John Doe 56 v. Mayo Clinic Health System - Eau Claire Clinic, Inc.

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Justia Opinion Summary

Minors John Doe 56 and John Doe 57 and their parents filed suit against Dr. Van de Loo and related entities, claiming medical malpractice. Specifically, the Does alleged that they were sexually assaulted during a medical examination. The circuit court granted Defendants’ motions to dismiss on statute of limitations grounds. The court of appeals affirmed. The Supreme Court affirmed, holding (1) the Does’ allegations could constitute an actionable medical malpractice claim; and (2) the statute of limitations barred the Does’ medical malpractice claims, as the claims accrued on the date Dr. Van de Loo last physically touched the Does during their genital examinations, rather than when the Does learned that Dr. Van de Loo’s genital examination may, in fact, have constituted a criminal act.

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2016 WI 48 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2014AP1177 John Doe 56, John Doe 57, a minor and Parents of John Does 56 and 57, Plaintiffs-Appellants-Petitioners, v. Mayo Clinic Health System - Eau Claire Clinic, Inc., David A. Van de Loo, M.D., ProAssurance Casualty Co. and Injured Patients and Families Compensation Fund, Defendants-Respondents. REVIEW OF A DECISION OF THE COURT OF APPEALS (Reported at 362 Wis. 2d 540, 885 N.W.2d 885) (Ct. App. 2015 – Unpublished) OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: CONCURRED: DISSENTED: June 23, 2016 February 24, 2016 Circuit Eau Claire Michael A. Schumacher BRADLEY, A. W., J. and ABRAHAMSON, J. dissent (Opinion filed). NOT PARTICIPATING: ATTORNEYS: For the plaintiffs-appellants-petitioners, there were briefs by Eric J. Magnuson and Robins Kaplan LLP, Minneapolis, and Russell D. Nicolet, Adam L. Nicolet, and Nicolet Law Office, S.C., Hudson. Oral argument by Eric J. Magnuson. For the defendants-respondents David A. Van de Loo and ProAssurance Casualty Company, there was a brief by Samuel J. Leib, Brent A. Simerson and Wilson Elser Moskowitz Edelman & Dicker, LLP, Milwaukee, and oral argument by Samuel J. Leib. For the defendant-respondent Injured Patients & Families Compensation Fund, there was a brief by Jeremy T. Gill and Nash, Spindler, Grimstad & McCracken, LLP, Manitowoc. For the defendants-respondents Mayo Clinic Health SystemEau Claire Clinic, Inc. and ProAssurance Casualty Co., there was a brief by Guy DuBeau, Timothy M. Barber, and Axley Brynelson, LLP, Madison, and oral argument by Guy DuBeau. 2 2016 WI 48 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2014AP1177 (L.C. No. 13CV608 & 13CV13000) STATE OF WISCONSIN : IN SUPREME COURT John Doe 56, John Doe 57, a minor and Parents of John Does 56 and 57, Plaintiffs-Appellants-Petitioners, FILED v. Mayo Clinic Health System - Eau Claire Clinic, Inc., David A. Van de Loo, M.D., ProAssurance Casualty Co. and Injured Patients and Families Compensation Fund, JUN 23, 2016 Diane M. Fremgen Clerk of Supreme Court Defendants-Respondents. REVIEW of a decision of the Court of Appeals. ¶1 REBECCA G. BRADLEY, J. Affirmed. Minors John Doe 56 and John Doe 57 appeal from the decision of the court of appeals,1 which affirmed the circuit court's2 dismissal of the Does' medical malpractice claims based on the statute of limitations. The 1 John Doe 56 v. Mayo Clinic Health Sys.-Eau Claire Clinic, Inc., No. 2014AP1177, unpublished slip op. (Wis. Ct. App. Apr. 1, 2015)(per curiam). 2 The Honorable Michael A. Schumacher of Eau Claire County presided. No. issue is whether the statute of limitations for 2014AP1177 medical malpractice claims, Wis. Stat. § 893.55(1m)(a) (2013-14),3 bars this action. More specifically, this case involves a disagreement as to when the Does' claims for medical malpractice accrued. The circuit court and court of appeals determined that the Does' claims accrued on the last day Dr. David A. Van de Loo4 performed the genital examinations malpractice allegedly occurred. 3 during which the medical The Does contend their claims Wisconsin Stat. § 893.55, in pertinent part provides: (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. All references to the Wisconsin Statutes are to the 2013-14 version unless otherwise indicated. We cite to the most recent version of the statutes because no pertinent changes have been made. 4 Dr. Van de Loo is no longer licensed to practice medicine in Wisconsin. We refer to him with the title "Dr." throughout the opinion because he was licensed at the time he rendered treatment to the Does in this medical malpractice case, and because the absence of his Wisconsin license to practice medicine does not change the fact that he obtained a medical degree. 2 No. 2014AP1177 for medical malpractice did not accrue until they learned in news reports that the State had charged Dr. Van de Loo with second-degree sexual assault of another boy for physically manipulating that boy's penis during a genital examination very similar to the Does' own examinations. The Does contend that this knowledge caused them to suffer extreme emotional distress and other psychological injuries because the boys then believed that Dr. Van De Loo sexually assaulted them under the guise of a genital examination. reports caused them The Does are not arguing that the news to discover that they had been injured during the genital examinations; rather, they are asserting that no injury had occurred, and therefore, their claims did not accrue, until they learned that Dr. Van de Loo's conduct during the genital examinations might have involved a criminal sexual assault. ¶2 sexual At the assault outset, during a we address medical whether examination pursued as a medical malpractice action. that victims who are sexually allegations may of lawfully be We are not convinced assaulted by their physician during an appointment can state an actionable claim for medical malpractice. See Deborah S.S. v. Yogesh N.G., 175 Wis. 2d 436, 499 N.W.2d 272 (Ct. App. 1993)(improper sexual conduct by a physician constitutes against a patient intentional during conduct, a not physical medical examination malpractice). Sexual assault is an intentional act and therefore should be pursued as an intentional tort in the civil arena or criminal matter, not under a claim of medical negligence. 