                                                              2019 WI 65

                  SUPREME COURT            OF   WISCONSIN
CASE NO.:               2017AP739
COMPLETE TITLE:         David W. Paynter and Kathryn M. Paynter,
                                  Plaintiffs-Appellants-Petitioners,
                             v.
                        ProAssurance Wisconsin Insurance Company, James
                        A. Hamp and American Physicians Assurance
                        Corporation,
                                  Defendants-Respondents,
                        Continental Casualty Company, Wisconsin Injured
                        Patients and Families Compensation Fund, Keith
                        A. Henry and Blue Cross Blue Shield of Michigan,
                                  Defendants.

                           REVIEW OF DECISION OF THE COURT OF APPEALS
                           Reported at 381 Wis. 2d 239,911 N.W.2d374
                                PDC No:2018 WI app 27 - Published

OPINION FILED:          June 7, 2019
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          February 1, 2019

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Ashland
   JUDGE:               Robert E. Eaton

JUSTICES:
   CONCURRED:           A.W. BRADLEY, J. concurs and dissents
                        (opinion filed).
                        R.G. BRADLEY, J. concurs and dissents, joined by
                        KELLY, J. (opinion filed).
  DISSENTED:
  NOT PARTICIPATING:


ATTORNEYS:


       For        the   plaintiffs-appellants-petitioners,   there   were
briefs filed by D. James Weis, Susan R. Tyndall, and Habush
Habush & Rottier S.C., Waukesha. There was an oral argument by
Eric J. Ryberg.


       For the defendants-respondents (James A. Hamp, M.D., and
American Physicians Assurance Corporation), there was a brief
filed   by   Jason   J.   Franckowiak,   Lori    Gendelman,     and   Otjen,
Gendelman, Zitzer, Johnson & Weir, S.C., Waukesha. There was an
oral argument by Jason J. Franckowiak.


    For      the   defendants-respondents       (Proassurance    Wisconsin
Insurance Company), there was a brief filed by Mark E. Larson,
Bradley S. Foley, and Gutglass, Erickson, Bonville & Larson,
S.C., Milwaukee. There was an oral argument by Mark E. Larson.




                                    2
                                                                          2019 WI 65
                                                                  NOTICE
                                                    This opinion is subject to further
                                                    editing and modification.   The final
                                                    version will appear in the bound
                                                    volume of the official reports.
No.    2017AP739
(L.C. No.   2015CV80)

STATE OF WISCONSIN                              :            IN SUPREME COURT

David W. Paynter and Kathryn M. Paynter,

            Plaintiffs-Appellants-Petitioners,

      v.

ProAssurance Wisconsin Insurance Company, James
A. Hamp and American Physicians Assurance                              FILED
Corporation,

            Defendants-Respondents,                                JUN 7, 2019

Continental Casualty Company, Wisconsin Injured                      Sheila T. Reiff
                                                                  Clerk of Supreme Court
Patients and Families Compensation Fund, Keith
A. Henry and Blue Cross Blue Shield of
Michigan,

            Defendants.




      REVIEW of a decision of the Court of Appeals.                     Affirmed in
part, reversed in part, and cause remanded.


      ¶1    SHIRLEY     S.   ABRAHAMSON,   J.       This    is    a   review     of    a
published decision of the court of appeals affirming an order of
the Circuit Court for Ashland County, Robert E. Eaton, Judge,
                                                                        No.   2017AP739



granting summary judgment in favor of Defendant-Respondent Dr.
James A. Hamp.
       ¶2        Plaintiffs-Appellants-Petitioners             David    and   Kathryn
Paynter      live in Bessemer,         Michigan,      a city     located near the
Wisconsin-Michigan           border.     The       Paynters    sued    Dr.    Hamp,    a
medical doctor who practiced in both Wisconsin and Michigan,
alleging that he negligently failed to diagnose Mr. Paynter with
cancer.          The Paynters also allege that Dr. Hamp violated Mr.
Paynter's right to informed consent.
       ¶3        Dr. Hamp moved for summary judgment, arguing that the
Paynters' claims are "foreign cause[s] of action" pursuant to
Wisconsin's borrowing statute, Wis. Stat. § 893.07 (2015-16).1

       ¶4        Wisconsin's borrowing statute adopts the limitations
rule of a foreign jurisdiction and applies it to any "foreign
cause of action" as if it were Wisconsin's own statute, provided
that       the     foreign    period     of       limitation     is    shorter     than
Wisconsin's period of limitation.2
       ¶5        Dr. Hamp argues that pursuant to Wisconsin's borrowing

statute,         Michigan's    statute    of       limitations    applies     to     the
Paynters' claims.            It is undisputed that if Michigan's statute
of limitations applies, the Paynters' claims are untimely.




       1
       All subsequent references to the Wisconsin Statutes are to
the 2015-16 version unless otherwise indicated.
       2
       Wis. Stat. § 893.07; Guertin v. Harbour Assur.                          Co.    of
Bermuda, Ltd., 141 Wis. 2d 622, 624 n.1, 415 N.W.2d 831.


                                              2
                                                                           No.    2017AP739



       ¶6        The Paynters argue that their claims are not "foreign
cause[s] of action" under the borrowing statute.                             Thus, they
argue that Wisconsin's statute of limitations applies to their
claims.           It   is    undisputed      that    if     Wisconsin's     statute        of
limitations applies, the Paynters' claims are timely.
       ¶7        The   circuit       court   granted        Dr.   Hamp's    motion        for
summary          judgment.       It     considered        five    factors        that    are
traditionally          used     to     resolve      choice-of-law      questions          and
concluded that those factors favored applying Michigan's statute
of limitations.         The Paynters appealed.
       ¶8        The court of appeals, applying a different analysis
than       the    circuit     court,    affirmed      the    circuit   court's          order

granting summary judgment to Dr. Hamp.                        The court of appeals
announced that "in cases involving an injury or injuries that
allegedly occurred in multiple states, the plaintiff's cause of
action is not foreign, for purposes of the borrowing statute,
when the first instance of injury occurred in Wisconsin."3
       ¶9        The court of appeals held that because the Paynters

lived in Michigan during the four-year period between Dr. Hamp's
alleged misdiagnosis and Mr. Paynter's discovery of his injury,
the Paynters' negligence claim was "foreign" for purposes of the
borrowing statute.             The court of appeals further held that the
Paynters' informed consent claim was "foreign" for purposes of
the    borrowing        statute       because     Mr.     Paynter    was    located       in

       3
       Paynter v. ProAssurance Wis. Ins. Co., 2018 WI App 27,
¶29, 381 Wis. 2d 239, 911 N.W.2d 374.


                                              3
                                                                           No.    2017AP739



Michigan at the time his right to informed consent was allegedly
violated.        Accordingly,       the   court          of    appeals     applied     the
Michigan statute of limitations to both claims and affirmed the
circuit court order granting summary judgment in favor of Dr.
Hamp.    The Paynters petitioned this court for review.
     ¶10    On this issue of first impression, we hold that in
medical    malpractice      cases    involving       a        negligent    misdiagnosis
that results in a latent, though continuous, injury, whether the
action     is   "foreign"     for    purposes        of       Wisconsin's        borrowing
statute is determined by whether the plaintiff's first injury
occurred outside of Wisconsin.
     ¶11    We disagree with the court of appeals' conclusion that

the borrowing statute applies to the Paynters' negligence claim.
On the record before the court, Mr. Paynter's place of first
injury appears to be beyond ascertainment to any reasonable,
non-speculative degree.             When the plaintiff's place of first
injury     is   unknowable,    as    in       the   instant        case,    Wisconsin's
borrowing statute does not apply.

