Landis v. Physicians Insurance Co. of Wisconsin, Inc.

2001 WI 86, 628 N.W.2d 893, 245 Wis. 2d 1, 2001 Wisc. LEXIS 432
CourtWisconsin Supreme Court
DecidedJuly 3, 2001
Docket00-0330
StatusPublished
Cited by77 cases

This text of 2001 WI 86 (Landis v. Physicians Insurance Co. of Wisconsin, Inc.) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Landis v. Physicians Insurance Co. of Wisconsin, Inc., 2001 WI 86, 628 N.W.2d 893, 245 Wis. 2d 1, 2001 Wisc. LEXIS 432 (Wis. 2001).

Opinions

¶1. 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 Wis[5]*5consin 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 Lan-dis. 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(l)(b)(l999-2000)1 in asserting that the five-year time limit in this statute for filing a medical malpractice action expired before the commencement of 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(l)(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.

[6]*6¶ 4. The issue before this court is whether the five-year deadline for filing actions contained within Wis. Stat. § 893.55(l)(b) is tolled when a party requests mediation of a medical malpractice dispute pursuant to Wis. Stat. § 655.44.

f — l

¶ 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 [7]*7was 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 dis[8]*8putes.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 [9]*9filing 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(l)(b). The defendants disagree, reasoning that the five-year time limitation in § 893.55(l)(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. [10]*10The circuit court denied the motion, but the court of appeals reversed, adopting the defendants' reading of § 655.44(4).

HH HH

¶ 12. This case involves the application of a statute to undisputed facts.

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Bluebook (online)
2001 WI 86, 628 N.W.2d 893, 245 Wis. 2d 1, 2001 Wisc. LEXIS 432, Counsel Stack Legal Research, https://law.counselstack.com/opinion/landis-v-physicians-insurance-co-of-wisconsin-inc-wis-2001.