In David Paynter v. ProAssurance Wisconsin Insurance Co. (2019 WI 65), the Wisconsin Supreme Court held that in medical malpractice cases where a misdiagnosis causes latent, continuous injury, the plaintiff’s first injury determines whether the action is a “foreign cause of action” under Wisconsin’s statute applying foreign statutes of limitation (Wis. Stat. § 893.07), also known as the “borrowing statute.” The court determines the jurisdiction of the injury based on where it is first felt by the patient.
The underlying claim in the case arose when Dr. James Hamp, who operates offices in both Wisconsin and Michigan, misdiagnosed a growth on patient David Paynter, a Michigan resident. Paynter first saw Dr. Hamp in his Michigan office, but Dr. Hamp called Paynter with the misdiagnosis from his Wisconsin office. Paynter was residing in Michigan at the time of the call and for the next four years before he found out his growth was cancerous. Paynter sued Dr. Hamp and both his Michigan and Wisconsin malpractice insurance policies, claiming both negligence and violation of the patient’s right to informed consent.
The issue before the Supreme Court was whether Paynter’s injury was a “foreign cause of action” under Wis. Stat. § 893.07, thus barring the claim under Michigan’s statute of limitations. The court held that in medical malpractice cases like Paynter’s where a misdiagnosis causes latent, continuous injury, the plaintiff’s first injury determines whether the action is a “foreign cause of action” under the borrowing statute. The court based the determination on previous case law holding that an actionable injury in medical malpractice cases occurs when the misdiagnosis causes a greater harm than previously existed.
On Paynter’s negligence claim, the court could not identify when and where the Paynter’s greater harm first occurred. When the plaintiff’s place of injury is unknowable, the borrowing statute does not apply. Therefore, Wisconsin’s longer medical malpractice statute of limitations applied to Paynter’s negligence claim, allowing this claim to proceed.
On Paynter’s informed consent claim, the court determined that Paynter’s injury occurred in Michigan because Paynter was in Michigan when Dr. Hamp called him with the misdiagnosis. Previous case law states that “the injury occurs where it is felt rather than where it originates.” Therefore, Paynter’s injury was a “foreign cause of action” under the borrowing statute, so Michigan’s shorter medical malpractice statute of limitations barred his informed consent claim.
The Supreme Court declined to adopt Paynter’s argument that at least some of his injuries occurred in Wisconsin since he spent time in Wisconsin during the four year period after the misdiagnosis. The court said Paynter’s proposed analysis would allow almost any misdiagnosis case to proceed as non-foreign and encourage venue-shopping in Wisconsin courts.
The court declined to address the issue of insurance coverage related to this case.
In a partial dissent, Justice Walsh Bradley disagreed with the court’s determination on Paynter’s informed consent claim. Instead of finding that the injury occurs where it is felt (i.e. where the patient receives the misdiagnosis call), the court should have used the test from International Shoe Co. v. Washington, which requires a defendant to have minimum contacts in Wisconsin in order to apply Wisconsin’s statute of limitations. In this case, Dr. Hamp had enough contacts in Wisconsin to pass the International Shoe test, so the Wisconsin statute of limitations would have applied, allowing the plaintiff’s claims to proceed. The dissent notes complications could occur using the test adopted by the court because patients could be anywhere when they receive a misdiagnosis call.
In another partial dissent, Justice R. Bradley (joined by Justice Kelly) noted similar concerns regarding the impracticalities of the court’s place-of-injury test and “where the injury was felt” test in determining whether the borrowing statute applies in misdiagnosis cases. The dissent would also have remanded the case to lower court to determine whether Paynter actually stated an informed consent claim for which relief may be granted. Furthermore, the dissent agreed with the court’s decision not to rule on coverage, but rejected the court’s criticism of how Dr. Hamp’s insurer ProAssurance Wisconsin Insurance Co. handled its briefing on the subject.