3 as a When No. there exists, genital however, examination, malpractice. See a legitimate a J.W. claim v. medical can WI purpose fall 2005 B.B., 2014AP1177 for within App 125, a medical ¶10, 284 Wis. 2d 493, 700 N.W.2d 277 (digital-rectal prostate exams done as part medical of a pre-employment malpractice where physical physician properly had a fell within legitimate medical purpose or reason for the allegedly inappropriate touching). ¶3 In Deborah S.S., the patient underwent a neurological examination during which the physician touched her vagina, buttocks, and breast, and she felt the physician's penis become erect against her body. Id., 175 Wis. 2d at 439. The parties agreed the sexual acts "did not serve any medical reason related to the examination" and were therefore "not part of the medical treatment accorded to the patient." agreement, it was clear that Id. at 443. Deborah S.S. Based on this did not have an actionable medical malpractice claim because the sexual touching was unrelated to the neurological treatment. In J.W., like the instant case, this separation was not evident. The medical malpractice alleged in J.W. consisted of an unnecessary digitalrectal prostate physical. Id., examination ¶¶2, as 9-11. a The part of a patients pre-employment asserted these examinations were unnecessary and improper and may have been done for sexual rather than medical reasons. Id., ¶¶10-12. The J.W. court distinguished J.W. from Deborah S.S. because the J.W. plaintiffs did not "allege the physician touched them in places or in ways that served no medical purpose or reason, such that the prostate exams were not a part of the medical treatment the 4 No. physician provided." was a medical J.W., ¶10. purpose for 2014AP1177 In other words, because there conducting digital-rectal prostate exams, the alleged conduct was part of the medical treatment and the only issue was whether "performing digital-rectal prostate exams on healthy, twenty-five-year-old males during pre- employment physicals was 'unnecessary and improper treatment,' thus constituting medical malpractice." Id. (citation omitted). The J.W. court held that under these circumstances, J.W.'s case properly fell within medical malpractice. ¶4 The Does' case is more akin to J.W. than Deborah S.S. The Does alleged that the touching occurred during their medical treatment——during their annual examinations. The Does allege that Dr. Van de Loo asserts he had a legitimate medical purpose for manipulating examinations, the and boys' the penises Does claim during that their Dr. Van genital de Loo's "touching" during the medical examination was "unnecessary and improper treatment." These allegations actionable medical malpractice claim. could constitute an Northwest Gen. Hosp. v. Yee, 115 Wis. 2d 59, 61-62, 339 N.W.2d 583 (1983) (This court has held that "unnecessary and improper treatment [] constitute[s] malpractice."). ¶5 Further, this case comes to us following a motion to dismiss. Our review on a motion to dismiss requires us to accept the facts alleged in the pleadings as true. Enters., Inc. v. Kellogg Sales Wis. 2d 555, 699 N.W.2d 205. unnecessary and improper Co., 2005 WI See Kaloti 111, ¶11, 283 The Does' pleadings allege both treatment 5 and that Dr. Van de Loo No. 2014AP1177 professes a medical reason for the manipulation of the Does' genitals. Accordingly, we cannot hold as a matter of law that no claim exists under medical malpractice law. We therefore analyze whether the circuit court properly dismissed the Does' medical malpractice claim based on the statute of limitations in Wis. Stat. § 893.55(1m)(a). To decide whether the statute of limitations bars the Does' medical malpractice claims, we must determine whether their claims accrued on the date Dr. Van de Loo last physically touched the Does during their genital examinations or whether accrual occurred when the Does learned that Dr. Van de Loo's genital examination may, in actuality, have constituted a criminal act. ¶6 We hold that the Does' claims accrued on the date of the last physical touching by Dr. Van de Loo because that is the only moment at which a "physical injurious change" occurred. This is consistent with the "physical injurious change" test we use for determining accrual in medical malpractice cases. See Estate of Genrich v. OHIC Ins. Co., 2009 WI 67, ¶17, 318 Wis. 2d 553, 769 N.W.2d 481 ("[T]he determination of a 'physical injurious change' is the appropriate benchmark for establishing the date of 'injury' under Wis. Stat. § 893.55(1m)(a)."). The Does' last appointments with Dr. Van de Loo were December 31, 2008 for Doe 56 and December 31, 2009 for Doe 57. They did not file this medical malpractice action until October 2013, more than three years after each boy's last genital examination with Dr. Van de Loo. malpractice are Accordingly, the Does' time-barred by the 6 claims for three-year medical medical No. 2014AP1177 malpractice statute of limitations, Wis. Stat. § 893.55(1m)(a).5 Therefore, the decision of the court of appeals is affirmed. I. ¶7 BACKGROUND On October 9, 2013, John Doe 56, John Doe 57, and their parents filed suit against Dr. Van de Loo, Mayo Clinic Health System, ProAssurance Casualty Company and the Injured Patients and Families Compensation Fund alleging a variety of claims, including a claim for medical malpractice, which is the only claim involved in appeal.6 this The facts and any reasonable inferences derived therefrom are taken from the Does' complaint and are set forth below. ¶8 The complaint's first paragraph states that these boys "may have been the victim[s] of sex crimes." Dr. Van de Loo served as Doe 56's From 2003 to 2008, primary care physician. During this timespan, while Doe 56 was 10 to 15 years old, he received medical treatment from Dr. Van de Loo that included Dr. Van de Loo touching Doe 56's genitals. Doe 57 also received medical treatment from Dr. Van de Loo, including touching of Doe 57's genitals between 2003 to 2009 when Doe 57 was 8 to 14 years 5 Although the Does argued the discovery rule in the circuit court, they abandoned this argument on appeal. They do not argue that their claim was timely filed under Wis. Stat. § 893.55(1m)(b)'s one-year date-of-injury discovery rule, and therefore we analyze only when the Does' claim accrued under § 893.55(1m)(a). 6 The Does' attorney vociferously emphasized during oral argument that the only claim being argued here is the claim for medical malpractice. 7 No. old. During "inflicted the harmful occasions." respective bodily time contact" periods, on the Dr. Does 2014AP1177 Van "on de Loo multiple As a result of this contact, the boys suffered "great pain of mind and body" and Dr. Van de Loo's actions "caused bodily harm." The Does do not provide specific dates for their examinations, but instead give only a year range. ¶9 The Does' complaint further alleges: Dr. Van de Loo "touched the genitals of additional minor male patients" and "did not wear gloves while he was performing examinations of minor male patients." The examinations included physical manipulation of the penis. Dr. Van de Loo asked parents to leave genital the room during the examination, leaving the doctor and the minor patient alone in the room. ¶10 Van In August 2012, a minor male patient reported that Dr. de Loo had touched his genitals during a physical examination and this led to criminal charges being filed against Dr. Van assault de by Loo an in October employee genitals or pubic area." of 2012 an for entity "second[-]degree and one for sexual exposing The State ultimately charged Dr. Van de Loo with 16 felony counts based on his conduct with male patients.7 The Does allege that Dr. Van de Loo claimed his 7 Dr. Van de Loo states in his brief that a jury acquitted him on 14 of the 16 criminal counts with which he was charged, and that the prosecutor agreed to dismiss the remaining two counts in exchange for Dr. Van de Loo's agreement to stop practicing medicine and surrender his medical license. This information, however, is not contained in the record. 