Doe 52, John v. Mayo Clinic Health System-Eau Claire Clinic, Inc. et al
Filing
69
ORDER granting 15 Motion to Dismiss; granting 23 Motion to Dismiss; denying as moot 26 Motion for the Court to Take Judicial Notice of Wisconsin State Court Filing Related to the Pending Matter; granting 32 Motion to Dismiss; denying as moot 37 Motion for Leave to File; denying as moot 39 Motion to Dismiss; denying as moot 53 Motion to Compel. Signed by District Judge William M. Conley on 4/3/2015. (arw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
JOHN DOE 52,
Plaintiff,
OPINION & ORDER
v.
14-cv-387-wmc
MAYO CLINIC HEALTH SYSTEM – EAU
CLAIRE CLINIC, INC., DAVID A. VAN DE
LOO, PROASSURANCE CASUALTY CO. and
INJURED PATIENTS AND FAMILIES
COMPENSATION FUND,
Defendants.
In this civil action, plaintiff John Doe 52 alleges that defendant David A. Van de Loo
committed malpractice by touching him unnecessarily and inappropriately in the course of
medical treatment. Plaintiff also brings claims against Mayo Clinic Health System – Eau
Claire, Van de Loo’s former employer, for vicarious liability; negligence in retaining and
supervising Van de Loo; and negligent failure to warn patients and patients’ families about
Van de Loo’s inappropriate behavior.1
All defendants have moved to dismiss this case
pursuant to Federal Rule of Civil Procedure 12(b)(6), primarily because they contend it is
time-barred under the applicable statute of limitations. The court agrees and will grant the
motions to dismiss.
ALLEGATIONS OF FACT
In resolving a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), the court
accepts as true all well-pled factual allegations in the complaint, Adams v. City of Indianapolis,
1
Defendants ProAssurance Casualty Co. and Insured Patients and Families Compensation Fund
appear in this case by virtue of insurance policies they issued to Mayo Clinic and Van de Loo. See
Wis. Stat. § 632.24 (Direct Action Statute); § 803.04 (Permissive Joinder Statute).
742 F.3d 720, 728 (7th Cir. 2014), and views them in the light most favorable to the nonmovant, Santiago v. Walls, 599 F.3d 749, 756 (7th Cir. 2010) (quoting Zimmerman v. Tribble,
226 F.3d 568, 571 (7th Cir. 2000)). The court need not accept legal conclusions as true,
however, meaning “[t]hreadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). For purposes of the present
motion, the court accepts as true the following allegations of fact.
Plaintiff John Doe 52 is a resident and citizen of the State of Minnesota. Defendant
Mayo Clinic Health System – Eau Claire Clinic, Inc. (“the Clinic”) is a Wisconsin
corporation with its principal place of business in Eau Claire, Wisconsin. Defendant Van de
Loo is a resident and citizen of Wisconsin. At all times relevant to the complaint, he was a
licensed physician employed by the Clinic. Defendant ProAssurance Casualty Company
(“ProAssurance”) was an Alabama corporation with its principal place of business in
Birmingham, Alabama. ProAssurance issued a policy of liability insurance to Van de Loo
and the Clinic during the time relevant to the complaint.
Finally, defendant Insured
Patients and Families Compensation Fund (“the Fund”) is a Wisconsin corporation with its
principal place of business in Madison, Wisconsin. It also issued insurance policies to Van
de Loo and the Clinic.2
From approximately 2004 until 2007, Van de Loo served as plaintiff’s physician.
During that time, plaintiff was approximately 15 to 17 years of age.
Plaintiff received
medical treatment from Van de Loo on the Clinic’s premises on two or three occasions. On
those occasions, Van de Loo touched Doe’s genitals in what he contends was a normal part
2
The court has diversity jurisdiction over this action pursuant to 28 U.S.C. § 1332(a).
2
of the medical treatment rendered to plaintiff.
Additionally, during some of those
occasions, Van de Loo asked plaintiff’s parent to leave the room and then touched,
squeezed and manipulated plaintiff’s genitals, which Van de Loo contends was also a
normal part of medical treatment he rendered to plaintiff. Van de Loo did not wear gloves
during his examinations. Plaintiff and his parents consented to plaintiff’s medical treatment
and were apparently unaware at the time that Van de Loo had engaged in any inappropriate
touching.