     ¶12    However, we agree with the court of appeals that the
Paynters' informed consent claim is "foreign" for purposes of
Wisconsin's borrowing statute.                Therefore, we apply Michigan's
statute of limitations to the Paynters' informed consent claim
and conclude that the claim is untimely.                        Dr. Hamp is entitled
to summary judgment as to that claim.
     ¶13    Accordingly,       the    court         of        appeals'     decision     is
affirmed in part and reversed in part.                        We remand the cause to
the court of appeals in order to address the Paynters' argument
                                          4
                                                             No.   2017AP739



that the circuit court erred by determining that an insurance
policy issued to Dr. Hamp by Defendant-Respondent ProAssurance
Wisconsin Insurance Company did not provide coverage for the
Paynters' claims.4
                                   I
     ¶14   Unless    otherwise   noted,    the   following     facts    are
undisputed.
     ¶15   David Paynter and his wife, Kathryn Paynter, live in
Bessemer, Michigan, a city located near the Wisconsin-Michigan
border.    In April 2010, Mr. Paynter saw Dr. Peter Areson, a
Wisconsin physician, regarding a growth on the upper right side
of his neck.     Dr. Areson referred Mr. Paynter to Dr. Hamp, an

ear, nose, and throat specialist, who practiced both in Ashland,
Wisconsin, and Ironwood, Michigan.
     ¶16   On June 10, 2010, Dr. Hamp performed an aspiration5 of
the growth on Mr. Paynter's neck.         The aspiration was performed
in Dr. Hamp's Michigan office.     Dr. Hamp's staff transported the
samples from Mr. Paynter's growth to Wisconsin to be analyzed by

a pathologist.



     4 Paynter, 381 Wis. 2d 239, ¶3 n.3 ("Because we conclude the
circuit court properly dismissed the Paynters' claims on other
grounds, we need not address the Paynters' insurance coverage
argument.").
     5 In this context, the term "aspiration" refers to the
"[w]ithdrawal of fluid from a cavity by suctioning off with an
aspirator" for the purpose of "obtain[ing] specimens." Paynter,
381 Wis. 2d 239, ¶5 n.4.


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                                                                    No.   2017AP739



     ¶17    On    June   14,   2010,    Dr.     Hamp's    office    received    the
pathologist's report, which indicated that Mr. Paynter's growth
was cancerous.       That same day, Dr. Hamp called the Paynters'
home telephone in Michigan and told Mr. Paynter that the growth
was not cancerous and that Mr. Paynter did not need any further
treatment.6
     ¶18    Four years later, on June 19, 2014, Mr. Paynter had
surgery to remove the growth and was diagnosed with cancer the
same day.     The doctor who performed the surgery requested that
the pathology materials from the procedure be compared to the
slides from the aspiration Dr. Hamp performed in June 2010.                     The
following week, the doctor informed Mr. Paynter that his cancer

had been present in June 2010.
     ¶19    The    Paynters    mailed       a   request    for     mediation7    to
Wisconsin's Medical Mediation Panels in May 2015.8                 On August 31,
2015, the Paynters filed the instant lawsuit in Ashland County


     6 As the court of appeals noted, certain facts relating to
the telephone call appear to be in dispute.      In his briefing
before this court, Dr. Hamp does not appear to dispute that the
call was made, at least for purposes of our review.

     We assume that the call was made on June 14, 2010, and we
note that Dr. Hamp's location at the time the call was made does
not affect our analysis.
     7 Wisconsin  Stat.   § 655.44(4)   tolls   the  statute  of
limitations applicable to medical malpractice actions "on the
date of mailing if [the request is] sent by registered mail."
     8 The parties dispute the exact date that the Paynters
mailed their request for mediation. The dispute does not affect
our analysis.


                                        6
                                                                         No.    2017AP739



Circuit Court against Dr. Hamp; his Michigan medical malpractice
insurer,     American       Physicians       Assurance      Company;           and    his
Wisconsin    medical     malpractice     insurer,        ProAssurance          Wisconsin
Insurance Company.9
     ¶20    Mr. Paynter alleged that as a result of Dr. Hamp's
negligent failure to diagnose his cancer in June 2010, he was
required to undergo extensive surgery and radiation, resulting
in permanent injuries and damages, including facial paralysis.
Mrs. Paynter alleged that as a result of injuries sustained by
Mr. Paynter, she was deprived of the society and companionship
of her spouse.
     ¶21    During his deposition, Dr. Hamp admitted that "[Mr.

Paynter's] survival and prognosis would be improved if he had
been treated in 2010 versus 2014."                On this point, Dr. Hamp was
confident, testifying: "I'm not guessing."
     ¶22    Dr. Hamp claimed in his deposition that he did not see
the pathologist's report, but that if he had, he would have
recommended    that     Mr.   Paynter    have      the    growth         on    his   neck

surgically     removed      regardless       of   whether     it        was    malignant
because     even   benign     growths    will      continue        to    expand      and,




     9 The Paynters' complaint named two other physicians and
their respective insurers as defendants. However, the Paynters
stipulated to the dismissal of their claims against one of those
physicians and his insurer, and they did not oppose the other
physician's motion for summary judgment, which the circuit court
granted.


                                         7
                                                                          No.     2017AP739



eventually, get to the point where they will break down the
skin.
       ¶23     Mr. Paynter also alleged that Dr. Hamp violated his
right to informed consent, resulting in permanent injuries and
damages.       Mrs. Paynter alleged that as a result of Dr. Hamp's
violation of Mr. Paynter's right to informed consent, she was
deprived of the society and companionship of her spouse.
       ¶24     The    Paynters   asserted     in     their    complaint          that   Mr.
Paynter first knew or should have known of his injury on or
after June 19, 2014.
       ¶25     ProAssurance moved for summary judgment, arguing that
the policy it issued to Dr. Hamp did not provide coverage for

the Paynters' claims.            The circuit court denied ProAssurance's
motion,       stating     that   "if    there        was     failure       to      provide
information that fell short of the standard of care that failure
occurred in Wisconsin, and it wasn't because the biopsy was done
in a manner that fell beyond the professional standard.                             It is
clearly      the     interpretation    and    communication         of    the     results.

And none of that happened in Michigan . . . ."
       ¶26     Based on these statements, the Paynters and Dr. Hamp
believed      that they were       entitled     to    summary judgment             on   the
coverage issue.          The Paynters moved for summary judgment, and
Dr. Hamp joined the Paynters' motion.
       ¶27     This time, however, the circuit court concluded that a
"professional incident" occurred in Michigan because Dr. Hamp
gave    Mr.    Paynter    a   preliminary      opinion       that   the     growth      was
benign        immediately     after     the     aspiration          was         performed.
                                         8
                                                                          No.    2017AP739



Accordingly,       the    circuit      court    granted        summary    judgment      to
ProAssurance.       After additional arguments regarding what actions
Dr. Hamp took in Wisconsin, the circuit court indicated that the
Paynters should file a motion for reconsideration.
      ¶28   Before the circuit court decided the Paynters' motion
for   reconsideration,          Dr.    Hamp     moved    for     summary        judgment,
arguing     that       Wisconsin's       borrowing       statute         required      the
application       of     Michigan's      statute        of     limitations       to    the
Paynters' claims, and under Michigan's statute of limitations,
the Paynters' claims were untimely.
      ¶29   The     circuit      court    granted       Dr.     Hamp's     motion      for
summary     judgment.           It    considered        five     factors        that   are

traditionally      used    to    resolve       choice    of     law   questions10      and
concluded that those factors favored applying Michigan's statute
of limitations.          Having granted Dr. Hamp's motion for summary
judgment, the circuit court never addressed the Paynters' motion
for   reconsideration       regarding      whether the ProAssurance                policy
covered their claims against Dr. Hamp.                  The Paynters appealed.