8 No. 2014AP1177 genital examinations served a medical purpose in furtherance of professional medical services and denied that his conduct was criminal. ¶11 The Does assert they did not discover any damages until the October 2012 news report on the criminal case against Dr. Van de Loo. At that time, they discovered that Dr. Van de Loo's conduct caused them profound psychological damages.8 The boys "now realize" they have suffered "and will continue to suffer great pain of mind and body, including, but not limited to: depression, anxiety, embarrassment, emotional distress, self-esteem issues, and loss of enjoyment of life." ¶12 The medical malpractice cause of action alleged Dr. Van de Loo "failed to exercise reasonable care and medical skill in . . . which he diagnosed, cared, treated and rendered medical services to Doe 56, including, but not limited to providing unnecessary and improper treatment." ¶13 The defendants filed motions to dismiss arguing the medical malpractice statute of limitations expired, barring the Does' claims based on medical malpractice.9 The circuit court 8 As noted, the Does are not arguing the discovery rule on appeal. The Does use the term "discover" not in the sense that they discovered that Dr. Van de Loo had injured them when he touched their genitals, but to argue that the October 2012 news about Dr. Van de Loo caused the actual injury. 9 The circuit court decided additional motions to dismiss not pertinent here as this appeal involves only the Does' dismissal of their medical malpractice claims. The parties reported at oral argument that the Does' claim for sexual battery against Dr. Van de Loo survived all of the motions to dismiss and is still pending in the circuit court. 9 No. 2014AP1177 granted the motions to dismiss on statute of limitations grounds and the court of appeals affirmed. We granted the Does' petition for review. II. ¶14 which STANDARD OF REVIEW This case involves the review of a motion to dismiss, presents a question of law we review independently. Alberte v. Anew Health Care Servs. Inc., 2000 WI 7, ¶6, 232 Wis. 2d 587, 605 N.W.2d 515. A motion to dismiss tests the sufficiency of a complaint and will be upheld only when there are no conditions under which a plaintiff may recover. Enters., Inc., 283 Wis. 2d 555, ¶11. Kaloti Whether a plaintiff's complaint fails to state a claim is a question of law we review de novo. Id., ¶10. Moreover, in a review of a motion to dismiss, we construe the pleadings liberally and accept as true both the facts contained in the complaint and any reasonable inferences arising from those facts. Id., ¶11. The motion to dismiss here is based on whether the complaint was timely filed under the applicable § 893.55(1m)(a). statute This of involves limitations, the Wis. interpretation Stat. and application of a statute to an undisputed set of facts, which also presents a question of law we review de novo. Wis. 2d 553, ¶10. Genrich, 318 If a complaint is not timely filed, the claim is time-barred and dismissal will be upheld. See Pritzlaff v. Archdiocese of Milwaukee, 194 Wis. 2d 302, 312, 533 N.W.2d 780 (1995). ¶15 In this case, whether the Does' medical malpractice claims were timely filed is dependent upon when their claim 10 No. accrued. 2014AP1177 Accrual dates in medical malpractice claims are based on the date of injury or, if applying the discovery rule, the date the injury was or should have been discovered. See Wis. Stat. § 893.55(1m). III. A. ¶16 ANALYSIS Medical Malpractice Statute of Limitations Wisconsin Stat. § 893.55(1m)(a) provides: (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[.] ¶17 Courts are repeatedly asked to apply this statute to a particular set of facts to determine malpractice claim was timely filed. different, Wisconsin case law has whether a medical Although every case is over time developed a consistent test for determining the date of injury in medical malpractice claims under Wis. Stat. § 893.55(1m)(a): date of the "physical injurious change." 553, ¶17. This test has worked in it is the Genrich, 318 Wis. 2d a scenarios and withstood the test of time. variety of factual It was applied when the negligent conduct was a misdiagnosis, see Paul v. Skemp, 2001 WI 42, 242 Wis. 2d 507, 625 N.W.2d 860 (physical injurious change was when blood vessel ruptured); when the negligent conduct was a failed tubal ligation, see Fojut v. Stafl, 212 Wis. 2d 827, 569 N.W.2d 737 (Ct. App. 1997)(physical injurious change was the moment of conception), and when a foreign object 11 No. 2014AP1177 was left in the patient during surgery, see Genrich, 318 Wis. 2d 553 (physical injurious change was when a sponge was left inside a surgical patient). ¶18 change Thus, we must determine when the physical injurious occurred here. The Federal District Court for the Western District of Wisconsin recently decided this exact issue in Doe 52 v. Mayo Clinic Health System-Eau Claire Clinic, Inc., 98 F. Supp. 3d 989, 994-95 (W.D. Wis. 2015). Doe 52 involved similar allegations by another male, minor patient of Dr. Van de Loo. Doe 52 alleged a medical malpractice claim against Dr. Van de Loo based on "'unnecessary and improper [medical] treatment' in the form of inappropriate touching." brackets in original). Id. (citation omitted; Doe 52 had undergone the same genital examinations as the Does while a patient of Dr. Van de Loo. id. at 990-91. See Doe 52 made the same argument to the federal district court that the Does make here: that no injury occurred (and therefore no claim accrued) until he learned that the State was charging examinations. Dr. Van de Loo Id. at 994. criminally for the genital The Doe 52 court rejected this argument and held that Doe 52's claims accrued at the time Dr. Van de Loo last inappropriately touched Doe 52. Id. at 995-96. The Doe 52 court reasoned that because the malpractice alleged was unnecessary inappropriate and touching, improper "the treatment, 'physical specifically injurious change' plaintiff suffered was the touching, and any later emotional distress was an additional injury[.]" added). As a result, the Doe 52 12 Id. at 996 (emphasis court held that Doe 52's No. 2014AP1177 claims, which were filed more than three years from the last genital examination, § 893.55(1m)(a). ¶19 were time-barred by Wis. Stat. We agree with this analysis.10 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. These boys suffered an injury when Dr. Van de Loo physically touched their genitals in an allegedly inappropriate way. To hold otherwise runs contrary to existing case law and would defeat the purpose behind the "prompt medical litigation malpractice ensures statute fairness." of See limitations Aicher ex that rel. LaBarge v. Wisconsin Patients Comp. Fund, 2000 WI 98, ¶¶51-54, 237 Wis. 2d 99, 613 N.W.2d 849. ¶20 change The Does contend that there was no physical injurious at the time of the allegedly inappropriate touching because they did not know at that time that the touching was wrongful. Therefore, the Does argue their cause of action could not have accrued at the time of the touching. sympathetic to this argument, 10 we are not Although we are persuaded by it. The dissent