Van de Loo’s normal practice was to ask parents to leave the room while he
performed physical examinations on minor male patients. He did not have others present
either.
When the parents of one minor patient questioned a nurse as to whether this
practice was normal, the nurse responded it was how Van de Loo did things. Although the
Clinic was Van de Loo’s employer and, by 2008, knew or should have known that Van de
Loo performed medical exams involving inappropriate touching of minors, it never told any
of its patients that Van de Loo was unsafe, nor that Van de Loo had performed an
inappropriate physical examination on a minor patient.
Plaintiff did not realize until October of 2012 that the medical examinations he
received from Van de Loo did not comport with the standard of care. Now armed with this
knowledge, he has suffered profound psychological damage, including depression, anxiety,
embarrassment, emotional distress, self-esteem issues and loss of enjoyment of life.
3
PRELIMINARY MATTERS
I. Judicial Notice
The Clinic has filed a motion asking the court to take judicial notice of various state
criminal and civil court proceedings involving Van de Loo.3 (Dkt. #26.) Plaintiff has not
opposed that motion, but his lack of opposition appears to be based on a fundamental
misunderstanding of the law. Specifically, plaintiff argues that by asking the court to take
judicial notice of matters outside the pleadings, the Clinic has “implicitly” requested that
the court convert its Rule 12(b)(6) motion into a motion for summary judgment. (See Br.
Opp’n (dkt. #36) 1.) On the strength of that “implicit” request, plaintiff asks the court to
notice additional facts and convert the parties’ motions to dismiss to one for summary
judgment.4
While a defendant’s decision to attach additional evidentiary materials to a Rule
12(b)(6) motion generally converts that motion to summary judgment, see Crawford v.
United States, 796 F.2d 924, 927 (7th Cir. 1986), “‘[t]he district court may also take judicial
notice of matters of public record’ without converting a 12(b)(6) motion into a motion for
summary judgment.”
Henson v. CSC Credit Servs., 29 F.3d 280, 284 (7th Cir. 1994)
(quoting United States v. Wood, 925 F.2d 1580, 1582 (7th Cir. 1991)). The Clinic’s specific
request that the court take judicial notice of the state court proceedings is perfectly proper:
“[t]he most frequent use of judicial notice of ascertainable facts is in noticing the contents
3
Van de Loo’s own motion to dismiss also makes such a request, asking the court to take judicial
notice of a particular hearing in one of those civil cases, which was dismissed on statute of
limitations grounds similar to those that Van de Loo advances here. (See Br. Supp. Mot. Dismiss
(dkt. #33) 8-9.) The above analysis applies with equal force to that request.
4
In light of plaintiff’s position, the Clinic has also moved for leave to file a reply (dkt. #37), but
because the court has rejected plaintiff’s argument without the benefit of additional briefing, that
motion is denied as moot.
4
of court records.” Gen. Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1081 (7th
Cir. 1997) (quoting 21 Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice and
Procedure: Evidence § 5106, at 505 (1st ed. 1977 & Supp. 1997)). Thus, there is no reason
for the court to convert the present motion into one for summary judgment.
Nevertheless, the court need not consider the materials in question to resolve the
present motion to dismiss. As will be discussed further below, the pleadings themselves
establish that plaintiff’s action is untimely without the need to take notice of the records in
the state court actions. Accordingly, the motion for judicial notice will be denied as moot.
II. Motion to Treat the Fund’s Motion to Dismiss as Opposed
Plaintiff has filed a motion asking the court to deem his opposition to the Clinic’s
motion to dismiss as his opposition to the Fund’s motion as well. (Dkt. #39.) He bases
this motion on his ostensible failure to file a timely brief in opposition to the Fund’s motion
to dismiss (dkt. #23). Since it appears from the docket sheet that plaintiff did, in fact, file
a timely brief in opposition (see dkt. #29), his motion is unnecessary and will also denied as
moot.
OPINION
All defendants have moved to dismiss the claims against them on statute of
limitations grounds. “[B]ecause the period of limitations is an affirmative defense,” the
Seventh Circuit has held that “it is rarely a good reason to dismiss under Rule 12(b)(6).”
