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Wisconsin Supreme Court Finds Mediation Tolls Five-Year Statute of Repose for Filing Medical Malpractice Action

 
 

HLD, v. 29, n. 10 (October 2001)

Wisconsin Supreme Court Finds Mediation Tolls Five-Year Statute of Repose for Filing Medical Malpractice Action

On March 17, 1994, Edward E. Landis underwent major heart surgery. He died two weeks later on April 1, 1994. In February 1999, one month short of five years after the surgery, Phyllis M. Landis, his wife, discovered through media reports that her husband's surgeon may have been negligent in performing the heart surgery. Wis. Stat. � 893.55(1)(b) provides that the deadline for a plaintiff to file a medical malpractice action is no later than "'5 years from the date of the act or omission.'" To encourage "'informal, inexpensive and expedient'" dispute resolution, Wis. Stat. � 655.44 requires a plaintiff to participate in mediation before pursuing a medical malpractice claim. Under the statute, plaintiffs have the option of requesting mediation before or after filing their action in circuit court. On March 8, 1999, Landis filed a mediation request before filing an action in circuit court. The parties failed to reach a settlement during the ensuing ninety-day mediation period, and Landis filed a medical malpractice complaint in circuit court against the heart surgeon and the hospital (collectively "defendants") where the surgery was performed. Defendants moved to dismiss the action, asserting that Landis filed the complaint after the five-year time limit under � 893.55(1)(b) had lapsed. The trial court denied the motion, finding that the mandatory mediation process, specifically � 655.44(4), tolled the five-year limitation for filing malpractice actions. The appeals court reversed, concluding that � 655.44(4) only tolls "'any applicable statute of limitation'" and therefore did not toll � 893.55(1)(b), which operates as a statute of repose.

The Wisconsin Supreme Court reversed, finding that the legislature intended � 655.44(4) to toll the statute of repose in � 893.55(1)(b). Concluding that the phrase "'[a]ny applicable statute of limitations'" in � 655.44(4) was ambiguous, the high court turned to an analysis of the statute's purpose, history, and scope to determine legislative intent. Regardless of how statutes of limitations and statutes of repose are defined, the high court said that they "share at least one common objective" to provide defendants with timely notice that they will be required to defend a suit. According to the court, a request for mediation, in this respect, serves the same purpose as filing a lawsuit--putting defendants on alert. The court observed that defendants' argument "runs counter to the basic goals of the mediation system because it would force some persons to file an action in circuit court before engaging in mediation." The court rejected defendants' contention that the legislature gave plaintiffs the option of filing their action in circuit court before requesting mediation to avoid precisely the situation that resulted in the instant case. In the court's view, the choice was intended to allow plaintiffs to (1) "demonstrate a willingness to cooperate with a defendant . . . by first filing a mediation request" or (2) "demonstrate the gravity of a matter by first commencing the action in circuit court." While acknowledging its prior decisions specifically distinguishing between statutes of limitations and statutes of repose, the court concluded that the "term 'statute of repose' is largely a judicial label" and not relevant in ascertaining legislative intent. Accordingly, the high court held that � 644.44(4) tolls the five-year filing deadline in � 893.55(1)(b).

A dissenting opinion criticized the majority for reversing the court's earlier position that "'statutes of repose are different from statutes of limitations.'" Citing the high court's decision in Aicher v. Wisconsin Patients Comp. Fund, 613 N.W.2d 849 (Wis. 2000), the dissent noted that "'[a] statute of repose . . . limits the time period within which an action may be brought based on the date of the act or omission'" whereas "[s]tatutes of limitations dictate the time 'within which an action may be commenced . . . computed from the time that the cause of action accrues.'" In the dissent's view, � 655.44(4) is not ambiguous, it clearly provides that mediation tolls statutes of limitations, not statutes of repose.

Landis v. Physicians Ins. Co., 628 N.W.2d 890 (Wis. July 3, 2001) (30 pages).

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