July 7, 2009 – The time to file a wrongful death action arising from alleged medical malpractice is within three years of the negligent treatment, not of the death, the Wisconsin Supreme Court held on July 7 in Estate of Robert Genrich v. OHIC Insurance Co., 2009 WI 67.

Dissenting justices protested that death is a necessary precondition for a wrongful death action and the statute of limitations should properly begin upon its occurrence.

Justices also disagreed on the test for the injury that triggers the statute of limitations on a medical malpractice claim.

An infection-producing sponge

Doctors left a sponge inside Robert Genrich on July 24, 2003, when they completed a surgery to repair an ulcer.

When Genrich developed a fever and his white blood cell count escalated, doctors determined on Aug. 8, 2003 that the sponge was likely the source of an infection. That same day, Genrich underwent a second surgery to remove the sponge. Genrich died on Aug. 11, 2003, from sepsis allegedly associated with the sponge.

On Aug. 9, 2006, Genrich’s estate sued, alleging medical negligence. Genrich’s wife also filed a claim for wrongful death. The defendants successfully argued in circuit court that both actions were barred by the three-year statute of limitations found in Wis. Stat. § 893.55 (1m) (a).

Medical negligence

Contesting the time at which the statute of limitations for medical negligence begins to run, the estate argued before the supreme court that a triggering injury occurs only when the underlying condition is no longer treatable. Genrich’s condition did not become irreversible until or after Aug. 9, so the claims were timely, the estate asserted.

But the justices said that the estate’s interpretation is inconsistent with holdings in Paul v. Skemp, 2001 WI 42, and  Fojut v. Stafl, 212 Wis, 2d 827 (Ct. App. 1997). From those cases, the court concluded that an actionable injury arises when the negligent act or omission causes a greater harm than that which existed at the time of the tortious conduct. The court added that this is consistent with the meaning of “injury” as a “physical injurious change.”

In this case, the court found, Genrich’s injury occurred on July 24, the date on which the sponge was left in his abdomen. “[B]y leaving the sponge inside of Robert, the doctors ‘cause[d] a greater harm than existed at the time of the [negligent act],” the court said, quoting Paul.

The second surgery may have inflicted additional injury, but it mainly confirmed the injury of the first procedure, the court observed. Subsequent injury “from the same tortious act does not restart the running of the statute of limitations,” the court said.

Unclear test?

Agreeing that the malpractice claim was untimely, Justice Ann Walsh Bradley dissented from this analysis. If the court determined the date of Genrich’s first surgery as the moment of “injury” as a matter of law, it did so without establishing a clear test for when a cause of action accrues, Bradley said.

“Does [injury] accrue on the day that a foreign object is left in the body? I am unsure. The majority’s test seems to require more,” Bradley wrote.

Bradley noted that the majority refers to an “infection-producing” sponge, suggesting that the injury occurs when a foreign object left inside a body causes illness. But if that is the test, Bradley wondered what the court would make of a case in which the patient only begins to suffer from a foreign object years after the surgery.

“It seems odd that the cause of action could accrue … years before the injury even occurs,” Bradley wrote. She remarked that if a negligent act or omission – rather than the resulting injury – triggers the limitations period, potential claimants who have not yet been injured may seek relief for damages that might never occur.

Responding to Bradley, the majority explained that “the presence of the infection-causing sponge” in Genrich’s abdomen was the injury, not the infection. But the court added that the negligence and the injury occurred simultaneously when the sponge remained behind, much as a tortfeasor who negligently stumbles and pours a pot of boiling water on the victim.

Wrongful death

Genrich’s wife argued that she could not bring her claim earlier than the date of her husband’s death.

But the court observed that the wrongful death action is derivative of the medical negligence suit, citing Lornson v. Siddiqui, 2007 WI 92. The court further noted that sec. 893.55 is broadly written to address “damages for injury arising from any treatment or operation performed by … a health care provider, regardless of the theory on which the action is based.”

Likewise, Wis. Stat. § 655.007 expressly establishes that death resulting from malpractice is subject to the same rules as non-fatal injuries connected to negligent treatment, the court said.   Accordingly, the wrongful death action accrued under sec. 893.55 on July 24, as did the estate’s malpractice claim, the court said.

An ‘unnecessary’ exception to wrongful death law?

But Justice N. Patrick Crooks, writing in dissent, said that running a statute of limitations period before the death occurs in a wrongful death action “unfortunately may foster a public perception that common sense sometimes is lacking in court decisions.”

Rejecting the “unnecessary” exception the court majority found for wrongful death cases connected to malpractice suits, Crooks said that this claim is properly governed by Wis. Stat. § 895.03, the wrongful death entitlement statute. That statute makes death a necessary condition to sue, he noted.

Crooks cited the malpractice case of Miller v. Luther, 170 Wis. 2d 429 (Ct. App. 1992), in which the court emphasized that “a wrongful death action accrues at the time of death.” The Miller court also stated that one entitled to bring a wrongful death action must meet the conditions of sec. 895.03, he observed.

In response to Crooks, the majority distinguished the question posed in Miller from the issue presented in this case. Accordingly, the majority said that Crooks quoted language that is mere dicta and without precedential value because it was not necessary to decide that case.

  The majority acknowledged the plaintiffs’ argument that its holding “will mean that some claims may accrue before they can be brought” and this may be “unduly harsh.”

“However, harshness is not a permissible basis for reaching a different conclusion,” the majority wrote.

The court commented that it is upholding the apparent legislative intent to set apart medical malpractice cases involving death from other wrongful death actions. “It is not our place to second-guess those policy decisions,” the majority remarked.