Chapter 893

893.55 Annotation Sub. (1) (b) [now sub. (1m) (b)] does not violate article I, section 9, of the Wisconsin Constitution, the right to remedy clause, nor does it offend equal protection or procedural due process principles. Aicher v. Wisconsin Patients Compensation Fund, 2000 WI 98, 237 Wis. 2d 99, 613 N.W.2d 849, 98-2955.

893.55 Annotation A misdiagnosis, in and of itself, is not, and cannot be, an actionable injury. The injury arises when the misdiagnosis causes a greater harm than existed at the time of the misdiagnosis. The misdiagnosis may or may not result in the injury, and the injury may occur concurrently or there may be a delay between the misdiagnosis and the injury. Paul v. Skemp, 2001 WI 42, 242 Wis. 2d 507, 625 N.W.2d 860, 99-1810.

893.55 Annotation The limitation periods under sub. (1) (a) and (b) [now sub. (1m) (a) and (b)] are both tolled by the filing of a request for mediation under s. 655.44 (4). Landis v. Physicians Insurance Co. of Wisconsin, 2001 WI 86, 245 Wis. 2d 1, 628 N.W.2d 893, 00-0330.

893.55 Annotation Wrongful death claims caused by medical malpractice are subject to the statute of limitations concerning medical malpractice in sub. (1) [now sub. (1m)]. Estate of Hegarty v. Beauchaine, 2001 WI App 300, 249 Wis. 2d 142, 638 N.W.2d 355, 00-2144.

893.55 Annotation Under sub. (1) (b) [now sub. (1m) (b)], the five-year repose period applies only to actions brought pursuant to the discovery rule in sub. (1) (b) [now sub. (1m) (b)]. Sub. (1) (b) [now sub. (1m) (b)] is an alternative limitations period to that in sub. (1) (a) [now sub. (1m) (a)]. Storm v. Legion Insurance Co., 2003 WI 120, 265 Wis. 2d 169, 665 N.W.2d 353, 01-1139.

893.55 Annotation Section 893.16 tolls the period of limitations in sub. (1) (a) [now sub. (1m) (a)] for medical malpractice actions involving qualified claimants, extending the three-year limitations period up to five additional years. Storm v. Legion Insurance Co., 2003 WI 120, 265 Wis. 2d 169, 665 N.W.2d 353, 01-1139.

893.55 Annotation For purposes of determining when a cause accrues for negligently prescribing medication, a physician’s duty to monitor a patient after a final visit does not continue through some vague and indefinite period during which prescriptions may or may not be filled. Any claim of an omission is for an omission that occurred in the distinct time frame the doctor either intentionally or unintentionally did not require follow-up when giving the prescription or seeing the patient. Wiegert v. Goldberg, 2004 WI App 28, 269 Wis. 2d 695, 676 N.W.2d 522, 03-0891.

893.55 Annotation A mother who suffers the stillbirth of her infant as a result of medical malpractice has a personal injury claim involving negligent infliction of emotional distress, which includes the distress arising from the injuries and stillbirth of her daughter, in addition to her derivative claim for wrongful death of the infant. That the sources of the mother’s emotional injuries cannot be segregated does not mean that there is a single claim of medical malpractice subject to the single cap for noneconomic damages. Pierce v. Physicians Insurance Co. of Wisconsin, 2005 WI 14, 278 Wis. 2d 82, 692 N.W.2d 558, 01-2710.

893.55 Annotation First-year medical residents who have their M.D. degrees but are not yet licensed are not health care providers under this section and not subject to the limitations on the recovery of noneconomic damages in subs. (4) and (5). Phelps v. Physicians Insurance Co. of Wisconsin, 2005 WI 85, 282 Wis. 2d 69, 698 N.W.2d 643, 03-0580.