      ¶30   The    court    of       appeals    affirmed       the    circuit     court's
order, but on different grounds.                The court of appeals announced
that "in cases involving an injury or injuries that allegedly

      10
       See State Farm Mut. Auto. Ins. Co. v. Gillette, 2002 WI
31, ¶53, 251 Wis. 2d 561, 641 N.W.2d 662 (setting forth the
following   factors:   (1)    predictability   of   results; (2)
maintenance   of   interstate   and   international   order; (3)
simplification of the judicial task; (4) advancement of the
forum's governmental interests; and (5) application of the
better rule of law).


                                           9
                                                                 No.     2017AP739



occurred in multiple states, the plaintiff's cause of action is
not foreign, for purposes of the borrowing statute, when the
first instance of injury occurred in Wisconsin."11
     ¶31    Before determining where the "first injury" occurred,

the court of appeals first sought to determine when the first
injury occurred.       In determining when Mr. Paynter's first injury
occurred,    the    court   of    appeals    observed    that   in     negligent
misdiagnosis       cases,   "an   actionable    injury     occurs      when     the
misdiagnosis causes a greater harm than existed at the time of
the misdiagnosis."12
     ¶32    The court of appeals concluded that in the instant
case, Dr. Hamp made a prima facie showing that Mr. Paynter's

first injury occurred in Michigan because the record showed that
the Paynters resided in Michigan during the four-year period of
time between Dr. Hamp's alleged misdiagnosis and Mr. Paynter's
discovery of his injury.          The court of appeals further concluded
that Mr. Paynter's averment that he "was frequently in Wisconsin
in between the years 2010 and 2015" failed to rebut Dr. Hamp's
prima facie case that the Paynters' suit was a "foreign cause of
action"    under    Wisconsin's     borrowing   statute.        The     court    of
appeals    stated    that   the   Paynters   did   not   provide       sufficient
evidence to "establish——or even suggest——at what point in time



     11   Paynter, 381 Wis. 2d 239, ¶29.
     12Id., ¶3 (citing Paul           v. Skemp,    2001    WI   42,     ¶25, 242
Wis. 2d 507, 625 N.W.2d 860).


                                      10
                                                                        No.    2017AP739



[Mr. Paynter] first experienced a greater harm than that which
existed at the time of the misdiagnosis."13
      ¶33    The    court    of    appeals      further    concluded          that     the
Paynters' informed consent claim was "foreign" for purposes of
the   borrowing      statute.     The   court    noted    that    Dr.     Hamp       first
allegedly     violated      Mr.   Paynter's      right    to     informed       consent
during the June 14, 2010 phone call, and it is undisputed that
Mr. Paynter was located in his Michigan home when he received
that call.         "Because [Mr. Paynter] was located in Michigan at
that time, his alleged injury——i.e., the loss of the opportunity
to choose his course of treatment——occurred in Michigan, not
Wisconsin."14

      ¶34    Accordingly, the court of appeals applied the Michigan
statute of limitations to both claims and affirmed the circuit
court order granting summary judgment in favor of Dr. Hamp.15
The Paynters petitioned this court for review.
                                         II




      13   Id., ¶36.
      14   Id., ¶39.
      15
       Before the court of appeals, the Paynters conceded that
the viability of Mrs. Paynter's derivative claims depends on the
viability of Mr. Paynter's claims. Because the court of appeals
concluded that Mr. Paynter's claims were untimely, it further
concluded that the circuit court properly granted summary
judgment to Dr. Hamp on Mrs. Paynter's claims.      Paynter, 381
Wis. 2d 239, ¶44 n.13.


                                         11
                                                        No.   2017AP739



     ¶35    This court applies the same method of analysis to a
motion for summary judgment as does the circuit court.16      Summary
judgment is appropriate under Wis. Stat. § 802.08(2) where "the
pleadings,     depositions,   answers     to   interrogatories,     and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law."17
     ¶36    Our review of the instant case also requires us to
interpret and apply Wisconsin's borrowing statute, Wis. Stat.
§ 893.07.    "[S]tatutory construction is a question of law, which
we review de novo, even though we benefit from the analyses of

the circuit court and the court of appeals."18

                                    III
                                     A
     ¶37    Dr. Hamp argues that the Paynters' claims are "foreign
cause[s] of action" pursuant to Wisconsin's borrowing statute,
Wis. Stat. § 893.07.     As such, Dr. Hamp contends that Michigan's
statute of limitations applies to the Paynters' claims.           It is
undisputed that if Michigan's statute of limitations applies,
the Paynters' claims are time barred.




     16   Paul, 242 Wis. 2d 507, ¶8.
     17   Wis. Stat. § 802.08(2).
     18 Paul, 242 Wis. 2d 507, ¶10 (citing         Czapinski v.     St.
Francis   Hosp., 2000   WI  80,  ¶12,  236         Wis. 2d 316,     613
N.W.2d 120).


                                    12
                                                                 No.    2017AP739



     ¶38    "[S]tatutory interpretation 'begins with the language
of the statute.      If the meaning of the statute is plain, we
ordinarily stop the inquiry.'"19
     ¶39    Wisconsin's    borrowing      statute,    Wis.   Stat.     § 893.07,
provides as follows:

     (1)    If an action is brought in this state on a
            foreign cause of action and the foreign period of
            limitation which applies has expired, no action
            may be maintained in this state.

     (2)    If an action is brought in this state on a
            foreign cause of action and the foreign period of
            limitation which applies has not expired, but the
            applicable Wisconsin period of limitation has
            expired, no action may be maintained in this
            state.
     ¶40    The meaning of the phrase "foreign cause of action" is
far from plain.      The phrase "foreign cause of action" is not,
and has never been, expressly defined in Wisconsin's borrowing
statute.    The phrase also appears to be unique to the borrowing
statute;    that   is,    the   phrase    appears    nowhere    else     in    the
Wisconsin statutes.
     ¶41    In Guertin v. Harbour Assurance Company of Bermuda,

Ltd., 141 Wis. 2d 622, 415, N.W.2d 831 (1987), this court was
required to determine whether the plaintiff's cause of action
constituted a "foreign cause of action" pursuant to Wisconsin's
borrowing    statute.       The   plaintiff,        Frank    Guertin,    was    a



     19State ex rel. Kalal v. Circuit Court for Dane Cty., 2004
WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110 (quoting Seider v.
O'Connell, 2000 WI 76, ¶43, 236 Wis. 2d 211, 612 N.W.2d 659).


                                     13
                                                                       No.       2017AP739



Wisconsin resident who was injured in the state of Illinois when
he slipped and fell off the fuel tank of a semi-trailer he was
employed to drive.20
     ¶42    We        determined   that   the     phrase       "foreign      cause     of
action" was ambiguous, and therefore, we turned "to extrinsic
sources to determine what the legislature meant by the phrase."21
Before turning to extrinsic sources, however, we examined the
statutory history of Wisconsin's borrowing statute.
     ¶43    We        observed     that   "[i]n        1979,     the      legislature
restructured Chapter 893, Limitations of Commencement of Actions
and Proceedings and Procedure for Claims Against Governmental
Units."22        In    that   revision,   the    Judicial       Council      redrafted

Wisconsin's       borrowing        statute,     then     numbered         Wis.      Stat.
§ 893.205, and renumbered it Wis. Stat. § 893.07.
     ¶44    Former Wis. Stat. § 893.205(1) did not use the phrase
"foreign cause of action," but instead referred to "injuries to
the person, received without this state."23
     ¶45    We then examined the Judicial Council Committee's Note

to Wis. Stat. § 893.07 to help us determine the significance of
the changes to the statutory text and derive meaning from the


     20Guertin v. Harbour Assur. Co. of                        Bermuda,      Ltd.,    141
Wis. 2d 622, 624-25, 415 N.W.2d 831 (1987).
     21   Id. at 628; see also Kalal, 271 Wis. 2d 633, ¶50.
     22   Guertin, 141 Wis. 2d at 628.
     23   Wis. Stat. § 893.205(1) (1977-78); Guertin, 141 Wis. 2d
at 629.