Reiser v. Residential Funding Corp., 380 F.3d 1027, 1030 (7th Cir. 2004); see also Clark v. City
of Braidwood, 318 F.3d 764, 767 (7th Cir. 2003) (plaintiff is not required to allege facts that
negate affirmative defenses in his complaint). However, dismissal under Rule 12(b)(6) on
5
statute of limitations grounds is nevertheless “appropriate where ‘the allegations of the
complaint itself set forth everything necessary to satisfy the affirmative defense, such as
when a complaint plainly reveals that an action is untimely under the governing statute of
limitations.’” Andonissamy v. Hewlett-Packard Co., 547 F.3d 841, 847 (7th Cir. 2008).
“Statutes of limitations are generally considered part of the forum state’s substantive
law which federal courts must apply when sitting in diversity.” Evans ex rel. Evans v. Lederle
Labs., 167 F.3d 1106, 1111-12 (7th Cir. 1999) (citing Guaranty Trust Co. v. York, 326 U.S.
99, 109-10 (1945)); see also Hollander v. Brown, 457 F.3d 688, 694 (7th Cir. 2006).
Accordingly, Wisconsin statutes of limitations apply in this suit.
Plaintiff brings six causes of action in this suit.
The first, a claim for medical
malpractice, is against Van de Loo, the Clinic and their insurers; the remaining five claims,
for various species of negligent conduct and vicarious liability, are only against the Clinic
and its insurers. (See Am. Compl. (dkt. #11) ¶¶ 23-65.) The court will address the two
variety of claims separately.
I. Medical Malpractice
The governing statute of limitations for medical malpractice claims arises from Wis.
Stat. § 893.55(1m), which states in relevant part:
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
6
paragraph more than 5 years from the date of the act or
omission.
The parties agree that this statute governs plaintiff’s medical malpractice claim. The
parties differ, however, as to when the statute started running.5 Defendants maintain that
the “date of injury” was December 31, 2007, at the latest. In contrast, plaintiff contends
that the “date of injury” occurred in October of 2012, when he first learned that Van de
Loo’s treatment was improper, meaning that his claim would be timely under Wis. Stat.
§ 893.55(1m)(a) (although not under Wis. Stat. § 893.55(1m)(b)). Because this is purely a
legal question, the court need not accept as true plaintiff’s allegation as to the date his claim
accrued. See Iqbal, 556 U.S. at 678.
The Wisconsin Supreme Court addressed the proper definition of “injury” in Wis.
Stat. § 893.55(1m)(a) in Estate of Genrich v. OHIC Insurance Company, 2009 WI 67, 318
Wis. 2d 553, 769 N.W.2d 481. In that case, Robert Genrich underwent a surgery that
ended on July 24, 2003. Unbeknownst to him at the time, a sponge was left within his
abdominal cavity at the close of the surgery, which later caused an infection. On August 8,
2003, after the discovery of the sponge, Genrich underwent a second surgery to have it
5
This case bears some significant similarity to Deborah S.S. v. Yogesh N.G., 175 Wis. 2d 436, 499
N.W.2d 272 (Ct. App. 1993). In that case, a physician allegedly touched the patient’s vaginal,
buttock and breast areas inappropriately during a neurological examination. The Wisconsin Court of
Appeals declined to apply the medical malpractice statute of limitations, holding that “where the
form of malpractice is alleged to be unnecessary and improper treatment, such malpractice conduct
must constitute part of the treatment.” Id. at 443. Because “the parties agree[d] that the acts
alleged against the physician did not serve any medical reason related to the examination which the
physician was required to perform upon the patient,” the court held that Deborah S.S. was not a
medical malpractice case. Id. Here, in contrast, plaintiff alleges that Van de Loo’s actions were in
the context of normal physical examinations. Unlike in Deborah S.S., the plaintiff specifically alleges
that the “unnecessary and improper treatment” was done in conjunction with (and apparently
seemed to be a part of) regular medical treatment received from Van de Loo. The court will,
therefore, defer to plaintiff’s characterization of this action as one for medical malpractice and to the
parties’ agreement as to the proper statute of limitations. Cf. J.W. v. B.B., 2005 WI App 125, ¶¶ 910, 284 Wis. 2d 277 (applying medical malpractice statute of limitations to claims that physician
performed “unnecessary and inappropriate” prostrate exams during physical examinations).
