                                                                2016 WI 48

                  SUPREME COURT              OF   WISCONSIN
CASE NO.:                2014AP1177
COMPLETE TITLE:          John Doe 56, John Doe 57, a minor and Parents of
                         John Does 56 and 57,
                                    Plaintiffs-Appellants-Petitioners,
                              v.
                         Mayo Clinic Health System - Eau Claire Clinic,
                         Inc., David A. Van de Loo, M.D., ProAssurance
                         Casualty Co. and Injured Patients and Families
                         Compensation Fund,
                                    Defendants-Respondents.

                            REVIEW OF A DECISION OF THE COURT OF APPEALS
                           (Reported at 362 Wis. 2d 540, 885 N.W.2d 885)
                                    (Ct. App. 2015 – Unpublished)

OPINION FILED:           June 23, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:           February 24, 2016

SOURCE OF APPEAL:
   COURT:                Circuit
   COUNTY:               Eau Claire
   JUDGE:                Michael A. Schumacher

JUSTICES:
   CONCURRED:
   DISSENTED:            BRADLEY, A. W., J. and ABRAHAMSON, J. dissent
                         (Opinion filed).
  NOT PARTICIPATING:


ATTORNEYS:
       For        the    plaintiffs-appellants-petitioners,          there      were
briefs by Eric J. Magnuson and Robins Kaplan LLP, Minneapolis,
and Russell D. Nicolet, Adam L. Nicolet, and Nicolet Law Office,
S.C., Hudson. Oral argument by Eric J. Magnuson.


       For      the     defendants-respondents    David   A.   Van   de   Loo   and
ProAssurance Casualty Company, there was a brief by Samuel J.
Leib, Brent A. Simerson and Wilson Elser Moskowitz Edelman &
Dicker, LLP, Milwaukee, and oral argument by Samuel J. Leib.
    For the defendant-respondent Injured Patients & Families
Compensation Fund, there was a brief by Jeremy T. Gill and Nash,
Spindler, Grimstad & McCracken, LLP, Manitowoc.


    For the defendants-respondents Mayo Clinic Health System-
Eau Claire Clinic, Inc. and ProAssurance Casualty Co., there was
a brief by Guy DuBeau, Timothy M. Barber, and Axley Brynelson,
LLP, Madison, and oral argument by Guy DuBeau.




                                2
                                                                    2016 WI 48
                                                            NOTICE
                                              This opinion is subject to further
                                              editing and modification.   The final
                                              version will appear in the bound
                                              volume of the official reports.
No.       2014AP1177
(L.C. No.    13CV608 & 13CV13000)

STATE OF WISCONSIN                        :            IN SUPREME COURT

John Doe 56, John Doe 57, a minor and Parents
of John Does 56 and 57,

              Plaintiffs-Appellants-Petitioners,
                                                                 FILED
      v.
                                                            JUN 23, 2016
Mayo Clinic Health System - Eau Claire Clinic,
Inc., David A. Van de Loo, M.D., ProAssurance                  Diane M. Fremgen
Casualty Co. and Injured Patients and Families              Clerk of Supreme Court
Compensation Fund,

              Defendants-Respondents.




      REVIEW of a decision of the Court of Appeals.            Affirmed.


      ¶1      REBECCA G. BRADLEY, J.    Minors John Doe 56 and John

Doe 57 appeal from the decision of the court of appeals,1 which

affirmed the circuit court's2 dismissal of the Does' medical

malpractice claims based on the statute of limitations.                       The

      1
       John Doe 56 v. Mayo Clinic Health Sys.-Eau Claire Clinic,
Inc., No. 2014AP1177, unpublished slip op. (Wis. Ct. App. Apr.
1, 2015)(per curiam).
      2
       The Honorable Michael A. Schumacher of Eau Claire County
presided.
                                                                  No.    2014AP1177



issue      is    whether   the    statute   of    limitations      for    medical

malpractice claims, Wis. Stat. § 893.55(1m)(a) (2013-14),3 bars

this       action.      More     specifically,     this   case      involves     a

disagreement as to when the Does' claims for medical malpractice

accrued.        The circuit court and court of appeals determined that

the Does' claims accrued on the last day Dr. David A. Van de Loo4

performed       the   genital    examinations    during   which    the    medical

malpractice allegedly occurred.             The Does contend their claims


       3
           Wisconsin Stat. § 893.55, in pertinent part provides:

       (1m) Except as provided by subs. (2) and (3), an
       action to recover damages for injury arising from any
       treatment or operation performed by, or from any
       omission by, a person who is a health care provider,
       regardless of the theory on which the action is based,
       shall be commenced within the later of:

       (a)      Three years from the date of the injury, or


       (b)      One year from the date the injury was discovered or,
                in the exercise of reasonable diligence should have
                been discovered, except that an action may not be
                commenced under this paragraph more than 5 years from
                the date of the act or omission.

     All references to the Wisconsin Statutes are to the 2013-14
version unless otherwise indicated. We cite to the most recent
version of the statutes because no pertinent changes have been
made.
       4
       Dr. Van de Loo is no longer licensed to practice medicine
in Wisconsin.   We refer to him with the title "Dr." throughout
the opinion because he was licensed at the time he rendered
treatment to the Does in this medical malpractice case, and
because the absence of his Wisconsin license to practice
medicine does not change the fact that he obtained a medical
degree.


                                        2
                                                                                  No.    2014AP1177



for medical malpractice did not accrue until they learned in

news reports that the State had charged Dr. Van de Loo with

second-degree           sexual      assault     of    another         boy     for       physically

manipulating that boy's penis during a genital examination very

similar to the Does' own examinations.                              The Does contend that

this knowledge caused them to suffer extreme emotional distress

and other psychological injuries because the boys then believed

that Dr. Van De Loo sexually assaulted them under the guise of a

genital examination.                The Does are not arguing that the news

reports      caused       them     to    discover     that       they      had    been     injured

during the genital examinations; rather, they are asserting that

no injury had occurred, and therefore, their claims did not

accrue, until they learned that Dr. Van de Loo's conduct during

the genital examinations might have involved a criminal sexual

assault.

       ¶2     At    the       outset,      we   address         whether       allegations          of

sexual      assault      during      a    medical     examination           may     lawfully       be

pursued as a medical malpractice action.                             We are not convinced
that   victims          who   are       sexually     assaulted        by    their       physician

during an appointment can state an actionable claim for medical

malpractice.            See Deborah S.S. v. Yogesh N.G., 175 Wis. 2d 436,

499 N.W.2d 272 (Ct. App. 1993)(improper sexual conduct by a

physician        against       a    patient        during       a    physical       examination

constitutes        intentional            conduct,        not       medical       malpractice).

Sexual assault is an intentional act and therefore should be

pursued     as     an    intentional        tort     in    the      civil     arena      or   as    a
criminal matter, not under a claim of medical negligence.                                     When
                                                3
                                                                                   No.    2014AP1177



there    exists,        however,         a    legitimate           medical       purpose     for    a

genital      examination,            a        claim         can      fall        within     medical

malpractice.            See   J.W.       v.    B.B.,        2005     WI    App    125,    ¶10,     284

Wis. 2d 493, 700 N.W.2d 277 (digital-rectal prostate exams done

as   part    of     a    pre-employment               physical       properly       fell     within

medical     malpractice         where         physician       had     a     legitimate      medical

purpose or reason for the allegedly inappropriate touching).

