Paynter v. ProAssurance Wisconsin Insurance Co.
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The Supreme Court affirmed in part and reversed in part the decision of the court of appeals affirming an order of the circuit court granting summary judgment in favor of Defendant, a medical doctor, on Plaintiffs' claim that Defendant negligently failed diagnose Plaintiff with cancer and violated Plaintiff's right to informed consent, holding that Wisconsin's borrowing statute did not apply to Plaintiffs' negligence claim.
In his motion for summary judgment Defendant argued that Plaintiffs' claims were foreign causes of action pursuant to the borrowing statute, Wis. Stat. 893.07, and therefore, Michigan's statute of limitations applied to Plaintiffs' claims rendering their claims untimely. The circuit court granted summary judgment for Defendant. The court of appeals affirmed, applying the Michigan statute of limitations to both of Plaintiffs' claims. The Supreme Court reversed in part, holding (1) because Plaintiff's place of first injury was unknowable, Wisconsin's borrowing statute did not apply; and (2) Plaintiffs' informed consent claim was "foreign" for purposes of Wisconsin's borrowing statute, and therefore, that claim was untimely.
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2019 WI 65 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2017AP739 David W. Paynter and Kathryn M. Paynter, Plaintiffs-Appellants-Petitioners, v. ProAssurance Wisconsin Insurance Company, James A. Hamp and American Physicians Assurance Corporation, Defendants-Respondents, Continental Casualty Company, Wisconsin Injured Patients and Families Compensation Fund, Keith A. Henry and Blue Cross Blue Shield of Michigan, Defendants. REVIEW OF DECISION OF THE COURT OF APPEALS Reported at 381 Wis. 2d 239,911 N.W.2d374 PDC No:2018 WI app 27 - Published OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: February 1, 2019 SOURCE OF APPEAL: COURT: COUNTY: JUDGE: Circuit Ashland Robert E. Eaton JUSTICES: CONCURRED: June 7, 2019 A.W. BRADLEY, J. concurs and dissents (opinion filed). R.G. BRADLEY, J. concurs and dissents, joined by KELLY, J. (opinion filed). DISSENTED: NOT PARTICIPATING: ATTORNEYS: For the plaintiffs-appellants-petitioners, there were briefs filed by D. James Weis, Susan R. Tyndall, and Habush Habush & Rottier S.C., Waukesha. There was an oral argument by Eric J. Ryberg. For the defendants-respondents (James A. Hamp, M.D., and American Physicians Assurance Corporation), there was a brief filed by Jason J. Franckowiak, Lori Gendelman, and Otjen, Gendelman, Zitzer, Johnson & Weir, S.C., Waukesha. There was an oral argument by Jason J. Franckowiak. For the defendants-respondents (Proassurance Wisconsin Insurance Company), there was a brief filed by Mark E. Larson, Bradley S. Foley, and Gutglass, Erickson, Bonville & Larson, S.C., Milwaukee. There was an oral argument by Mark E. Larson. 2 2019 WI 65 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2017AP739 (L.C. No. 2015CV80) STATE OF WISCONSIN : IN SUPREME COURT David W. Paynter and Kathryn M. Paynter, Plaintiffs-Appellants-Petitioners, v. ProAssurance Wisconsin Insurance Company, James A. Hamp and American Physicians Assurance Corporation, FILED JUN 7, 2019 Defendants-Respondents, Continental Casualty Company, Wisconsin Injured Patients and Families Compensation Fund, Keith A. Henry and Blue Cross Blue Shield of Michigan, Sheila T. Reiff Clerk of Supreme Court Defendants. REVIEW of a decision of the Court of Appeals. Affirmed in part, reversed in part, and cause remanded. ¶1 SHIRLEY S. ABRAHAMSON, J. This is a review of a published decision of the court of appeals affirming an order of the Circuit Court for Ashland County, Robert E. Eaton, Judge, No. 2017AP739 granting summary judgment in favor of Defendant-Respondent Dr. James A. Hamp. ¶2 Paynter Plaintiffs-Appellants-Petitioners live in Bessemer, Wisconsin-Michigan Michigan, border. The David a city Paynters and Kathryn located near the sued Dr. Hamp, a medical doctor who practiced in both Wisconsin and Michigan, alleging that he negligently failed to diagnose Mr. Paynter with cancer. The Paynters also allege that Dr. Hamp violated Mr. Paynter's right to informed consent. ¶3 Dr. Hamp moved for summary judgment, arguing that the Paynters' claims are "foreign cause[s] of action" pursuant to Wisconsin's borrowing statute, Wis. Stat. § 893.07 (2015-16).1 ¶4 Wisconsin's borrowing statute adopts the limitations rule of a foreign jurisdiction and applies it to any "foreign cause of action" as if it were Wisconsin's own statute, provided that the foreign period of limitation is shorter than Wisconsin's period of limitation.2 ¶5 statute, Dr. Hamp argues that pursuant to Wisconsin's borrowing Michigan's Paynters' claims. statute of limitations applies to the It is undisputed that if Michigan's statute of limitations applies, the Paynters' claims are untimely. 1 All subsequent references to the Wisconsin Statutes are to the 2015-16 version unless otherwise indicated. 2 Wis. Stat. § 893.07; Guertin v. Harbour Assur. Bermuda, Ltd., 141 Wis. 2d 622, 624 n.1, 415 N.W.2d 831. 2 Co. of No. ¶6 2017AP739 The Paynters argue that their claims are not "foreign cause[s] of action" under the borrowing statute. Thus, they argue that Wisconsin's statute of limitations applies to their claims. It is undisputed that if Wisconsin's statute of limitations applies, the Paynters' claims are timely. ¶7 summary The circuit judgment. traditionally used court It granted considered to resolve Dr. five Hamp's motion for that are questions and factors choice-of-law concluded that those factors favored applying Michigan's statute of limitations. ¶8 than the The Paynters appealed. The court of appeals, applying a different analysis circuit court, affirmed the granting summary judgment to Dr. Hamp. circuit court's order The court of appeals announced that "in cases involving an injury or injuries that allegedly occurred in multiple states, the plaintiff's cause of action is not foreign, for purposes of the borrowing statute, when the first instance of injury occurred in Wisconsin."3 ¶9 The court of appeals held that because the Paynters lived in Michigan during the four-year period between Dr. Hamp's alleged misdiagnosis and Mr. Paynter's discovery of his injury, the Paynters' negligence claim was "foreign" for purposes of the borrowing statute. The court of appeals further held that the Paynters' informed consent claim was "foreign" for purposes of the borrowing statute because 3 Mr. Paynter was located in Paynter v. ProAssurance Wis. Ins. Co., 2018 WI App 27, ¶29, 381 Wis. 2d 239, 911 N.W.2d 374. 3 No. 2017AP739 Michigan at the time his right to informed consent was allegedly violated. Accordingly, the court of appeals applied the Michigan statute of limitations to both claims and affirmed the circuit court order granting summary judgment in favor of Dr. Hamp. The Paynters petitioned this court for review. ¶10 medical On this issue of first impression, we hold that in malpractice cases involving a negligent misdiagnosis that results in a latent, though continuous, injury, whether the action is "foreign" for purposes of Wisconsin's borrowing statute is determined by whether the plaintiff's first injury occurred outside of Wisconsin. ¶11 We disagree with the court of appeals' conclusion that the borrowing statute applies to the Paynters' negligence claim. On the record before the court, Mr. Paynter's place of first injury appears to be beyond ascertainment to any reasonable, non-speculative degree. injury is unknowable, When the plaintiff's place of first as in the instant case, Wisconsin's borrowing statute does not apply. ¶12 However, we agree with the court of appeals that the Paynters' informed consent claim is "foreign" for purposes of Wisconsin's borrowing statute. Therefore, we apply Michigan's statute of limitations to the Paynters' informed consent claim and conclude that the claim is untimely. Dr. Hamp is entitled to summary judgment as to that claim. ¶13 Accordingly, the court of affirmed in part and reversed in part. appeals' decision is We remand the cause to the court of appeals in order to address the Paynters' argument 4 No. 2017AP739 that the circuit court erred by determining that an insurance policy issued to Dr. Hamp by Defendant-Respondent ProAssurance Wisconsin Insurance Company did not provide coverage for the Paynters' claims.4 I ¶14 Unless otherwise noted, the following facts are undisputed. ¶15 David Paynter and his wife, Kathryn Paynter, live in Bessemer, Michigan, a city located near the Wisconsin-Michigan border. In April 2010, Mr. Paynter saw Dr. Peter Areson, a Wisconsin physician, regarding a growth on the upper right side of his neck. Dr. Areson referred Mr. Paynter to Dr. Hamp, an ear, nose, and throat specialist, who practiced both in Ashland, Wisconsin, and Ironwood, Michigan. ¶16 On June 10, 2010, Dr. Hamp performed an aspiration5 of the growth on Mr. Paynter's neck. in Dr. Hamp's Michigan office. The aspiration was performed Dr. Hamp's staff transported the samples from Mr. Paynter's growth to Wisconsin to be analyzed by a pathologist. 4 Paynter, 381 Wis. 2d 239, ¶3 n.3 ("Because we conclude the circuit court properly dismissed the Paynters' claims on other grounds, we need not address the Paynters' insurance coverage argument."). 5 In this context, the term "aspiration" refers to the "[w]ithdrawal of fluid from a cavity by suctioning off with an aspirator" for the purpose of "obtain[ing] specimens." Paynter, 381 Wis. 2d 239, ¶5 n.4. 5 No. ¶17 On June 14, 2010, Dr. Hamp's office 2017AP739 received the pathologist's report, which indicated that Mr. Paynter's growth was cancerous. That same day, Dr. Hamp called the Paynters' home telephone in Michigan and told Mr. Paynter that the growth was not cancerous and that Mr. Paynter did not need any further treatment.6 ¶18 Four years later, on June 19, 2014, Mr. Paynter had surgery to remove the growth and was diagnosed with cancer the same day. The doctor who performed the surgery requested that the pathology materials from the procedure be compared to the slides from the aspiration Dr. Hamp performed in June 2010. The following week, the doctor informed Mr. Paynter that his cancer had been present in June 2010. ¶19 The Paynters mailed a request for Wisconsin's Medical Mediation Panels in May 2015.8 mediation7 to On August 31, 2015, the Paynters filed the instant lawsuit in Ashland County 6 As the court of appeals noted, certain facts relating to the telephone call appear to be in dispute. In his briefing before this court, Dr. Hamp does not appear to dispute that the call was made, at least for purposes of our review. We assume that the call was made on June 14, 2010, and we note that Dr. Hamp's location at the time the call was made does not affect our analysis. 