Paynter v. Proassurance Wis. Ins. Co.

2018 WI App 27, 911 N.W.2d 374, 381 Wis. 2d 239
CourtCourt of Appeals of Wisconsin
DecidedMarch 27, 2018
DocketAppeal No. 2017AP739
StatusPublished
Cited by3 cases

This text of 2018 WI App 27 (Paynter v. Proassurance Wis. Ins. Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Paynter v. Proassurance Wis. Ins. Co., 2018 WI App 27, 911 N.W.2d 374, 381 Wis. 2d 239 (Wis. Ct. App. 2018).

Opinion

STARK, P.J.

*242¶1 David and Kathryn Paynter sued Dr. James Hamp, alleging he negligently failed to diagnose David's cancer. The circuit court granted Hamp summary judgment. It concluded Wisconsin's borrowing statute, WIS. STAT . § 893.07 (2015-16),1 applied *243to the Paynters' lawsuit, and their claims were therefore subject to Michigan's statute of limitations for medical malpractice actions. Applying the Michigan statute of limitations, the court concluded the Paynters' lawsuit was not timely filed.

¶2 The circuit court applied an incorrect legal standard in determining the Paynters' lawsuit was subject to the borrowing statute. Nonetheless, we agree with the court's ultimate conclusion that their lawsuit was not timely filed.2 The borrowing statute applies to actions brought in Wisconsin "on a foreign cause of action." See WIS. STAT . § 893.07(1), (2). A cause of action is foreign, for purposes of the borrowing statute, when it is premised on an injury that occurred outside of Wisconsin. See Guertin v. Harbour Assurance Co. of Bermuda , 141 Wis. 2d 622, 630, 415 N.W.2d 831 (1987). In a case-like this one-in which the plaintiff claims to have been injured in the same course of action in multiple states, we conclude the plaintiff's location at the time of his or her first injury controls whether the plaintiff's cause of action is "foreign."

¶3 Here, the Paynters have alleged a negligent misdiagnosis. Our supreme court *377has previously held that, in such cases, an actionable injury occurs when the misdiagnosis causes a greater harm than existed at the time of the misdiagnosis. Paul v. Skemp , 2001 WI 42, ¶ 25, 242 Wis. 2d 507, 625 N.W.2d 860. In his summary judgment submissions, Hamp made a prima facie showing that all of David's injuries occurred in *244Michigan. In response, the Paynters failed to submit sufficient evidence to raise a genuine issue of material fact as to whether David was located in Wisconsin when Hamp's allegedly negligent misdiagnosis first caused him greater harm than existed at the time of the misdiagnosis. As a result, the Paynters' lawsuit is a foreign cause of action and is therefore subject to the borrowing statute. Under the borrowing statute, the Paynters' lawsuit is untimely because it was not filed within the period set forth in Michigan's statute of limitations for medical malpractice claims. We therefore affirm the circuit court's judgment dismissing the Paynters' claims.3

BACKGROUND

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

¶5 David had an initial consultation at Hamp's Ironwood office on May 13, 2010. He returned to the Ironwood office on June 10, 2010, for a second appointment, during which Hamp performed an aspiration of *245the growth on David's neck.4 Hamp's staff transported the samples from David's growth to Ashland to be analyzed by a pathologist there.

¶6 Hamp received the pathologist's report on June 14, 2010. On the same day, he called the Paynters' home telephone in Michigan and told David that the growth was not cancerous and David did not need any further treatment.5 However, David ultimately had surgery to remove the growth on June 19, 2014, and was diagnosed with cancer the same day. The doctor who performed the surgery requested that the pathology materials from that procedure be compared to the slides from the aspiration Hamp had performed in June 2010. The following week, that doctor informed David his cancer had been present in June 2010.

¶7 The Paynters mailed a request for mediation to Wisconsin's Medical Mediation Panels sometime during May 2015. On August 31, 2015, the Paynters filed the instant lawsuit against Hamp; his Michigan medical malpractice insurer, American *378Physicians Assurance Company; and his Wisconsin medical malpractice insurer, ProAssurance Wisconsin Insurance Company.6 The Paynters' complaint asserted both negligence *246and informed consent claims against Hamp. It alleged that, as a result of Hamp's conduct, David had "sustained permanent injuries and damages, including past and future pain, suffering, disability, humiliation, embarrassment, worry and mental distress," as well as "loss of enjoyment of life; past wage loss and impairment of future earning capacity; past and future medical expenses; and other compensable injuries." The complaint further alleged that Kathryn had been "deprived of the society and companionship of her spouse, ha[d] provided nursing services, and ha[d] incurred medical and other expenses relating to her spouse's injuries, and will continue to incur such expenses in the future."

¶8 Hamp moved for summary judgment, arguing the Paynters' lawsuit was not timely filed. His motion was based on Wisconsin's borrowing statute, which provides:

(1) If an action is brought in this state on a foreign cause of action and the foreign period of limitation which applies has expired, no action may be maintained in this state.
(2) If an action is brought in this state on a foreign cause of action and the foreign period of limitation which applies to that action has not expired, but the applicable Wisconsin period of limitation has expired, no action may be maintained in this state.

WIS. STAT . § 893.07. Hamp contended the Paynters' lawsuit constituted a "foreign cause of action" under the borrowing statute because any injuries the *247Paynters sustained as a result of his conduct occurred in Michigan-their state of residence-rather than Wisconsin. He therefore argued the Paynters' lawsuit was untimely because the "foreign period of limitation"-i.e., Michigan's statute of limitations for medical malpractice claims-had expired. See § 893.07(1) (providing no action may be maintained in Wisconsin on a foreign cause of action where the foreign limitation period has expired).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Paynter v. Proassurance Wis. Ins. Co.
2019 WI 65 (Wisconsin Supreme Court, 2019)

Cite This Page — Counsel Stack

Bluebook (online)
2018 WI App 27, 911 N.W.2d 374, 381 Wis. 2d 239, Counsel Stack Legal Research, https://law.counselstack.com/opinion/paynter-v-proassurance-wis-ins-co-wisctapp-2018.