criticizes our reliance on this federal case because a federal district court decision is not binding authority. See dissent, ¶45. Although it is true we are not bound by federal district court decisions, see State v. Mechtel, 176 Wis. 2d 87, 94, 499 N.W.2d 662 (1993), the opinion on which we rely is highly persuasive. It is a 2015 decision from the Western District of Wisconsin involving the same defendant as in this case——Dr. Van de Loo; it addresses the same unique circumstances presented here; and its analysis is reasonable, logical, and consistent with Wisconsin case law. 13 No. Expiration before a of the medical patient knows malpractice about the statute injury is of 2014AP1177 limitations unfortunately a consequence of the legislature's policy reasons for enacting the medical malpractice statute of limitations. Wis. 2d 99, ¶¶2-6. See Aicher, 237 In Aicher, a 13-year-old claimed she became blind in one eye as a result of alleged medical malpractice committed during newborn. Id., ¶2. Stat. § 893.55. an examination of Aicher when she was a We held her claim was time-barred by Wis. Id., ¶6. We explained that the medical malpractice statute of limitations was enacted to promote prompt litigation of claims, to put the alleged wrongdoer on notice to defend a claim within a specified time period, and to avoid stale or fraudulent claims "brought after memories have faded or evidence has been lost." Id., ¶27 (citation omitted). Sometimes Wis. Stat. § 893.55 expires before a patient knows an injury occurred: We see no distinction between closing the doors to the courtroom for claimants when an injury has not been discovered within a fixed period of time after some act or omission and closing the doors to the courtroom for a person whose injury has not yet occurred within a fixed period of time after some act or omission. The effect of extinguishing a remedy in court is the same. This court has concluded many times that the legislature may sever a person's claim by a statute of limitations or a statute of repose when the person has had no possibility of discovering the injury——when the person has been blameless in every respect. These decisions represent judicial deference to the stated policy of the legislature. Aicher, 237 Wis. 2d 99, ¶50. The physical injurious change here occurred when Dr. Van de Loo allegedly inappropriately touched 14 No. the Does' genitals. 2014AP1177 The fact the Does may not have known at the time that the touching was allegedly inappropriate or that the manipulation of their genitals constituted the physical injurious change does not change this fact. See Fojut, 212 Wis. 2d from at 831-32 (physical injurious change negligent tubal ligation was moment of conception, a date the patient could not have known). ¶21 We are further not persuaded by the Does' claim that no physical injurious change occurred at all because Dr. Van de Loo's physical manipulation of their penises with his bare hands did not leave bruises, scrapes, or other physical damage. of a physical mark does not mean that no physical Lack injury occurred under the circumstances here. As the Does allege in their alleged complaint: Dr. Van de Loo's inappropriate touching "caused bodily harm" and was "harmful bodily contact." The physical injurious change here was the alleged sexual manipulation of the penis, a physical action. improper The boys' genitals were physically touched in an allegedly inappropriate sexual way, which had not occurred prior to Dr. Van de Loo's allegedly negligent conduct. To conclude otherwise would result in a holding that a patient who is wrongfully touched in a sexual manner actionable by claim his after or her the physician improper does touching not have unless an the physician does physical damage to their genitals. ¶22 Further, accepting the Does' position that their claim did not accrue until they learned that Dr. Van de Loo was being charged criminally for similar genital examinations would result 15 No. 2014AP1177 in a limitless extension of the medical malpractice statute of limitations and change the causation connection in medical malpractice cases from the negligent act to a fortuitous event—— here the media reporting about the criminal charges against Dr. Van de Loo. ¶23 In essence, the Does are asking us to conclude that they had no injury until they learned about the criminal charges against Dr. Van de Loo. Stated otherwise, learning about the criminal charges caused them to be injured for the first time. This would mean that if no patient had ever reported Dr. Van de Loo's genital examination as improper, or the State had declined to file criminal charges, or the media had not reported on the charges or the Does never saw the media reports, the Does would never have suffered an injury and their claim would never have accrued. injury The Does' position is not reasonable. of a patient's medical malpractice The date of claims cannot be tethered to whether or when the media reports on an allegedly criminal act, nor can it be dependent on whether another patient makes a report. A physician's actions either fall below the standard of care and cause injury or they do not. that a physician is being charged criminally Knowledge cannot be the causal factor in whether or not medical negligence results in injury. Moreover, adopting the the medical Does' position malpractice could indefinitely extend statute of limitations. Here, the news report about Dr. Van de Loo came only a few years after the Does' last examination, but what if the news report came 10 or 20 or 30 years after the last contact 16 No. with Dr. Van purpose for Wis. 2d 99, de Loo? enacting This Wis. ¶¶22-27, unreasonable. would Stat. 29-32, defeat the § 893.55, 50-51, legislature's see 53-54, 2014AP1177 Aicher, and would 237 be We will not interpret a statute in a way that renders it absurd or unreasonable. See State v. Ziegler, 2012 WI 73, ¶43, 342 Wis. 2d 256, 816 N.W.2d 238. ¶24 Thus, we conclude that the Does' medical malpractice claims accrued on the date of the last genital examination. It was on that date that each suffered the "physical injurious change" that triggered the start of the three-year statute of limitations. The psychological injuries, caused by the knowledge that Dr. Van de Loo had been criminally charged for similar touching of other boys, constituted a subsequent injury from the same tortious act (the inappropriate touching). emotional manifestation based upon the previously This completed physical injury (the improper touching of the boys' genitals during the physical examination) does not restart the running of the statute of limitations. ("later injury arising from See Genrich, 318 Wis. 2d 553, ¶21 the same tortious act does not restart the running of the statute of limitations")(citations and quotation marks omitted). ¶25 The Does do not provide the specific date of the last genital examination in their complaint, but include only a year range. The parties, however, agreed to use the last date of each calendar year from the last year in the range given. For Doe 56, that date was December 31, 2008 and for Doe 57 that date was December 31, 2009. Thus, 17 the three-year statute of No. 