7 Wisconsin Stat. § 655.44(4) tolls the statute of limitations applicable to medical malpractice actions "on the date of mailing if [the request is] sent by registered mail." 8 The parties dispute the exact date that the Paynters mailed their request for mediation. The dispute does not affect our analysis. 6 No. 2017AP739 Circuit Court against Dr. Hamp; his Michigan medical malpractice insurer, American Wisconsin medical Physicians malpractice Assurance insurer, Company; ProAssurance and his Wisconsin Insurance Company.9 ¶20 Mr. Paynter alleged that as a result of Dr. Hamp's negligent failure to diagnose his cancer in June 2010, he was required to undergo extensive surgery and radiation, resulting in permanent injuries and damages, including facial paralysis. Mrs. Paynter alleged that as a result of injuries sustained by Mr. Paynter, she was deprived of the society and companionship of her spouse. ¶21 During his deposition, Dr. Hamp admitted that "[Mr. Paynter's] survival and prognosis would be improved if he had been treated in 2010 versus 2014." On this point, Dr. Hamp was confident, testifying: "I'm not guessing." ¶22 Dr. Hamp claimed in his deposition that he did not see the pathologist's report, but that if he had, he would have recommended surgically because that Mr. removed even benign Paynter have regardless growths of will 9 the growth whether continue it on was to his neck malignant expand and, The Paynters' complaint named two other physicians and their respective insurers as defendants. However, the Paynters stipulated to the dismissal of their claims against one of those physicians and his insurer, and they did not oppose the other physician's motion for summary judgment, which the circuit court granted. 7 No. 2017AP739 eventually, get to the point where they will break down the skin. ¶23 Mr. Paynter also alleged that Dr. Hamp violated his right to informed consent, resulting in permanent injuries and damages. Mrs. Paynter alleged that as a result of Dr. Hamp's violation of Mr. Paynter's right to informed consent, she was deprived of the society and companionship of her spouse. ¶24 The Paynters asserted in their complaint that Mr. Paynter first knew or should have known of his injury on or after June 19, 2014. ¶25 ProAssurance moved for summary judgment, arguing that the policy it issued to Dr. Hamp did not provide coverage for the Paynters' claims. motion, stating The circuit court denied ProAssurance's that "if there was failure to provide information that fell short of the standard of care that failure occurred in Wisconsin, and it wasn't because the biopsy was done in a manner that fell beyond the professional standard. clearly the interpretation and communication of the It is results. And none of that happened in Michigan . . . ." ¶26 believed Based on these statements, the Paynters and Dr. Hamp that they were coverage issue. entitled to summary judgment on the The Paynters moved for summary judgment, and Dr. Hamp joined the Paynters' motion. ¶27 This time, however, the circuit court concluded that a "professional incident" occurred in Michigan because Dr. Hamp gave Mr. benign Paynter a immediately preliminary after the 8 opinion that aspiration the was growth was performed. No. Accordingly, the ProAssurance. circuit court granted summary 2017AP739 judgment to After additional arguments regarding what actions Dr. Hamp took in Wisconsin, the circuit court indicated that the Paynters should file a motion for reconsideration. ¶28 for Before the circuit court decided the Paynters' motion reconsideration, arguing that application Dr. Hamp Wisconsin's of moved borrowing Michigan's statute for summary statute of judgment, required limitations to the the Paynters' claims, and under Michigan's statute of limitations, the Paynters' claims were untimely. ¶29 summary The circuit judgment. traditionally used court It to granted considered resolve choice Dr. five of Hamp's factors law motion for that are questions10 and concluded that those factors favored applying Michigan's statute of limitations. Having granted Dr. Hamp's motion for summary judgment, the circuit court never addressed the Paynters' motion for reconsideration regarding whether the ProAssurance covered their claims against Dr. Hamp. ¶30 The court of appeals order, but on different grounds. policy The Paynters appealed. affirmed the circuit court's The court of appeals announced that "in cases involving an injury or injuries that allegedly 10 See State Farm Mut. Auto. Ins. Co. v. Gillette, 2002 WI 31, ¶53, 251 Wis. 2d 561, 641 N.W.2d 662 (setting forth the following factors: (1) predictability of results; (2) maintenance of interstate and international order; (3) simplification of the judicial task; (4) advancement of the forum's governmental interests; and (5) application of the better rule of law). 9 No. 2017AP739 occurred in multiple states, the plaintiff's cause of action is not foreign, for purposes of the borrowing statute, when the first instance of injury occurred in Wisconsin."11 ¶31 Before determining where the "first injury" occurred, the court of appeals first sought to determine when the first injury occurred. occurred, the misdiagnosis In determining when Mr. Paynter's first injury court cases, of appeals "an observed actionable that injury in occurs negligent when the misdiagnosis causes a greater harm than existed at the time of the misdiagnosis."12 ¶32 The court of appeals concluded that in the instant case, Dr. Hamp made a prima facie showing that Mr. Paynter's first injury occurred in Michigan because the record showed that the Paynters resided in Michigan during the four-year period of time between Dr. Hamp's alleged misdiagnosis and Mr. Paynter's discovery of his injury. The court of appeals further concluded that Mr. Paynter's averment that he "was frequently in Wisconsin in between the years 2010 and 2015" failed to rebut Dr. Hamp's prima facie case that the Paynters' suit was a "foreign cause of action" under appeals stated Wisconsin's that the borrowing Paynters statute. did not The provide court of sufficient evidence to "establish——or even suggest——at what point in time 11 12 Paynter, 381 Wis. 2d 239, ¶29. Id., ¶3 (citing Paul Wis. 2d 507, 625 N.W.2d 860). v. Skemp, 10 2001 WI 42, ¶25, 242 No. 2017AP739 [Mr. Paynter] first experienced a greater harm than that which existed at the time of the misdiagnosis."13 ¶33 The court of appeals further concluded that the Paynters' informed consent claim was "foreign" for purposes of the borrowing allegedly statute. violated Mr. The court noted that Paynter's right to Dr. Hamp informed first consent during the June 14, 2010 phone call, and it is undisputed that Mr. Paynter was located in his Michigan home when he received that call. "Because [Mr. Paynter] was located in Michigan at that time, his alleged injury——i.e., the loss of the opportunity to choose his course of treatment——occurred in Michigan, not Wisconsin."14 ¶34 Accordingly, the court of appeals applied the Michigan statute of limitations to both claims and affirmed the circuit court order granting summary judgment in favor of Dr. Hamp.15 The Paynters petitioned this court for review. II 13 Id., ¶36. 14 Id., ¶39. 15 Before the court of appeals, the Paynters conceded that the viability of Mrs. Paynter's derivative claims depends on the viability of Mr. Paynter's claims. Because the court of appeals concluded that Mr. Paynter's claims were untimely, it further concluded that the circuit court properly granted summary judgment to Dr. Hamp on Mrs. Paynter's claims. Paynter, 381 Wis. 2d 239, ¶44 n.13. 11 No. ¶35 2017AP739 This court applies the same method of analysis to a motion for summary judgment as does the circuit court.16 Summary judgment is appropriate under Wis. Stat. § 802.08(2) where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."17 ¶36 Our review of the instant case also requires us to interpret and apply Wisconsin's borrowing statute, Wis. Stat. § 893.07. "[S]tatutory construction is a question of law, which we review de novo, even though we benefit from the analyses of the circuit court and the court of appeals."18 III A ¶37 Dr. Hamp argues that the Paynters' claims are "foreign cause[s] of action" pursuant to Wisconsin's borrowing statute, Wis. Stat. § 893.07. As such, Dr. Hamp contends that Michigan's statute of limitations applies to the Paynters' claims. It is undisputed that if Michigan's statute of limitations applies, the Paynters' claims are time barred. 16 Paul, 242 Wis. 2d 507, ¶8. 17 Wis. Stat. § 802.08(2). 18 Paul, 242 Wis. 2d 507, ¶10 (citing Francis Hosp., 2000 WI 80, ¶12, 236 N.W.2d 120). 12 Czapinski v. Wis. 2d 316, St. 613 No. ¶38 2017AP739 "[S]tatutory interpretation 'begins with the language of the statute. If the meaning of the statute is plain, we ordinarily stop the inquiry.'"19 ¶39 Wisconsin's borrowing statute, Wis. Stat. § 893.07, provides as follows: (1) If an action is brought in this state on a foreign cause of action and the foreign period of limitation which applies has expired, no action may be maintained in this state. (2) If an action is brought in this state on a foreign cause of action and the foreign period of limitation which applies has not expired, but the applicable Wisconsin period of limitation has expired, no action may be maintained in this state. ¶40 The meaning of the phrase "foreign cause of action" is far from plain. The phrase "foreign cause of action" is not, and has never been, expressly defined in Wisconsin's borrowing statute. The phrase also appears to be unique to the borrowing statute; that is, the phrase appears nowhere else in the Wisconsin statutes. ¶41 In Guertin v. Harbour Assurance Company of Bermuda, Ltd., 141 Wis. 2d 622, 415, N.W.2d 831 (1987), this court was required to determine whether the plaintiff's cause of action constituted a "foreign cause of action" pursuant to Wisconsin's borrowing statute. The plaintiff, 19 Frank Guertin, was a State ex rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110 (quoting Seider v. O'Connell, 2000 WI 76, ¶43, 236 Wis. 2d 211, 612 N.W.2d 659). 