Estate of Makos Ex Rel. Makos v. Wisconsin Masons Health Care Fund

564 N.W.2d 662, 211 Wis. 2d 41, 1997 Wisc. LEXIS 75

• Court: Wisconsin Supreme Court
• Decided: June 20, 1997
• Docket: 96-0174
• Status: Published

Opinions

DONALD W. STEINMETZ, J.

¶1. The issue in this case is whether Wis. Stat. § 893.55(l)(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 Constitution² and in violation of the right to remedy provision of Article I, § 9 of the Wisconsin Constitution³ 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(l)(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(l)(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, citing Matthews v. Eldridge, 424 U.S. 319, 333 (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. 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.

¶ 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. 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(l)(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(l)(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 (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. 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 claimed that Wis. Stat. § 893.55(1)(b) was unconstitutional because it violated the Equal Protection Clauses of the Wisconsin and United States Constitutions. The court of appeals declined to find the statute unconstitutional in its entirety based on the equal protection argument because the legislature was effectuating a rational purpose in enacting the statute. The court explained that "[t]he classification of health care providers and the connected statutes of limitation are not irrational or arbitrary, but based on rational, reasonable criteria." Miller, 191 Wis. 2d at 585.

¶ 15. Neither the reasoning of the court of appeals in Halverson nor that in Miller applies to the situation in the case of Cheryl Makos. We are not invalidating the statute on its face as suggested by the plaintiff in Miller. We do not speak to whether different classes of plaintiffs or defendants are treated differently as asserted in both Halverson and Miller. Instead, we conclude that Wis. Stat. § 893.55(l)(b) is unconstitutional as it is applied to Cheryl Makos in this case because her procedural due process rights and notions of fundamental fairness were violated by closing the doors of the courtroom to Cheryl Makos before she was even injured by the alleged act or omission.

¶ 16. The defendants in this action further contend that in order for Makos to prevail, this court must overrule its own recent precedent from CLL Associates v. Arrowhead Pacific Corp., 174 Wis. 2d 604, 497 N.W.2d 115 (1993). We disagree. CLL involved the question of when a contract cause of action accrues under Wis. Stat. § 893.43, Wisconsin's six-year statute of limitations for contract actions. This court held "that under sec. 893.43, a contract cause of action accrues at the moment the contract is breached, regardless of whether the injured party knew or should have known that the breach occurred." Id. at 607. At first glance, it may seem that CLL would indeed preclude Cheryl Makos' medical malpractice action. However, CLL involved a statute of limitations while this case involves a statute of repose. These are distinct legal concepts that deserve to be treated as such.⁸ Because we recognize the legal distinction between a statute of limitations and a statute of repose, we find CLL inapplicable to the case at bar.

¶ 17. In addition to violating the due process guarantees of the Fourteenth Amendment, we hold that Wis. Stat. § 893.55(1)(b) as applied to Cheryl Makos in this action violates Article I, § 9 of the Wisconsin Constitution. Article I, § 9 guarantees that every person shall be afforded a remedy for wrongs committed against his or her "person, property, or character."⁹ This court has long held that the "certain remedy" clause of this provision, while not guaranteeing to litigants the exact remedy they desire, entitles Wisconsin residents "to their day in court." Metzger v. Department of Taxation, 35 Wis. 2d 119, 129, 150 N.W.2d 431 (1967), citing New York Life Ins. Co. v. State, 192 Wis. 404, 412, 211 N.W. 288, 212 N.W. 801 (1927). See also Neuhaus v. Clark County, 14 Wis. 2d 222, 111 N.W.2d 180 (1961). If there is a statutory foundation for a lawsuit, a plaintiff has the right to his or her day in court. See Oliver v. Travelers Ins. Co., 103 Wis. 2d 644, 309 N.W.2d 383 (Ct. App. 1981).

¶ 18. In Kallas Millwork Corp. v. Square D Co., 66 Wis. 2d 382, 225 N.W.2d 454 (1975), this court found unconstitutional Wis. Stat. § 893.155, a six-year statute of repose covering improvements to real property. In addition to invalidating the statute on its face for improper classifications, this court noted that the statute would foreclose redress by plaintiffs because it expired long before any injury actually occurred to them. Consequently, this court found that because "the statute deprives a plaintiff of a remedy for a wrong that is recognized by the laws of the state," it is "therefore also unconstitutional under art. I, sec. 9, of the Wisconsin Constitution." Id. at 384.

¶ 19. The situation of Cheryl Makos is similar to that of the plaintiffs in Kallas. In the case at bar, the Wisconsin Statutes provide that anyone who is injured by an act or omission of a health care provider shall have a right to recover damages. See Wis. Stat. Ch. 655. However, under Wis. Stat. § 893.55(1)(b), the statute of repose expired over four years before Cheryl Makos knew or should have known that she was allegedly injured by the misdiagnosis in February of 1985. Like the court in Kallas, we find that the application of this statute to Cheryl Makos violates Article I, § 9 of the Wisconsin Constitution by depriving her of a remedy for a wrong that is clearly recognized by the laws of this state — a wrong that she did not discover until after her claim was barred by the statute of repose.¹⁰

¶ 20. In conclusion, we hold that Wis. Stat. § 893.55(l)(b) is unconstitutional beyond a reasonable doubt as applied to Cheryl Makos under these particular facts. It violates both her procedural due process rights as guaranteed by the Fourteenth Amendment to the United States Constitution and her right to a remedy as guaranteed by Article I, § 9 of the Wisconsin Constitution¹¹ because it is fundamentally unfair to have closed the doors of the courtroom on Cheryl Makos before she was even injured by the act or omission alleged.

