June 28, 2016 – The Wisconsin Supreme Court, in a 5-2 decision, has ruled that minor unnamed plaintiffs alleging that their physician touched their genitals inappropriately during medical exams cannot maintain the lawsuit because of the statute of limitations.

The statute of limitations for medical malpractice lawsuits, under Wis. Stat. section 893.55(1m), is three years from the date of the injury, or “[o]ne year from the date the injury was discovered or, in the exercise of reasonable diligence should have been discovered,” but an action must be commenced within five years of the act or omission.

In Doe 56 v. Mayo Clinic Health System-Eau Claire Clinic Inc., 2016 WI 48 (June 23, 2016), a supreme court ruled the three-year limitations period barred the suit because the alleged injury occurred more than three years from the last physical touching.

“We hold that the Does’ claims accrued on the date of the last physical touching by Dr. Van de Loo because that is the moment at which the ‘physical injurious change’ occurred in this medical malpractice case,” wrote Justice Rebecca Bradley.

Injury

The John Doe plaintiffs, minor siblings and their parents, alleged that Dr. David Van de Loo sexually assaulted them by manipulating their genitals during medical exams and did not wear gloves.

But they argued that they didn’t realize they had been “injured” until more than three years later, when they saw news reports that the state charged Dr. Van de Loo with sexual assault for victimizing another minor patient in a similar manner.

The plaintiffs allege that, after hearing about the case, the plaintiffs discovered or realized that Dr. Van de Loo’s touching was the source of psychological damages.

The plaintiffs filed the medical malpractice lawsuit in October 2013.  The complaint alleged that the doctor inflicted harmful bodily contact on multiple occasions while the boys were between the ages of eight and 15. Dr. Van de Loo served as primary care physician to the minor siblings from 2003 to 2009.

The circuit court dismissed the case, concluding the action was time-barred. A state appeals court affirmed. And the majority affirmed the lower courts.

In 2012, the state charged Dr. Van de Loo with 16 felony counts after another minor male patient reported inappropriate touching during a medical exam. Van de Loo argued that his genital examinations served a medical purpose.

Majority

The majority explained that courts have applied a consistent test to determine the date of injury in medical malpractice cases, the “physical injurious change test.”

And the majority noted that the U.S. District Court for the Western District of Wisconsin recently ruled on the same issue, involving similar allegations, in a federal medical malpractice case brought by one of Dr. Van de Loo’s other minor patients.

The court in that case – Doe 52 v. Mayo Clinic Health System-Eau Claire Clinic Inc., 98 F. Supp. 3d 989 (W.D. Wis. 2015) – held that the claim accrued on the date of the last physical touching, which was the “physical injurious change” that plaintiff suffered, and any later emotional distress triggered by the touching was an additional injury.

“We agree with this analysis,” Justice R. Bradley wrote. “In a medical malpractice claim based on unnecessary and improper treatment of inappropriate touching, the physical injurious change occurs at the time of the touching.”

The majority rejected the minor plaintiffs’ argument that there could be no injury at the time of the touching, because they had no idea that it was wrong.

“Although we are sympathetic to this argument, we are not persuaded by it,” Justice R. Bradley wrote. “Expiration of the medical malpractice statute of limitations before a patient knows about the injury is unfortunately a consequence of the legislature’s policy reasons for enacting the medical malpractice statute of limitations.”

In this case, the circuit court had also concluded that the minor boys discovered or should have discovered the injury on the date of the last physical touching, just as victims of priest abuse should have discovered the injury at the time of assault. But the plaintiffs did not challenge the “discovery” ruling at the supreme court.

Finally, the majority noted that criminal sexual assault claims against Dr. Van de Loo are not barred until the minors are 35 years old.

Dissent

Justice Ann Walsh Bradley wrote a dissent, joined by Justice Shirley Abrahamson. Bradley argued that the medical malpractice claims were not time-barred.

“Their claims accrued when they suffered severe emotional distress upon learning that they were the victims of child sexual assaults perpetrated by Dr. Van de Loo during their physical examinations,” Justice A.W. Bradley wrote. “Thus, the Does’ claims are not time-barred by the medical malpractice statute of limitations because the Does filed their claims within three years of the date they accrued.”