The Wisconsin Court of Appeals held in its opinion dated September 29, 2021: “Brandon Winzer appeals from a circuit court order dismissing his medical malpractice claim against Dr. Hartmann and Mercy Medical Center (Mercy) as time-barred under the applicable statute of limitations, WIS. STAT. § 893.55(1m) (2019-20). Winzer argues that the court erred in concluding that his claim was filed more than three years after the injury. We agree with Winzer that the motion to dismiss was erroneously granted, as the allegations of the complaint do not establish that Winzer’s claim is time-barred as a matter of law. We reverse and remand to the circuit court for further proceedings.”
Wisconsin Medical Malpractice Statute Of Limitations
WIS. STAT. § 893.55(1m), provides as follows: (1m) Except as provided by subs. (2) and (3), an action to recover damages for injury arising from any treatment or operation performed by, or from any omission by, a person who is a health care provider, regardless of the theory on which the action is based, shall be commenced within the later of: (a) Three years from the date of the injury, or (b) One year from the date the injury was discovered or, in the exercise of reasonable diligence should have been discovered, except that an action may not be commenced under this paragraph more than 5 years from the date of the act or omission.
In the present case, the Wisconsin Court of Appeals stated: “We agree that the circuit court erroneously granted the motion to dismiss Winzer’s medical malpractice claim as barred by the three-year statute of limitations of WIS. STAT. § 893.55(1m)(a) when it determined that the claim accrued with the alleged misdiagnosis in 2012. Moreover, the allegations of the complaint do not otherwise establish that Winzer’s claim is time-barred as a matter of law. Contrary to Hartmann and Mercy’s contentions, the blood in Winzer’s stool in March 2014 does not establish that Winzer’s claim accrued at that time—that he suffered an actionable injurious change, a greater harm, caused by the alleged misdiagnosis … a misdiagnosis based on a negligent omission is not itself an actionable injury that starts the clock running on the statute of limitations. Rather, a claim accrues at the time that the doctor’s misdiagnosis causes “a greater harm than existed” when the patient was misdiagnosed.”
The Wisconsin Court of Appeals further explained: “Blood in Winzer’s stool may not be demonstrative of greater harm. First, it may not be related to the tumor at all. Second, it may not be new. Third, even if it is new, it may be simply another symptom of the cancer that already existed at the time of the 2012 misdiagnosis, related to the ongoing stomach pain, cramps, and problems for which Winzer sought diagnosis and treatment. Finally, under the law applicable to this motion to dismiss, and in particular, this medical malpractice claim based on an alleged omission, we cannot speculate that the alleged failure to treat Winzer’s tumor in 2012 caused an actionable injury to Winzer by 2014 when he experienced blood in his stool, such as for example, that the tumor had become more difficult to treat. The court erred in dismissing the complaint as a matter of law.”
Source Winzer v. Hartmann, Appeal No. 2019AP1540.
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