893.55 Annotation Sub. (7) explicitly allows evidence of collateral source payments to be introduced in medical malpractice actions. If evidence of collateral source payments from sources including Medicare, other state or federal government programs, medical insurance or write-offs, and discounted or free medical services is presented to the fact-finder, the parties must be allowed to furnish the jury with evidence of any potential obligations of subrogation or reimbursement. The circuit court must instruct the fact-finder that it must not reduce the reasonable value of medical services on the basis of the collateral source payments. Lagerstrom v. Myrtle Werth Hospital-Mayo Health System, 2005 WI 124, 285 Wis. 2d 1, 700 N.W.2d 201, 03-2027.

893.55 Annotation This section does not apply to a negligence claim alleging injury to a developmentally disabled child caused by a health care provider. The legislature has not provided a statute of limitations for claims against health care providers alleging injury to a developmentally disabled child. Haferman v. St. Clare Healthcare Foundation, Inc., 2005 WI 171, 286 Wis. 2d 621, 707 N.W.2d 853, 03-1307.

893.55 Annotation The jury award of noneconomic damages for pre-death pain and suffering, and the jury award for pre-death loss of society and companionship are governed by the cap set forth in the medical malpractice statutes, this section, and not the wrongful death statute, s. 895.04. Bartholomew v. Wisconsin Patients Compensation Fund, 2006 WI 91, 293 Wis. 2d 38, 717 N.W.2d 216, 04-2592.

893.55 Annotation When the applicability of sub. (7) to one of the physicians whose negligence caused the patient’s injuries and death is unknown, the fact that the other causally negligent physician was an undisputed ch. 655 health care provider dictates the application of sub. (7). Estate of Hegarty v. Beauchaine, 2006 WI App 248, 297 Wis. 2d 70, 727 N.W.2d 857, 04-3252.

893.55 Annotation When negligent acts of malpractice are continuous and the cause of action is not complete until the last date on which the malpractice occurs, the entire course of negligent malpractice is within the court’s jurisdiction. A plaintiff must show four elements for this “continuum of negligent treatment” doctrine to apply: 1) a continuum of care; 2) a continuum of negligent care; 3) the care is related to a single condition; and 4) the precipitating factor in the continuum is the original negligent act. Forbes v. Stoeckl, 2007 WI App 151, 303 Wis. 2d 425, 735 N.W.2d 536, 06-1654.

893.55 Annotation The five-year limit in sub. (1) (b) [now sub. (1m) (b)] applies only to claims brought under the “discovery rule” of sub. (1) (b) [now sub. (1m) (b)] and not to claims brought under the “injury rule of accrual” in sub. (1) (a) [now sub. (1m) (a)]. The continuum of negligent treatment doctrine modifies the three-year limit of sub. (1) (a) [now sub. (1m) (a)] and is unaffected by sub. (1) (b) [now sub. (1m) (b)], which comes into play only when a plaintiff claims that, because of a delayed discovery of an injury, the plaintiff is entitled to file an action beyond the three-year time limit in sub. (1) (a) [now sub. (1m) (a)]. Forbes v. Stoeckl, 2007 WI App 151, 303 Wis. 2d 425, 735 N.W.2d 536, 06-1654.

893.55 Annotation Neither Fojut, 212 Wis. 2d 827 (1997), or Paul, 2001 WI 42, concludes that an injury must be untreatable or irreversible to trigger the limitations period imposed by sub. (1m) (a). The determination of a “physical injurious change” (when the negligent act or omission causes a greater harm than that which existed at the time of the negligent act or omission) is the appropriate benchmark for establishing the date of injury. A later injury from the same tortious act does not restart the running of the statute of limitations. Estate of Genrich v. OHIC Insurance Co., 2009 WI 67, 318 Wis. 2d 553, 769 N.W.2d 481, 07-0541.

893.55 Annotation Because an unlicensed first-year resident physician was a borrowed employee of the hospital where the resident allegedly performed negligent acts, the relation of employer and employee existed between the resident and hospital, and accordingly, the resident was an employee of a health care provider within the meaning of ch. 655 and sub. (4). Phelps v. Physicians Insurance Co. of Wisconsin, 2009 WI 74, 319 Wis. 2d 1, 768 N.W.2d 615, 06-2599.