      ¶3     In Deborah S.S., the patient underwent a neurological

examination       during       which          the   physician         touched       her     vagina,

buttocks, and breast, and she felt the physician's penis become

erect against her body.                  Id., 175 Wis. 2d at 439.                    The parties

agreed the sexual acts "did not serve any medical reason related

to the examination" and were therefore "not part of the medical

treatment accorded to the patient."                           Id. at 443.          Based on this

agreement,     it       was    clear         that   Deborah         S.S.     did    not    have    an

actionable medical malpractice claim because the sexual touching

was unrelated to the neurological treatment.                                 In J.W., like the

instant case, this separation was not evident.                                       The medical
malpractice alleged in J.W. consisted of an unnecessary digital-

rectal     prostate       examination            as     a     part    of     a     pre-employment

physical.         Id.,        ¶¶2,     9-11.            The       patients       asserted     these

examinations were unnecessary and improper and may have been

done for sexual rather than medical reasons.                                Id., ¶¶10-12.         The

J.W. court distinguished J.W. from Deborah S.S. because the J.W.

plaintiffs did not "allege the physician touched them in places

or in ways that served no medical purpose or reason, such that
the prostate exams were not a part of the medical treatment the
                                                    4
                                                                              No.     2014AP1177



physician provided."            J.W., ¶10.        In other words, because there

was   a    medical       purpose    for     conducting        digital-rectal          prostate

exams, the alleged conduct was part of the medical treatment and

the only issue was whether "performing digital-rectal prostate

exams      on      healthy,     twenty-five-year-old             males        during          pre-

employment physicals was 'unnecessary and improper treatment,'

thus constituting medical malpractice."                       Id. (citation omitted).

The J.W. court held that under these circumstances, J.W.'s case

properly fell within medical malpractice.

      ¶4         The Does' case is more akin to J.W. than Deborah S.S.

The Does alleged that the touching occurred during their medical

treatment——during their annual examinations.                            The Does allege

that Dr. Van de Loo asserts he had a legitimate medical purpose

for     manipulating         the    boys'      penises        during     their           genital

examinations,          and    the    Does     claim      that     Dr.    Van        de    Loo's

"touching" during the medical examination was "unnecessary and

improper         treatment."        These    allegations        could     constitute           an

actionable medical malpractice claim.                     Northwest Gen. Hosp. v.
Yee, 115 Wis. 2d 59, 61-62, 339 N.W.2d 583 (1983) (This court

has       held     that      "unnecessary         and     improper        treatment            []

constitute[s] malpractice.").

      ¶5         Further, this case comes to us following a motion to

dismiss.          Our review on a motion to dismiss requires us to

accept the facts alleged in the pleadings as true.                                  See Kaloti

Enters.,        Inc.   v.    Kellogg      Sales   Co.,    2005     WI    111,        ¶11,     283

Wis. 2d 555, 699 N.W.2d 205.                  The Does' pleadings allege both
unnecessary        and    improper     treatment        and    that     Dr.     Van      de    Loo
                                              5
                                                                        No.    2014AP1177



professes a medical reason for the manipulation of the Does'

genitals.          Accordingly, we cannot hold as a matter of law that

no claim exists under medical malpractice law.                          We therefore

analyze whether the circuit court properly dismissed the Does'

medical malpractice claim based on the statute of limitations in

Wis. Stat. § 893.55(1m)(a).                To decide whether the statute of

limitations bars the Does' medical malpractice claims, we must

determine whether their claims accrued on the date Dr. Van de

Loo    last    physically        touched    the      Does    during    their    genital

examinations or whether accrual occurred when the Does learned

that Dr. Van de Loo's genital examination may, in actuality,

have constituted a criminal act.

       ¶6     We hold that the Does' claims accrued on the date of

the last physical touching by Dr. Van de Loo because that is the

only moment at which a "physical injurious change" occurred.

This is consistent with the "physical injurious change" test we

use for determining accrual in medical malpractice cases.                            See

Estate of Genrich v. OHIC Ins. Co., 2009 WI 67, ¶17, 318 Wis. 2d
553,    769    N.W.2d      481    ("[T]he       determination     of     a    'physical

injurious change' is the appropriate benchmark for establishing

the date of 'injury' under Wis. Stat. § 893.55(1m)(a).").                            The

Does' last appointments with Dr. Van de Loo were December 31,

2008 for Doe 56 and December 31, 2009 for Doe 57.                        They did not

file this medical malpractice action until October 2013, more

than three years after each boy's last genital examination with

Dr.    Van    de    Loo.    Accordingly,        the   Does'    claims    for    medical
malpractice          are   time-barred          by     the     three-year       medical
                                            6
                                                                         No.    2014AP1177



malpractice statute of limitations, Wis. Stat. § 893.55(1m)(a).5

Therefore, the decision of the court of appeals is affirmed.

                                    I.   BACKGROUND

       ¶7     On October 9, 2013, John Doe 56, John Doe 57, and

their parents filed suit against Dr. Van de Loo, Mayo Clinic

Health      System,      ProAssurance    Casualty       Company    and    the     Injured

Patients and Families Compensation Fund alleging a variety of

claims, including a claim for medical malpractice, which is the

only       claim   involved    in    this       appeal.6     The    facts       and   any

reasonable inferences derived therefrom are taken from the Does'

complaint and are set forth below.

       ¶8     The complaint's first paragraph states that these boys

"may have been the victim[s] of sex crimes."                  From 2003 to 2008,

Dr.    Van    de   Loo    served    as   Doe     56's   primary    care        physician.

During this timespan, while Doe 56 was 10 to 15 years old, he

received medical treatment from Dr. Van de Loo that included Dr.

Van de Loo touching Doe 56's genitals.                     Doe 57 also received

medical treatment from Dr. Van de Loo, including touching of Doe
57's genitals between 2003 to 2009 when Doe 57 was 8 to 14 years


       5
       Although the Does argued the discovery rule in the circuit
court, they abandoned this argument on appeal.       They do not
argue that their claim was timely filed under Wis. Stat.
§ 893.55(1m)(b)'s one-year date-of-injury discovery rule, and
therefore we analyze only when the Does' claim accrued under
§ 893.55(1m)(a).
       6
       The Does' attorney vociferously emphasized during oral
argument that the only claim being argued here is the claim for
medical malpractice.


                                            7
                                                                                  No.    2014AP1177



old.         During      the        respective       time     periods,     Dr.     Van    de   Loo

"inflicted         harmful          bodily    contact"       on   the     Does    "on    multiple

occasions."           As a result of this contact, the boys suffered

"great pain of mind and body" and Dr. Van de Loo's actions

"caused bodily harm."                   The Does do not provide specific dates

for their examinations, but instead give only a year range.

       ¶9        The Does' complaint further alleges:                        Dr. Van de Loo

"touched the genitals of additional minor male patients" and

"did not wear gloves while he was performing examinations of

minor       male    patients."                The       examinations      included       physical

manipulation of the penis.                          Dr. Van de Loo asked parents to

leave      the     room    during        the      genital      examination,        leaving     the

doctor and the minor patient alone in the room.

       ¶10       In August 2012, a minor male patient reported that Dr.

Van     de    Loo        had        touched       his      genitals      during     a    physical

examination and this led to criminal charges being filed against

Dr.    Van    de    Loo        in    October        2012    for   "second[-]degree         sexual

assault       by    an    employee           of   an     entity    and    one     for    exposing
genitals or pubic area."                      The State ultimately charged Dr. Van

de Loo with 16 felony counts based on his conduct with male

patients.7          The Does allege that Dr. Van de Loo claimed his


       7
       Dr. Van de Loo states in his brief that a jury acquitted
him on 14 of the 16 criminal counts with which he was charged,
and that the prosecutor agreed to dismiss the remaining two
counts in exchange for Dr. Van de Loo's agreement to stop
practicing medicine and surrender his medical license.     This
information, however, is not contained in the record.


                                                     8
                                                                   No.    2014AP1177



genital examinations served a medical purpose in furtherance of

professional medical services and denied that his conduct was

criminal.

