate the situation giving rise to the legal claim so that the person can assert legal rights or functionally unable to understand legal rights and appreciate the need to assert them. Because this determination is factual in nature and was not addressed by the circuit court, we remand this action to permit the submission of evidence regarding (1) whether Storm suffered from a functionally debilitating mental illness; (2) if she did, when such an illness commenced; (3) whether the illness ever ceased; and (4) if the illness ceased, when it ceased. In addition, we hold that neither the retention of legal counsel by a mentally ill person nor such counsel's filing of a claim on the mentally ill person's behalf causes, as a matter of law, that person's mental illness to cease for purposes of § 893.16.

¶ 6. In all, we conclude that, if Storm was mentally ill at the time her causes of action accrued against each defendant, and if her illness did not cease more than two years before she filed a claim against any of the individual defendants, then Storm timely filed her action alleging medical malpractice against Doctors Olson and Castillo.

I. BACKGROUND

¶ 7. The facts are taken from the summary judgment record. On January 22, 1990, Sheri Storm began receiving psychiatric treatment from Kenneth Olson, M.D. Doctor Olson provided periodic inpatient and outpatient treatment to Storm after that date. In early 1991, Dr. Olson diagnosed Storm as suffering from a multiple personality disorder, which is referred to in the psychiatric nomenclature as a dissociative identity disorder.

¶ 8. The last day that Storm received treatment from Dr. Olson was August 3, 1992, at which time Olson moved his practice out of Wisconsin. Four days later, Storm applied for Supplemental Security Income (SSI) benefits related to her mental disability, for which she was eventually deemed eligible, retroactive to the date of her application. After August 3, Storm also received treatment from a social worker named Valerie Hamilton at the same offices where Dr. Olson had treated Storm. Hamilton had previously assisted Dr. Olson with some of Storm's treatment. The last session between Storm and Hamilton occurred on September 9, 1992. Shortly after Storm discontinued her visits to Hamilton, she briefly received treatment from two other mental health care providers, neither of whom is a subject of this action.

¶ 9. Near the end of 1992, Storm began receiving psychological treatment at the Cooper Resource Center (the CRC). On January 22, 1993, Dr. Joann Cooper, Ph.D., a psychologist who owns the CRC, evaluated Storm and diagnosed her as possessing a multiple personality disorder. In February 1993 Dr. Marcelo Castillo, a physician and the alleged medical director of the CRC at the time, allegedly admitted Storm for inpatient psychiatric treatment to be performed by Dr. Cooper. After Storm was discharged in March 1993, Cooper continued to treat Storm for her disorder on an outpatient basis until September 24, 1993. This was Storm's last day of any relevant involvement with the CRC and Doctors Cooper and Castillo.

¶ 10. On September 9, 1997, Storm filed a medical malpractice suit alleging, among other instances of malpractice, that Doctors Olson and Cooper negligently treated her by using hypnosis to recover memories of childhood sexual abuse that were later found to be untrue.³ According to Storm, these false memories formed the basis of a multiple personality disorder and caused her suffering. The complaint also named the CRC and Legion Insurance Company, Dr. Olson's professional liability insurer, as defendants.⁴ On June 14, 2000, while the case was still undergoing discovery, Storm filed an amended complaint naming Dr. Castillo as an additional defendant. Storm sought a variety of damages alleged to have resulted from the negligent care or supervision of the defendants.

¶ 11. Doctors Olson and Castillo each filed a motion for summary judgment in the fall of 2000, asserting that Storm's action was untimely filed under Wis. Stat. § 893.55(1). Section 893.55(1) prohibits the commencement of a medical malpractice action more than three years from the date of injury or one year from the date of discovery of an injury, whichever is later, but, with respect to discovery, an action may not be filed more than five years from the date of the act or omission giving rise to the alleged injury. Wis. Stat. § 893.55(1). Doctor Olson asserted that Storm was required to commence her action against him by either August 3, 1995, or, assuming that Storm did not discover her injury until on or after August 3, 1996, by August 3, 1997. Similarly, Dr. Castillo claimed that Storm had until either September 24, 1996, or September 24, 1998, to bring her claim against him.

¶ 12. Storm argued that the statute of repose in § 893.55(1)(b) applies only to the discovery rule of accrual in paragraph (b) and is inapplicable to the injury rule of accrual in paragraph (a), upon which she relies. She also contended that Wisconsin's disability tolling statute, § 893.16, applies to actions brought under § 893.55(1)(a) and that she was "mentally ill" at the time her causes of action accrued. Therefore, adding the five-year maximum tolling period provided under § 893.16 for someone with a mental illness to the three-year limitations period in § 893.55(1)(a), Storm reasoned that she had until August 3, 2000, to bring her claim against Dr. Olson and until September 24, 2001, to bring suit against Dr. Castillo.

¶ 13. On February 15, 2001, the circuit court granted the defendants' summary judgment motions, determining that § 893.16 does not apply to medical malpractice actions and that Storm failed to commence her suit within either the three-year statute of limitation...