Mental illness can toll time to sue for med mal.

Byline: David Ziemer

The Wisconsin Supreme Court held on July 18 that the five-year statute of repose in sec. 893.55(1)(b) is limited to the discovery accrual rule in sec. 893.55(1)(b) and has no application to the injury accrual rule in sec. 893.55(1)(a).

The court also held that a person who is mentally ill at the time his or her cause of action for medical malpractice accrues may toll the limitations period pursuant to sec. 893.16, and that a factual finding is required that a plaintiff's mental illness caused him or her to fail to understand a claim so as to timely file it, in order to toll the claim.

Sheri J. Storm received psychiatric treatment from Dr. Kenneth Olson from Jan. 22, 1990 until August 3, 1992. She was also treated by Drs. Marcelo Castillo and Joann Cooper until Sept. 24, 1993. All the doctors diagnosed Storm as suffering from multiple personality disorder.

On Sept. 9, 1997, Storm filed suit against Olson and Cooper, alleging that they implanted false memories of childhood sexual abuse during hypnosis, and that these false memories caused her multiple personality disorder. Dr. Castillo was added as a defendant on June 14, 2000.

Olson and Castillo moved for summary judgment, asserting that Storm's action was time-barred. Winnebago County Circuit Court Judge Bruce Schmidt granted the motions, and Storm appealed.

The Supreme Court accepted certification from the court of appeals and reversed in a unanimous decision by Justice David T. Prosser.

Definition of "Paragraph"

The court first held that the statute of repose in sec. 893.55(1)(b) does not apply to medical malpractice actions brought under sec. 893.55(1)(a).

Section 893.55(1) provides in full: "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."

At issue was the meaning of the word, "paragraph," in subsec. (1)(b). The court concluded it unambiguously did not include the three-year period in subsec. (1)(a).

Section 35.18(3) explains how the various parts statutes are designated, providing in relevant part, "Each subsection shall be designated by a number, or by a number and a letter of the alphabet, enclosed in parentheses. Each paragraph shall be designated by a letter or letters enclosed in...