                                          14
                                                                      No.     2017AP739



newly enacted language.              Although the revised version of the
statute substantively changed the borrowing statute in ways that
are not relevant to the present case,24 the Committee observed
that other provisions of ch. 893 retained the same form in which
they had previously existed and were "redrafted only for greater
clarity and ease of application[.]"25
      ¶46     We    concluded    that        it    was    "apparent         from   the
Committee's        comments   that    the    Council     considered    the     phrase
'foreign cause of action' to be synonymous with the language of
the former borrowing statute, sec. 893.205(1), Stats. (1977),
which      barred   actions   'for     injuries     to   the   person,       received
without this state.'"26

      ¶47     Accordingly, we declared that a cause of action is
"foreign" for purposes of Wisconsin's borrowing statute if the
plaintiff's injury occurred outside of Wisconsin.27
        ¶48   We then applied the "place of injury" test.                    This was
a simple task, given that the injury in Guertin was immediate

and   discrete.         Mr.   Guertin       fell   off   his   semi-trailer        and


      24
       For example, the revisions changed the law of prior Wis.
Stat. § 893.205(1), which had provided that a resident in
Wisconsin could sue in Wisconsin state courts to recover damages
for personal injuries experienced outside of Wisconsin even if
the foreign period of limitation had expired.      Guertin, 141
Wis. 2d at 629.
      25   Guertin, 141 Wis. 2d at 629.
      26   Id. at 630.
      27   Id. at 630-31.


                                         15
                                                                               No.     2017AP739



sustained injuries in Illinois.                   Therefore, Mr. Guertin's claims
were     "foreign     cause[s]        of   action"       pursuant         to     Wisconsin's
borrowing      statute.         The    Illinois      statute       of    limitations          for
personal injury actions applied to his claims, and therefore,
they were properly dismissed as untimely.
                                             B
       ¶49    Although     it    was     clear     how     to    apply     the       "place   of
injury" test under the facts of Guertin, application of the test

in   subsequent cases           proved     more difficult.               The    test needed
additional      gloss     to    cleanly      apply    to    other       claims        and   fact
scenarios where the plaintiff's "place of injury" was not easily
pinned down to one particular time and location.

       ¶50    For example, in Abraham v. General Casualty Company of
Wisconsin,      217   Wis. 2d 294,         576     N.W.2d 46       (1998),       we     had   to
decide whether Wisconsin's borrowing statute applied to contract
actions.
       ¶51    In the Abraham case, the plaintiff, Paul Abraham, was
injured by an automobile while riding his bicycle in the state
of     Florida.28       After     exhausting         the        tortfeasor's         liability
insurance      policy     limits,      Mr.    Abraham           notified       his    insurer,
General Casualty Company of Wisconsin, that he intended to seek
underinsured motorist benefits.29                  When General Casualty refused



       28
       Abraham v. General Cas. Co. of Wis., 217 Wis. 2d 294, ¶3,
576 N.W.2d 46 (1998).
       29   Id., ¶¶4-7.


                                             16
                                                                                 No.     2017AP739



to   pay       the    underinsured       motorist        benefits,       Mr.     Abraham       sued
General Casualty in Wisconsin for breach of contract.30
         ¶52     We held that the borrowing statute applied to contract
actions,31 but we were mindful that determining the location of
the plaintiff's injury "may be more difficult 'in the case of a
dispute over a contract, whose 'location' is not easily pinned
to   a        particular      state   if,    for     example,       as     is    common,        the
contract        is negotiated         in    one state, signed             in another, and
performed in a third.'"32
         ¶53     After       "wad[ing]     into     [a]    morass     of       arguments       and
precedent,"33          we     determined     that    the    location        of     "the     final
significant event giving rise to a suable claim" should be the

determinative factor in deciding whether a claim sounding in
contract constitutes a "foreign cause of action" for purposes of
the borrowing statute.34
         ¶54     We    explained      that        this     standard        was     "not        only
consistent            with     Guertin's      interpretation             of      Wis.       Stat.




         30   Id., ¶¶7-8.
         31   Id., ¶15.
         32
       Id., ¶21 (quoting Johnson                      v. Deltadynamics,                Inc.,   813
F.2d 944, 946 (7th Cir. 1987)).
         33   See Abraham, 217 Wis. 2d 294, ¶¶21-31.
         34
       Id., ¶35; see also Mack Trucks, Inc. v. Bendix-
Westinghouse Auto. Air Brake Co., 372 F.2d 18 (3d Cir. 1966);
Terranova v. Terranova, 883 F. Supp. 1273 (W.D. Wis. 1995).


                                              17
                                                                               No.     2017AP739



§ 893.07,"     but      also      clarified,           if     imperfectly,35         how    that
interpretation was to apply "to causes of action sounding in
contract      where     it     is   frequently              difficult     to     attach      the
plaintiff's contractual 'injury' to any one locale."36
     ¶55    Applying this framework to the facts of Abraham, we

concluded that the "final significant event" giving rise to a
suable     claim      for    underinsured              motorist      benefits         was    the
insurance     company's        refusal       to        pay    the    benefits        upon   Mr.
Abraham's     request.         That    denial          occurred      in    Wisconsin,        and
therefore,      Mr.     Abraham's        claim          for     underinsured           motorist
benefits was not a "foreign cause of action" under Wisconsin's
borrowing statute.

     ¶56    Likewise,        in     Faigin        v.     Doubleday        Dell       Publishing
Group, Inc., 98 F.3d 268 (7th Cir. 1996), it was not obvious how
to properly apply Wisconsin's borrowing statute and our "place
of injury" test in the context of a multi-state defamation suit.
     ¶57    In Faigin, sports agent A.J. Faigin represented James
E.   Kelly,    a      former      quarterback           for    the    National        Football
League's Buffalo Bills.37              Mr. Kelly spoke unfavorably of Mr.


     35See Abraham, 217 Wis. 2d 294, ¶35 n.7 (recognizing "that
in certain factual situations," the final significant event test
"would not be without ambiguity," but emphasizing that, "as with
any judicial standard, no one 'test' can give complete certainty
to future litigants.'").
     36   Id., ¶35.
     37Faigin v. Doubleday Dell Pub. Grp., Inc., 98 F.3d 268,
269 (7th Cir. 1996).


                                             18
                                                                                 No.     2017AP739



Faigin in an autobiography published by the defendant, Doubleday
Dell        Publishing      Group.38          Of     the    28,600         copies        of     the
autobiography that were sold to bookstores, only 41 of them were
sold to bookstores in Wisconsin; that is, "a staggering 99.86
percent occurred outside Wisconsin."39
       ¶58     When Mr. Faigin sued Doubleday for defamation in the
Eastern       District       of        Wisconsin,     Doubleday         argued         that     Mr.
Faigin's suit was a "foreign cause of action" under Wisconsin's
borrowing         statute.         The     district      court     agreed        and     granted
summary       judgment       to        Doubleday,     concluding          "that        when     the
plaintiff's        injury        has    occurred    in     more    than        one     state,    it
amounts to a 'foreign' cause of action governed by Wisconsin's

borrowing statute, notwithstanding the fact that Wisconsin is
one of the states in which injury occurred."40
       ¶59     The    Seventh           Circuit     reversed.             It     stated       that
determining          the     locations       of     Mr.     Faigin's           injuries         was
"straightforward enough."41                  There was evidence supporting the
conclusion        that     Mr.    Faigin     was    injured       in   Wisconsin,         albeit

minimally, and there was also evidence supporting the conclusion
that    Mr.       Faigin     was        injured     in     other       states        where      the
autobiography         was    sold.42         The    Faigin        court    explained          that

       38   Id. at 269.
       39   Id. at 273 (Evans, J., dissenting).
       40   Id. at 269-70.
       41   Id. at 270.
       42   Id.