¶ 21. For the foregoing reasons, we reverse the order of the trial court granting the defendants' motion to dismiss and remand for a trial on the issue of the alleged medical malpractice committed by Dr. Bodemer.

By the Court. — Reversed and cause remanded.

¶ 22. Justice Janine P. Geske did not participate.

1 Wis. Stat. § 893.55 provides, in relevant part, as follows:

(1) [A]n action to recover damages for injury arising from any treatment or operation performed by, or from any omission by, a person who is a health care provider,.. .shall be commenced within the later of:

(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 commenced under this paragraph more than 5 years from the date of the act or omission.

2 The Fourteenth Amendment to the United States Constitution provides in relevant part that "No State shall make or enforce any law which shall.. .deprive any person of life, liberty, or property, without due process of law." U.S. Const. Amend. XIV.

3 Article I, § 9 of the Wisconsin Constitution guarantees every person a remedy for wrongs committed against him or her. It provides as follows:

Every person is entitled to a certain remedy in the laws for all injuries, or wrongs which he may receive in his person, property, or character; he ought to obtain justice freely, and without being obliged to purchase it, completely and without denial, promptly and without delay, conformably to the laws.

Wis. Const. Art. I, sec. 9.

4 The court in State ex rel. Strykowski v. Wilkie, 81 Wis. 2d 491, 261 N.W.2d 434 (1978), relied on the guarantee of due process of law provided by the Fourteenth Amendment to the United States Constitution and Article I, section 1 of the Wisconsin Constitution. All mention of due process hereinafter shall be understood to refer to both the United States and Wisconsin Constitutions.

5 While Martin v. Richards involved substantive, not procedural, due process issues, we rely on it here for its discussion of general notions of fundamental fairness.

6 Relying on Matthews v. Eldridge, 424 U.S. 319 (1975) (statutorily conferred right to Social Security benefits requires adequate procedural protections) and Martin v. Richards, 192 Wis. 2d 156, 198, 531 N.W.2d 70 (1995) (statutorily conferred "right to unlimited damages" violated by retroactive legislation), we conclude that the plaintiff, Makos, had a statutorily conferred property right to file a claim against a health care provider who committed a wrong against her.

7 Makos' situation is unique, and one that will likely arise only in rare situations. According to Staff Paper #10 found in the legislative drafting file for this statute, 98.9 percent of all adults and 95 percent of all minors alleging medical malpractice file claims within five years of the occurrence of the incident — the act or omission by the health care provider. Wisconsin Legislative Council, Malpractice Committee, Analysis of Statistical Data and Recent Wisconsin Cases on Statutes of Limitation, at 2 (1976).

8 Black's Law Dictionary explains the distinctions as follows:

Statute of repose. "Statutes of limitations" extinguish, after period of time, right to prosecute accrued cause of action; "statute of repose," by contrast, limits potential liability by limiting time during which cause of action can arise. . . .It is distinguishable from statute of limitations, in that statute of repose cuts off right of action after specified time measured from delivery of product or completion of work, regardless of time of accrual...

Black's Law Dictionary 1411 (6th ed. 1990) (citations omitted).

9 An increasing number of states are applying their own state constitution's "right to remedy" or "open courts" provisions to situations involving statutes of repose. For a detailed discussion of medical malpractice statutes of repose in relation to "right to remedy" provisions, see Christopher J. Trombeth, The Unconstitutionality of Medical Malpractice Statutes of Repose: Judicial Conscience Versus Legislative Will, 34 Vill. L. Rev. 397 (1989). Trombeth spells out the differences between statutes of limitation and statutes of repose. He also provides a history of statutes of repose and a summary of trends in recent years with respect to medical malpractice statutes of repose and their treatment in state courts. See also David Schuman, The Right to a Remedy, 65 Temp. L. Rev. 1197 (1992); Daniel W. Lewis, Utah's Emerging Constitutional Weapon—The Open Courts Provision: Condemain v. University Hospital, 1990 B.Y.U. L. Rev. 1107.

10 As the amicus curiae Wisconsin Academy of Trial Lawyers notes, other states have struck down statutes of repose for medical negligence claims as violative of their own state constitutions' "right to remedy" or "open courts" provisions. See McCollum v. Sisters of Charity of Nazareth Health Corp., 799 (Ky. 1990) (five-year statute of repose for claims of negligence or malpractice against physicians, surgeons, dentists, or hospitals violates open courts provision of Kentucky Constitution); Hardy v. VerMeulen, 512 N.E.2d 626, 629 (Ohio 1987) (four-year statute of repose, as applied to medical malpractice claims, violates the right-to-a-remedy provision of the Ohio Constitution); Nelson v. Krusen, 678 S.W.2d 918, 923 (Tex. 1984) (two-year statute of repose for medical malpractice actions violates open courts provision of the Texas Constitution). See also Christopher J. Trombeth, The Unconstitutionality of Medical Malpractice Statutes of Repose: Judicial Conscience Versus Legislative Will, 34 Vill. L. Rev. 397 (1989).

11 Makos raises several other challenges to Wis. Stat. § 893.55(1)(b), including the assertions that it violates equal protection and substantive due process. However, because we find the statute unconstitutional as applied under the facts of this case, we decline to reach these other issues.