7
removed, but he died from sepsis on August 11, 2003, allegedly due to the sponge. His
estate brought suit on August 9, 2006.
OHIC moved for summary judgment, arguing that the medical malpractice claim was
untimely under Wis. Stat. § 893.55(1m), because more than three years had passed since
the date of injury. OHIC argued that the date of injury began when Genrich first suffered a
“physical injurious change,” relying on Fojut v. Stafl, 212 Wis. 2d 827, 569 N.W.2d 737
(Ct. App. 1997).
The estate responded that Genrich’s injury did not occur until his
condition was irreversible -- at the earliest, August 9, 2003 -- and that its claim was timely,
relying on Paul v. Skemp, 2001 WI 42, 242 Wis. 2d 507, 625 N.W.2d 860. The circuit
court granted OHIC’s motion, and the court of appeals affirmed.
The Wisconsin Supreme Court affirmed as well, holding that “the determination of a
‘physical injurious change’ is the appropriate benchmark for establishing the date of ‘injury’
under Wis. Stat. § 893.55(1m)(a).” Estate of Genrich, 2009 WI 67, at ¶ 17.
The court
applied essentially the same standard as it did in Paul, albeit in different words, holding that
“an ‘actionable injury arises when the [negligent act or omission] causes a greater harm than
[that which] existed at the time of the [negligent act or omission].” Id. at ¶ 16 (alterations
in original) (quoting Paul, 2001 WI 42, at ¶ 25). Under that formulation, the patient was
found to have “suffered an injury when the doctors left an infection-producing sponge in his
abdominal cavity, and the sponge was not there prior to the doctors’ negligent conduct.” Id.
at ¶ 19. The Genrich court further explained that holding otherwise would “contradict the
maxim that [a] later injury from the same tortious act does not restart the running of the
statute of limitations.” Id. at ¶ 21 (alteration in original) (quoting Fojut, 212 Wis. 2d at
8
832) (internal quotation marks omitted). Thus, it affirmed the finding of the courts below
that the estate’s malpractice claim was untimely under Wis. Stat. § 893.55(1m)(a).
Based on Estate of Genrich, defendants argue that plaintiff’s claim for medical
malpractice is similarly untimely. In particular, defendants maintain that the allegations in
the amended complaint establish the latest possible date on which Van de Loo could have
touched plaintiff improperly was December 31, 2007.
In defendants’ view, the alleged
inappropriate touching itself constituted a “physical injurious change,” while his eventual
emotional distress is simply “a later injury from the same tortious act[, which] does not
restart the running of the statute of limitations.” Id. at ¶ 22. If plaintiff’s injury occurred
no later than December 31, 2007, for purposes of Wis. Stat. § 893.55(1m)(a), Genrich
needed to bring his claim for medical malpractice no later than December 31, 2010.
To the contrary, plaintiff argues that Paul and Fojut (the cases discussed and
synthesized in Estate of Genrich) require a finding that his malpractice claim did not accrue
until October of 2012, when he allegedly began to suffer from profound psychological
distress. In Paul, the defendant doctor allegedly misdiagnosed his patient, Jennifer Paul, on
December 20, 1994. On May 22, 1995, an arteriovenous malformation in Jennifer’s temple
ruptured, causing hemorrhaging, and Jennifer passed away the next day. The Wisconsin
Supreme Court ruled that the act of misdiagnosis itself was not the injury that started the
running of the statute of limitations:
The Pauls contend here, as they have before the circuit court
and court of appeals, that what triggered the statute of
limitations was not the alleged misdiagnosis, but the injury that
resulted from that misdiagnosis, the rupture of the blood vessel.
We agree with the Pauls. A misdiagnosis may be a negligent
omission, but it is not, in and of itself, an injury. The Pauls’
9
claim for medical malpractice did not, and could not, accrue
until Jennifer suffered an injury.
Paul, 2001 WI 42, at ¶ 2.
In Fojut, the plaintiff underwent a tubal ligation in November of 1990, but she
nevertheless became pregnant in March of 1991. The Wisconsin Court of Appeals rejected
defendants’ contention that the date of the surgery was the date of injury, holding that
Fojut had not suffered any physical injury on the date of the tubal ligation:
The purpose of the surgery was to render Helen infertile – to
avoid pregnancy. There was no physical injurious change to
Helen’s body until she became pregnant.