13 No. 2017AP739 Wisconsin resident who was injured in the state of Illinois when he slipped and fell off the fuel tank of a semi-trailer he was employed to drive.20 ¶42 We determined that the phrase "foreign cause of action" was ambiguous, and therefore, we turned "to extrinsic sources to determine what the legislature meant by the phrase."21 Before turning to extrinsic sources, however, we examined the statutory history of Wisconsin's borrowing statute. ¶43 We observed that "[i]n 1979, the legislature restructured Chapter 893, Limitations of Commencement of Actions and Proceedings and Procedure for Claims Against Governmental Units."22 In Wisconsin's that revision, borrowing the statute, Judicial then Council numbered redrafted Wis. Stat. § 893.205, and renumbered it Wis. Stat. § 893.07. ¶44 Former Wis. Stat. § 893.205(1) did not use the phrase "foreign cause of action," but instead referred to "injuries to the person, received without this state."23 ¶45 We then examined the Judicial Council Committee's Note to Wis. Stat. § 893.07 to help us determine the significance of the changes to the statutory text and derive meaning from the 20 Guertin v. Harbour Assur. Co. of Wis. 2d 622, 624-25, 415 N.W.2d 831 (1987). Bermuda, Ltd., 141 21 Id. at 628; see also Kalal, 271 Wis. 2d 633, ¶50. 22 Guertin, 141 Wis. 2d at 628. 23 Wis. Stat. § 893.205(1) (1977-78); Guertin, 141 Wis. 2d at 629. 14 No. newly enacted language. 2017AP739 Although the revised version of the statute substantively changed the borrowing statute in ways that are not relevant to the present case,24 the Committee observed that other provisions of ch. 893 retained the same form in which they had previously existed and were "redrafted only for greater clarity and ease of application[.]"25 ¶46 We Committee's concluded comments that that it the was "apparent Council considered from the the phrase 'foreign cause of action' to be synonymous with the language of the former borrowing statute, sec. 893.205(1), Stats. (1977), which barred actions 'for injuries to the person, received without this state.'"26 ¶47 Accordingly, we declared that a cause of action is "foreign" for purposes of Wisconsin's borrowing statute if the plaintiff's injury occurred outside of Wisconsin.27 ¶48 We then applied the "place of injury" test. This was a simple task, given that the injury in Guertin was immediate and discrete. Mr. Guertin fell 24 off his semi-trailer and For example, the revisions changed the law of prior Wis. Stat. § 893.205(1), which had provided that a resident in Wisconsin could sue in Wisconsin state courts to recover damages for personal injuries experienced outside of Wisconsin even if the foreign period of limitation had expired. Guertin, 141 Wis. 2d at 629. 25 Guertin, 141 Wis. 2d at 629. 26 Id. at 630. 27 Id. at 630-31. 15 No. sustained injuries in Illinois. were "foreign borrowing cause[s] statute. of The 2017AP739 Therefore, Mr. Guertin's claims action" Illinois pursuant statute to of Wisconsin's limitations for personal injury actions applied to his claims, and therefore, they were properly dismissed as untimely. B ¶49 Although it was clear how to apply the "place of injury" test under the facts of Guertin, application of the test in subsequent cases additional gloss to proved more difficult. cleanly apply to The other test needed claims and fact scenarios where the plaintiff's "place of injury" was not easily pinned down to one particular time and location. ¶50 For example, in Abraham v. General Casualty Company of Wisconsin, 217 Wis. 2d 294, 576 N.W.2d 46 (1998), we had to decide whether Wisconsin's borrowing statute applied to contract actions. ¶51 In the Abraham case, the plaintiff, Paul Abraham, was injured by an automobile while riding his bicycle in the state of Florida.28 insurance After policy exhausting limits, Mr. the Abraham tortfeasor's notified his liability insurer, General Casualty Company of Wisconsin, that he intended to seek underinsured motorist benefits.29 28 When General Casualty refused Abraham v. General Cas. Co. of Wis., 217 Wis. 2d 294, ¶3, 576 N.W.2d 46 (1998). 29 Id., ¶¶4-7. 16 No. to pay the underinsured motorist benefits, Mr. 2017AP739 Abraham sued General Casualty in Wisconsin for breach of contract.30 ¶52 We held that the borrowing statute applied to contract actions,31 but we were mindful that determining the location of the plaintiff's injury "may be more difficult 'in the case of a dispute over a contract, whose 'location' is not easily pinned to a particular contract state is negotiated if, in for example, as is one state, signed common, the in another, and performed in a third.'"32 ¶53 After precedent,"33 we "wad[ing] into determined [a] that the morass of location arguments of "the and final significant event giving rise to a suable claim" should be the determinative factor in deciding whether a claim sounding in contract constitutes a "foreign cause of action" for purposes of the borrowing statute.34 ¶54 We consistent explained with 30 Id., ¶¶7-8. 31 Id., ¶15. that Guertin's this interpretation 32 Id., ¶21 (quoting Johnson F.2d 944, 946 (7th Cir. 1987)). 33 standard was of "not Wis. v. Deltadynamics, only Stat. Inc., 813 See Abraham, 217 Wis. 2d 294, ¶¶21-31. 34 Id., ¶35; see also Mack Trucks, Inc. v. BendixWestinghouse Auto. Air Brake Co., 372 F.2d 18 (3d Cir. 1966); Terranova v. Terranova, 883 F. Supp. 1273 (W.D. Wis. 1995). 17 No. § 893.07," but also clarified, imperfectly,35 if 2017AP739 how that interpretation was to apply "to causes of action sounding in contract where it is frequently difficult to attach the plaintiff's contractual 'injury' to any one locale."36 ¶55 Applying this framework to the facts of Abraham, we concluded that the "final significant event" giving rise to a suable claim for underinsured insurance company's refusal Abraham's request. That denial Abraham's claim therefore, Mr. to motorist benefits was the pay benefits upon Mr. Wisconsin, and the occurred for in underinsured motorist benefits was not a "foreign cause of action" under Wisconsin's borrowing statute. ¶56 Likewise, in Faigin v. Doubleday Dell Publishing Group, Inc., 98 F.3d 268 (7th Cir. 1996), it was not obvious how to properly apply Wisconsin's borrowing statute and our "place of injury" test in the context of a multi-state defamation suit. ¶57 E. In Faigin, sports agent A.J. Faigin represented James Kelly, a former quarterback League's Buffalo Bills.37 for the National Football Mr. Kelly spoke unfavorably of Mr. 35 See Abraham, 217 Wis. 2d 294, ¶35 n.7 (recognizing "that in certain factual situations," the final significant event test "would not be without ambiguity," but emphasizing that, "as with any judicial standard, no one 'test' can give complete certainty to future litigants.'"). 36 Id., ¶35. 37 Faigin v. Doubleday Dell Pub. Grp., Inc., 98 F.3d 268, 269 (7th Cir. 1996). 18 No. 2017AP739 Faigin in an autobiography published by the defendant, Doubleday Dell Group.38 Publishing Of the 28,600 copies of the autobiography that were sold to bookstores, only 41 of them were sold to bookstores in Wisconsin; that is, "a staggering 99.86 percent occurred outside Wisconsin."39 ¶58 Eastern When Mr. Faigin sued Doubleday for defamation in the District of Wisconsin, Doubleday argued that Mr. Faigin's suit was a "foreign cause of action" under Wisconsin's borrowing summary statute. judgment plaintiff's The to injury district Doubleday, has occurred court agreed concluding in more and "that than one granted when the state, it amounts to a 'foreign' cause of action governed by Wisconsin's borrowing statute, notwithstanding the fact that Wisconsin is one of the states in which injury occurred."40 ¶59 The determining Seventh the Circuit locations of reversed. Mr. It Faigin's stated that injuries was "straightforward enough."41 There was evidence supporting the conclusion was that Mr. Faigin injured in Wisconsin, albeit minimally, and there was also evidence supporting the conclusion that Mr. Faigin autobiography was was injured sold.42 The in other Faigin 38 Id. at 269. 39 Id. at 273 (Evans, J., dissenting). 40 Id. at 269-70. 41 Id. at 270. 42 Id. 19 states court where explained the that No. 2017AP739 "[t]his is a quirk of libel law: the plaintiff is generally considered to published. be injured wherever the defamatory writing is In other words, although it is clear where Faigin allegedly was injured, the place of injury cannot be narrowed to one state."43 ¶60 "to This "quirk of libel law" forced the Seventh Circuit decide claims between foreign ultimately or decided a rule all of "that choices[.]"45 imperfect that them deems all not[.]"44 the latter "As it is multi-state libel The court the stands," the Faigin better Faigin of two court explained, "the Wisconsin statute asks one question: did the injury occur inside Wisconsin?"46 Because the answer in Faigin was "yes, if not exclusively[,]" Mr. Faigin's defamation claim did not constitute a foreign cause of action for purposes of the borrowing statute.47 C ¶61 Our discussion of the case law above illustrates that both state and federal courts construing Wisconsin's borrowing statute have focused on the location of the plaintiff's injury in determining whether 43 Id. 44 Id. at 272. 45 Id. 46 Id. 47 Id. a cause 20 of action is "foreign" for No. purposes of the borrowing statute. Generally 2017AP739 speaking, the plaintiff's injury is the "final significant event" giving rise to a cause of action, and it is the plaintiff's location when that injury is sustained that determines whether the cause of action is statute. "foreign" for purposes of Wisconsin's borrowing Although the "place of injury" test has not always been easy to apply, the focus has always remained on identifying the location in which the plaintiff suffered his or her injury. ¶62 Like Abraham and Faigin, the instant case provides another example of a category of cases in which the "place of injury" test requires more gloss. Unlike the single, discrete injury at issue in Guertin (the plaintiff's fall from his truck in Illinois) and the multiple, discrete injuries in Faigin (the sale of libelous books in multiple states, including Wisconsin), the instant case involves an alleged negligent misdiagnosis that resulted in a latent, though continuous, injury. ¶63 We have previously determined what constitutes an actionable "injury" in negligent misdiagnosis cases for purposes of triggering the medical malpractice statute of limitations, Wis. Stat. § 893.55(1m). ¶64 In Paul v. Skemp, 2001 WI 42, 242 Wis. 2d 507, 625 N.W.2d 860, Paul's brain eventually, 48 an Paul N.W.2d 860. arteriovenous ruptured, her v. causing death.48 Skemp, malformation 2001 extensive Jennifer's WI 21 (AVM) 42, 242 Jennifer hemorrhaging parents ¶5, in and and, Jennifer's Wis. 2d 507, 625 No. 2017AP739 estate sued two of Jennifer's doctors, claiming that the doctors misdiagnosed the cause of Jennifer's recurring headaches, resulting in the ruptured AVM.49 ¶65 The doctors maintained that the alleged misdiagnosis.50 Jennifer's "injury" was They argued that because the Pauls' claims were not brought within three years of Jennifer's last complaint about her headaches, the Pauls' claims were time barred. ¶66 The Pauls, on the other hand, maintained that what triggered the misdiagnosis, statute but of limitations rather the rupture was of not the the AVM alleged and the resultant hemorrhaging.51 They argued that their claims were timely brought because they were rupture of Jennifer's AVM.52 within three years of the The Pauls additionally submitted, in opposition to the doctors' motion for summary judgment, an affidavit from an expert witness, who concluded to a reasonable degree of medical certainty that had Jennifer's AVM "been properly diagnosed at any time prior to May 1, 1995, it [was] more likely than not that [Jennifer] would not have sustained the injury and disability she ultimately experienced on May 22, 1995."53 49 Id., ¶1. 