893.55 Annotation A fact finder cannot reasonably infer concealment under sub. (2) when a defendant has no contact with the plaintiff after an alleged negligent act or omission. Pagoudis v. Korkos, 2010 WI App 83, 326 Wis. 2d 234, 784 N.W.2d 740, 09-2965.

893.55 Annotation Evidence of collateral source payments is admissible under sub. (7) only if the evidence is relevant. In a medical malpractice action, evidence of collateral source payments is relevant if it is probative of any fact that is of consequence to the determination of damages. Weborg v. Jenny, 2012 WI 67, 341 Wis. 2d 668, 816 N.W.2d 191, 10-0258.

893.55 Annotation In a medical malpractice claim based on unnecessary and improper treatment of inappropriate touching, the “physical injurious change,” for purposes of determining the date of injury under sub. (1m) (a), occurs at the time of the touching. The fact that the patient may not have known at the time that the touching was inappropriate does not change this fact. Doe v. Mayo Clinic Health System-Eau Claire Clinic, Inc., 2016 WI 48, 369 Wis. 2d 351, 880 N.W.2d 681, 14-1177.

893.55 Annotation The $750,000 cap on noneconomic damages in medical malpractice judgments and settlements under sub. (4) (d) 1. is constitutional based on equal protection and due process grounds. Mayo v. Wisconsin Injured Patients & Families Compensation Fund, 2018 WI 78, 383 Wis. 2d 1, 914 N.W.2d 678, 14-2812.

893.55 Annotation A medical malpractice claim accrues under sub. (1m) (a) when a misdiagnosis causes an “injurious change,” or a “greater harm,” to the plaintiff. When a medical malpractice claim is based on a misdiagnosis or failure to diagnose, the greater harm is the development of the problem into a more serious condition that poses a greater danger to the plaintiff or worsened prognosis. Winzer v. Hartmann, 2021 WI App 68, 399 Wis. 2d 555, 966 N.W.2d 101, 19-1540.

893.55 Annotation The Constitutionality of Wisconsin’s Noneconomic Damage Limitation. Peacy. 72 MLR 235 (1989).

893.55 Annotation Wisconsin’s Caps on Noneconomic Damages in Medical Malpractice Cases: Where Wisconsin Stands (and Should Stand) on “Tort Reform.” Kenitz. 89 MLR 601 (2006).

893.55 Annotation Bartholomew: The Wisconsin Supreme Court’s Latest Foray into the Medical-Malpractice Thicket. Spencer. 2007 WLR 1121.

893.55 Annotation Tort Reform: It’s Not About Victims ... It’s About Lawyers. Scoptur. Wis. Law. June 1995.

893.555 893.555 Limitation of damages; long-term care providers.

893.555(1) (1) In this section:

893.555(1)(a) (a) “Long-term care provider” means any of the following:

893.555(1)(a)1. 1. An adult family home, as defined in s. 50.01 (1).

893.555(1)(a)2. 2. A residential care apartment complex, as defined in s. 50.01 (6d).

893.555(1)(a)3. 3. A community-based residential facility, as defined in s. 50.01 (1g).

893.555(1)(a)4. 4. A home health agency, as defined in s. 50.01 (1r).

893.555(1)(a)5. 5. A nursing home, as defined in s. 50.01 (3).

893.555(1)(a)6. 6. A hospice, as defined in s. 50.90 (1).

893.555(1)(b) (b) “Noneconomic damages” has the meaning given in s. 893.55 (4) (a).

893.555(2) (2) Except as provided in sub. (3), an action to recover damages for injury arising from any treatment or operation performed by, or from any omission by, a long-term care provider, regardless of the theory on which the action is based, shall be commenced within the later of:

893.555(2)(a) (a) Three years from the date of the injury.

893.555(2)(b) (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.

893.555(3) (3) If a long-term care provider conceals from a patient a prior act or omission of the provider that has resulted in injury to the patient, an action shall be commenced within one year from the date the patient discovers the concealment or, in the exercise of reasonable diligence, should have discovered the concealment or within the time limitation provided by sub. (2), whichever is later.