Fojut, 212 Wis. 2d at 831.
Plaintiff contends that his case is comparable to Paul and Fojut in that he suffered no
injury at the time of the allegedly inappropriate touching. Plaintiff claims that the touching
itself, like the misdiagnosis in Paul and the surgery in Fojut, caused no injury because it did
not alter his condition in any way. Rather, plaintiff asserts it was only upon learning much
later the touching did not comport with the ordinary standard of care that he suffered an
injury -- the negative psychological effects of which he complains in this lawsuit.
The court finds plaintiff’s comparison to Paul and Fojut somewhat strained. This is
neither a case where a negative omission caused a later injury, Paul, 2001 WI 42, at ¶ 2, nor a
case where medical negligence frustrated the purpose of a procedure some time after that
procedure took place, Fojut, 212 Wis. 2d at 831. Rather, plaintiff brings a claim for a series
of affirmative acts -- specifically, “unnecessary and improper [medical] treatment” in the
form of inappropriate touching. Nw. Gen. Hosp. v. Yee, 115 Wis. 2d 59, 61-62, 339 N.W.2d
583 (1983). There was no intended “purpose” behind the touching that Van de Loo failed
10
to accomplish, nor is there any alleged negligent omission on Van de Loo’s part. In this
way, Paul and Fojut are not factually analogous to the present case.
Admittedly, Estate of Genrich does not provide a perfect comparison either. A sponge
negligently left in a patient’s abdomen is a far clearer example of a “physical injurious
change” than Van de Loo’s alleged actions here, which left no physical (and if plaintiff’s
allegations are credited, no psychological) marks behind, at least initially.
Even so, the
actual malpractice plaintiff alleges is Van de Loo’s improper and unnecessary touching. See
Yee, 115 Wis. 2d at 61-62. Under that malpractice theory, a claim would normally accrue
upon receipt of the unnecessary treatment.
See, e.g., J.W. 2005 WI App 125, at ¶ 10
(medical malpractice claims based on unnecessary and inappropriate prostate exams were
timely filed “between two and three years after the conduct in question”) (emphasis added). To
hold otherwise would mean that a patient who underwent a thoroughly unnecessary
procedure would have no malpractice claim unless she thereafter suffered some additional
physical or emotional effects flowing from that procedure.
This is in conflict with the
Wisconsin Supreme Court’s decision in Yee, which explicitly noted that “this court and
other jurisdictions have found unnecessary and improper treatment to constitute
malpractice.”
Yee, 115 Wis. 2d at 61-62; see also Deborah S.S., 175 Wis. 2d at 442-43
(discussing Yee). Under this approach, the “physical injurious change” plaintiff suffered was
the touching, and any later emotional distress was an additional injury, meaning his claim
accrued no later than December 31, 2007.
From a practical point of view, this result makes some sense. Plaintiff strenuously
disputes defendants’ argument that this is a “discovery rule” case, because he failed to bring
suit timely within one year of his alleged, latent psychological injury. Yet applying his
11
theory of actionable injury would effectively import a discovery rule into Wis. Stat.
§ 893.55(1m)(a). Section 893.55(1m) is governed by a limited, legislatively-created version
of the discovery rule, rendering it exempt from the Wisconsin Supreme Court’s holding in
Hansen v. A.H. Robins, Inc., 113 Wis. 2d 550, 335 N.W.2d 578 (1983), that the discovery
rule applies to all tort actions. Miller ex rel. Sommer v. Kretz, 191 Wis. 2d 573, 580-81, 531
N.W.2d 93 (Ct. App. 1995). A plaintiff bringing a medical malpractice claim must adhere
to that limited discovery rule and, therefore, has two options: he can either sue within three
years of injury, or he can sue within one year of discovering the injury.
Here, plaintiff
arguably did neither. Instead, he seeks to bring suit within three years of discovering that
Van de Loo’s conduct allegedly failed to meet the standard of care for a pediatrician.