50 Id., ¶12. 51 Id., ¶13. 52 Id. 53 Id. 22 No. ¶67 In "injury," we jurisdictions resolving relied that had what on event constituted persuasive previously the authority faced the 2017AP739 actionable from same other issue and concluded that "[a] misdiagnosis, in and of itself, is not, and cannot, be an actionable injury[]" because "[t]he misdiagnosis is the negligent omission, not the injury."54 We explained that "[t]he actionable injury arises when the misdiagnosis causes a greater harm than existed at the time of the misdiagnosis."55 ¶68 Applying this standard to the facts of the case, the Paul court concluded that Jennifer's actionable injury occurred "either at the time that Jennifer's AVM ruptured, or at the time that Jennifer's AVM could no longer be treated."56 Because both of these events would have occurred within the applicable threeyear statute of limitations, we held that the Pauls' claims were timely.57 D ¶69 The Paynters maintain that the Seventh Circuit's reasoning in Faigin should apply to their medical malpractice claims. That is, because Dr. Hamp admitted that Mr. Paynter's 54 Paul, 242 Wis. 2d 507, ¶25; see St. George v. Pariser, 484 S.E.2d 888, 891 (Va. 1997) (concluding that the plaintiff's injury was not the failure to diagnose a mole as cancerous, but rather, "the change in her cancerous condition" from a curable state to a potentially fatal state). 55 Paul, 242 Wis. 2d 507, ¶25. 56 Id., ¶45. 57 Id. 23 No. growth would continue to expand unless and until 2017AP739 it was surgically removed, Mr. Paynter was essentially suffering one continuous injury as his growth expanded. Put another way, "the misdiagnosis cause[d] greater harm than existed at the time of the misdiagnosis" in a continuous fashion as the cancer grew.58 Thus, they argue, if Mr. Paynter entered Wisconsin during the four-year period of time between the misdiagnosis on June 10, 2010 and the growth's removal on June 19, 2014, "at least some" of Mr. Paynter's injury occurred in Wisconsin.59 ¶70 We reject the Paynters' invitation to apply Faigin's reasoning to the facts of the instant case. While we do not comment on the merits of the Seventh Circuit's legal analysis in Faigin as applied to multi-state libel suits, it is clear to us that Faigin's analysis turned on the unique "quirk" of libel law that generally considers a plaintiff to be injured wherever the defamatory writing appeals correctly discrete injuries is published. pointed in out, different That is, "Faigin states[,]" as the involved whereas court of multiple, here, "the Paynters have asserted a single, continuous injury, which they allege was ongoing for the entire period between June 2010 and June 2014, during which time David was physically present in both Michigan and Wisconsin."60 58 See id., ¶25. 59 See Faigin, 98 F.3d at 270-72. 60 Paynter, 381 Wis. 2d 239, ¶26. 24 No. ¶71 render The Paynters' non-foreign proposed virtually analysis, all if medical involving the failure to diagnose cancer. 2017AP739 adopted, would malpractice cases Given that one of the primary purposes underlying Wisconsin's borrowing statute is to prevent forum shopping,61 we cannot accept the ease with which a negligent misdiagnosis "foreign" cause Paynters' theory. of claim action Such could to an a be transformed non-foreign interpretation one from under would, a the without limitation, apply the Wisconsin statute of limitations to anyone who simply travels to Wisconsin, regardless of the frequency or duration of such travel. ¶72 medical Instead, we agree with the court of appeals that in malpractice cases involving a negligent misdiagnosis that results in a latent, though continuous, injury, whether the action is "foreign" for purposes of Wisconsin's borrowing statute is determined by whether the plaintiff's first injury occurred in Wisconsin. ¶73 In our view, the "first injury" test best comports with the case law construing Wisconsin's borrowing statute and the case law describing when a plaintiff suffers an actionable "injury" in the context of a negligent misdiagnosis. As in other cases in which the phrase "foreign cause of action" needed additional gloss to determine whether and how Wisconsin's borrowing statute should apply in a particular context,62 the 61 Guertin, 141 Wis. 2d at 631. 62 See supra ¶¶50-60 (describing Abraham and Faigin). 25 No. 2017AP739 "first injury" test focuses on when a misdiagnosed plaintiff has a suable claim. injured, and A tort becomes "complete" when the plaintiff is the plaintiff in a negligent misdiagnosis case becomes injured when he or she first experiences greater harm as a result of the misdiagnosis than existed at the time of the misdiagnosis.63 when this If the plaintiff is located outside of Wisconsin occurs, the action is "foreign" for purposes of Wisconsin's borrowing statute.64 63 See Paul, 242 Wis. 2d 507, ¶25 64 In addition to being grounded in statutory history and our prior cases interpreting Wisconsin's borrowing statute, tying the application of the borrowing statute to the plaintiff's place of first injury provides the highest degree of certainty to the party most in need of that certainty, i.e., the plaintiff bringing the action. Plaintiffs need to know whether the borrowing statute applies so that they can timely file their claims. Generally speaking, plaintiffs are more likely to know where their injury occurred because they are in control of their own movements and actions. For example, if Mr. Paynter did not leave the state of Michigan during the four-year period of time relevant to the instant case, he would know that regardless of when his first injury occurred, it occurred in Michigan because he never left the state. He would know with a significant degree of certainty that the borrowing statute applied to his claim. However, in addition to lacking support in the statutory history and our case law, alternative approaches also provide lesser, not greater certainty from the perspective of a plaintiff. If operation of the borrowing statute depended on whether every element of the claim occurred outside of Wisconsin, plaintiffs who first suffered an injury at a reasonably discernable time and place outside of Wisconsin would be left with the additional (and difficult) task of determining where the other elements of their claim occurred. 26 No. ¶74 location 2017AP739 As we explain more fully below, however, the time and of plaintiff's "first injury" must be capable ascertainment to a reasonable, non-speculative degree. of When the plaintiff's place of first injury is unknowable, but could have occurred within or outside of Wisconsin, Wisconsin's borrowing statute does not apply. IV A ¶75 We first address the Paynters' negligence claim. ¶76 Dr. Hamp argues, and the court of appeals agreed, that he made a prima facie showing that Mr. Paynter suffered his first injury Paynters lived in Michigan by continuously presenting in Michigan evidence during that the the four-year period of time between Dr. Hamp's alleged misdiagnosis and Mr. Paynter's discovery of his injury. ¶77 Dr. Hamp further argues, and the court of appeals agreed, that Mr. Paynter's averment that he "was frequently in Wisconsin in between the years 2010 and 2015" fails to rebut Dr. Hamp's prima facie case because, as the court of appeals held, the Paynters did not provide sufficient evidence to "establish—— or even suggest——at what point in time [Mr. Paynter] first experienced a greater harm than that which existed at the time of the misdiagnosis," and where Mr. Paynter was located when he experienced that greater harm.65 65 See Paynter, 381 Wis. 2d 239, ¶36. 27 No. ¶78 2017AP739 We conclude that, on the record before the court, Mr. Paynter's place of first injury is beyond ascertainment to any reasonable, non-speculative degree. In such circumstances, Wisconsin's borrowing statute does not apply. ¶79 court In reaching this of appeals' decision conclusion, in Brusa we are guided v. Mercy Health by the System, Inc., 2007 WI App 166, 304 Wis. 2d 138, 737 N.W.2d 1. ¶80 In Brusa, it was alleged that a negligent delay in correctly diagnosing Brusa's death.66 Mr. Brusa with colon cancer caused Mr. Mr. Brusa's son, Joseph, who was four months old at the time of his father's death, brought a derivative suit against the doctor.67 ¶81 The right to pursue a derivative claim for medical malpractice is determined by the plaintiff's status at the time of the patient's injury.68 tasked with determining The court of appeals, therefore, was Mr. Brusa's "date of injury" and deciding whether Joseph had been conceived by that date.69 ¶82 After a discussion of this court's decision in Paul,70 the court of appeals stated: 66 Brusa v. Mercy Health Sys., Inc., 2007 WI App 166, ¶1, 304 Wis. 2d 138, 737 N.W.2d 1. 67 Id., ¶1. 68 Id. (citing Conant v. Physicians Plus Med. Group, Inc., 229 Wis. 2d 271, 274, 600 N.W.2d 21 (Ct. App. 1999)). 69 Brusa, 304 Wis. 2d 138, ¶15. 70 See supra ¶¶64-68. 28 No. 2017AP739 Here, Brusa's date of injury has not been established and is not ascertainable from the record. An injurious change may have occurred shortly after Brusa first consulted with Dr. Fasano, it may have occurred four weeks later when Brusa was to have had a colonoscopy, it may have occurred at some later date, or it may be that Brusa's cancer was untreatable even before he first consulted Dr. Fasano. Even if we accept Dr. Fasano's concession of negligence, which was offered only for the sake of argument on appeal, this question remains: When did Dr. Fasano's misdiagnosis cause Brusa "greater harm" than existed on December 27, 2002?