Wisconsin ruling nixes key statute of limitations provisions

A 4-3 Wisconsin Supreme Court decision in December 2005 threw out the statute of limitations for medical liability cases involving developmentally disabled children. Along with it, physicians say the state's high court tossed their only remaining safeguard in these medical liability cases.

Doctors say they are disappointed yet again by the court that in July 2005 struck down the state's long-standing cap on noneconomic damages awarded in medical liability lawsuits.

The statute of limitations is an important issue for doctors because there has to be some finality in when people can file claims, said Ruth Heitz, the Wisconsin Medical Society's general counsel.

"The ability of health care professionals to defend against stale claims is almost impossible," she said.

But plaintiff attorneys say the ruling will have little impact on liability claims against doctors because it is limited to a small group of people.

In the lawsuit, 14-year-old Toby Haferman's parents allege that St. Clare Hospital in Baraboo, Wis. and family physician Donald W. Vangor, MD, caused their son's cerebral palsy when his brain was denied oxygen during critical moments before and after his birth in 1991. The physician and the hospital deny the allegations.

The central question for the Wisconsin Supreme Court was whether the case filed in 2002, 11 years after the alleged negligence, was brought before the statute of limitations for filing the case expired.

The debate was fueled by confusion over which of three laws relating to disabled children and medical liability applied. The Supreme Court reversed an appeals court decision that a three-year statute applied, allowing the Hafermans to go forward with their lawsuit. The court "determined that the Legislature has not provided a statute of limitations for claims against health care providers alleging injury to a developmentally disabled child," Judge Ann Walsh Bradley wrote. The opinion stated it was the only option without "rewriting the statutes or working an absurd and illogical result."

While it is too early to quantify how many cases the ruling may impact, WMS' Heitz said it could lead to more medical malpractice claims in the already unstable liability climate in Wisconsin. Cases involving children are also likely to bring higher awards in jury verdicts, she said.

But Lynn Laufenberg, past president of the Wisconsin Academy of Trial Lawyers, which supported the plaintiffs through a friend-of-the- court brief, said bad legislation created the problem, not the court. He also disputed that the ruling had anything to do with the debate over limiting noneconomic damages.

"If the Legislature had made [the statute] clear, I have no doubt the court would have enforced it," Laufenberg said.

Both sides agree, nevertheless, that a legislative problem exists with the three statutes. The laws that could apply are:

• A general statute that actions against doctors must be filed within three years from the date the alleged negligence occurred, or within one year of when it was discovered.
• A law that states minors, excluding developmentally disabled children, must file medical liability claims within the time frames in the general statue, or by age 10, whichever comes later.
• A law that gives disabled minors up to two years after the disability ends to file a lawsuit. However, the law excludes actions against doctors.

Physicians say the court did not have to toss all three laws. They say the minority opinion from three of the seven judges got it correct. The dissenting opinion concluded that the court could have looked at the statute applied to minors in medical liability cases and struck the clause that said the law didn't apply to developmentally disabled children, treating them the same way it treats minors without developmental disabilities.

"With the loss of caps, the statute of limitations is the only protection we have," said Eric Borgerding, the Wisconsin Hospital Assn.'s senior vice president.

The WHA is collaborating with the WMS to propose a state law that would place a $750,000 cap on noneconomic damages in medical liability lawsuits, according to Mike Grapentine, WMS' senior vice president of government relations. He said they are working "aggressively" before the legislative session ends in April.