In fairness, Van de Loo also maintains that this discovery effectively triggered the
injury itself, but under his formulation a plaintiff could avoid the statute of limitations
indefinitely on claims involving emotional distress simply by arguing that he did not begin
suffering psychological fallout -- the only alleged “injury” here -- until long after the
allegedly negligent act took place. Absent a departure from recent precedent, it would seem
unlikely that this result was intended by the Wisconsin legislature, or for that matter by the
Wisconsin Supreme Court, particularly given that the legislature not only included a limited
version of the discovery rule in § 893.55(1m)(b), but also added a five-year statute of repose
that serves “to bar medical malpractice actions even if a claimant has yet to discover a latent
injury.” Storm v. Legion Ins. Co., 2003 WI 120, ¶ 19, 265 Wis. 2d 169, 665 N.W.2d 353
(citing Aicher v. Wis. Patients Comp. Fund, 2000 WI 98,¶¶ 26, 47, 237 Wis. 2d 99, 613
N.W.2d 849); see also Rodman Indus., Inc. v. G&S Mill, Inc., 145 F.3d 940, 942-43 (7th Cir.
1998) (in the absence of clear guidance on substantive law from Wisconsin Supreme Court,
12
federal court must “predict how the Wisconsin Supreme Court would decide the issues
presented”).
Thus, at least as Wisconsin law currently stands, the court concludes that plaintiff’s
claim for medical malpractice against Van de Loo accrued on or before December 31, 2007,
meaning he had to bring suit by December 31, 2010, and certainly no later than October of
2013 (one year from his alleged discovery). He did not -- in fact, he did not bring suit until
May 29, 2014 -- and his malpractice action is, therefore, time-barred.
II. Vicarious Liability Claim
Plaintiff also brings a claim for vicarious liability against the Clinic premised on the
malpractice Van de Loo allegedly committed while in the Clinic’s employ. (See Am. Compl.
(dkt. #11) ¶¶ 36-42.) Such claims are dependent on the underlying tortious conduct of the
employee. See Kerl v. Dennis Rasmussen, Inc., 2004 WI 86, ¶ 18, 273 Wis. 2d 106, 682
N.W.2d 328.
Therefore, they accrued at the same time as the underlying medical
malpractice claim and are similarly time-barred. 54 C.J.S. Limitations of Actions § 36 (2014)
(“A statute of limitations that applies to a cause of action against an employer is also
applicable to a respondeat superior claim against the employer, and the case against the
employer is properly dismissed if a claim against the employee is time-barred.”); see also BBB
Doe v. Archdiocese of Milwaukee, 211 Wis. 2d 312, 366, 565 N.W.2d 94 (1997) (“Plaintiffs’
derivative causes of action [for respondeat superior and negligent employment] . . . accrued
at the same time that the underlying intentional tort claims accrued, and similarly would be
13
barred by the statute of limitations.”).6 Accordingly, the Clinic’s motion to dismiss this
claim is granted.7
III. Negligence-Based Claims
Finally, plaintiff brings four negligence-based claims against the Clinic (and, by
extension, against its insurers): (1) negligence; (2) negligent failure to warn; (3) negligent
retention; and (4) negligent supervision. (See Am. Compl. (dkt. #11) ¶¶ 29-35, 43-65.)
The Clinic argues that these are simple negligence claims, subject to the three-year statute of
limitations found in Wis. Stat. § 893.54. In contrast, plaintiff contends that these claims
are actually medical malpractice claims at their core and are governed by Wis. Stat.
§ 893.55(1m).
Ultimately, the court need not and does not decide which statute of
limitations governs, because as the Clinic recognized in its reply brief, they are time-barred
under either statute of limitations.
Taking first plaintiff’s position and presuming that his claims for negligence on the
part of the Clinic are medical malpractice claims, they, too, would be governed by Wis. Stat.
§ 893.55(1m), subject either to: subsection (a)’s three-year statute of limitations from the
date of injury; or to subsection (b)’s one-year discovery rule and five-year statute of repose.
The court has already concluded above that plaintiff’s medical malpractice claims stem from
allegedly unnecessary and inappropriate touching, which accrued no later than December
31, 2007, making this suit untimely under either (a) or (b).
Plaintiff has offered no
arguments beyond those already rejected above to alter this conclusion.
6
This language from BBB Doe was later cited as “controlling precedent” in Doe 1 v. Archdiocese of
Milwaukee, 2007 WI 95, ¶ 36, 303 Wis. 2d 34, 734 N.W.2d 827.
As a result, the court need not address the Clinic’s alternative argument that it lacked sufficient
control over Van de Loo to support the imposition of vicarious liability.