[71] ¶83 similar In this respect, the record in the instant case is to Brusa. When Dr. Hamp's alleged negligent misdiagnosis caused Mr. Paynter "greater harm" than existed at the time of the misdiagnosis appears to be unknowable. We can think of no test by which a finder of fact could determine the location of Mr. Paynter's first injury without speculating. ¶84 Dr. Hamp admitted in his deposition that Mr. Paynter's prognosis would have been improved had Mr. Paynter been treated in 2010 as opposed to 2014; that is, it is undisputed that Mr. Paynter suffered an injurious change in condition at some point between June 2010, when Dr. Hamp is alleged to have negligently failed to diagnose Mr. Paynter's cancer, and June 2014, when Mr. Paynter discovered that his cancer had been present Mr. Paynter in June 2010. ¶85 Dr. Hamp's argument that suffered his first injury in Michigan rests entirely upon the fact that the Paynters resided in Michigan during the four-year period of time 71 Brusa, 304 Wis. 2d 138, ¶14. 29 No. in which nothing Mr. in Paynter the suffered record his showing first that injury. the 2017AP739 There Paynters continuously in the state of Michigan for four years. the opposite is true. Mr. Paynter averred is were In fact, that he was frequently in Wisconsin during that four-year period of time. ¶86 Paynter On the record before the court, when and where Mr. suffered his first injury appears to be beyond ascertainment to any reasonable, non-speculative degree. The record is insufficient to make a reasonable inference one way or the other.72 Wisconsin's borrowing statute applies only to "foreign cause[s] of action," and if the plaintiff's place of 72 Although we acknowledge that the first injury test may result in some degree of uncertainty in particular cases, especially when the period of time between misdiagnosis and discovery of the injury is extensive, no judicial standard can give complete certainty to future litigants. Abraham, 217 Wis. 2d 294, ¶35 n.7. Additionally, we note that not every fact scenario will result in complete uncertainty as to the time and location of the plaintiff's first injury. For example, in Paul, the period of time between the last misdiagnosis and the plaintiff's first injury was, at most, five weeks. It does not appear that it would have been an impossible task to determine where the plaintiff was located during those five weeks had it been relevant to decide the issue. However, the record before this court is an example of a set of facts under which the plaintiff's place of first injury is unknowable, and when the record is such that a fact finder can only speculate as to the location of the plaintiff's first injury, the borrowing statute does not apply. 30 No. first injury is unknowable, as in the instant 2017AP739 case, the borrowing statute does not apply.73 ¶87 Paynters' Because the borrowing statute does not apply to the negligence claim, we apply Wisconsin's medical malpractice statute of limitations to that claim. ¶88 Dr. Hamp concedes, and we agree, that the Paynters' negligence claim is timely under Wisconsin's medical malpractice statute of limitations, Wis. Stat. § 893.55(1m). ¶89 Section 893.55(1m) provides that: 73 That is not to say that every plaintiff whose place of first injury is unknowable may bring an action in Wisconsin courts. Separate and apart from whether the borrowing statute applies to the Paynters' claims, the jurisdictional requirements set forth in International Shoe Co. v. State of Washington, 326 U.S. 310, 316 (1945), must still be met. In International Shoe, the United States Supreme Court explained that due process requires that a defendant "have certain minimum contacts" with the forum state "such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice'". Int'l Shoe, 326 U.S. at 316. The parties did not brief this issue. Nonetheless, we have no trouble concluding that Dr. Hamp had the requisite "minimum contacts" with Wisconsin. Dr. Hamp is licensed to practice medicine in Wisconsin. He maintains an office in Ashland, Wisconsin. Although Dr. Hamp performed the aspiration on Mr. Paynter's growth in his Michigan office, Dr. Hamp sent the samples to Wisconsin where they were analyzed by a pathologist. Given these contacts with the state of Wisconsin, it does not offend "traditional notions of fair play and substantial justice" to subject Dr. Hamp to the jurisdiction of Wisconsin state courts. 31 No. 2017AP739 [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. ¶90 injury It is undisputed that Mr. Paynter first discovered his on June 19, 2014. It is also undisputed that the Paynters mailed their request for mediation to the Wisconsin Medical Mediation Panels sometime during May 2015, which was within one year of June 19, 2014, and was not more than five years after the act giving rise to the Paynters' injury——i.e., the June 14, 2010 misdiagnosis. ¶91 Dr. Hamp Accordingly, is timely. the Dr. Paynters' Hamp is negligence not claim entitled to against summary judgment as to that claim. B ¶92 Next, we address the Paynters' claim that Dr. Hamp violated Mr. Paynter's right to informed consent. ¶93 Dr. Hamp argues that, to the extent Dr. Hamp violated Mr. Paynter's right to informed consent, that injury occurred in Michigan because Mr. Paynter was in Michigan when Dr. Hamp allegedly informed him that his growth was not malignant and needed no further treatment. 32 No. ¶94 2017AP739 The Paynters urge us to apply the reasoning set forth in Abraham74 and conclude that their informed consent claim is not foreign because the "last significant event" giving rise to their claim——i.e., Dr. Hamp's conveyance of his incorrect diagnosis——occurred in Wisconsin. ¶95 We agree with Dr. Hamp and conclude that the Paynters' informed consent claim is a "foreign cause of action" for purposes of Wisconsin's borrowing statute. ¶96 In reaching our conclusion, we are guided by the Eastern District of Wisconsin's decision in Studio & Partners, s.r.l. v. KI, No. 06-C-628, 2007 WL 3342597 (E.D. Wis. Nov. 7, 2007). ¶97 In Studio & Partners, plaintiff Studio & Partners (S&P), an Italian company, claimed that KI, a Wisconsin company, unlawfully schools misappropriated and sustained other injuries S&P's academic in design for settings.75 Wisconsin because S&P a chair used in argued that it where KI that is allegedly: (1) misappropriated S&P's design; (2) concealed its misappropriation; (3) sold the products; (4) caused the filings for fraudulent patents; and (5) earned profits on the stolen design.76 74 See supra ¶¶50-55. 75 Studio & Partners, s.r.l. v. KI, 2007WL3342597, *1 (E.D. Wis. Nov. 7, 2007). 76 Id., *3. 33 No. 06-C-628, No. ¶98 The argument, reflect Eastern explaining where occurred."77 the District that "it alleged of is Wisconsin apparent injury was rejected that caused, 2017AP739 these not S&P's events where it The court in Studio & Partners concluded that the injury occurs where it is felt rather than where it originates, and it was undisputed that "S&P became poorer (if at all) in Italy, not Wisconsin."78 ¶99 We agree Partners. with the reasoning set forth in Studio & To the extent Dr. Hamp violated Mr. Paynter's right to informed consent, that injury was felt in Michigan because Mr. Paynter was in Michigan when Dr. Hamp allegedly informed him that his growth treatment. Paynter] was not malignant and needed no further As the court of appeals explained, "[b]ecause [Mr. was located in Michigan at that time, his alleged injury——i.e., the loss of the opportunity to choose his course of treatment——occurred in Michigan, not Wisconsin."79 77 Id. (emphasis in original). 78 Id. 79 Paynter, 381 Wis. 2d 239, ¶39. (continued) 34 No. 2017AP739 ¶100 Dr. Hamp proved that the Paynters' informed consent claim is a "foreign cause of action" for purposes of Wisconsin's borrowing statute. Accordingly, we apply Michigan's medical malpractice statute of limitations. ¶101 Michigan's statute of limitations applicable to medical malpractice actions requires a plaintiff to file suit within the later of: (1) two years from the date his or her claim accrued;80 or (2) six months after the plaintiff discovered Basing the applicability of the borrowing statute on whether the test in International Shoe is met is not helpful. The jurisdictional test set forth in International Shoe addresses a different issue than the borrowing statute, namely, the former addresses a court's personal jurisdiction over a particular defendant while the latter addresses what statute of limitations applies to a claim that is lawfully brought in a Wisconsin court. If the International Shoe test is met, then the claim may be brought in Wisconsin, but that does not answer the question of whether the borrowing statute applies to the claim. If the International Shoe test is not met, then the claim may not be brought in Wisconsin at all. Under such a test, no claim lawfully brought in Wisconsin will ever be considered a "foreign cause of action" under the borrowing statute. Moreover, as we explained more fully in footnote 64 supra, our approach supplies the highest degree of certainty possible to plaintiffs. Mr. Paynter knew where he was located when he allegedly lost the opportunity to choose his course of treatment. However, that certainty would be undermined if the applicability of the borrowing statute turned on where Dr. Hamp was located when he committed the allegedly tortious act. Given the increased utilization of telemedicine in our healthcare system, Mr. Paynter and similarly situated plaintiffs should not be tasked with divining where their physician happened to be located when the alleged tortious act was committed. 80 Mich. Comp. Laws § 600.5805(8) (2018). 35 No. 2017AP739 or should have discovered the existence of his or her claim.81 In Michigan, a claim for medical malpractice "accrues" when the malpractice occurs.82 ¶102 Again, it is undisputed that the Paynters mailed their mediation request in May 2015, which was more than two years after the June 14, 2010 misdiagnosis. that the Paynters discovered or It is further undisputed should have discovered the existence of their claim on June 19, 2014, but they did not mail their mediation request within six months of that date. ¶103 Accordingly, the Paynters' against Dr. Hamp is untimely. informed consent claim Dr. Hamp is entitled to summary judgment as to this claim. V ¶104 Finally, before concluding, we address the Paynters' appeal from insurance the policy ProAssurance circuit issued Wisconsin court's to Dr. order Hamp Insurance coverage for the Paynters' claims. determining by that an Defendant-Respondent Company did not provide The court of appeals did not resolve the coverage issue because it concluded that all of the Paynters' claims were time barred. ¶105 The Paynters' petition for review raised the insurance coverage issue only to preserve it. Their petition states that "[b]ecause the unique policy language in issue does not meet 81 Mich. Comp. Laws § 600.5838a(2) (2018). 