2014AP1177 limitations for Doe 56 expired December 31, 2011, and the threeyear statute of limitations for Doe 57 expired December 31, 2012. Because the Does did not file their medical malpractice complaint until October 2013, their claims are time-barred by Wis. Stat. § 893.55(1m)(a). Accordingly, their complaints were properly dismissed and the decision of the court of appeals is affirmed.11 B. ¶26 priests Reliance on John BBB Doe v. Archdiocese of Milwaukee12 in a medical malpractice case John in the minor victims. BBB Doe involved Milwaukee seven Archdiocese cases sexually alleging assaulted that the Id., 212 Wis. 2d 312, 318, 565 N.W.2d 94 (1997). The issue involved determining the date on which the victims discovered or should have in the exercise of reasonable diligence discovered that the sexual abuse caused injury. at 318-19. Id. We held that a victim of this clergy sexual abuse either discovered or should have discovered "that he or she was 11 This does not leave the Does without a remedy. Pursuant to Wis. Stat. § 893.587, the Does have claims for sexual assault that are not barred until they are 35 years old. See id. ("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.") As explained in footnote 9, the Does' sexual battery claim is still pending. 12 See John BBB Doe v. Archdiocese of Milwaukee, 211 Wis. 2d 312, 565 N.W.2d 94 (1997). 18 No. 2014AP1177 injured at the time of the alleged sexual assaults or by the last date of the alleged multiple assaults." ¶27 Does Id. The circuit court in this case applied John BBB Doe to 56 and 57's claims to conclude that both boys either discovered or should have discovered that they were injured on the date of the last inappropriate genital exam. The court of appeals in this case also applied John BBB Doe to conclude that the Does' negligence claims against Mayo Clinic accrued at the time of the touching. See John Doe 56 v. Mayo Clinic Health Sys.-Eau Claire Clinic, Inc., No. 2014AP1177, unpublished slip op., ¶22 (Wis. Ct. App. Apr. 1, 2015)(per curiam). court, however, argument. the Does not making a discovery-rule Thus, the John BBB Doe discovery-rule holding is not pertinent to our analysis. IV. ¶28 are In this See id., 211 Wis. 2d at 318-19.13 CONCLUSION 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. See Genrich, 318 Wis. 2d 553, ¶17. 13 We are not convinced that John BBB Doe should apply to a medical malpractice case. There are significant differences between clergy-abuse cases and alleged sexual abuse in a medical malpractice case. Namely, there are medical reasons for a physician to touch a patient's genitals in the course of a legitimate physical examination. Although the line between an inappropriate sexual touching and a medically necessary touching of the body may not always be clear, a physician nevertheless is in a very different position than a priest or clergy-person. A priest or clergy-person has no legitimate reason to touch another person's genitals. 19 No. 2014AP1177 Dr. Van de Loo's last physical contact with the Does' genitals occurred when he manipulated each boys' penis in an allegedly inappropriate and unnecessary manner. genital examinations were December December 31, 2009 for Doe 57. The dates of the last 31, 2008 for Doe 56 and The Does did not file these medical malpractice claims until October 2013, more than three years after each Doe had his last genital examination. Accordingly, their medical malpractice claims are time-barred by the medical malpractice § 893.55(1m)(a). statute of limitations, Wis. Stat. Further, we see no reason to extend John BBB Doe to this medical malpractice case where the discovery rule is not an issue.14 14 The dissent's analysis in support of its conclusion that the Does' case is most like Paul v. Skemp, 2001 WI 42, ¶20, 242 Wis. 2d 507, 625 N.W.2d 860, is illogical. Paul was a misdiagnosis case, where the negligence was an omission leading to an injury that occurred two months after Paul was last seen. See Paul, 242 Wis. 2d 507, ¶2, ¶¶4-5. The physical injurious change did not occur at the same time as the negligent act, but the Pauls' lawsuit was filed within the fiveyear statute of repose. Id., ¶¶6, 12. The Does' case is not a misdiagnosis case, Dr. Van de Loo's alleged negligent act was the affirmative act of touching the boys' genitals (allegedly unnecessary and improper treatment) rather than an omission, and the Does' physical injurious change occurred at the time of the touching. Attempting to analogize the Does' case to a misdiagnosis case is simply wrong. (continued) 20 No. 2014AP1177 The dissent's second point suggesting that this opinion creates a statute of repose not found in Wis. Stat. § 893.55(1m) is also unfounded. The statute of repose issue raised by the dissent——and notably not by the parties——is unnecessary to resolve the case presented to us; therefore we do not address it. The dissent's statements misconstrue an issue not before this court and warrant clarification. In dicta, Paul raised the possibility that the date of injury under § 893.55(1m)(a) could potentially exceed the five-year statute of repose in § 893.55(1m)(b) and urged the legislature to resolve the potential conflict. Paul, 242 Wis. 2d 507, ¶¶48-49. The legislature has not taken up that request. Isolated cases, relying on Paul's dicta, have held that the five-year statute of repose in § 893.55(1m) only applies to the discovery rule paragraph (b) and is inapplicable to paragraph (a). See, e.g., Storm v. Legion Ins. Co., 2003 WI 120, ¶¶9-10, 265 Wis. 2d 169, 665 N.W.2d 353 (alleging medical malpractice against psychologists where hypnosis was used to recover memories of childhood sexual abuse that were later found to be untrue and allegedly led to patient developing multiple personality disorder; also involving tolling for mental illness); Forbes v. Stoeckl, 2007 WI App 151, ¶1, 303 Wis. 2d 425, 735 N.W.2d 536 (doctrine of continuous treatment in dental malpractice case applies, allowing claim timely made under Wis. Stat. § 893.55(1)(a) to include negligence that pre-dates the fiveyear repose limitation under (1)(b)). Before Wis. Stat. § 893.55 was enacted, there was no discovery rule applicable to medical malpractice actions, see Claypool v. Levin, 209 Wis. 2d 284, 292-94, 562 N.W.2d 584 (1997), and medical malpractice claimants had to file suit within three years of their injury. See Aicher ex rel. LaBarge v. Wisconsin Patients Comp. Fund, 2000 WI 98, ¶24, 237 Wis. 2d 99, 613 N.W.2d 849. As cases arose where claimants did not discover their injuries until after three years had already passed, we urged the legislature to amend the statute of limitations because three years from the time of injury was "too short." Id. (citations omitted). The legislature later enacted the current statute of limitations: (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, (continued) 21 No. By the Court.—The decision of the court of 2014AP1177 appeals is affirmed. 