7
14
The Clinic’s position requires a bit more discussion given that, as noted above, the
Wisconsin Supreme Court has adopted the discovery rule “for all tort actions other than
those already governed by a legislatively created discovery rule.” Hansen, 113 Wis. 2d at
560. “Such tort claims shall accrue on the date the injury is discovered or with reasonable
diligence should be discovered, whichever occurs first.”
Id.
Thus, presuming plaintiff’s
other claims to be governed by Wis. Stat. § 893.54, they could theoretically be timely so
long as plaintiff did not discover his injury (meaning his claims did not accrue) until May
29, 2011, three years before he filed this suit.
Indeed, plaintiff alleges here that he did not discover and could not reasonably have
discovered his injury until October of 2012.
(See Am. Compl. (dkt. #11) ¶ 21.)
Unfortunately for plaintiff, the Wisconsin Supreme Court appears to have foreclosed
application of the discovery rule to save his claim in cases like Doe 1 v. Archdiocese of
Milwaukee, 2007 WI 95, 303 Wis. 2d 34, 734 N.W.2d 827; BBB Doe v. Archdiocese of
Milwaukee, 211 Wis. 2d 312, 565 N.W.2d 94 (1997); and Pritzlaff v. Archdiocese of Milwaukee,
194 Wis. 2d 302, 533 N.W.2d 780 (1995).
These three cases dealt with allegations of sexual assault against individual priests
and corresponding claims of negligence against the Archdiocese.
Pritzlaff held that
“actionable injury flows immediately from a nonconsensual, intentional sexual touching.”
BBB Doe, 211 Wis. 2d at 343-44 (citing Pritzlaff, 194 Wis. 2d at 317). Later, in BBB Doe,
the Supreme Court of Wisconsin held:
In cases where there has been an intentional, non-incestuous
assault by one known to the plaintiff, and the plaintiff sustains
actual harm at the time of the assault, the causal link is
established as a matter of law. These plaintiffs knew the
individual priests, knew the acts of sexual assault took place, and
15
knew immediately that the assaults caused them injury. We
therefore conclude that these plaintiffs discovered, or in the
exercise of reasonable diligence, should have discovered all the
elements of their causes of action against the individual
perpetrators at the time of the alleged assault(s), or by the last
date of the alleged multiple assaults.
211 Wis. 2d at 344-45.
While plaintiffs argued that, as children, they “viewed their abusers with respect and
reverence” and, therefore, “did not and could not discover their cause of action for assault,
until much later in adulthood,” id. at 345-46, the supreme court rejected this argument.
The court noted that the Wisconsin legislature recognized specific instances in which adults
may hold sufficient “sway over children as to prevent them from recognizing the
wrongfulness of their conduct” by creating an extended statute of limitation for cases of
incest and sexual exploitation by a therapist. See id. at 349-53. The legislature did not
include “claims of abuse by other persons who may hold influence in a child’s life” in those
extensions.
Id. at 351.
Accordingly, the court applied the flat rule of Pritzlaff to the
plaintiffs’ claims and held that they were time-barred. In a brief concluding paragraph, the
court also stated that the plaintiffs’ claims based on respondeat superior and negligent
employment theories “accrued at the same time that the underlying intentional tort claims
accrued, and similarly would be barred by the statute of limitations.” Id. at 366.8
In BBB Doe, the Wisconsin Supreme Court went to some lengths to find, as reflected in the
quotation above, to find that the plaintiffs “knew immediately” that they had been injured by
inappropriate touching. See 211 Wis. 2d at 345 & n.20 (“These five plaintiffs essentially admit that
they knew they suffered an injury at or shortly after the alleged assaults.”). This arguably leaves a
narrow window for plaintiff, at least given his claim that he was not aware of suffering any injury
from Van de Loo’s inappropriate touching until many years later. For reasons set forth above,
however, the court thinks it unlikely that the Wisconsin Supreme Court intended to leave such a
window for inappropriate touching by a physician.