                                              19
                                                                                No.    2017AP739



"[t]his is a quirk of libel law: the plaintiff is generally
considered        to   be    injured      wherever         the    defamatory      writing     is
published.         In other words, although it is clear where Faigin
allegedly was injured, the place of injury cannot be narrowed to
one state."43
       ¶60    This "quirk of libel law" forced the Seventh Circuit
"to   decide       between     a    rule    that      deems       all   multi-state       libel
claims      foreign     or    all    of    them       not[.]"44         The     Faigin    court

ultimately        decided     "that       the    latter          is   the     better    of   two
imperfect         choices[.]"45           "As    it    stands,"         the    Faigin     court
explained, "the Wisconsin statute asks one question: did the
injury occur inside Wisconsin?"46                     Because the answer in Faigin

was "yes, if not exclusively[,]" Mr. Faigin's defamation claim
did not constitute a foreign cause of action for purposes of the
borrowing statute.47
                                                C
       ¶61    Our discussion of the case law above illustrates that
both state and federal courts construing Wisconsin's borrowing
statute have focused on the location of the plaintiff's injury
in    determining       whether      a     cause      of    action      is     "foreign"     for


       43   Id.
       44   Id. at 272.
       45   Id.
       46   Id.
       47   Id.


                                                20
                                                                            No.    2017AP739



purposes    of     the    borrowing       statute.        Generally       speaking,     the
plaintiff's injury is the "final significant event" giving rise
to a cause of action, and it is the plaintiff's location when
that injury is sustained that determines whether the cause of
action     is    "foreign"        for     purposes      of     Wisconsin's        borrowing
statute.        Although the "place of injury" test has not always
been easy to apply, the focus has always remained on identifying
the location in which the plaintiff suffered his or her injury.
     ¶62    Like      Abraham      and    Faigin,       the    instant     case    provides

another example of a category of cases in which the "place of
injury" test requires more gloss.                    Unlike the single, discrete
injury at issue in Guertin (the plaintiff's fall from his truck

in Illinois) and the multiple, discrete injuries in Faigin (the
sale of libelous books in multiple states, including Wisconsin),
the instant case involves an alleged negligent misdiagnosis that
resulted in a latent, though continuous, injury.
     ¶63    We     have     previously       determined         what     constitutes     an
actionable "injury" in negligent misdiagnosis cases for purposes
of triggering the medical malpractice statute of limitations,
Wis. Stat. § 893.55(1m).
     ¶64    In Paul v. Skemp, 2001 WI 42, 242 Wis. 2d 507, 625
N.W.2d 860,      an      arteriovenous       malformation         (AVM)     in     Jennifer
Paul's     brain      ruptured,         causing    extensive          hemorrhaging     and,
eventually,      her      death.48        Jennifer's          parents    and   Jennifer's

     48Paul      v.      Skemp,    2001    WI     42,   ¶5,     242     Wis. 2d 507,    625
N.W.2d 860.


                                             21
                                                                                 No.     2017AP739



estate sued two of Jennifer's doctors, claiming that the doctors
misdiagnosed          the    cause        of     Jennifer's        recurring           headaches,
resulting in the ruptured AVM.49
     ¶65     The      doctors maintained that                 Jennifer's "injury"                 was
the alleged misdiagnosis.50                    They argued that because the Pauls'
claims were not brought within three years of Jennifer's last
complaint       about       her    headaches,         the    Pauls'      claims        were       time
barred.
     ¶66     The Pauls, on the other hand, maintained that what
triggered       the     statute       of       limitations        was     not    the     alleged
misdiagnosis,         but     rather       the     rupture        of     the    AVM     and        the
resultant hemorrhaging.51                  They argued that their claims were

timely     because      they       were    brought      within         three    years        of    the
rupture of Jennifer's AVM.52                    The Pauls additionally submitted,
in opposition to the doctors' motion for summary judgment, an
affidavit from an expert witness, who concluded to a reasonable
degree     of    medical          certainty      that       had   Jennifer's           AVM    "been
properly diagnosed at any time prior to May 1, 1995, it [was]

more likely than not that [Jennifer] would not have sustained
the injury and disability she ultimately experienced on May 22,
1995."53

     49   Id., ¶1.
     50   Id., ¶12.
     51   Id., ¶13.
     52   Id.
     53   Id.


                                                 22
                                                                     No.        2017AP739



     ¶67    In       resolving     what    event   constituted     the     actionable
"injury,"       we     relied      on     persuasive    authority        from      other
jurisdictions         that   had   previously      faced   the    same     issue     and
concluded that "[a] misdiagnosis, in and of itself, is not, and
cannot, be an actionable injury[]" because "[t]he misdiagnosis
is the negligent omission, not the injury."54                    We explained that
"[t]he actionable injury arises when the misdiagnosis causes a
greater harm than existed at the time of the misdiagnosis."55
     ¶68    Applying this standard to the facts of the case, the
Paul court concluded that Jennifer's actionable injury occurred

"either at the time that Jennifer's AVM ruptured, or at the time
that Jennifer's AVM could no longer be treated."56                    Because both

of these events would have occurred within the applicable three-
year statute of limitations, we held that the Pauls' claims were
timely.57
                                            D
     ¶69    The       Paynters     maintain      that   the   Seventh      Circuit's
reasoning in Faigin should apply to their medical malpractice
claims.     That is, because Dr. Hamp admitted that Mr. Paynter's

     54Paul, 242 Wis. 2d 507, ¶25; see St. George v. Pariser,
484 S.E.2d 888, 891 (Va. 1997) (concluding that the plaintiff's
injury was not the failure to diagnose a mole as cancerous, but
rather, "the change in her cancerous condition" from a curable
state to a potentially fatal state).
     55   Paul, 242 Wis. 2d 507, ¶25.
     56   Id., ¶45.
     57   Id.


                                            23
                                                                   No.     2017AP739



growth     would   continue      to   expand    unless    and     until    it     was
surgically removed, Mr. Paynter was essentially suffering one
continuous injury as his growth expanded.                Put another way, "the
misdiagnosis cause[d] greater harm than existed at the time of
the misdiagnosis" in a continuous fashion as the cancer grew.58
Thus, they argue, if Mr. Paynter entered Wisconsin during the
four-year period of time between the misdiagnosis on June 10,
2010 and the growth's removal on June 19, 2014, "at least some"
of Mr. Paynter's injury occurred in Wisconsin.59
     ¶70    We reject the Paynters' invitation to apply Faigin's

reasoning to the facts of the instant case.                     While we do not
comment on the merits of the Seventh Circuit's legal analysis in

Faigin as applied to multi-state libel suits, it is clear to us
that Faigin's analysis turned on the unique "quirk" of libel law
that generally considers a plaintiff to be injured wherever the
defamatory    writing     is   published.       That   is,   as   the     court   of
appeals     correctly     pointed     out,     "Faigin    involved        multiple,
discrete    injuries    in     different     states[,]"   whereas    here,      "the
Paynters have asserted a single, continuous injury, which they
allege was ongoing for the entire period between June 2010 and
June 2014, during which time David was physically present in
both Michigan and Wisconsin."60