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. Wis. Stat. § 893.55. Finally, we note the reasons the legislature enacted this statute of limitations (as well as the statute of repose): to promote fair and prompt litigation, protect defendants from stale or fraudulent claims, and ensure claims are litigated before the truth is "obfuscated by death or disappearance of key witnesses, loss of evidence, and faded memories." Aicher, 237 Wis. 2d 99, ¶27. Adopting the Does' argument in this case would eviscerate the three-year statute of limitations and flout the legislative policy choices on which it is based by effectively allowing a plaintiff to bring a medical malpractice claim whenever he chooses simply by alleging his emotional distress began even decades after the allegedly unnecessary and improper treatment occurred. 22 No. 2014AP1177.awb ¶29 ANN WALSH BRADLEY, J. (dissenting). I agree with the majority that in this case "we cannot hold as a matter of law that Majority no op., claim exists ¶5. The under majority medical is malpractice correct that law." the Does' allegations against Dr. Van de Loo constitute actionable medical malpractice claims because the alleged conduct was part of the Does' medical treatment during their annual that "the examinations. Majority op., ¶4. ¶30 Additionally, I agree John BBB Doe discovery-rule holding is not pertinent to our analysis" because the Does are not making a discovery-rule argument. Majority op., ¶26 (citing John BBB Doe v. Archdiocese of Milwaukee, 211 Wis. 2d 312, 565 N.W.2d 94 (1997). "not convinced that malpractice case." ¶31 John BBB Doe Like the majority, I also am should apply to a medical Majority op. n.12. I write separately, however, because I disagree with the conclusion that the Does' claims for medical malpractice are time-barred by limitations. the three-year medical Majority op., ¶6. malpractice statute of The majority opinion suffers from two analytical missteps: (1) It muddles Wisconsin's medical malpractice jurisprudence by failing to distinguish between cases in which injury and negligence occurred simultaneously and those negligence. in which the injury occurred after the As a result it erroneously concludes that 1 No. 2014AP1177.awb the Does' injuries occurred at the same time as the allegedly negligent medical examinations; and (2) It conflates the statute of repose under Wis. Stat. § 893.55(1m)(b) with the statute of limitations for the Does’ claims pursuant to Wis. Stat. § 893.55(1m)(a), thereby judicially creating a statute of repose that contravenes the plain language of the statute and our case law. ¶32 injuries Contrary to the majority, I conclude that the Does' did negligence. not Their occur simultaneously claims accrued when with they the alleged 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. 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. Accordingly, I respectfully dissent. I ¶33 At issue in this case is whether the Does' claims accrued at the time of Dr. Van de Loo's allegedly negligent genital examinations or whether they accrued when the Does suffered severe emotional distress upon learning that they were the victims of child sexual assault. ¶34 The Does allege that Dr. Van de Loo committed medical malpractice when he sexually assaulted them under the guise of a genital examination. They were children at the time, as young as eight and ten years old, when Dr. Van de Loo performed some 2 No. 2014AP1177.awb of the examinations. not immediately Accordingly, they understand that Dr. assert that they did Van de Loo's conduct constituted sexual assault. ¶35 Rather, the Does contend that they realized Dr. Van de Loo's examinations were improper years later after learning that he had been criminally charged conducting a sexually gratifying minor patient. with sexual assault for genital examination on another The complaint against Dr. Van De Loo alleges they suffered physical injury in the form of severe emotional distress, including depression, anxiety, embarrassment, emotional distress, self-esteem issues, and loss of enjoyment of life, upon learning that they had been sexually assaulted by their trusted physician.1 ¶36 The Does bring their medical malpractice claims against Dr. Van de Loo pursuant to Wis. Stat. § 893.55(1m)(a), which provides for a three-year statute of limitations from the date of the injury. Although the Does filed medical malpractice 1 The majority acknowledges that the Does' suffered "psychological injuries," but asserts that their severe emotional distress constituted a subsequent injury to the "inappropriate touching." Majority op., ¶24; see also Bowen v. Lumbermens Mut. Cas. Co., 183 Wis. 2d 627, 632, 517 N.W.2d 432 (1994) ("[I]n a cause of action for negligent infliction of emotional distress the injury a plaintiff must prove is severe emotional distress; but the plaintiff need not prove physical manifestation of that distress."); see also Camp ex rel. Peterson v. Anderson, 2006 WI App 170, ¶21, 295 Wis. 2d 714, 721 N.W.2d 146 (Bowen recognizes direct claims for negligent infliction of emotional distress, as long as a plaintiff's claim satisfies the elements of negligent conduct, causation and injury (severe emotional distress) and is not otherwise barred by public policy."). 3 No. 2014AP1177.awb claims against Dr. Van de Loo more than three years after the date of their last examinations, they allege that their claims were filed within three years of the date they suffered alleged physical injury in the form of severe emotional distress. ¶37 Wisconsin's medical malpractice law provides for two alternative statutes of limitations depending on whether the plaintiff brings a claim under Wis. Stat. § 893.55(1m)(a) or (b). The former provides a three-year statute of limitations with no statute of repose and the latter sets forth Wisconsin's discovery of injury rule with a five-year statute of repose: [A]n 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. Wis. Stat. § 893.55 (1m). ¶38 In discovered this an case, existing the Does injury do not years allege after it that they occurred. Consequently, they do not pursue a "discovery" claim under Wis. Stat. § 893.55(1m)(b). not suffer physical Rather, the Does assert that they did injury until they experienced severe emotional distress upon learning that they were victims of child sexual assault perpetrated by Dr. genital examinations. 4 Van de Loo during their No. 2014AP1177.awb II ¶39 The majority muddles Wisconsin's medical malpractice jurisprudence by failing to distinguish between cases in which injury and negligence occur simultaneously and those in which injury occurs after the negligent act, enabling it to assert that the Does' injuries occurred at the same time as the law has allegedly negligent medical examinations. ¶40 According to the majority, "Wisconsin case over time developed a consistent test for determining the date of injury in medical § 893.55(1m)(a): change.'" malpractice claims under Wis. Stat. it is the date of the 'physical injurious Majority op., ¶17 (quoting Estate of Genrich v. OHIC Ins. Co., 2009 WI 67, ¶17, 318 Wis. 2d 553, 769 N.W.2d 481). The majority concludes that "the Does' claims accrued on the date of the last physical touching by Dr. Van de Loo because that is the only moment at which a 'physically injurious' change occurred." Majority op., ¶6. ¶41 of the Given the nature of the Does' claims, the application here. Even change test properly fits, its application merely begs the question: when assuming Genrich that test appears Genrich's to be physically an odd fit injurious did the Does' suffer a physical injurious change? ¶42 The majority conclusively states constitutes a physically injurious change. But what’s the change? ¶43 Describing that touching Majority op., ¶19. The majority doesn’t tell us. a touching as constituting a physical injurious change seems at odds also with common parlance. 