893.555(4) (4) The total noneconomic damages recoverable for bodily injury arising from care or treatment performed, or from any omission, by a long-term care provider, including any action or proceeding based on contribution or indemnification and any action for a claim by a person other than the injured person for noneconomic damages recoverable for bodily injury, may not exceed the limit under s. 893.55 (4) (d) for each occurrence on or after February 1, 2011, from all long-term care providers and all employees of long-term care providers acting within the scope of their employment and providing long-term care services who are found negligent.

893.555(5) (5) A court in an action tried without a jury shall make a finding as to noneconomic damages without regard to the limit under s. 893.55 (4) (d). If noneconomic damages in excess of the limit are found, the court shall make any reduction required under s. 895.045 and shall award as noneconomic damages the lesser of the reduced amount or the limit. If an action is before a jury, the jury shall make a finding as to noneconomic damages without regard to the limit under s. 893.55 (4) (d). If the jury finds that noneconomic damages exceed the limit, the jury shall make any reduction required under s. 895.045 and the court shall award as noneconomic damages the lesser of the reduced amount or the limit.

893.555(6) (6) Notwithstanding the limits on noneconomic damages under this section, damages recoverable against a long-term care provider, and an employee of a long-term care provider acting within the scope of his or her employment and providing long-term care services, for wrongful death are subject to the limit under s. 895.04 (4). If damages in excess of the limit under s. 895.04 (4) are found, the court shall make any reduction required under s. 895.045 and shall award the lesser of the reduced amount or the limit under s. 895.04 (4).

893.555(7) (7) Damages recoverable under this section against a long-term care provider, and an employee of a long-term care provider acting within the scope of his or her employment and providing long-term care services, are subject to the provisions of s. 895.045.

893.555(8) (8) Evidence of any compensation for bodily injury received from sources other than the defendant to compensate the claimant for the injury is admissible in an action to recover damages for negligence by a long-term care provider. This section does not limit the substantive or procedural rights of persons who have claims based upon subrogation.

893.555 History History: 2011 a. 2; 2013 a. 165 s. 114.

893.56 893.56 Health care providers; minors actions. Any person under the age of 18, who is not under disability by reason of insanity, developmental disability or imprisonment, shall bring an action to recover damages for injuries to the person arising from any treatment or operation performed by, or for any omission by a health care provider within the time limitation under s. 893.55 or by the time that person reaches the age of 10 years, whichever is later. That action shall be brought by the parent, guardian or other person having custody of the minor within the time limit set forth in this section.

893.56 History History: 1977 c. 390; 1979 c. 323.

893.56 Note Judicial Council Committee’s Note, 1979: This section is previous s. 893.235 renumbered for more logical placement in restructured ch. 893. [Bill 326-A]

893.56 Annotation This section applies only to living minors. Awve v. Physicians Insurance Co. of Wisconsin, 181 Wis. 2d 815, 512 N.W.2d 216 (Ct. App. 1994).

893.56 Annotation This section does not violate article I, section 9, of the Wisconsin Constitution, the right to remedy clause, nor does it offend equal protection or procedural due process principles. Aicher v. Wisconsin Patients Compensation Fund, 2000 WI 98, 237 Wis. 2d 99, 613 N.W.2d 849, 98-2955.

893.56 Annotation This section does not apply to a negligence claim alleging injury to a developmentally disabled child caused by a health care provider. The legislature has not provided a statute of limitations for claims against health care providers alleging injury to a developmentally disabled child. Haferman v. St. Clare Healthcare Foundation, Inc., 2005 WI 171, 286 Wis. 2d 621, 707 N.W.2d 853, 03-1307.

893.57 893.57 Intentional torts. An action to recover damages for libel, slander, assault, battery, invasion of privacy, false imprisonment or other intentional tort to the person shall be commenced within 3 years after the cause of action accrues or be barred.

893.57 History History: 1979 c. 323; 2009 a. 120.

893.57 Note Judicial Council Committee’s Note, 1979: This section is previous s. 893.21 (2) renumbered for more logical placement in restructured ch. 893. [Bill 326-A]

893.57 Annotation This section governs the intentional tort of bad faith by an insurer. Warmka v. Hartland Cicero Mutual Insurance Co., 136 Wis. 2d 31, 400 N.W.2d 923 (1987).