      ¶11    The   Does    assert    they   did   not   discover    any    damages

until the October 2012 news report on the criminal case against

Dr. Van de Loo.         At that time, they discovered that Dr. Van de

Loo's conduct caused them profound psychological damages.8                      The

boys "now realize" they have suffered "and will continue to

suffer great pain of mind and body, including, but not limited

to:       depression,     anxiety,    embarrassment,     emotional       distress,

self-esteem issues, and loss of enjoyment of life."

      ¶12    The medical malpractice cause of action alleged Dr.

Van de Loo "failed to exercise reasonable care and medical skill

in . . . which he diagnosed, cared, treated and rendered medical

services to Doe 56, including, but not                  limited to providing

unnecessary and improper treatment."

      ¶13    The defendants filed motions to dismiss arguing the

medical malpractice statute of limitations expired, barring the
Does' claims based on medical malpractice.9                The circuit court
      8
       As noted, the Does are not arguing the discovery rule on
appeal. The Does use the term "discover" not in the sense that
they discovered that Dr. Van de Loo had injured them when he
touched their genitals, but to argue that the October 2012 news
about Dr. Van de Loo caused the actual injury.
      9
       The circuit court decided additional motions to dismiss
not pertinent here as this appeal involves only the Does'
dismissal of their medical malpractice claims.     The parties
reported at oral argument that the Does' claim for sexual
battery against Dr. Van de Loo survived all of the motions to
dismiss and is still pending in the circuit court.


                                        9
                                                                   No.     2014AP1177



granted the motions to dismiss on statute of limitations grounds

and   the   court   of    appeals     affirmed.         We    granted    the   Does'

petition for review.

                          II.      STANDARD OF REVIEW

      ¶14   This case involves the review of a motion to dismiss,

which   presents    a    question     of     law   we    review   independently.

Alberte v. Anew Health Care Servs. Inc., 2000 WI 7, ¶6, 232

Wis. 2d 587, 605 N.W.2d 515.               A motion to dismiss tests the

sufficiency of a complaint and will be upheld only when there

are no conditions under which a plaintiff may recover.                         Kaloti

Enters., Inc., 283 Wis. 2d 555,               ¶11.       Whether a plaintiff's

complaint fails to state a claim is a question of law we review

de novo.        Id., ¶10.       Moreover, in a review of a motion to

dismiss, we construe the pleadings liberally and accept as true

both the facts contained in the complaint and any reasonable

inferences arising from those facts.                 Id., ¶11.     The motion to

dismiss here is based on whether the complaint was timely filed

under     the   applicable      statute      of    limitations,         Wis.   Stat.
§ 893.55(1m)(a).            This     involves      the       interpretation      and

application of a statute to an undisputed set of facts, which

also presents a question of law we review de novo.                  Genrich, 318

Wis. 2d 553, ¶10.        If a complaint is not timely filed, the claim

is time-barred and dismissal will be upheld.                    See Pritzlaff v.

Archdiocese of Milwaukee, 194 Wis. 2d 302, 312, 533 N.W.2d 780

(1995).

      ¶15   In this case, whether the Does' medical malpractice
claims were timely filed is dependent upon when their claim
                                        10
                                                                          No.       2014AP1177



accrued.      Accrual dates in medical malpractice claims are based

on the date of injury or, if applying the discovery rule, the

date the injury was or should have been discovered.                                 See Wis.

Stat. § 893.55(1m).

                                III.       ANALYSIS

               A.     Medical Malpractice Statute of Limitations

       ¶16    Wisconsin Stat. § 893.55(1m)(a) provides:

       (1m) Except as provided by subs. (2) and (3), an
       action to recover damages for injury arising from any
       treatment or operation performed by, or from any
       omission by, a person who is a health care provider,
       regardless of the theory on which the action is based,
       shall be commenced within the later of:

       (a)    Three years from the date of the injury[.]
       ¶17    Courts are repeatedly asked to apply this statute to a

particular      set     of   facts    to        determine        whether        a    medical

malpractice claim was timely filed.                         Although every case is

different,      Wisconsin     case     law       has    over       time    developed        a

consistent test for determining the date of injury in medical

malpractice claims under Wis. Stat. § 893.55(1m)(a):                            it is the

date of the "physical injurious change."                         Genrich, 318 Wis. 2d

553,   ¶17.      This    test   has    worked          in    a   variety    of        factual

scenarios and withstood the test of time.                        It was applied when

the negligent conduct was a misdiagnosis, see Paul v. Skemp,

2001 WI 42, 242 Wis. 2d 507, 625 N.W.2d 860 (physical injurious

change   was    when    blood   vessel       ruptured);          when     the       negligent

conduct was a failed tubal ligation, see Fojut v. Stafl, 212

Wis. 2d 827, 569 N.W.2d 737 (Ct. App. 1997)(physical injurious
change was the moment of conception), and when a foreign object

                                           11
                                                                 No.    2014AP1177



was left in the patient during surgery, see Genrich, 318 Wis. 2d

553 (physical injurious change was when a sponge was left inside

a surgical patient).

       ¶18   Thus, we must determine when the physical injurious

change    occurred     here.    The    Federal   District     Court     for   the

Western District of Wisconsin recently decided this exact issue

in Doe 52 v. Mayo Clinic Health System-Eau Claire Clinic, Inc.,

98 F. Supp. 3d 989, 994-95 (W.D. Wis. 2015).                 Doe 52 involved

similar allegations by another male, minor patient of Dr. Van de

Loo.     Doe 52 alleged a medical malpractice claim against Dr. Van

de Loo based on "'unnecessary and improper [medical] treatment'

in the form of inappropriate touching."             Id. (citation omitted;

brackets in original).          Doe 52 had undergone the same genital

examinations as the Does while a patient of Dr. Van de Loo.                   See

id. at 990-91.         Doe 52 made the same argument to the federal

district court that the Does make here: that no injury occurred

(and therefore no claim accrued) until he learned that the State

was    charging   Dr.    Van    de    Loo   criminally     for    the    genital
examinations.        Id. at 994.        The Doe 52 court rejected this

argument and held that Doe 52's claims accrued at the time Dr.

Van de Loo last inappropriately touched Doe 52. Id. at 995-96.

The Doe 52 court reasoned that because the malpractice alleged

was      unnecessary      and     improper       treatment,       specifically

inappropriate     touching,      "the       'physical     injurious      change'

plaintiff suffered was the touching, and any later emotional

distress was an additional injury[.]"               Id.    at 996 (emphasis
added).      As a result, the         Doe 52   court held that Doe 52's
                                       12
                                                                         No.     2014AP1177



claims, which were filed more than three years from the last

genital        examination,        were      time-barred          by      Wis.        Stat.

§ 893.55(1m)(a).       We agree with this analysis.10

    ¶19        In a medical malpractice claim based on unnecessary

and improper treatment of inappropriate touching, the physical

injurious change occurs at the time of the touching.                           These boys

suffered an injury when Dr. Van de Loo physically touched their

genitals in an allegedly inappropriate way.                       To hold otherwise

runs contrary to existing case law and would defeat the purpose

behind    the    medical     malpractice         statute    of    limitations          that

"prompt    litigation        ensures      fairness."        See    Aicher        ex    rel.

LaBarge v. Wisconsin Patients Comp. Fund, 2000 WI 98, ¶¶51-54,

237 Wis. 2d 99, 613 N.W.2d 849.

    ¶20        The Does contend that there was no physical injurious

change    at    the   time    of   the     allegedly       inappropriate         touching

because they did not know at that time that the touching was

wrongful.       Therefore, the Does argue their cause of action could

not have accrued at the time of the touching.                          Although we are
sympathetic      to   this    argument,         we   are   not    persuaded       by   it.