     58   See id., ¶25.
     59   See Faigin, 98 F.3d at 270-72.
     60   Paynter, 381 Wis. 2d 239, ¶26.


                                        24
                                                                              No.     2017AP739



     ¶71    The    Paynters'       proposed           analysis,    if    adopted,        would
render     non-foreign         virtually      all       medical       malpractice           cases
involving the failure to diagnose cancer.                       Given that one of the
primary purposes underlying Wisconsin's borrowing statute is to
prevent forum shopping,61 we cannot accept the ease with which a
negligent       misdiagnosis       claim      could       be     transformed          from     a
"foreign"       cause    of    action    to       a    non-foreign       one        under    the
Paynters'       theory.         Such    an    interpretation            would,        without
limitation, apply the Wisconsin statute of limitations to anyone
who simply travels to Wisconsin, regardless of the frequency or
duration of such travel.
     ¶72    Instead, we agree with the court of appeals that in

medical    malpractice         cases    involving        a     negligent       misdiagnosis
that results in a latent, though continuous, injury, whether the
action     is    "foreign"       for    purposes         of    Wisconsin's          borrowing
statute is determined by whether the plaintiff's first injury
occurred in Wisconsin.
     ¶73    In our view, the "first injury" test best comports

with the case law construing Wisconsin's borrowing statute and
the case law describing when a plaintiff suffers an actionable
"injury" in the context of a negligent misdiagnosis.                                    As in
other cases in which the phrase "foreign cause of action" needed
additional       gloss    to     determine        whether       and     how    Wisconsin's
borrowing statute should apply in a particular context,62 the

     61   Guertin, 141 Wis. 2d at 631.
     62   See supra ¶¶50-60 (describing Abraham and Faigin).


                                             25
                                                                  No.   2017AP739



"first injury" test focuses on when a misdiagnosed plaintiff has
a suable claim.       A tort becomes "complete" when the plaintiff is
injured,      and   the   plaintiff   in    a   negligent   misdiagnosis    case
becomes injured when he or she first experiences greater harm as

a result of the misdiagnosis than existed at the time of the
misdiagnosis.63      If the plaintiff is located outside of Wisconsin
when    this    occurs,    the   action    is   "foreign"   for   purposes    of
Wisconsin's borrowing statute.64



       63   See Paul, 242 Wis. 2d 507, ¶25
       64
       In addition to being grounded in statutory history and
our prior cases interpreting Wisconsin's borrowing statute,
tying the application      of the borrowing statute to the
plaintiff's place of first injury provides the highest degree of
certainty to the party most in need of that certainty, i.e., the
plaintiff bringing the action.

     Plaintiffs need to know whether the borrowing statute
applies so that they can timely file their claims.    Generally
speaking, plaintiffs are more likely to know where their injury
occurred because they are in control of their own movements and
actions. For example, if Mr. Paynter did not leave the state of
Michigan during the four-year period of time relevant to the
instant case, he would know that regardless of when his first
injury occurred, it occurred in Michigan because he never left
the state. He would know with a significant degree of certainty
that the borrowing statute applied to his claim.

     However, in addition to lacking support in the statutory
history and our case law, alternative approaches also provide
lesser, not greater certainty from the perspective of a
plaintiff.   If operation of the borrowing statute depended on
whether every element of the claim occurred outside of
Wisconsin, plaintiffs who first suffered an injury at a
reasonably discernable time and place outside of Wisconsin would
be left with the additional (and difficult) task of determining
where the other elements of their claim occurred.


                                       26
                                                                             No.    2017AP739



      ¶74    As we explain more fully below, however, the time and
location     of     plaintiff's      "first        injury"      must    be    capable       of
ascertainment to a reasonable, non-speculative degree.                              When the
plaintiff's place of first injury is unknowable, but could have
occurred within or outside of Wisconsin, Wisconsin's borrowing
statute does not apply.
                                             IV
                                             A
      ¶75    We first address the Paynters' negligence claim.
      ¶76    Dr. Hamp argues, and the court of appeals agreed, that
he made a prima facie showing that Mr. Paynter suffered his
first      injury    in     Michigan    by        presenting     evidence          that    the

Paynters     lived    continuously       in       Michigan     during    the       four-year
period of time between Dr. Hamp's alleged misdiagnosis and Mr.
Paynter's discovery of his injury.
      ¶77    Dr.     Hamp    further    argues,         and    the   court     of    appeals
agreed, that Mr. Paynter's averment that he "was frequently in
Wisconsin in between the years 2010 and 2015" fails to rebut Dr.

Hamp's prima facie case because, as the court of appeals held,
the Paynters did not provide sufficient evidence to "establish——
or   even    suggest——at      what     point       in   time    [Mr.    Paynter]          first
experienced a greater harm than that which existed at the time
of the misdiagnosis," and where Mr. Paynter was located when he
experienced that greater harm.65


      65   See Paynter, 381 Wis. 2d 239, ¶36.


                                             27
                                                                         No.   2017AP739



     ¶78     We conclude that, on the record before the court, Mr.
Paynter's place of first injury is beyond ascertainment to any
reasonable,       non-speculative    degree.          In     such       circumstances,
Wisconsin's borrowing statute does not apply.
     ¶79     In   reaching   this    conclusion,       we    are    guided     by   the
court     of appeals' decision       in    Brusa     v. Mercy Health           System,

Inc., 2007 WI App 166, 304 Wis. 2d 138, 737 N.W.2d 1.
     ¶80     In Brusa, it was alleged that a negligent delay in
correctly    diagnosing      Mr.   Brusa      with   colon    cancer       caused   Mr.
Brusa's death.66       Mr. Brusa's son, Joseph, who was four months
old at the time of his father's death, brought a derivative suit
against the doctor.67

     ¶81     The right to pursue a derivative claim for medical
malpractice is determined by the plaintiff's status at the time
of the patient's injury.68          The court of appeals, therefore, was
tasked     with    determining     Mr.     Brusa's    "date        of    injury"    and
deciding whether Joseph had been conceived by that date.69
     ¶82     After a discussion of this court's decision in Paul,70
the court of appeals stated:

     66Brusa v. Mercy Health Sys., Inc., 2007 WI App 166, ¶1,
304 Wis. 2d 138, 737 N.W.2d 1.
     67   Id., ¶1.
     68Id. (citing Conant v. Physicians Plus Med. Group, Inc.,
229 Wis. 2d 271, 274, 600 N.W.2d 21 (Ct. App. 1999)).
     69   Brusa, 304 Wis. 2d 138, ¶15.
     70   See supra ¶¶64-68.


                                         28
                                                                No.    2017AP739


     Here, Brusa's date of injury has not been established
     and is not ascertainable from the record.           An
     injurious change may have occurred shortly after Brusa
     first consulted with Dr. Fasano, it may have occurred
     four weeks later when Brusa was to have had a
     colonoscopy, it may have occurred at some later date,
     or it may be that Brusa's cancer was untreatable even
     before he first consulted Dr. Fasano.      Even if we
     accept Dr. Fasano's concession of negligence, which
     was offered only for the sake of argument on appeal,
     this   question   remains:  When   did  Dr.   Fasano's
     misdiagnosis cause Brusa "greater harm" than existed
     on December 27, 2002?[71]
     ¶83    In this respect, the record in the instant case is
similar     to    Brusa.       When     Dr.     Hamp's   alleged      negligent
misdiagnosis caused Mr. Paynter "greater harm" than existed at
the time of the misdiagnosis appears to be unknowable.                  We can
think of no test by which a finder of fact could determine the
location of Mr. Paynter's first injury without speculating.
     ¶84    Dr. Hamp admitted in his deposition that Mr. Paynter's
prognosis would have been improved had Mr. Paynter been treated

in 2010 as opposed to 2014; that is, it is undisputed that Mr.
Paynter suffered an injurious change in condition at some point
between June 2010, when Dr. Hamp is alleged to have negligently
failed to diagnose Mr. Paynter's cancer, and June 2014, when Mr.
Paynter    discovered      that his cancer      had   been present     in   June
2010.
     ¶85    Dr.   Hamp's     argument    that   Mr.   Paynter   suffered    his
first injury in Michigan rests entirely upon the fact that the
Paynters resided in Michigan during the four-year period of time


