Wisconsin Has No Statute of Limitations Applicable to Claims of a Developmentally Disabled Child Against Health Care Providers
February, 2006
In Haferman v. St. Clare Healthcare Foundation, 707 N.W.2d 853 (Wis.), a majority of the Wisconsin Supreme Court holds that Wisconsin has no statute of limitations applicable to the injury claims of a developmentally disabled child against a health care provider.
Facts
In September 2002, plaintiffs and their developmentally disabled child, Toby, sued defendant health care providers alleging that Toby sustained developmental disabilities and other injuries as a result of defendants’ negligence during his birth. Toby was born on February 10, 1991; he was 11 years old at the time the lawsuit was filed. Defendants sought summary judgment on the ground that plaintiffs’ action was barred by Wis. Stat. §893.56, which applies to children’s claims against health care providers and states that those claims must be made within three years of the date of injury or by the time the child reaches age 10, whichever is later. The trial court denied the motions, but the Court of Appeals reversed and found the claims, including Toby’s, to be time-barred.
Analysis
In a split decision, the Supreme Court majority reversed, finding that “Toby’s action is not time-barred because the legislature has not provided an applicable statute of limitations for claims against a health care provider alleging injury to a developmentally disabled child.” The majority reached this conclusion by analyzing the two possible applicable statutes of limitation.The first, Wis. Stat. §893.16, states that a person “under a disability” who is under 18 at the time his cause of action accrued, has until the age of 18 to file suit “except for actions against health care providers.” The majority rejected plaintiffs’ contention that this provision applied as contrary to the plain language of the statute:
In reality … [plaintiffs]’ construction of §893.16 is not a plain language construction at all. Were we to apply §893.16 to Toby, … we would, at a minimum, have to rewrite the statute … to strike out the entire phrase “except for actions against health care providers[.]” * * * We would thus be rewriting the statute in a manner that appears to directly contravene the legislative intent. The plain language of the statute manifests the intent to exclude from its tolling provisions actions brought by children against health care providers.
The second possible statute of limitations is Wis. Stat. §893.56, which specifies that children must bring actions against health care providers within three years of the date of injury or by the age of 10, whichever occurs later. However, the majority held that § 893.56 -- which states that it is inapplicable to children “under … developmental disability” -- “plainly and unambiguously excludes children who are “under disability by reason of … developmental disability.” It thus rejected defendants’ argument that §893.56 applied:
In order to apply §893.56 to Toby, we would, at a minimum, have to strike out the words “developmental disability” from the statute.
Again, we would be rewriting the statute in a manner that appears to directly contravene the legislative intent as manifest from the statute’s plain language, here to exclude developmentally disabled children from the statute’s reach.
Recognizing the impact of its conclusion that there is no statute of limitations applicable to Toby’s claims, the majority called upon the state legislature
to remedy this “gap in the statutes of limitations:”
[W]e … determine that the legislature has not provided a statute of limitations for claims against health care providers alleging injury to a developmentally disabled child. This determination is the only determination that the court is able to reach without … rewriting the statutes …
We cannot act in the legislature’s stead. The gap in the statutes of limitations was previously brought to the attention of the legislature in Zielke [v. Wausau Memorial Hosp.], 529 F. Supp. 571 [(W.D. Wis. 1982)], and again in Aicher [v. Wisconsin Patients Compensation Fund, 613 N.W.2d 849 (2000)]. We once again bring to the attention of the legislature this gap in the statutory scheme.
Learning Point:
The majority noted that “even in the absence of legislative action, the affirmative defense of laches remains available in an appropriate case.” For a claim to be barred by laches, “an unreasonable delay must occur, the plaintiff must know the facts and take no action, the defendant must not know the plaintiff would assert the right on which the suit is based, and prejudice to the defendant must occur.” •
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