    10
       The dissent criticizes our reliance on this federal case
because a federal district court decision is not binding
authority.   See dissent, ¶45.   Although it is true we are not
bound by federal district court decisions, see State v. Mechtel,
176 Wis. 2d 87, 94, 499 N.W.2d 662 (1993), the opinion on which
we rely is highly persuasive.    It is a 2015 decision from the
Western District of Wisconsin involving the same defendant as in
this case——Dr. Van de Loo; it addresses the same unique
circumstances presented here; and its analysis is reasonable,
logical, and consistent with Wisconsin case law.


                                           13
                                                                      No.      2014AP1177



Expiration    of   the    medical      malpractice      statute     of   limitations

before   a   patient     knows    about    the    injury     is    unfortunately       a

consequence of the legislature's policy reasons for enacting the

medical malpractice statute of limitations.                       See Aicher, 237

Wis. 2d 99, ¶¶2-6.        In Aicher, a 13-year-old claimed she became

blind in one eye as a result of alleged medical malpractice

committed    during      an    examination       of   Aicher      when   she     was   a

newborn.     Id., ¶2.         We held her claim was time-barred by Wis.

Stat.    § 893.55.       Id.,    ¶6.      We     explained     that      the    medical

malpractice statute of limitations was enacted to promote prompt

litigation of claims, to put the alleged wrongdoer on notice to

defend a claim within a specified time period, and to avoid

stale or fraudulent claims "brought after memories have faded or

evidence     has   been       lost."       Id.,       ¶27   (citation       omitted).

Sometimes Wis. Stat. § 893.55 expires before a patient knows an

injury occurred:

    We see no distinction between closing the doors to the
    courtroom for claimants when an injury has not been
    discovered within a fixed period of time after some
    act or omission and closing the doors to the courtroom
    for a person whose injury has not yet occurred within
    a fixed period of time after some act or omission.
    The effect of extinguishing a remedy in court is the
    same.   This court has concluded many times that the
    legislature may sever a person's claim by a statute of
    limitations or a statute of repose when the person has
    had no possibility of discovering the injury——when the
    person has been blameless in every respect.      These
    decisions represent judicial deference to the stated
    policy of the legislature.
Aicher, 237 Wis. 2d 99, ¶50.            The physical injurious change here
occurred when Dr. Van de Loo allegedly inappropriately touched


                                          14
                                                                                 No.   2014AP1177



the Does' genitals.                  The fact the Does may not have known at the

time that the touching was allegedly inappropriate or that the

manipulation             of     their        genitals          constituted       the    physical

injurious change does not change this fact.                                     See Fojut, 212

Wis. 2d         at   831-32      (physical          injurious         change    from   negligent

tubal ligation was moment of conception, a date the patient

could not have known).

          ¶21    We are further not persuaded by the Does' claim that

no physical injurious change occurred at all because Dr. Van de

Loo's physical manipulation of their penises with his bare hands

did not leave bruises, scrapes, or other physical damage.                                      Lack

of    a    physical           mark    does      not     mean    that    no     physical   injury

occurred under the circumstances here.                                As the Does allege in

their       complaint:               Dr.    Van       de    Loo's     alleged     inappropriate

touching "caused bodily harm" and was "harmful bodily contact."

The   physical           injurious         change       here    was    the   alleged    improper

sexual manipulation of the penis, a physical action.                                   The boys'

genitals were physically touched in an allegedly inappropriate
sexual way, which had not occurred prior to Dr. Van de Loo's

allegedly negligent conduct.                       To conclude otherwise would result

in a holding that a patient who is wrongfully touched in a

sexual          manner    by     his       or     her      physician     does    not    have     an

actionable           claim       after       the        improper      touching     unless       the

physician does physical damage to their genitals.

          ¶22    Further, accepting the Does' position that their claim

did not accrue until they learned that Dr. Van de Loo was being
charged criminally for similar genital examinations would result
                                                      15
                                                                        No.      2014AP1177



in a limitless extension of the medical malpractice statute of

limitations          and   change    the    causation       connection      in    medical

malpractice cases from the negligent act to a fortuitous event——

here the media reporting about the criminal charges against Dr.

Van de Loo.

       ¶23      In essence, the Does are asking us to conclude that

they had no injury until they learned about the criminal charges

against Dr. Van de Loo.                 Stated otherwise, learning about the

criminal charges caused them to be injured for the first time.

This would mean that if no patient had ever reported Dr. Van de

Loo's genital examination as improper, or the State had declined

to file criminal charges, or the media had not reported on the

charges or the Does never saw the media reports, the Does would

never have suffered an injury and their claim would never have

accrued.        The Does' position is not reasonable.                    The date of

injury     of    a    patient's     medical       malpractice      claims     cannot    be

tethered to whether or when the media reports on an allegedly

criminal act, nor can it be dependent on whether another patient
makes a report.            A physician's actions either fall below the

standard of care and cause injury or they do not.                             Knowledge

that   a     physician      is   being     charged       criminally    cannot     be   the

causal factor in whether or not medical negligence results in

injury.           Moreover,         adopting       the     Does'      position      could

indefinitely          extend      the      medical       malpractice      statute       of

limitations.          Here, the news report about Dr. Van de Loo came

only a few years after the Does' last examination, but what if
the news report came 10 or 20 or 30 years after the last contact
                                             16
                                                                          No.    2014AP1177



with   Dr.    Van     de    Loo?      This     would    defeat     the    legislature's

purpose      for    enacting       Wis.     Stat.     § 893.55,     see    Aicher,        237

Wis. 2d      99,    ¶¶22-27,        29-32,     50-51,      53-54,        and    would      be

unreasonable.         We will not interpret a statute in a way that

renders it absurd or unreasonable.                     See State v. Ziegler, 2012

WI 73, ¶43, 342 Wis. 2d 256, 816 N.W.2d 238.

       ¶24    Thus, we conclude that the Does' medical malpractice

claims accrued on the date of the last genital examination.                                It

was on that date that each suffered the "physical injurious

change" that triggered the start of the three-year statute of

limitations.           The     psychological           injuries,     caused       by      the

knowledge that Dr. Van de Loo had been criminally charged for

similar touching of other boys, constituted a subsequent injury

from the same tortious act (the inappropriate touching).                                 This

emotional      manifestation         based     upon     the   previously         completed

physical injury (the improper touching of the boys' genitals

during the physical examination) does not restart the running of

the statute of limitations.                 See Genrich, 318 Wis. 2d 553, ¶21
("later      injury    arising       from    the    same   tortious       act    does     not

restart the running of the statute of limitations")(citations

and quotation marks omitted).

       ¶25    The Does do not provide the specific date of the last

genital examination in their complaint, but include only a year

range.       The parties, however, agreed to use the last date of

each calendar year from the last year in the range given.                                For

Doe 56, that date was December 31, 2008 and for Doe 57 that date
was    December       31,    2009.          Thus,   the    three-year          statute     of
                                             17
                                                                No.    2014AP1177



limitations for Doe 56 expired December 31, 2011, and the three-

year statute of limitations for Doe 57 expired December 31,

2012.     Because the Does did not file their medical malpractice

complaint until October 2013, their claims are time-barred by

Wis. Stat. § 893.55(1m)(a).              Accordingly, their complaints were

properly dismissed and the decision of the court of appeals is

affirmed.11

           B.    Reliance on John BBB Doe v. Archdiocese of
                Milwaukee12 in a medical malpractice case
     ¶26    John      BBB   Doe    involved     seven   cases   alleging    that

priests    in   the    Milwaukee     Archdiocese     sexually   assaulted    the

minor victims.        Id., 212 Wis. 2d 312, 318, 565 N.W.2d 94 (1997).