82 Mich. Comp. Laws § 600.5838a(1) (2018). 36 No. 2017AP739 this court's criteria for review, the Paynters request that this issue be remanded to the appellate court upon reinstatement of their cause of action." ¶106 ProAssurance did not state a preference as to which court (i.e., this court or the court of appeals) should resolve the insurance coverage dispute, if the issue was reached at all. To the extent ProAssurance did state a preference as to which court should decide the issue if the issue were revived, ProAssurance admitted that the insurance coverage issue "d[id] not by itself warrant acceptance of the petition for review." Dr. Hamp, ProAssurance's insured, did not address the issue at all in his response to the Paynters' petition. ¶107 It was surprising, then, to see ProAssurance spend a significant portion of its response brief83 addressing the merits of the insurance coverage issue. The Paynters did not address the merits of the coverage issue in their brief-in-chief. waiting until its response brief to raise arguments on By the merits of the insurance coverage issue, ProAssurance placed the Paynters in address the the unenviable merits of the position insurance of deciding coverage whether issue in to the limited space available in their reply brief.84 ¶108 More importantly, ProAssurance's actions deprived Dr. Hamp of any opportunity to address the insurance coverage issue 83 Approximately 8 pages of a 20-page argument. 84 See Wis. Stat. §§ (Rules) 809.19(8)(c)2. & 809.63. 37 No. to this court in writing. 2017AP739 It is for this reason that arguments raised for the first time in reply briefs are generally not addressed——"[i]t prevents the opposing party from having an adequate opportunity to respond."85 ¶109 We therefore decline to address the insurance coverage issue. on We instruct the court of appeals to resolve this issue remand in such a fashion that is consistent with this opinion. VI ¶110 On this issue of first impression, we hold that in medical malpractice cases involving a negligent misdiagnosis that results in a latent, though continuous, injury, whether the action is "foreign" for purposes of Wisconsin's borrowing statute is determined by whether the plaintiff's first injury occurred outside of Wisconsin. ¶111 We disagree with the court of appeals' conclusion that the borrowing statute applies to the Paynters' negligence claim. On the record before the court, Mr. Paynter's place of first injury is beyond speculative degree. ascertainment to any reasonable, non- When the plaintiff's place of first injury is unknowable, as in the instant case, Wisconsin's borrowing statute does not apply. ¶112 However, we agree with the court of appeals that the Paynters' informed consent claim is "foreign" for purposes of 85 A.O. Smith Corp. v. Allstate Ins. Cos., 222 Wis. 2d 475, 492, 588 N.W.2d 285 (Ct. App. 1998). 38 No. Wisconsin's borrowing statute. 2017AP739 Accordingly, we apply Michigan's statute of limitations to the Paynters' informed consent claim and conclude that the claim is untimely. Dr. Hamp is entitled to summary judgment as to that claim. ¶113 Finally, we decline to address the Paynters' appeal from the circuit court's order determining that an insurance policy issued to Dr. Hamp by Defendant-Respondent ProAssurance Wisconsin Insurance Company did not provide coverage for the Paynters' claims. appeals to Instead, we remand the cause to the court of resolve the insurance coverage issue in such a fashion that is consistent with this opinion. By the Court.—The decision of the court of appeals is affirmed in part, reversed in part, and the cause is remanded to the court of appeals for further proceedings consistent with this opinion. 39 No. ¶114 ANN dissenting WALSH in BRADLEY, I part). J. agree 2017AP739.awb (Concurring with the in majority part, that the borrowing statute1 does not apply to the Paynters' negligence claim. should Majority op., ¶11. be Paynters' remanded to argument that Additionally, I agree that the case the court the of appeals circuit to court address erred in the its determination that Dr. Hamp's insurance policy did not provide coverage for the Paynters' claims. ¶115 I part ways with the Id., ¶13. majority, however, treatment of the Paynters' informed consent claim.2 in its In my view, the majority's proffered test is unworkable. ¶116 Instead of applying Wisconsin's statute of limitations to an informed consent claim when the injury is "felt" in Wisconsin, I would turn to the familiar International Shoe test.3 Applying 1 that test, I determine that the Paynters' informed The borrowing statute, Wis. Stat. § 893.07, provides: (1) If an action is brought in this state on a foreign cause of action and the foreign period of limitation which applies has expired, no action may be maintained in this state. (2) If an action is brought in this state on a foreign cause of action and the foreign period of limitation which applies to that action has not expired, but the applicable Wisconsin period of limitation has expired, no action may be maintained in this state. 2 Accordingly, I join exception of part IV.B. the 3 majority opinion with the See International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). 1 No. 2017AP739.awb consent cause of action is not a "foreign cause of action" for purposes of the borrowing statute and therefore can proceed. ¶117 Accordingly, I concur in part and dissent in part. I ¶118 The informed 2010. alleged violation consent occurred Majority op., ¶33. of Mr. Paynter's during the phone call right to of June 14, During this phone call, Dr. Hamp told Mr. Paynter that the growth on his neck was not cancerous and he did not need any further treatment. that Mr. Paynter was located received this phone call. ¶119 Analyzing determine whether It is undisputed his Michigan home when he the majority endeavors to Id., ¶33. these the in Id., ¶17. facts, informed consent cause "foreign" for purposes of the borrowing statute. of action is In doing so, it relies on an unpublished federal case setting forth the legal test as follows: "the injury occurs where it is felt rather than where it originates . . . ." Id., ¶98 (citing Studio & Partners, s.r.l. v. KI, No. 06-C-628, 2007 WL 3342597, *3 (E.D. Wis. Nov. 7, 2007)). ¶120 Applying this test, the majority determines that the Paynters' informed consent claim is a "foreign cause of action" pursuant to the borrowing statute. majority's view, "[t]o the Majority op., ¶95. extent Dr. Hamp In the violated Mr. Paynter's right to informed consent, that injury was felt in Michigan because Mr. Paynter was in Michigan when Dr. Hamp allegedly informed him that his growth was not malignant and needed no further treatment." Id., ¶99. 2 "Because [Mr. Paynter] No. 2017AP739.awb was located in Michigan at that time, his alleged injury——i.e., the loss of the opportunity to choose his course of treatment—— occurred in Michigan, not Wisconsin." ¶121 In unworkable. my view, Given the the Id. majority's rise of proffered telemedicine, the test is majority's focus on where the injury is "felt" creates unreasonable and unpredictable results. ¶122 For example, what if a patient gets a call from the doctor while traveling in another country? Does that mean the foreign country's statute of limitations applies? What if the call comes in when the patient is on an airplane? What if medical test results are transmitted electronically? What if the notice that those results have been transmitted is received in one state but the results are first viewed in another? ¶123 Patients and doctors are more mobile than ever before, and technology now allows us to be connected worldwide at all times of the day and night. Rather than tethering the statute of limitations for a patient's informed consent cause of action to the patient's location at the time of the alleged violation, I would use a predictable and familiar guide. Namely, I would answer this question using the test set forth in International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). ¶124 Thus, I conclude that Wisconsin's statute of limitations applies to a cause of action premised on a violation of a patient's right to informed consent if the defendant has "certain minimum contacts with [Wisconsin] such that the maintenance of the suit does not offend traditional notions of 3 fair play omitted). and substantial justice." See No. 2017AP739.awb id. (citations This approach provides predictability and workability that the majority's "where the injury is felt" standard lacks. ¶125 Applying the International Shoe test to the facts of this case, I determine that Dr. Hamp had the requisite minimum contacts so as to make Wisconsin's statute of limitations applicable to the informed consent cause of action. As the majority acknowledges, Dr. Hamp is licensed to practice medicine in Wisconsin and maintains an office in Ashland. Majority op., ¶86 n.73 (explaining that "we have no trouble concluding that Dr. Hamp had the requisite 'minimum contacts' with Wisconsin" based on his medical licensure and maintenance of an office within the state). ¶126 Accordingly, I conclude that Wisconsin's statute of limitations applies to the informed consent cause of action in addition to the negligence cause of action. Thus, the Paynters should of be able to continue their pursuit both of these claims. ¶127 For the foregoing reasons, I respectfully concur in part and dissent in part. 4 No. ¶128 REBECCA dissenting in GRASSL BRADLEY, I part). agree J. with 2017AP739.rgb (concurring the in majority part, that the borrowing statute does not bar the Paynters' negligence claim, but not whether with the tests Wisconsin's the majority borrowing adopts statute for applies determining in medical malpractice cases alleging a negligent failure to diagnose or a violation of a patient's right to informed consent. The tests embraced by the majority lack statutory support and will result in absurdities. Unlike the majority, I would remand the informed consent claim to the circuit court to consider whether the Paynters state a claim upon which relief may be granted. I ¶129 If a plaintiff brings a foreign cause of action into a Wisconsin court, § 893.07, commands Wisconsin's the borrowing application of statute, whichever Wis. Stat. statute of limitations——Wisconsin's or the foreign state's——is shorter: (1) If an action is brought in this state on a foreign cause of action and the foreign period of limitation which applies has expired, no action may be maintained in this state. (2) If an action is brought in this state on a foreign cause of action and the foreign period of limitation which applies to that action has not expired, but the applicable Wisconsin period of limitation has expired, no action may be maintained in this state. The purpose of Wisconsin's borrowing statute is to reduce forum shopping, preclude stale claims, encourage expedient litigation, and ensure litigants know whether their without having to ask a court to decide. claims are timely Guertin v. Harbour Assurance Co., 141 Wis. 2d 622, 631-32, 415 N.W.2d 831 (1987). 