5 Does No. 2014AP1177.awb it make sense to state as a matter of law that when there is a touching a physical injurious change occurs? ¶44 It policy. also Will does make sense cases future not deem a I don’t think so. as claim a to matter be of good sufficiently stated if together with a negligent act all that need be alleged is that one was touched on the arm or the leg or some part of the torso? ¶45 Where is the stopping point? Without giving the reader a clue about what changed or how it changed, the majority relies solely on a federal district court decision for its conclusion that the physically injurious change the plaintiff suffered occurred allegedly negligent examination. simultaneously to the Majority op., ¶18 (citing Doe 52 v. Mayo Clinic Health System-Eau Claire Clinic, Inc., 98 F. Supp. 3d benefits 989, from 996 (W.D. Wis. the analysis 2015). of a Although federal this district court court's interpretation of State law, it is not binding authority. The majority’s reliance on a sole federal district court decision is not an adequate substitute for its failure to apply the facts of this case to established Wisconsin precedent. ¶46 first Under Because the majority completely fails to do so, I will set forth Wisconsin enforcement until the case law, both injury have occurred." law "[a] a relevant tort claim negligent act to the Does' is not and an claims. capable of accompanying Paul v. Skemp, 2001 WI 42, ¶20, 242 Wis. 2d 507, 625 N.W.2d 860 (quoting Hansen v. A.H. Robins Inc., 113 Wis. 2d 550, 554, 335 N.W.2d 578 (1983). 6 Thus, it is not the No. 2014AP1177.awb negligence, but the injury resulting from the negligent act that begins the three-year statute of limitations period. Id. ¶47 737 In Fojut v. Stafl, 212 Wis. 2d 827, 829, 569 N.W.2d (Ct. App. litigation 1997), surgery the in plaintiff order to underwent prevent became pregnant a few months later. elective pregnancy, tubal but then At issue was whether Fojut suffered physical injury on the date of the surgery, which the parties agreed was the date of the alleged negligent act, or the later date of conception. ¶48 Id. at 829-30. Fojut concluded that the date of the injury triggering the three-year medical malpractice statute of limitations was the date of conception, rather than the date of the surgery. Id. at 830-31. The Fojut court explained that there was no evidence that the plaintiff suffered physical injury on the date the surgery was performed. that Fojut pregnant. suffered Id. Id. at 831. physical injury on Instead, it determined the date she became Thus, the three-year medical malpractice statute of limitations began to run from the later date of conception, rather than the date of the alleged negligent act. ¶49 Id. Similarly, in Paul, the plaintiffs claimed that the misdiagnosis of the cause of their daughter's recurring headaches resulted in a ruptured blood vessel in her brain, which caused her death. 242 Wis. 2d 507, ¶1. This court concluded that "[t]he Pauls' claim for medical malpractice did not, and could not, accrue until [their daughter] suffered an injury." Id., ¶2. The Paul 7 court explained that "[a] No. 2014AP1177.awb misdiagnosis may be a negligent omission, but it is not, in and of itself, an injury." ¶50 Paul Id. Based on the plain language of Wis. Stat. § 893.55(1), concluded "omission" that and the legislature "injury" should not intend that conflated. be did Id., ¶20. According to the Paul court, "[t]he plain language of Wis. Stat. § 893.55(1)(a) indicates that it is not the negligence, but the injury resulting from the negligent initiates the limitations period."2 act Id. or omission which Paul explained that "[a]s our long-time precedent has established, the negligence and its result——and injury——should be considered separately. The negligence must cause an injury before there is an accrual of a claim." Id., ¶34 (citing Meracle v. Children's Serv. Soc'y, 149 Wis. 2d 19, 26, 437 N.W.2d 532 (1989)). ¶51 occurred In when contrast, in Genrich, doctors left a sponge cavity after performing surgery. the surgical until sponge approximately in two Genrich experienced an alleged negligence in Genrich's abdominal 318 Wis. 2d 553, ¶3. Genrich's weeks developed a fatal infection. the abdomen after Id. injury was the not However, discovered surgery when he This court concluded that triggering the statute of limitations when the doctors left the sponge in his abdomen on 2 The majority attempts to explain away the import of Paul v. Skemp, 2001 WI 42, ¶20, 242 Wis. 2d 507, 625 N.W.2d 860. Majority op., ¶28 n.14. Yet, there is no explaining away Paul's clear conclusion cited above, which explicitly applies to both "negligent acts or omissions." Thus, the majority's attempt to distinguish Paul as a case addressing only an "omission" is a non-starter. 8 No. 2014AP1177.awb the date of the surgery. Id., ¶18. Thus, in Genrich, the negligence and the injury occurred simultaneously. ¶52 The Does' claims are more analogous to Fojut and Paul, than to Genrich. They do not allege that they were physically injured at the time of the examination. that they were physically injured Instead, the Does argue when they suffered severe emotional distress upon learning that they had been sexually assaulted by Dr. Van de Loo. As the Does' counsel explained at oral argument, there are no allegations in the complaint that the Does were physically different after Dr. Van de Loo's examination. ¶53 Despite the fact that the majority fails to apply the facts of this case to the law set forth in Wisconsin precedent, the majority summarily asserts that "[t]o hold otherwise runs contrary to existing case law. . . ." Majority op., ¶19. After applying the facts of this case to Wisconsin's well-established case law, I reach the opposite conclusion of the majority and determine that the Does' claims did not accrue until they suffered severe emotional distress upon learning that they were victims of child sexual assault perpetrated by Dr. Van de Loo during their physical examinations. III ¶54 Not only does the majority muddle Wisconsin case law, its analysis of the statute of limitations conflates the statute of repose under Wis. Stat. § 893.55(1m)(b) with the statute of limitations for the Does’ claims pursuant to Wis. Stat. § 893.55(1m)(a), thereby judicially creating a statute of repose 9 No. 2014AP1177.awb that contravenes the plain language of the statute and our case law. ¶55 forth The plain language of Wis. Stat. § 893.55(1m)(b) sets the one-year discovery statute of limitations together with a five-year statute of repose for plaintiffs who allege that they did not discover their injury at the time the negligence occurred: 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. ¶56 In contrast, under Wis. Stat. § 893.55(1m)(a), there plainly is a three-year statute of limitations but no statute of repose. 