893.57 Annotation A cause of action does not accrue until the plaintiff knows the tortfeasor’s identity or reasonably should have discovered it. Spitler v. Dean, 148 Wis. 2d 630, 436 N.W.2d 308 (1989).

893.57 Annotation A physician’s intentional improper sexual touching of a patient was subject to this section governing intentional torts, not s. 893.55 governing medical malpractice. Deborah S.S. v. Yogesh N.G., 175 Wis. 2d 436, 499 N.W.2d 272 (Ct. App. 1993).

893.57 Annotation A claim involving excessive use of force in an arrest constitutes an intentional tort subject to this section. Kofler v. Florence, 216 Wis. 2d 41, 573 N.W.2d 568 (Ct. App. 1997), 97-1922.

893.57 Annotation This section is applicable to a breach of fiduciary duty claim. Beloit Liquidating Trust v. Grade, 2004 WI 39, 270 Wis. 2d 356, 677 N.W.2d 298, 02-2035.

893.57 Annotation A breach of the fiduciary duty of loyalty is an intentional tort subject to the statute of limitations in this section. Zastrow v. Journal Communications, Inc., 2006 WI 72, 291 Wis. 2d 426, 718 N.W.2d 51, 04-0276.

893.57 Annotation The notion that each “hit” or viewing of information on the Internet should be considered a new publication of allegedly defamatory statements that retriggers the statute of limitations is rejected. Ladd v. Uecker, 2010 WI App 28, 323 Wis. 2d 798, 780 N.W.2d 216, 09-0596.

893.57 Annotation A tort to the person is a tort involving or consisting in an injury to one’s person, reputation, or feelings, as distinguished from an injury or damage to real or personal property. Because malicious prosecution is an intentional tort to the person, the two-year [now three-year] statute of limitations in this section applies. Turner v. Sanoski, 2010 WI App 92, 327 Wis. 2d 503; 787 N.W.2d 429, 09-1319.

893.57 Annotation This section applies to a claim alleging intentional trespass. Given that the phrase “to the person” must be given meaning, it may seem to connote a personal injury that is physical in nature. However, a tort “to the person” is a tort involving or consisting in an injury to one’s person, reputation, or feelings, as distinguished from an injury or damage to real or personal property. Intentional trespass is a personal tort: it is an offense against another’s possession, including the person’s right to exclude others from the person’s real property, and the corresponding feeling of security the person may achieve in doing so. Munger v. Seehafer, 2016 WI App 89, 372 Wis. 2d 749, 890 N.W.2d 22, 14-2594.

893.57 Annotation This section governed the plaintiff’s claim for intentional interference with contract. Tilstra v. Bou-Matic, LLC, 1 F. Supp. 3d 900 (2014).

893.58 893.58 Actions concerning seduction. All actions for damages for seduction shall be commenced within one year after the cause of action accrues or be barred.

893.58 History History: 1979 c. 323.

893.58 Note Judicial Council Committee’s Note, 1979: This section is previous s. 893.22 (2) renumbered for more logical placement in restructured ch. 893. [Bill 326-A]

893.58 Annotation Since the mother’s counterclaim was served within one year from the date alleged of the last alleged act of seduction, the cause of action was not barred by the one-year statute of limitations. Slawek v. Stroh, 62 Wis. 2d 295, 215 N.W.2d 9 (1974).

893.585 893.585 Sexual exploitation by a therapist.

893.585(1) (1) Notwithstanding ss. 893.54, 893.55, and 893.57, an action under s. 895.441 for damages shall be commenced within 3 years after the cause of action accrues or be barred.

893.585(2) (2) If a person entitled to bring an action under s. 895.441 is unable to bring the action due to the effects of the sexual contact or due to any threats, instructions, or statements from the therapist, the period of inability is not part of the time limited for the commencement of the action, except that this subsection shall not extend the time limitation by more than 15 years.