1 No. 2017AP739.rgb The statute discourages suits arising in other states from being filed in Wisconsin courts when they would be time-barred in the foreign venue. The statute does not define "foreign cause of action." ¶130 The majority says whether a medical misdiagnosis-of-cancer action is "foreign" Wisconsin's statute is determined plaintiff's borrowing first Majority op., ¶10. injury occurred malpractice for "by outside of purposes of whether the Wisconsin." Consequently, if the plaintiff happens to be outside of Wisconsin when the injury caused by the misdiagnosis arises, the case will be considered a foreign cause of action even if the plaintiff resides in Wisconsin and the allegedly negligent physician treated the plaintiff in Wisconsin. The majority derives this test not from the text of the statute but from three cases applying the borrowing statute but having nothing else in common with medical malpractice misdiagnosis-ofcancer cases: (1) Guertin, 141 Wis. 2d 622; (2) Abraham v. General Cas. Co., 217 Wis. 2d 294, 576 N.W.2d 46 (1998); and (3) Faigin v. Doubleday Dell Publ'g Grp., Inc., 98 F.3d 268 (7th Cir. 1996). ¶131 Guertin injured during a Wis. 2d at 624-25. involved slip and a resident fall in of Wisconsin Illinois. who was Guertin, 141 Abraham extended the borrowing statute to contract cases, holding that the action is foreign if the "final significant event giving rise to a suable claim occurs outside" Wisconsin, reasoning that in a contract dispute, "location [in a contract case] is not easily pinned 2 to a particular state." No. 2017AP739.rgb Abraham, 217 Wis. 2d at 305, 311 (quoted source and internal quotation marks omitted). Faigin involved a multi-state defamation action in which the Seventh Circuit held that because some injury occurred in Wisconsin, the cause of action was not foreign. Faigin, 98 F.3d at 272. None of these cases support adopting a place-of-first-injury test for applying the borrowing statute in a medical malpractice misdiagnosis-of-cancer case. ¶132 The injury first typical occurs impossibility following place-of-first-injury test a of pinpointing cancer unworkable. when misdiagnosis When the makes cancer a goes undiagnosed, it is often unfeasible to know the exact moment the patient suffers a "greater harm"1 than existed at the time of the misdiagnosis. minutes, hours, Whether days, generally unknowable. the or cancer months cells after multiplied the seconds, misdiagnosis is All that can be established is that the injury surfaced sometime between the date of misdiagnosis and the date on which the plaintiff was later diagnosed with cancer. Even if the moment of greater harm could be ascertained to any degree of certainty, the physical location of the patient at that exact moment should not determine whether the patient's case constitutes a § 893.07. foreign cause of action under Wis. Stat. The statutory text does not suggest such a test and logic counsels against it. 1 The majority, citing Paul v. Skemp, 2001 WI 42, ¶25, 242 Wis. 2d 507, 625 N.W.2d 860, correctly notes that in medical malpractice cases involving misdiagnoses, Wisconsin law holds that the test for "actionable injury" is the time "when the misdiagnosis causes a greater harm than existed at the time of misdiagnosis." Majority op., ¶67 & n.55. 3 No. 2017AP739.rgb ¶133 For example, if a patient was on vacation in Florida at the time of "first injury," then under the majority's test, the action would be foreign even if the patient was a resident of Wisconsin, all treatment occurred doctor practiced only in Wisconsin. in Wisconsin, and the So too for the patient who is retired and spends half the year in Arizona, was treated only in Wisconsin by a doctor practicing only in Wisconsin, but who was first injured while in Arizona. And for the patient who is a Wisconsin resident, was treated in Wisconsin by a Wisconsin doctor, but is a college student studying abroad when the injury emerges. Under the resident, treated majority's in test, Wisconsin a by lifelong a Wisconsin Wisconsin-licensed physician, would have his medical misdiagnosis case deemed a foreign cause of action just because the date of his first injury coincides with his presence on a cruise ship touring the world. Consider the inconsistency of the borrowing statute's application under the following scenario: a Wisconsin doctor sees two patients in his Wisconsin office on the same day and the doctor patient's diagnosis. fails injury to diagnose first each appears patient's four years cancer. after the Each missed At that time, the first patient is in Wisconsin, so he can seek redress in a Wisconsin court applying the Wisconsin statute of limitations. But the second patient's injury arises while visiting relatives in Michigan so his case would be deemed a foreign cause of action. irrationality of the Limitless scenarios demonstrate the place-of-injury test adopted by majority in medical malpractice misdiagnosis-of-cancer cases. 4 the No. ¶134 Extending malpractice a "place-of-first-injury" misdiagnoses-of-cancer judicially-divined purpose of the 2017AP739.rgb test cases to medical contravenes statute by elevating the the physical location of the patient at the moment the misdiagnosis causes "greater harm" above every other element comprising a medical malpractice claim. A Wisconsin patient who treats only with Wisconsin physicians would be barred from pursuing a claim that is timely under the Wisconsin statute of limitations simply because her injury surfaced when she happened to be on vacation in another place with a shorter statute of limitations. Wisconsin residents treated only by Wisconsin doctors but who happen to be beyond Wisconsin's arise are not forum shoppers. borders when their injuries Nevertheless, under the rule the majority adopts, each patient's cause of action will be deemed foreign and subject to the shorter statute of limitations controlled by the physical place each patient happened to be at the moment their interpretation of injuries the materialize. borrowing statute The will majority's thereby deprive Wisconsin residents of the benefit of Wisconsin laws whenever they happen to be outside respective injuries surface. different statutes of of Wisconsin at the time their A fortuitous event will lead to limitation for identically situated patients, depending solely upon the geographic location of each patient when the misdiagnosis causes "greater harm." The rule of law cannot be based upon such happenstance. ¶135 Instead of squeezing medical malpractice misdiagnosisof-cancer cases into an ill-fitting test designed for immediate, 5 No. discrete, and visible injuries, the 2017AP739.rgb unique nature misdiagnosis-of-cancer cases demands a different test. of In the context of a missed cancer diagnosis, the test could be linked to the easily-ascertainable negligent treatment. the claim action occurred be deemed location of the actual alleged Alternatively, only when every element of outside of foreign. § "893.07 operates as Wisconsin Given the would fact a legislative choice the that cause Wis. Stat. of law" the could appropriately employ a choice-of-law analysis. of test Wenke v. Gehl Co., 2004 WI 103, ¶14, 274 Wis. 2d 220, 682 N.W.2d 405. Nothing in the borrowing statute's text suggests the fluke of wherever a patient happens to be physically located at the moment of first injury as its foundation, no case commands a test based on pure happenstance, and using the place-of-firstinjury test in misdiagnosis-of-cancer cases defies common sense and reasonableness. ¶136 The majority asserts the place-of-first-injury test "provides the highest degree of certainty to the party most in need of action." that certainty, i.e., the Majority op., ¶73 n.64. plaintiff bringing the The majority reasons that "plaintiffs are more likely to know where their injury occurred because they are in control of their own movements and actions." Id. This rationale for the majority's test contradicts the majority's conclusion that the borrowing statute does not apply to the Paynters' negligence claim Paynter's injury is unknowable. because the Id., ¶¶74, 83. moment of The majority "can think of no test by which a finder of fact could determine 6 No. 2017AP739.rgb the location of Mr. Paynter's first injury without speculating,"2 thereby undermining the suitability of the majority's place-offirst-injury test in cancer misdiagnosis cases. The nature of missed cancer diagnosis cases makes detecting the moment the cancer creates Consequently, a "greater perhaps the harm" borrowing virtually statute is impossible. incapable of being applied in any cases involving a misdiagnosis of cancer.3 ¶137 I agree with the majority that the borrowing statute does not apply to the Paynters' medical malpractice claim and therefore the Paynters' negligence claim is not time-barred. I reject the majority's adoption of a place-of-first-injury test in misdiagnosis-of-cancer cases. The majority "cannot accept the misdiagnosis ease with which a negligent claim could be transformed from a 'foreign' cause of action to a non-foreign one" if the patient entered Wisconsin between the time of the misdiagnosis and the time of its discovery. Majority op., ¶71. The majority's concern applies equally to the ease with which its test results in a Wisconsin resident having her claim transformed into a foreign cause of action based merely on her temporary absence from Wisconsin at the time her injury happens to emerge. II 2 Majority op., ¶83. 3 Although the majority notes that the moment of "greater harm" in some misdiagnosis cases may be possible to determine, citing Paul v. Skemp, that case did not involve a cancer misdiagnosis. See majority op., ¶86 n.72. 