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Teenager can sue over birth injury

Statutes of limitations unclear, state high court says

Dec 30, 2005 | www.jsonline.com

Statutes of limitations for malpractice cases in Wisconsin don't fully address injuries to developmentally disabled children, so a teenager who was injured at birth should still be allowed to sue his health care providers, the state Supreme Court ruled Friday.

The parents of Toby Haferman Jr., 14, allege that his doctor, Donald W. Vangor, and St. Clare Hospital in Baraboo were responsible for his cerebral palsy because his brain was denied oxygen during the moments before and after his birth in 1991. Vangor and St. Clare Hospital asked the Sauk County Circuit Court to dismiss the lawsuit because it was filed in 2002, which they argued was past the statute of limitations.

With a 4-3 decision, the Supreme Court Friday reversed a Court of Appeals decision and said the Hafermans should be allowed to proceed with their lawsuit. The case now returns to Sauk County Circuit Court for further action.

For the Hafermans, the opinion means the family will get its day in court after years of legal wrangling, said their attorney, Jeremi Young, of Dallas. The family had lived in Baraboo but now resides in Plano, Texas.

The case could have broad implications in Wisconsin, where the state's medical malpractice environment is already in flux because of a state Supreme Court decision in July that threw out caps on pain and suffering damages to malpractice victims.

Health care providers fear Friday's decision will fuel more uncertainty, but advocates for plaintiffs downplayed the impact of the case.

The majority opinion, written by Justice Ann Walsh Bradley, said the Legislature left a gap in state law and urged lawmakers to address it. She was joined by Chief Justice Shirley Abrahamson and Justices N. Patrick Crooks and Louis B. Butler.

A set of three statutes come into play in the case, and taken together, there's not a clear picture as to what is or is not allowed. The law says malpractice claims need to be filed in most cases within three years of when injuries occurred or within one year of when they are discovered.

When it comes to children, a claim must be brought within three years or by age 10, whichever is later, says a second law, which also appears to say those time limits don't apply to children with developmental disabilities. And a third statute says disabled minors can bring an action within two years after the disability ceases, but that allowance doesn't apply to actions against health care providers.

"The Legislature has not provided a statute of limitations for claims against health care providers alleging injury to a developmentally disabled child," Bradley wrote. "This determination is the only determination the court is able to reach without either rewriting the statutes or working an absurd and illogical result."

Young said the Hafermans knew early on about Toby's cerebral palsy but didn't learn until recent years that research suggests oxygen deprivation during delivery could have caused it. That prompted them to begin asking questions and pursue the lawsuit, he said.
Decision disputed

Justice David Prosser, who wrote the minority opinion, was joined in dissenting by Justices Jon P. Wilcox and Patience Drake Roggensack.

A former Assembly speaker, Prosser said the case exposes a "legislative mistake" because the statutes don't match up. But he said the court should not give developmentally disabled children more favorable treatment. The better solution would have been to strike the exemption as unconstitutional and put all children on the same playing field, he said.

"The majority authorizes suit in this case more than 11 ½ years after the child's alleged injury and boasts in doing so that it has avoided rewriting the statute," Prosser wrote. "This is not judicial restraint."

Assembly Majority Leader Mike Huebsch (R-West Salem) said he expected the Legislature would act on the court's recommendation and clarify state law.

The state's medical malpractice environment was rocked by the Supreme Court decision last summer that tossed out caps for pain and suffering damages. The court said they violated the equal protection clause of the Wisconsin Constitution and were set arbitrarily.

There are no caps for economic losses.

Because of concerns that doctors might leave the state or face skyrocketing insurance costs, the Legislature passed another set of caps on pain and suffering damages. This month, Gov. Jim Doyle vetoed the new limits, saying they were too similar to the old caps and not likely to be considered constitutional.

Since the July ruling, there hasn't been a jump in malpractice cases, according to claims received by the state's Medical Mediation Panels, which are administered by the state courts and required to assess the strengths of all malpractice claims.

There were 240 case filings in all of 2004, compared with 223 in 2005, said Randy Sproule, director of the Medical Mediation Panels.

Eric Borgerding, senior vice president for the Wisconsin Hospitals Association, said it's too soon to expect a major increase. He said the court's decision Friday underscores the need for the Legislature to not only enact a valid set of caps but also address the court's question about time limits.

"If anyone doesn't think that the medical malpractice system in Wisconsin isn't melting down, they're just not paying attention," Borgerding said. "We've lost the cap, and in this case, we've lost the only protection that remained, which was the statute of limitations."

But Lynn Laufenberg, a Milwaukee attorney and past president of the Wisconsin Academy of Trial Lawyers, said cases such as Toby's are rare and doesn't believe it will lead to an influx of new filings.

"By the time the child reaches the age of 10, the vast majority of parents have had the child evaluated and those cases would already have made their way into court," Laufenberg said.


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