     71   Brusa, 304 Wis. 2d 138, ¶14.


                                        29
                                                                             No.    2017AP739



in    which    Mr.    Paynter    suffered        his   first    injury.            There    is
nothing       in     the   record     showing          that     the     Paynters          were
continuously in the state of Michigan for four years.                               In fact,
the    opposite      is    true.      Mr.        Paynter      averred    that        he    was
frequently in Wisconsin during that four-year period of time.
       ¶86    On the record before the court, when and where Mr.
Paynter       suffered     his     first     injury        appears      to     be     beyond
ascertainment to any reasonable, non-speculative degree.                                   The
record is insufficient to make a reasonable inference one way or
the    other.72       Wisconsin's     borrowing         statute       applies       only    to
"foreign cause[s] of action," and if the plaintiff's place of




       72
       Although we acknowledge that the first injury test may
result in some degree of uncertainty in particular cases,
especially when the period of time between misdiagnosis and
discovery of the injury is extensive, no judicial standard can
give complete certainty to future litigants.      Abraham, 217
Wis. 2d 294, ¶35 n.7.

     Additionally, we note that not every fact scenario will
result in complete uncertainty as to the time and location of
the plaintiff's first injury. For example, in Paul, the period
of time between the last misdiagnosis and the plaintiff's first
injury was, at most, five weeks.    It does not appear that it
would have been an impossible task to determine where the
plaintiff was located during those five weeks had it been
relevant to decide the issue.

     However, the record before this court is an example of a
set of facts under which the plaintiff's place of first injury
is unknowable, and when the record is such that a fact finder
can only speculate as to the location of the plaintiff's first
injury, the borrowing statute does not apply.


                                            30
                                                              No.   2017AP739



first     injury   is   unknowable,   as   in   the    instant   case,   the
borrowing statute does not apply.73
     ¶87    Because the borrowing statute does not apply to the
Paynters'     negligence    claim,    we   apply      Wisconsin's   medical
malpractice statute of limitations to that claim.
     ¶88    Dr. Hamp concedes, and we agree, that the Paynters'
negligence claim is timely under Wisconsin's medical malpractice
statute of limitations, Wis. Stat. § 893.55(1m).
     ¶89    Section 893.55(1m) provides that:



     73 That is not to say that every plaintiff whose place of
first injury is unknowable may bring an action in Wisconsin
courts.

     Separate and apart from whether the borrowing statute
applies to the Paynters' claims, the jurisdictional requirements
set forth in International Shoe Co. v. State of Washington, 326
U.S. 310, 316 (1945), must still be met.

     In International Shoe, the United States Supreme Court
explained that due process requires that a defendant "have
certain minimum contacts" with the forum state "such that the
maintenance of the suit does not offend 'traditional notions of
fair play and substantial justice'".   Int'l Shoe, 326 U.S. at
316.

     The parties did not brief this issue. Nonetheless, we have
no trouble concluding that Dr. Hamp had the requisite "minimum
contacts" with Wisconsin.    Dr. Hamp is licensed to practice
medicine in Wisconsin.     He maintains an office in Ashland,
Wisconsin.   Although Dr. Hamp performed the aspiration on Mr.
Paynter's growth in his Michigan office, Dr. Hamp sent the
samples to Wisconsin where they were analyzed by a pathologist.
Given these contacts with the state of Wisconsin, it does not
offend "traditional notions of fair play and substantial
justice" to subject Dr. Hamp to the jurisdiction of Wisconsin
state courts.


                                      31
                                                                         No.     2017AP739


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

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

              (b) One year from the date the injury was
              discovered or, in the exercise of reasonable
              diligence should have been discovered, except
              that an action may not be commenced under this
              paragraph more than 5 years from the date of the
              act or omission.
      ¶90     It is undisputed that Mr. Paynter first discovered his
injury   on    June    19,    2014.      It   is     also     undisputed       that   the
Paynters mailed their request for mediation to the Wisconsin
Medical Mediation Panels sometime during May 2015, which was
within one year of June 19, 2014, and was not more than five
years after the act giving rise to the Paynters' injury——i.e.,
the June 14, 2010 misdiagnosis.
      ¶91     Accordingly,     the    Paynters'         negligence   claim       against

Dr.   Hamp    is   timely.      Dr.    Hamp     is      not   entitled     to    summary
judgment as to that claim.
                                          B
      ¶92     Next, we address the Paynters' claim that Dr. Hamp
violated Mr. Paynter's right to informed consent.
      ¶93     Dr. Hamp argues that, to the extent Dr. Hamp violated
Mr. Paynter's right to informed consent, that injury occurred in
Michigan     because    Mr.    Paynter    was      in    Michigan    when       Dr.   Hamp
allegedly informed him that his growth was not malignant and
needed no further treatment.



                                         32
                                                                               No.       2017AP739



     ¶94     The Paynters urge us to apply the reasoning set forth
in Abraham74 and conclude that their informed consent claim is

not foreign because the "last significant event" giving rise to
their     claim——i.e.,      Dr.    Hamp's         conveyance      of       his          incorrect
diagnosis——occurred in Wisconsin.
     ¶95     We agree with Dr. Hamp and conclude that the Paynters'
informed     consent      claim    is    a   "foreign      cause          of    action"         for
purposes of Wisconsin's borrowing statute.
     ¶96     In   reaching       our    conclusion,        we   are        guided         by    the
Eastern District of Wisconsin's decision in Studio & Partners,
s.r.l. v. KI, No. 06-C-628, 2007 WL 3342597 (E.D. Wis. Nov. 7,
2007).

     ¶97     In   Studio    &     Partners,       plaintiff       Studio            &    Partners
(S&P), an Italian company, claimed that KI, a Wisconsin company,
unlawfully    misappropriated           S&P's     design    for       a    chair         used    in
schools     and   other    academic      settings.75            S&P       argued         that   it
sustained     injuries      in    Wisconsin        because       that          is       where   KI
allegedly: (1) misappropriated S&P's design; (2) concealed its
misappropriation; (3) sold the products; (4) caused the filings
for fraudulent patents; and (5) earned profits on the stolen
design.76



     74   See supra ¶¶50-55.
     75Studio   &   Partners,  s.r.l.   v.  KI,                            No.          06-C-628,
2007WL3342597, *1 (E.D. Wis. Nov. 7, 2007).
     76   Id., *3.