7 No. 2017AP739.rgb ¶138 The majority also errs in basing the application of the borrowing statute to medical malpractice informed consent claims on where the resulting injury was "felt." deems the Paynters' informed consent claim The majority foreign because Paynter "felt" the effect of Dr. Hamp's alleged violation of Paynter's right received a Paynter the to phone informed call pathology consent from the report in Michigan doctor, revealed who no where allegedly he told malignancy. The majority takes this test from an unpublished federal district court case, Studio & Partners, s.r.l. v. KI, No. 06-C-628, 2007 WL 3342597 (E.D. Wis. Nov. 7, 2007), involving a dispute between two feuding businesses over economic losses. The majority's "injury is felt" test makes no more sense than the majority's place-of- first-injury test. ¶139 Besides being an unpublished federal district court case and therefore not binding on this court, Studio & Partners is inapposite. a Wisconsin Partners, chair. Studio & Partners involved a dispute between KI, furniture manufacturer/seller, a furniture design Id. at *1. company based in and Studio Italy, over & a Studio & Partners sued KI in Wisconsin alleging KI misappropriated its chair design, illegally patented the design, and profited $50 million from selling the chairs. Id. at *1-*2. The district court concluded the case constituted a foreign cause of action and applied Italy's statute of limitations because Studio & Partners' injuries were economic losses suffered in Italy, not in Wisconsin. 8 Id. at *3. Under No. 2017AP739.rgb this holding, when the injury is economic, courts look to where the "economic effects were felt." ¶140 An profits. informed consent See id. claim does not lost Paynter characterizes his injury as a "loss of the opportunity to choose his course of treatment." ¶33. involve Majority op., Lost opportunity to choose treatment is not an economic loss and should therefore not be controlled by where the loss is "felt." Using a test based on where an injury is "felt" may make sense for an economic loss, but in the context of medical malpractice informed consent cases it results in the same randomness and suffers from the same irrationality as the placeof-first-injury test in medical misdiagnosis cases. ¶141 Wisconsin Stat. § 448.30 governs informed consent and provides: Any physician who treats a patient shall inform the patient about the availability of reasonable alternate medical modes of treatment and about the benefits and risks of these treatments. The reasonable physician standard is the standard for informing a patient under this section. The reasonable physician standard requires disclosure only of information that a reasonable physician in the same or a similar medical specialty would know and disclose under the circumstances. The physician's duty to inform the patient under this section does not require disclosure of: (2) Detailed technical information that probability a patient would not understand. in all (3) Risks apparent or known to the patient. (4) Extremely remote possibilities that falsely or detrimentally alarm the patient. 9 might No. 2017AP739.rgb (5) Information in emergencies where failure to provide treatment would be more harmful to the patient than treatment. (6) Information in cases incapable of consenting. where the patient is (7) Information about alternate medical modes of treatment for any condition the physician has not included in his or her diagnosis at the time the physician informs the patient. Informed consent is unique to the medical field. The injury from a physician's failure to comply with the informed consent statute is not lost profits or other economic loss. The injury is a patient's inability to make an informed treatment choice because the physician failed to fully present all options. Any test for applying the borrowing statute to an informed consent claim must be tortious act. linked to the treating physician's alleged A "feel" test is imponderable. ¶142 The "feel" test in Studio & Partners may be suitable in cases involving economic losses because where the economic losses a business suffers may be objectively measured. in the informed consent context cannot. "Feel" By "feel," the majority really means where Paynter happened to be when he took the phone call from problem Dr. as Hamp. the This majority's test produces the same place-of-first-injury fortuity test for misdiagnosis claims. ¶143 The Defendants-Respondents allege in their Answers to the Paynters' complaint that the Paynters' informed consent claim fails to state a claim upon which relief can be granted. Because the issues presented to this court relate solely to the borrowing statute, none of the parties address whether Paynter 10 No. 2017AP739.rgb can assert an informed consent claim under these facts (namely that Dr. Hamp did not treat him because Dr. Hamp believed there was no malignancy) and the majority does not Accordingly, I decline to address it further. decide it. I would remand this claim to the circuit court to do so. III ¶144 Although I agree with the majority's decision to remand the insurance coverage issue to the court of appeals, I disagree with the majority's decision to base this disposition on (1) ProAssurance's decision to brief the merits of coverage despite Dr. Hamp's failure to address the issue in his response to the Paynters' petition for review and (2) ProAssurance's statement in its response to the petition that the insurance coverage issue alone did not warrant this court's review. ProAssurance is the Wisconsin insurer for Dr. Hamp, but Dr. Hamp and ProAssurance have separate counsel because of the insurance coverage dispute. ¶145 The majority expresses "surpris[e]" that ProAssurance spent "a significant portion of its response brief addressing the merits of the insurance coverage issue." (footnote omitted). ProAssurance opportunity The majority suggests that by doing so, prevented to Majority op., ¶107 the other respond. The parties from majority's having an criticism of judgment to ProAssurance is unwarranted. ¶146 The ProAssurance circuit on court coverage. granted The ProAssurance's policy provides: 11 summary operative policy language in No. 2017AP739.rgb We will neither defend nor pay damage for any liability arising from, relating to, or in any way connected with the rendering or failure to render professional services by James A. Hamp, M.D., at the following location(s): in the State of Michigan and/or outside the State of Wisconsin. (Emphasis added.) The court of appeals did not address coverage because it disposed of the case on other grounds. petition for review to this court raised the The Paynters' coverage issue solely to preserve it: The Paynters also raise an insurance coverage issue not addressed by the appellate court (see Paynter, 2018 WL 1512092, ¶3, n. 3) to preserve this issue. Because the unique policy language in issue does not meet this court's criteria for review, the Paynters request that this issue be remanded to the appellate court upon reinstatement of their cause of action. ¶147 In its response to the Paynters' petition for review, ProAssurance refuted the substance of the Paynters' claims based on Wis. Stat. § 893.07 and asserted "the issue of insurance coverage is moot and does not by itself warrant acceptance of the petition for review." ¶148 In their initial brief, the Paynters do not argue the merits of the coverage issue: "The Paynters have raise[d] the insurance coverage issue to preserve this issue and request that this issue be remanded to the appellate court upon reinstatement of their cause of action." In response, ProAssurance devoted relatively little of its response brief to the merits of the coverage issue. ¶149 It is disingenuous for the majority to ground its decision to remand the coverage determination to the court of appeals on the basis that ProAssurance included an insurance 12 No. coverage argument in its merits brief to 2017AP739.rgb this court despite asserting in its response to the Paynters' petition for review that the coverage issue alone did not warrant granting of the petition. coverage There was argument proceedings. at no reason the for ProAssurance petition-for-review to stage make of a the The Paynters did not argue coverage existed, but simply preserved the issue. ProAssurance, at that point, had a coverage determination in its favor from the circuit court, as well as a favorable court of appeals decision that did not address coverage because the court of appeals disposed of the case under Wis. Stat. § 893.07 and the statute of limitations. ¶150 When this court granted the Paynters' petition for review, however, ProAssurance's counsel had no reasonable choice but to argue the merits of coverage even though the Paynters and Dr. Hamp did not. Insurance coverage is an issue of law, which this court reviews independently. Water Well Sols. Serv. Grp., Inc. v. Consolidated Ins. Co., 2016 WI 54, ¶12, 369 Wis. 2d 607, 881 N.W.2d 285. Although neither the Paynters nor Dr. Hamp argued the merits of coverage, it was among the issues presented in the Paynters' petition this court granted for review. Accordingly, this court could have chosen to decide insurance coverage. A reasonable reading of ProAssurance's brief reveals that it included its insurance coverage argument so that if this court chose to decide the issue, ProAssurance's position was 13 No. presented. ProAssurance did not ask this 2017AP739.rgb court to decide coverage; instead, it asked us to affirm the court of appeals.4 ¶151 Given the procedural posture of this case, it is proper to remand the insurance coverage decision to the court of appeals, before which the issue can be thoroughly briefed and argued before a decision is rendered. It is unreasonable for the majority to suggest that ProAssurance's presentation of the issue somehow necessitated remand. ¶152 For these reasons, I respectfully concur with the majority in allowing the Paynters' negligence claim to proceed although I do not join its reasoning. insurance appeals. coverage I issue dissent should be from the I also agree that the remanded majority's to the court application borrowing statute to bar the informed consent claim. instead remand the issue of whether the Paynters' of of the I would informed consent claim states a claim upon which relief may be granted. ¶153 I am authorized to state that JUSTICE DANIEL KELLY joins this concurrence/dissent. 4 The majority criticizes an insurer's lawyer for spending eight pages of a 32-page brief arguing against coverage, based on the language of the policy. The only thing "surprising" is the majority's expectation that an insurance coverage lawyer would not make a coverage argument. 14 No. 1 2017AP739.rgb
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