8
16
Doe 1 went one step further and expressly analyzed the plaintiffs’ claims against the
Archdiocese for negligent supervision. It discussed preceding case law, including BBB Doe
and Pritzlaff, and noted that the BBB Doe court had definitively held claims of negligent
supervision were “derivative claims,” defining a “derivative claim” as “one ‘that derives
from, grows out of, or results from an earlier or fundamental state or condition.’” Doe 1,
2007 WI 95, at ¶ 24 & n.11 (quoting Webster’s Third New International Dictionary Unabridged
608 (1961 ed.)). Thus, the Doe 1 court held that a claim for “negligent supervision of an
employee is derivative of an employee’s wrongful act that causes injury to another, which
wrongful act is alleged to have been caused by the employer’s negligence.” Id.
After distinguishing certain other Wisconsin cases, which described negligent
supervision claims as “focus[ing] on conduct that is separate from the underlying wrongful
acts of the employer,” id. at ¶ 32, the Doe 1 court went on to hold as follows:
Accordingly, we conclude that BBB Doe and Pritzlaff control the
outcome of the claims for negligent supervision that are before
us. They are controlling precedent that have decided that the
claims of negligent supervision made here are derivative of the
underlying sexual molestations by the priests. As such, those
claims accrued, as a matter of law, by the time of the last
incident of sexual assault. . . . Therefore, the claims for negligent
supervision are barred by the statute of limitations for
negligence, as applied in prior controlling precedent.
Id. at ¶ 36.
Pritzlaff, BBB Doe and Doe 1 compel the same conclusion here. Even if they are
governed by Wis. Stat. § 893.54, therefore, plaintiff’s negligence-based claims in this suit
are time-barred. The claims for negligence, negligent supervision, retention and failure to
warn are “derivative” under the broad definition that the Wisconsin Supreme Court
employed in Doe 1, because they all derive from Van de Loo’s alleged medical malpractice,
17
which was in turn allegedly caused by the Clinic’s negligence in failing to: enforce maintain
or policies to protect patients; supervise Van de Loo; warn patients about Van de Loo; and
dismiss Van de Loo from his employ as a physician. Thus, these claims accrued as a matter
of law by the time the underlying tort for medical malpractice accrued -- December 31,
2007. Under Wis. Stat. § 893.54(1), plaintiff had until December 31, 2010 to bring this
lawsuit. Having instead waited to file on May 29, 2014, his suit is untimely.
Plaintiff briefly seeks to distinguish the BBB Doe decision on the grounds that it
refers to a nonconsensual touching causing immediate actionable injury, while plaintiff alleges
that he consented to the examination in this case. The court does not find this distinction
persuasive because the BBB Doe holding is predicated on the fact that the negligence claims
are derivative of the underlying tort -- not on the nature of the tort itself. Said another way,
the court does not hold that the medical malpractice claim in this case is identical to the
sexual battery claim in BBB Doe: plaintiff has not sought to maintain a cause of action for
sexual battery in this suit.9 Rather, the court holds only that, under BBB Doe and Doe 1, the
“satellite employer” torts that plaintiff alleges are “derivative” of the underlying tort claim
and, therefore, accrued on the same day.
ORDER
IT IS ORDERED that:
1) Defendant Mayo Clinic Health System-Eau Claire Clinic, Inc.’s motion to dismiss
the amended complaint (dkt. #15) is GRANTED.
2) Defendant Injured Patients and Families Compensation Fund’s motion to dismiss
the amended complaint (dkt. #23) is GRANTED.
9
Plaintiff’s original complaint alleged a cause of action for sexual battery, but his amended
complaint, which is the operative pleading, retracted that claim.
18
3) Mayo Clinic Health System-Eau Claire Clinic, Inc.’s motion for judicial notice
(dkt. #26) is DENIED as moot.
4) Defendant David Van de Loo’s motion to dismiss the amended complaint (dkt.
#32) is GRANTED.
5) Mayo Clinic Health System-Eau Claire Clinic, Inc.’s motion for leave to file a
reply (dkt. #37) is DENIED as moot.
6) Plaintiff John Doe 52’s motion to deem that plaintiff has opposed the Fund’s
motion to dismiss (dkt. #39) is DENIED as moot.
7) Mayo Clinic Health System – Eau Claire, Inc.’s motion to compel plaintiff to
proceed under his real name (dkt. #53) is DENIED as moot.
Entered this 3rd day of April, 2013.
BY THE COURT:
/s/
________________________________________
WILLIAM M. CONLEY
District Judge
19
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