The issue involved determining the date on which the victims

discovered      or    should      have   in    the   exercise   of    reasonable

diligence discovered that the sexual abuse caused injury.                    Id.

at 318-19.      We held that a victim of this clergy sexual abuse

either discovered or should have discovered "that he or she was



     11
       This does not leave the Does without a remedy. Pursuant
to Wis. Stat. § 893.587, the Does have claims for sexual assault
that are not barred until they are 35 years old.        See id.
("Sexual assault of a child; limitation.   An action to recover
damages for injury caused by an act that would constitute a
violation of s. 948.02, 948.025, 948.06, 948.085, or 948.095 or
would create a cause of action under s. 895.442 shall be
commenced before the injured party reaches the age of 35 years
or be barred.")   As explained in footnote 9, the Does' sexual
battery claim is still pending.
     12
       See John BBB Doe v. Archdiocese of Milwaukee, 211 Wis. 2d
312, 565 N.W.2d 94 (1997).


                                          18
                                                                       No.   2014AP1177



injured at the time of the alleged sexual assaults or by the

last date of the alleged multiple assaults."                   Id.

       ¶27    The circuit court in this case applied John BBB Doe to

Does    56    and   57's   claims    to    conclude    that     both    boys    either

discovered or should have discovered that they were injured on

the date of the last inappropriate genital exam.                       The court of

appeals in this case also applied John BBB Doe to conclude that

the Does' negligence claims against Mayo Clinic accrued at the

time of the touching.          See John Doe 56 v. Mayo Clinic Health

Sys.-Eau Claire Clinic, Inc., No. 2014AP1177, unpublished slip

op., ¶22 (Wis. Ct. App. Apr. 1, 2015)(per curiam).                             In this

court,       however,   the   Does    are       not   making    a    discovery-rule

argument.       Thus, the John BBB Doe discovery-rule holding is not

pertinent to our analysis.           See id., 211 Wis. 2d at 318-19.13

                               IV.        CONCLUSION

       ¶28    We hold that the Does' claims accrued on the date of

the last physical touching by Dr. Van de Loo because that is the

moment at which the "physical injurious change" occurred in this
medical malpractice case.            See Genrich, 318 Wis. 2d 553, ¶17.

       13
       We are not convinced that John BBB Doe should apply to a
medical malpractice case.     There are significant differences
between clergy-abuse cases and alleged sexual abuse in a medical
malpractice case.    Namely, there are medical reasons for a
physician to touch a patient's genitals in the course of a
legitimate physical examination.   Although the line between an
inappropriate sexual touching and a medically necessary touching
of the body may not always be clear, a physician nevertheless is
in a very different position than a priest or clergy-person. A
priest or clergy-person has no legitimate reason to touch
another person's genitals.


                                           19
                                                                      No.     2014AP1177



Dr. Van de Loo's last physical contact with the Does' genitals

occurred when he manipulated each boys' penis in an allegedly

inappropriate and unnecessary manner.                   The dates of the last

genital     examinations    were    December      31,    2008   for     Doe    56   and

December 31, 2009 for Doe 57.                The Does did not file these

medical malpractice claims until October 2013, more than three

years      after   each    Doe   had   his     last      genital       examination.

Accordingly, their medical malpractice claims are time-barred by

the   medical      malpractice     statute   of    limitations,         Wis.     Stat.

§ 893.55(1m)(a).       Further, we see no reason to extend John BBB

Doe to this medical malpractice case where the discovery rule is

not an issue.14




      14
       The dissent's analysis in support of its conclusion that
the Does' case is most like Paul v. Skemp, 2001 WI 42, ¶20, 242
Wis. 2d 507, 625 N.W.2d 860, is illogical.

     Paul was a misdiagnosis case, where the negligence was an
omission leading to an injury that occurred two months after
Paul was last seen. See Paul, 242 Wis. 2d 507, ¶2, ¶¶4-5. The
physical injurious change did not occur at the same time as the
negligent act, but the Pauls' lawsuit was filed within the five-
year statute of repose. Id., ¶¶6, 12. The Does' case is not a
misdiagnosis case, Dr. Van de Loo's alleged negligent act was
the affirmative act of touching the boys' genitals (allegedly
unnecessary and improper treatment) rather than an omission, and
the Does' physical injurious change occurred at the time of the
touching.    Attempting to analogize the Does' case to a
misdiagnosis case is simply wrong.

                                                                        (continued)
                                       20
                                                   No.   2014AP1177




     The dissent's second point suggesting that this opinion
creates a statute of repose not found in Wis. Stat. § 893.55(1m)
is also unfounded.   The statute of repose issue raised by the
dissent——and notably not by the parties——is unnecessary to
resolve the case presented to us; therefore we do not address
it.   The dissent's statements misconstrue an issue not before
this court and warrant clarification. In dicta, Paul raised the
possibility that the date of injury under § 893.55(1m)(a) could
potentially   exceed   the  five-year   statute   of  repose   in
§ 893.55(1m)(b) and urged the legislature to resolve the
potential conflict.     Paul, 242 Wis. 2d 507, ¶¶48-49.       The
legislature has not taken up that request.       Isolated cases,
relying on Paul's dicta, have held that the five-year statute of
repose in § 893.55(1m) only applies to the discovery rule
paragraph (b) and is inapplicable to paragraph (a). See, e.g.,
Storm v. Legion Ins. Co., 2003 WI 120, ¶¶9-10, 265 Wis. 2d 169,
665   N.W.2d    353  (alleging    medical   malpractice   against
psychologists where hypnosis was used to recover memories of
childhood sexual abuse that were later found to be untrue and
allegedly led to patient developing multiple personality
disorder; also involving tolling for mental illness); Forbes v.
Stoeckl, 2007 WI App 151, ¶1, 303 Wis. 2d 425, 735 N.W.2d 536
(doctrine of continuous treatment in dental malpractice case
applies,   allowing   claim   timely   made  under   Wis.   Stat.
§ 893.55(1)(a) to include negligence that pre-dates the five-
year repose limitation under (1)(b)).

     Before Wis. Stat. § 893.55 was enacted, there was no
discovery rule applicable to medical malpractice actions, see
Claypool v. Levin, 209 Wis. 2d 284, 292-94, 562 N.W.2d 584
(1997), and medical malpractice claimants had to file suit
within three years of their injury. See Aicher ex rel. LaBarge
v. Wisconsin Patients Comp. Fund, 2000 WI 98, ¶24, 237 Wis. 2d
99, 613 N.W.2d 849.     As cases arose where claimants did not
discover their injuries until after three years had already
passed, we urged the legislature to amend the statute of
limitations because three years from the time of injury was "too
short." Id. (citations omitted). The legislature later enacted
the current statute of limitations:

    (1m) Except as provided by subs. (2) and (3), an
    action to recover damages for injury arising from any
    treatment or operation performed by, or from any
    omission by, a person who is a health care provider,
                                                   (continued)
                               21
                                                            No.     2014AP1177



    By    the   Court.—The   decision   of   the   court   of     appeals   is

affirmed.




    regardless of the theory on which the action is based,
    shall be commenced within the later of:

    (a)     Three years from the date of the injury, or

    (b) One year from the date the injury was discovered
    or, in the exercise of reasonable diligence should
    have been discovered, except that an action may not be
    commenced under this paragraph more than 5 years from
    the date of the act or omission.

Wis. Stat. § 893.55.

     Finally, we note the reasons the legislature enacted this
statute of limitations (as well as the statute of repose):    to
promote fair and prompt litigation, protect defendants from
stale or fraudulent claims, and ensure claims are litigated
before the truth is "obfuscated by death or disappearance of key
witnesses, loss of evidence, and faded memories."    Aicher, 237
Wis. 2d 99, ¶27. Adopting the Does' argument in this case would
eviscerate the three-year statute of limitations and flout the
legislative policy choices on which it is based by effectively
allowing a plaintiff to bring a medical malpractice claim
whenever he chooses simply by alleging his emotional distress
began even decades after the allegedly unnecessary and improper
treatment occurred.