169, 665 Storm v. Legion Ins. Co., 2003 WI 120, ¶19, 265 Wis. 2d N.W.2d 353 ("We conclude under a plain reading of § 893.55(1)(b) that the five-year repose period applies only to actions brought pursuant to the discovery rule in paragraph (b)); Forbes v. Stoeckl, 2007 WI App 151, ¶1, 303 Wis. 2d 425, 735 N.W.2d 536 (five-year statute of repose under Wis. Stat. § 893.55(1m)(b) does not apply to accrual claims brought under Wis. Stat. § 893.55(1m)(a)).3 3 The majority embraces a two-pronged approach in an attempt to rebut the assertion that it is judicially creating a statute of repose that contravenes case law. Both prongs fail. (continued) 10 No. 2014AP1177.awb ¶57 The majority's discussion conflates the three-year statute of limitations applicable to the Does' claims with the five-year statute of repose applicable to discovery rule claims. It contends that "[s]ometimes Wis. Stat. § 893.55 expires before a patient knows an injury occurred . . ." According to the majority, "[e]xpiration Majority op., ¶20. 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 statue of limitations." Majority op., ¶20. However, the issue in this case is not whether the Does knew about their injuries, but when they were injured. ¶58 As set forth above, the Does argue that they were not injured and that therefore their claims did not accrue until they suffered severe emotional distress upon learning that they First, the majority attempts to discredit clear Wisconsin Supreme Court precedent by labeling its conclusion as "dicta." Majority op., ¶28 n.14. As the court of last resort in this state, our conclusions cannot be dicta. State v. Picotte, 2003 WI 42, ¶61, 261 Wis. 2d 249, 661 N.W.2d 381; State v. Kruse, 101 Wis. 2d 387, 392, 305 N.W.2d 85 (1981); Chase v. American Cartage Co., 176 Wis. 235, 238, 186 N.W. 598 (1922) ("[W]hen a court of last resort intentionally takes up, discusses, and decides a question germane to, though not necessarily decisive of, the controversy, such decision is not a dictum, but is a judicial act of the court which it will thereafter recognize as a binding decision."). Second, noting that the parties did not raise a statute of repose issue, the majority takes the dissent to task for discussing it. Admittedly, the parties did not raise a statute of repose issue——but the discussion and analysis of the majority opinion most certainly did. See, e.g., majority op., ¶20. Accordingly, I respond to that discussion and analysis. 11 No. 2014AP1177.awb had been victimized as children perpetrated by Dr. Loo. by the sexual assaults This is distinguishable from a claim brought under Wis. Stat. § 893.55(1m)(b), in which a plaintiff may bring a claim if an injury is not discovered at the time it occurs. ¶59 The majority acknowledges that "[t]he Does are not arguing that the news reports caused them to discover that they had been injured during the genital examinations; rather, they are asserting that no injury had occurred, and therefore, their claims did not accrue, until they learned that Dr. Van de Loo’s conduct during the genital examinations might have involved a criminal sexual assault." Majority op., ¶1 (emphasis in original); see also Majority op., ¶11 n.8 ("The Does use the term 'discover' not in the sense that they discovered that Dr. Van de Loo had injured them when he touched their genitals, but to argue that the October 2012 news about Dr. Van de Loo caused the actual injury.") (emphasis in original). ¶60 plain Not only does the majority's analysis contravene the language Wisconsin case addressing the of law Wis. Stat. by failing discovery § 893.55, rule's to it also distinguish statute of addressing accrual claims such as the Does. contravenes between repose and cases cases Relying on Aicher ex rel. LaBarge v. Wisconsin Patients Comp. Fund, 2000 WI 98, 237 Wis. 2d 99, 613 N.W.2d 849, the majority asserts that "the legislature may sever a person's claim by a statute of limitations or a statute of repose when the person has had no possibility of discovering the injury . . ." 12 Majority op., ¶20 No. 2014AP1177.awb (citing Aicher, 237 Wis. 2d 99, ¶50). Remarkably, the majority fails to acknowledge that Aicher addressed a discovery claim brought under Wis. Stat. § 893.55(1m)(b), not an accrual claim like the Does' claims brought under Wis. Stat. § 893.55(1m)(a). ¶61 In contrast to the Does’ case, the plaintiff in Aicher alleged that she became blind in her right eye as a result of medical negligence that occurred during her newborn examination, but that later. she did not discover 237 Wis. 2d 99, ¶2. the condition until a decade Aicher is also distinguishable from this case because the parties did not dispute that the condition resulted in an injury during the first six months of Aicher's life. Id. ¶62 The majority further asserts that "[t]he fact the Does may not have known at the time that the touching was allegedly inappropriate or that the manipulation of their genitals constituted the physical injurious change does not change this fact." for the Majority op., ¶20 (citing Fojut, 212 Wis. 2d at 831-32 proposition that "physical injurious change from negligent tubal ligation was moment of conception, a date the patient could not have known."). Again, the majority conflates the accrual rule set forth in Fojut, with the discovery rule set forth under Wis. Stat. § 893.55(1m)(a). ¶63 Neither Fojut nor Paul limit the time period within which a medical malpractice claim might accrue, yet the majority contends the opposite, thereby judicially creating a statute of repose for accrual claims. Although the plaintiff in Fojut became pregnant a few months after her surgery, it is just as 13 No. 2014AP1177.awb possible that she could Likewise, in Paul, the have become failure to pregnant diagnose years the later. patient's condition began nearly a decade before she passed away. Wis. 2d 507, ¶3-4. 242 This was a much longer period of time than the few years at issue in this case, yet the Paul court found that the plaintiff's claim did not accrue until she suffered actual physical injury. ¶64 Id., ¶2. As the Does' counsel aptly stated at oral argument, the legislature could have chosen to enact a statute of repose that applied to Wis. Stat. § 893.55(1m)(a), but it chose not to do so. Unlike the majority, I refuse to endorse a judicially created statute of repose that contravenes the plain language of the statute and well-established Wisconsin case law. ¶65 In sum, I conclude that the Does' injuries did not occur simultaneously with the alleged negligence. accrued when they suffered severe emotional Their claims distress upon learning that they were the victims of child sexual assaults perpetrated by examinations. medical Dr. Van de Loo during their physical Thus, the Does' claims are not time-barred by the malpractice statute of limitations because the Does' filed their claims within three years of the date they accrued. Accordingly, I respectfully dissent. ¶66 I am authorized to state ABRAHAMSON joins this dissent. 14 that Justice SHIRLEY S. No. 2014AP1177.awb 1