893.585(3) (3) This section does not apply to damages incurred under s. 895.442.

893.585 History History: 1985 a. 275; 2003 a. 279; 2005 a. 155.

893.587 893.587 Sexual assault of a child; limitation. An action to recover damages for injury caused by an act that would constitute a violation of s. 948.02, 948.025, 948.06, 948.085, or 948.095 or would create a cause of action under s. 895.442 shall be commenced before the injured party reaches the age of 35 years or be barred.

893.587 History History: 1987 a. 332; 2001 a. 16; 2003 a. 279; 2005 a. 155, 277; 2007 a. 97.

893.587 Annotation A victim’s action was time barred when “flashbacks” more than two years prior to commencing suit made the victim aware of incest that allegedly occurred more than 50 years earlier. The action was barred despite evidence that the victim was unable to shift the blame from herself at the time of discovery. Byrne v. Bercker, 176 Wis. 2d 1037, 501 N.W.2d 402 (1993).

893.587 Annotation An adult victim of incest, who at the time of the incestuous act was aware of the identity of the tortfeasor and the impropriety of the conduct, did not qualify for tolling of the statute of limitations under the discovery rule because the victim was unaware of the psychological harm that might occur. Cheryl D. v. Estate of Robert D.B., 207 Wis. 2d 548, 559 N.W.2d 272 (Ct. App. 1996), 95-3510.

893.587 Annotation Claims for injury caused by an archdiocese’s alleged fraudulent misrepresentation that the archdiocese did not know that priests it assigned had histories of sexually abusing children and did not know the priests were dangerous to children were not barred by this section. None of the listed statutes in this section refers to fraudulent misrepresentations. Doe v. Archdiocese of Milwaukee, 2007 WI 95, 303 Wis. 2d 34, 734 N.W.2d 827, 05-1945.

893.587 Annotation The limitations period in this section applies only to claims alleging that the defendant caused the plaintiff’s injury by committing an enumerated act. In this case, the issue was not whether the plaintiff could sue the individual who sexually assaulted the plaintiff as a child. The plaintiff’s action to recover damages was for injury caused by a non-profit organization’s act of negligently hiring, retaining, and supervising that individual. Because the plaintiff did not allege that the organization committed an enumerated injury-causing act, the plaintiff’s claim was not an action to recover damages to which this section applied. The governing time limit was instead the three-year statute of limitations under s. 893.54, as extended by s. 893.16. Fleming v. Amateur Athletic Union of the United States, Inc., 2023 WI 40, 407 Wis. 2d 273, 990 N.W.2d 244, 21-1054.

893.59 893.59 Actions concerning damage to highway or railroad grade. An action under s. 88.87 (3) (b) to recover damages to a highway or railroad grade shall be commenced within 90 days after the alleged damage occurred or be barred.

893.59 History History: 1979 c. 323.

893.59 Note Judicial Council Committee’s Note, 1979: This section has been created to place into ch. 893 the statute of limitations for an action to recover damages to a highway or railroad grade. (See note following s. 88.87 (3) (b)). [Bill 326-A]

subch. VI of ch. 893 SUBCHAPTER VI

ACTIONS RELATED TO FINANCIAL TRANSACTIONS
OR GOVERNMENTAL OBLIGATIONS

893.60 893.60 What actions not affected. Actions against directors or stockholders of a moneyed corporation or banking association or against managers or members of a limited liability company to recover a forfeiture imposed or to enforce a liability created by law shall be commenced within 6 years after the discovery by the aggrieved party of the facts upon which the forfeiture attached or the liability was created or be barred.

893.60 History History: 1979 c. 323; 1993 a. 112.

893.60 Note Judicial Council Committee’s Note, 1979: This section is previous s. 893.51 renumbered for more logical placement in restructured ch. 893. [Bill 326-A]

893.61 893.61 Contract for payment of money; governmental subdivisions. An action upon any bond, coupon, interest warrant or other contract for the payment of money, whether sealed or otherwise, made or issued by any town, county, city, village, school district or technical college district in this state shall be commenced within 6 years after the cause of action accrues or be barred.