                                   22
                                                                            No. 2014AP1177.awb




       ¶29     ANN WALSH BRADLEY, J.                     (dissenting).        I agree with

the majority that in this case "we cannot hold as a matter of

law     that    no       claim     exists       under     medical     malpractice             law."

Majority       op.,      ¶5.       The       majority     is   correct    that      the       Does'

allegations against Dr. Van de Loo constitute actionable medical

malpractice claims because the alleged conduct was part of the

Does'     medical         treatment           during     their     annual     examinations.

Majority op., ¶4.

       ¶30     Additionally,             I     agree     that      "the     John        BBB     Doe

discovery-rule holding is not pertinent to our analysis" because

the Does are not making a discovery-rule argument.                                      Majority

op., ¶26 (citing John BBB Doe v. Archdiocese of Milwaukee, 211

Wis. 2d 312, 565 N.W.2d 94 (1997).                       Like the majority, I also am

"not    convinced         that     John      BBB   Doe    should    apply    to     a    medical

malpractice case."               Majority op. n.12.

       ¶31     I write separately, however, because I disagree with

the conclusion that the Does' claims for medical malpractice are
time-barred         by    the     three-year       medical       malpractice       statute       of

limitations.             Majority op., ¶6.               The majority opinion suffers

from two analytical missteps:

       (1)     It         muddles            Wisconsin's          medical          malpractice

               jurisprudence by failing to distinguish between cases

               in which injury and negligence occurred simultaneously

               and       those    in     which     the    injury    occurred        after       the

               negligence.          As a result it erroneously concludes that



                                                   1
                                                              No. 2014AP1177.awb


            the Does' injuries occurred at the same time as the

            allegedly negligent medical examinations; and

    (2)     It conflates the statute of repose under Wis. Stat. §

            893.55(1m)(b) with the statute of limitations for the

            Does’ claims pursuant to Wis. Stat. § 893.55(1m)(a),

            thereby judicially creating a statute of repose that

            contravenes the plain language of the statute and our

            case law.

    ¶32     Contrary to the majority, I conclude that the Does'

injuries    did    not    occur    simultaneously      with     the    alleged

negligence.       Their   claims   accrued    when   they   suffered    severe

emotional distress upon learning that they were the victims of

child sexual assaults perpetrated by Dr. Van de Loo during their

physical examinations.          Thus, the Does' claims are not time-

barred by the medical malpractice statute of limitations because

the Does filed their claims within three years of the date they

accrued.     Accordingly, I respectfully dissent.

                                          I
    ¶33     At issue in this case is whether the Does' claims

accrued at the time of Dr. Van de Loo's allegedly negligent

genital    examinations    or   whether   they   accrued      when    the   Does

suffered severe emotional distress upon learning that they were

the victims of child sexual assault.

    ¶34     The Does allege that Dr. Van de Loo committed medical

malpractice when he sexually assaulted them under the guise of a

genital examination.       They were children at the time, as young
as eight and ten years old, when Dr. Van de Loo performed some

                                      2
                                                                No. 2014AP1177.awb


of the examinations.        Accordingly, they         assert that they did

not   immediately    understand    that     Dr.     Van    de    Loo's   conduct

constituted sexual assault.

      ¶35   Rather, the Does contend that they realized Dr. Van de

Loo's examinations were improper years later after learning that

he    had   been   criminally     charged    with     sexual       assault    for

conducting a sexually gratifying          genital examination on another

minor patient.       The complaint against Dr. Van De Loo alleges

they suffered physical injury in the form of severe emotional

distress,     including      depression,          anxiety,       embarrassment,

emotional distress, self-esteem issues, and loss of enjoyment of

life, upon learning that they had been sexually assaulted by

their trusted physician.1

      ¶36   The    Does   bring   their     medical       malpractice     claims

against Dr. Van de Loo pursuant to Wis. Stat. § 893.55(1m)(a),

which provides for a three-year statute of limitations from the

date of the injury.       Although the Does filed medical malpractice


      1
       The  majority   acknowledges   that  the   Does'   suffered
"psychological   injuries,"   but   asserts  that   their   severe
emotional distress constituted a subsequent injury to the
"inappropriate touching." Majority op., ¶24; see also Bowen v.
Lumbermens Mut. Cas. Co., 183 Wis. 2d 627, 632, 517 N.W.2d 432
(1994) ("[I]n a cause of action for negligent infliction of
emotional distress the injury a plaintiff must prove is severe
emotional distress; but the plaintiff need not prove physical
manifestation of that distress."); see also Camp ex rel.
Peterson v. Anderson, 2006 WI App 170, ¶21, 295 Wis. 2d 714, 721
N.W.2d 146 (Bowen recognizes direct claims for negligent
infliction of emotional distress, as long as a plaintiff's claim
satisfies the elements of negligent conduct, causation and
injury (severe emotional distress) and is not otherwise barred
by public policy.").


                                     3
                                                                     No. 2014AP1177.awb


claims against Dr. Van de Loo more than three years after the

date of their last examinations, they allege that their claims

were filed within three years of the date they suffered alleged

physical injury in the form of severe emotional distress.

       ¶37   Wisconsin's medical malpractice law provides for two

alternative       statutes   of   limitations        depending       on    whether    the

plaintiff brings a claim under Wis. Stat. § 893.55(1m)(a) or

(b).     The former provides a three-year statute of limitations

with no statute of repose and the latter sets forth Wisconsin's

discovery of injury rule with a five-year statute of repose:

       [A]n action to recover damages for injury arising from
       any treatment or operation performed by, or from any
       omission by, a person who is a health care provider,
       regardless of the theory on which the action is based,
       shall be commenced within the later of:

             (a) Three years from the date of the injury, or

             (b) One year from the date the injury was
             discovered or, in the exercise of reasonable
             diligence should have been discovered, except
             that an action may not be commenced under this
             paragraph more than 5 years from the date of the
             act or omission.

Wis. Stat. § 893.55 (1m).
       ¶38   In    this   case,    the     Does      do    not    allege     that    they

discovered        an   existing     injury        years      after      it   occurred.

Consequently, they do not pursue a "discovery" claim under Wis.

Stat. § 893.55(1m)(b).            Rather, the Does assert that they did

not    suffer     physical    injury       until      they       experienced       severe

emotional distress upon learning that they were victims of child
sexual   assault       perpetrated    by       Dr.   Van    de    Loo     during    their

genital examinations.
                                           4
                                                                          No. 2014AP1177.awb


                                                   II

       ¶39    The majority muddles Wisconsin's medical malpractice

jurisprudence by failing to distinguish between cases in which

injury and negligence occur simultaneously and those in which

injury occurs after the negligent act, enabling it to assert

that    the     Does'    injuries         occurred      at    the     same    time    as    the

allegedly negligent medical examinations.

       ¶40    According     to      the    majority,         "Wisconsin      case    law    has

over time developed a consistent test for determining the date

of     injury    in     medical      malpractice         claims       under    Wis.    Stat.

§ 893.55(1m)(a):           it is the date of the 'physical injurious

change.'"       Majority op., ¶17 (quoting Estate of Genrich v. OHIC

Ins. Co., 2009 WI 67, ¶17, 318 Wis. 2d 553, 769 N.W.2d 481). The

majority concludes that "the Does' claims accrued on the date of

the last physical touching by Dr. Van de Loo because that is the

only moment at which a 'physically injurious' change occurred."

Majority op., ¶6.

       ¶41    Given the nature of the Does' claims, the application
of   the     Genrich     test    appears      to    be   an     odd    fit    here.        Even

assuming        that     Genrich's        physically          injurious       change       test

properly fits, its application merely begs the question:                                   when

did the Does' suffer a physical injurious change?

       ¶42    The       majority      conclusively            states      that       touching

constitutes a physically injurious change.                            Majority op., ¶19.

But what’s the change?              The majority doesn’t tell us.

       ¶43    Describing        a    touching       as       constituting      a     physical
injurious change seems at odds also with common parlance.                                  Does

                                              5
                                                                                No. 2014AP1177.awb


it make sense to state as a matter of law that when there is a

touching a physical injurious change occurs?                             I don’t think so.

    ¶44        It    also     does    not    make       sense       as    a    matter       of    good

policy.        Will     future       cases    deem      a    claim       to    be    sufficiently

stated if together with a negligent act all that need be alleged

is that one was touched on the arm or the leg or some part of

the torso?          Where is the stopping point?

    ¶45        Without giving the reader a clue about what changed or

how it changed, the majority relies solely on a federal district

court decision for its conclusion that the physically injurious

change    the       plaintiff      suffered        occurred         simultaneously           to    the

allegedly negligent examination.                       Majority op., ¶18 (citing Doe

52 v. Mayo Clinic Health System-Eau Claire Clinic, Inc., 98 F.

Supp.    3d     989,    996       (W.D.     Wis.       2015).        Although         this       court

benefits       from     the       analysis    of        a    federal          district      court's

interpretation of State law, it is not binding authority.                                          The

majority’s reliance on a sole federal district court decision is

not an adequate substitute for its failure to apply the facts of
this case to established Wisconsin precedent.

    ¶46        Because the majority completely fails to do so, I will

first    set    forth       the    case     law       relevant      to    the       Does'   claims.

Under     Wisconsin         law,     "[a]     tort          claim    is       not     capable      of

enforcement         until     both    a     negligent         act    and       an    accompanying

injury have occurred."               Paul v. Skemp, 2001 WI 42, ¶20, 242 Wis.

2d 507, 625 N.W.2d 860 (quoting Hansen v. A.H. Robins Inc., 113

Wis. 2d 550, 554, 335 N.W.2d 578 (1983).                              Thus, it is not the



                                                  6
                                                                      No. 2014AP1177.awb


negligence, but the injury resulting from the negligent act that

begins the three-year statute of limitations period.                        Id.

       ¶47    In Fojut v. Stafl, 212 Wis. 2d 827, 829, 569 N.W.2d

737    (Ct.   App.     1997),       the     plaintiff    underwent    elective       tubal

litigation      surgery        in    order    to     prevent    pregnancy,    but    then

became pregnant a few months later.                     At issue was whether Fojut

suffered physical injury on the date of the surgery, which the

parties agreed was the date of the alleged negligent act, or the

later date of conception.                 Id. at 829-30.

       ¶48    Fojut concluded that the date of the injury triggering

the three-year medical malpractice statute of limitations was

the date of conception, rather than the date of the surgery.

Id. at 830-31.              The Fojut court explained that there was no

evidence that the plaintiff suffered physical injury on the date

the surgery was performed.                  Id. at 831.        Instead, it determined

that    Fojut    suffered          physical    injury    on    the   date   she     became

pregnant.       Id.        Thus, the three-year medical malpractice statute

of limitations began to run from the later date of conception,
rather than the date of the alleged negligent act.                      Id.

       ¶49    Similarly, in Paul, the plaintiffs claimed that the

misdiagnosis          of     the    cause      of    their     daughter's     recurring

headaches resulted in a ruptured blood vessel in her brain,

which caused her death.                    242 Wis. 2d 507, ¶1.              This court

concluded that "[t]he Pauls' claim for medical malpractice did

not, and could not, accrue until [their daughter] suffered an

injury."        Id.,        ¶2.       The     Paul    court     explained    that     "[a]



                                               7
                                                                                    No. 2014AP1177.awb


misdiagnosis may be a negligent omission, but it is not, in and

of itself, an injury."                  Id.

          ¶50     Based on the plain language of Wis. Stat. § 893.55(1),

Paul          concluded       that     the        legislature           did       not    intend      that

"omission"             and    "injury"           should      be     conflated.              Id.,     ¶20.

According to the Paul court, "[t]he plain language of Wis. Stat.

§ 893.55(1)(a) indicates that it is not the negligence, but the

injury          resulting       from        the    negligent           act    or    omission       which

initiates the limitations period."2                               Id.        Paul explained that

"[a]s our long-time precedent has established, the negligence

and       its    result——and         injury——should               be    considered         separately.

The negligence must cause an injury before there is an accrual

of    a       claim."         Id.,   ¶34      (citing        Meracle         v.    Children's      Serv.

Soc'y, 149 Wis. 2d 19, 26, 437 N.W.2d 532 (1989)).

          ¶51     In     contrast,          in     Genrich,            the    alleged       negligence

occurred         when        doctors      left     a       sponge      in    Genrich's       abdominal

cavity after performing surgery.                            318 Wis. 2d 553, ¶3.              However,

the       surgical       sponge      in     Genrich's         abdomen         was    not    discovered
until         approximately          two         weeks      after       the       surgery     when    he

developed a fatal infection.                           Id.        This court concluded that

Genrich          experienced           an     injury         triggering            the     statute     of

limitations when the doctors left the sponge in his abdomen on

          2
       The majority attempts to explain away the import of Paul
v. Skemp, 2001 WI 42, ¶20, 242 Wis. 2d 507, 625 N.W.2d 860.
Majority op., ¶28 n.14. Yet, there is no explaining away Paul's
clear conclusion cited above, which explicitly applies to both
"negligent acts or omissions." Thus, the majority's attempt to
distinguish Paul as a case addressing only an "omission" is a
non-starter.


                                                       8
                                                                   No. 2014AP1177.awb


the date of the surgery.             Id., ¶18.          Thus, in Genrich, the

negligence and the injury occurred simultaneously.

       ¶52    The Does' claims are more analogous to Fojut and Paul,

than to Genrich.        They do not allege that they were physically

injured at the time of the examination.                Instead, the Does argue

that   they    were   physically     injured     when    they   suffered        severe

emotional distress upon learning that they had been sexually

assaulted by Dr. Van de Loo.           As the Does' counsel explained at

oral argument, there are no allegations in the complaint that

the    Does   were    physically     different       after   Dr.    Van    de   Loo's

examination.

       ¶53    Despite the fact that the majority fails to apply the

facts of this case to the law set forth in Wisconsin precedent,

the majority summarily asserts that "[t]o hold otherwise runs

contrary to existing case law. . . ."                Majority op., ¶19.         After

applying the facts of this case to Wisconsin's well-established

case law, I reach the opposite conclusion of the majority and

determine     that    the    Does'   claims    did    not    accrue    until     they
suffered severe emotional distress upon learning that they were

victims of child sexual assault perpetrated by Dr. Van de Loo

during their physical examinations.

                                       III

       ¶54    Not only does the majority muddle Wisconsin case law,

its analysis of the statute of limitations conflates the statute

of repose under Wis. Stat. § 893.55(1m)(b) with the statute of

limitations     for    the   Does’   claims    pursuant       to    Wis.   Stat.    §
893.55(1m)(a), thereby judicially creating a statute of repose

                                        9
                                                                          No. 2014AP1177.awb


that contravenes the plain language of the statute and our case

law.

       ¶55        The plain language of Wis. Stat. § 893.55(1m)(b) sets

forth       the    one-year       discovery    statute    of   limitations           together

with a five-year statute of repose for plaintiffs who allege

that       they     did    not    discover     their     injury      at     the    time     the

negligence occurred:

       One year from the date the injury was discovered or,
       in the exercise of reasonable diligence should have
       been discovered, except that an action may not be
       commenced under this paragraph more than 5 years from
       the date of the act or omission.
       ¶56        In contrast, under Wis. Stat. § 893.55(1m)(a), there

plainly is a three-year statute of limitations but no statute of

repose.          Storm v. Legion Ins. Co., 2003 WI 120, ¶19, 265 Wis. 2d

169,       665    N.W.2d    353    ("We    conclude    under     a    plain       reading   of

§ 893.55(1)(b) that the five-year repose period applies only to

actions          brought   pursuant       to   the   discovery       rule    in    paragraph

(b)); Forbes v. Stoeckl, 2007 WI App 151, ¶1, 303 Wis. 2d 425,

735 N.W.2d 536 (five-year statute of repose under Wis. Stat.

§ 893.55(1m)(b) does not apply to accrual claims brought under

Wis. Stat. § 893.55(1m)(a)).3




       3
       The majority embraces a two-pronged approach in an attempt
to rebut the assertion that it is judicially creating a statute
of repose that contravenes case law. Both prongs fail.

                                                                                  (continued)
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    ¶57     The   majority's   discussion    conflates    the   three-year

statute of limitations applicable to the Does' claims with the

five-year statute of repose applicable to discovery rule claims.

It contends that "[s]ometimes Wis. Stat. § 893.55 expires before

a patient knows an injury occurred . . ."            Majority op., ¶20.

According    to   the   majority,    "[e]xpiration       of   the   medical

malpractice statute of limitations before a patient knows about

the injury is unfortunately a consequence of the legislature's

policy reasons for enacting the medical malpractice statue of

limitations."     Majority op., ¶20.        However, the issue in this

case is not whether the Does knew about their injuries, but when

they were injured.

    ¶58     As set forth above, the Does argue that they were not

injured and that therefore their claims did not accrue until

they suffered severe emotional distress upon learning that they


     First, the majority attempts to discredit clear Wisconsin
Supreme Court precedent by labeling its conclusion as "dicta."
Majority op., ¶28 n.14.    As the court of last resort in this
state, our conclusions cannot be dicta. State v. Picotte, 2003
WI 42, ¶61, 261 Wis. 2d 249, 661 N.W.2d 381; State v. Kruse, 101
Wis. 2d 387, 392, 305 N.W.2d 85 (1981); Chase v. American
Cartage Co., 176 Wis. 235, 238, 186 N.W. 598 (1922) ("[W]hen a
court of last resort intentionally takes up, discusses, and
decides a question germane to, though not necessarily decisive
of, the controversy, such decision is not a dictum, but is a
judicial act of the court which it will thereafter recognize as
a binding decision.").

     Second, noting that the parties did not raise a statute of
repose issue, the majority takes the dissent to task for
discussing it. Admittedly, the parties did not raise a statute
of repose issue——but the discussion and analysis of the majority
opinion most certainly did.      See, e.g., majority op., ¶20.
Accordingly, I respond to that discussion and analysis.


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had     been    victimized             as    children         by     the        sexual      assaults

perpetrated by Dr. Loo.                     This is distinguishable from a claim

brought under Wis. Stat. § 893.55(1m)(b), in which a plaintiff

may bring a claim if an injury is not discovered at the time it

occurs.

      ¶59      The    majority         acknowledges           that   "[t]he          Does   are   not

arguing that the news reports caused them to discover that they

had been injured during the genital examinations; rather, they

are asserting that no injury had occurred, and therefore, their

claims did not accrue, until they learned that Dr. Van de Loo’s

conduct during the genital examinations might have involved a

criminal       sexual       assault."           Majority           op.,     ¶1       (emphasis    in

original); see also Majority op., ¶11 n.8 ("The Does use the

term 'discover' not in the sense that they discovered that Dr.

Van de Loo had injured them when he touched their genitals, but

to argue that the October 2012 news about Dr. Van de Loo caused

the actual injury.") (emphasis in original).

      ¶60      Not only does the majority's analysis contravene the
plain    language          of    Wis.       Stat.    § 893.55,        it    also       contravenes

Wisconsin      case        law    by    failing          to   distinguish         between      cases

addressing      the        discovery        rule's       statute     of     repose       and   cases

addressing accrual claims such as the Does.                                 Relying on Aicher

ex rel. LaBarge v. Wisconsin Patients Comp. Fund, 2000 WI 98,

237 Wis. 2d 99, 613 N.W.2d 849, the majority asserts that "the

legislature          may    sever       a     person's        claim        by    a     statute    of

limitations or a statute of repose when the person has had no
possibility of discovering the injury . . ."                                Majority op., ¶20

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                                                                  No. 2014AP1177.awb


(citing Aicher, 237 Wis. 2d 99, ¶50).                  Remarkably, the majority

fails to acknowledge that Aicher addressed a discovery claim

brought under Wis. Stat. § 893.55(1m)(b), not an accrual claim

like the Does' claims brought under Wis. Stat. § 893.55(1m)(a).

      ¶61      In contrast to the Does’ case, the plaintiff in Aicher

alleged that she became blind in her right eye as a result of

medical negligence that occurred during her newborn examination,

but   that     she   did   not    discover      the   condition   until   a   decade

later.      237 Wis. 2d 99, ¶2.           Aicher is also distinguishable from

this case because the parties did not dispute that the condition

resulted in an injury during the first six months of Aicher's

life.    Id.

      ¶62      The majority further asserts that "[t]he fact the Does

may not have known at the time that the touching was allegedly

inappropriate        or    that     the    manipulation     of    their   genitals

constituted the physical injurious change does not change this

fact."        Majority op., ¶20 (citing Fojut, 212 Wis. 2d at 831-32

for     the    proposition        that    "physical     injurious    change    from
negligent tubal ligation was moment of conception, a date the

patient could not have known.").                 Again, the majority conflates

the accrual rule set forth in Fojut, with the discovery rule set

forth under Wis. Stat. § 893.55(1m)(a).

      ¶63      Neither Fojut nor Paul limit the time period within

which a medical malpractice claim might accrue, yet the majority

contends the opposite, thereby judicially creating a statute of

repose for accrual claims.                 Although the plaintiff in           Fojut
became pregnant a few months after her surgery, it is just as

                                           13
                                                                         No. 2014AP1177.awb


possible    that          she   could    have       become    pregnant     years       later.

Likewise,       in    Paul,       the    failure      to     diagnose     the    patient's

condition began nearly a decade before she passed away.                                   242

Wis. 2d 507, ¶3-4.              This was a much longer period of time than

the few years at issue in this case, yet the Paul court found

that the plaintiff's claim did not accrue until she suffered

actual physical injury.             Id., ¶2.

    ¶64     As the Does' counsel aptly stated at oral argument,

the legislature could have chosen to enact a statute of repose

that applied to Wis. Stat. § 893.55(1m)(a), but it chose not to

do so.      Unlike the majority, I refuse to endorse a judicially

created statute of repose that contravenes the plain language of

the statute and well-established Wisconsin case law.

    ¶65     In sum, I conclude that the Does' injuries did not

occur simultaneously with the alleged negligence.                           Their claims

accrued     when      they      suffered       severe      emotional      distress       upon

learning that they were the victims of child sexual assaults

perpetrated          by     Dr.    Van     de       Loo      during     their     physical
examinations.         Thus, the Does' claims are not time-barred by the

medical    malpractice          statute    of       limitations       because    the    Does'

filed their claims within three years of the date they accrued.

Accordingly, I respectfully dissent.

    ¶66     I    am       authorized      to    state      that   Justice       SHIRLEY   S.

ABRAHAMSON joins this dissent.




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