                                             33
                                                                                 No.     2017AP739



       ¶98    The     Eastern       District          of    Wisconsin       rejected        S&P's
argument,         explaining       that    "it    is       apparent     that     these    events
reflect      where     the    alleged       injury         was    caused,      not     where    it

occurred."77         The court in Studio & Partners concluded that the
injury occurs where it is felt rather than where it originates,
and it was undisputed that "S&P became poorer (if at all) in
Italy, not Wisconsin."78
       ¶99    We agree       with the        reasoning set forth in                    Studio   &
Partners.         To the extent Dr. Hamp violated Mr. Paynter's right
to informed consent, that injury was felt in Michigan because
Mr. Paynter was in Michigan when Dr. Hamp allegedly informed him
that    his       growth     was    not     malignant            and    needed    no     further

treatment.         As the court of appeals explained, "[b]ecause [Mr.
Paynter]      was    located       in     Michigan         at    that   time,    his     alleged
injury——i.e., the loss of the opportunity to choose his course
of treatment——occurred in Michigan, not Wisconsin."79




       77   Id. (emphasis in original).
       78   Id.
       79   Paynter, 381 Wis. 2d 239, ¶39.

                                                                                  (continued)
                                                 34
                                                           No.    2017AP739



     ¶100 Dr. Hamp proved that the Paynters' informed consent
claim is a "foreign cause of action" for purposes of Wisconsin's
borrowing    statute.   Accordingly,    we   apply   Michigan's   medical
malpractice statute of limitations.
     ¶101 Michigan's     statute   of   limitations      applicable     to
medical malpractice actions requires a plaintiff to file suit
within the later of: (1) two years from the date his or her
claim accrued;80 or (2) six months after the plaintiff discovered



     Basing the applicability of the borrowing statute on
whether the test in International Shoe is met is not helpful.
The jurisdictional test set forth in International Shoe
addresses a different issue than the borrowing statute, namely,
the former addresses a court's personal jurisdiction over a
particular defendant while the latter addresses what statute of
limitations applies to a claim that is lawfully brought in a
Wisconsin court.   If the International Shoe test is met, then
the claim may be brought in Wisconsin, but that does not answer
the question of whether the borrowing statute applies to the
claim.   If the International Shoe test is not met, then the
claim may not be brought in Wisconsin at all.     Under such a
test, no claim lawfully brought in Wisconsin will ever be
considered a "foreign cause of action" under the borrowing
statute.

     Moreover, as we explained more fully in footnote 64 supra,
our approach supplies the highest degree of certainty possible
to plaintiffs.   Mr. Paynter knew where he was located when he
allegedly lost the opportunity to choose his course of
treatment.   However, that certainty would be undermined if the
applicability of the borrowing statute turned on where Dr. Hamp
was located when he committed the allegedly tortious act. Given
the increased utilization of telemedicine in our healthcare
system, Mr. Paynter and similarly situated plaintiffs should not
be tasked with divining where their physician happened to be
located when the alleged tortious act was committed.
     80   Mich. Comp. Laws § 600.5805(8) (2018).


                                   35
                                                                        No.   2017AP739



or should have discovered the existence of his or her claim.81
In Michigan, a claim for medical malpractice "accrues" when the
malpractice occurs.82
       ¶102 Again, it is undisputed that the Paynters mailed their
mediation request in May 2015, which was more than two years
after the June 14, 2010 misdiagnosis.                   It is further undisputed
that    the    Paynters    discovered       or    should     have     discovered     the
existence of their claim on June 19, 2014, but they did not mail
their mediation request within six months of that date.
       ¶103 Accordingly,       the       Paynters'      informed      consent    claim
against Dr. Hamp is untimely.               Dr. Hamp is entitled to summary
judgment as to this claim.

                                           V
       ¶104 Finally, before concluding, we address the Paynters'
appeal      from   the    circuit    court's      order      determining      that   an
insurance      policy    issued     to    Dr.    Hamp   by   Defendant-Respondent
ProAssurance       Wisconsin        Insurance      Company      did     not     provide
coverage for the Paynters' claims.                The court of appeals did not

resolve the coverage issue because it concluded that all of the
Paynters' claims were time barred.
       ¶105 The Paynters' petition for review raised the insurance
coverage issue only to preserve it.                  Their petition states that
"[b]ecause the unique policy language in issue does not meet


       81   Mich. Comp. Laws § 600.5838a(2) (2018).
       82   Mich. Comp. Laws § 600.5838a(1) (2018).


                                           36
                                                                       No.   2017AP739



this court's criteria for review, the Paynters request that this
issue be remanded to the appellate court upon reinstatement of
their cause of action."
     ¶106 ProAssurance did not state a preference as to which
court (i.e., this court or the court of appeals) should resolve
the insurance coverage dispute, if the issue was reached at all.
To the extent ProAssurance did state a preference as to which
court     should    decide    the   issue     if      the   issue   were     revived,
ProAssurance admitted that the insurance coverage issue "d[id]
not by itself warrant acceptance of the petition for review."
Dr. Hamp, ProAssurance's insured, did not address the issue at
all in his response to the Paynters' petition.

     ¶107 It was surprising, then, to see ProAssurance spend a
significant portion of its response brief83 addressing the merits
of the insurance coverage issue.                The Paynters did not address
the merits of the coverage issue in their brief-in-chief.                           By
waiting    until    its     response    brief    to    raise   arguments      on   the
merits of the insurance coverage issue, ProAssurance placed the

Paynters    in     the    unenviable    position       of   deciding    whether    to
address    the     merits    of   the   insurance       coverage    issue     in   the
limited space available in their reply brief.84
     ¶108 More importantly, ProAssurance's actions deprived Dr.
Hamp of any opportunity to address the insurance coverage issue


     83   Approximately 8 pages of a 20-page argument.
     84   See Wis. Stat. §§ (Rules) 809.19(8)(c)2. & 809.63.


                                         37
                                                                        No.     2017AP739



to this court in writing.              It is for this reason that arguments
raised for the first time in reply briefs are generally not
addressed——"[i]t       prevents        the    opposing      party   from      having   an
adequate opportunity to respond."85
      ¶109 We therefore decline to address the insurance coverage
issue.     We instruct the court of appeals to resolve this issue
on   remand     in   such    a    fashion     that     is    consistent       with   this
opinion.
                                             VI
      ¶110 On this issue of first impression, we hold that in
medical    malpractice       cases     involving       a    negligent   misdiagnosis
that results in a latent, though continuous, injury, whether the

action     is    "foreign"       for   purposes      of     Wisconsin's       borrowing
statute is determined by whether the plaintiff's first injury
occurred outside of Wisconsin.
      ¶111 We disagree with the court of appeals' conclusion that
the borrowing statute applies to the Paynters' negligence claim.
On the record before the court, Mr. Paynter's place of first

injury     is     beyond     ascertainment        to        any   reasonable,        non-
speculative degree.          When the plaintiff's place of first injury
is unknowable, as in the instant case, Wisconsin's borrowing
statute does not apply.
      ¶112      However, we agree with the court of appeals that the
Paynters' informed consent claim is "foreign" for purposes of

      85
       A.O. Smith Corp. v. Allstate Ins. Cos., 222 Wis. 2d 475,
492, 588 N.W.2d 285 (Ct. App. 1998).


                                             38
                                                                    No.    2017AP739



Wisconsin's borrowing statute.         Accordingly, we apply Michigan's
statute of limitations to the Paynters' informed consent claim
and conclude that the claim is untimely.               Dr. Hamp is entitled
to summary judgment as to that claim.
     ¶113 Finally, we decline to address the Paynters' appeal
from the circuit court's order determining that an insurance
policy issued to Dr. Hamp by Defendant-Respondent ProAssurance
Wisconsin Insurance Company did not provide coverage for the
Paynters' claims.     Instead, we remand the cause to the court of
appeals   to    resolve   the    insurance      coverage   issue      in   such    a
fashion that is consistent with this opinion.
     By   the   Court.—The      decision   of    the   court   of     appeals     is

affirmed in part, reversed in part, and the cause is remanded to
the court of appeals for further proceedings consistent with
this opinion.




                                      39
                                                                       No.   2017AP739.awb


      ¶114 ANN       WALSH        BRADLEY,         J.      (Concurring        in        part,
dissenting      in   part).        I    agree      with    the   majority       that      the
borrowing statute1 does not apply to the Paynters' negligence
claim.     Majority op., ¶11.           Additionally, I agree that the case
should     be   remanded     to   the    court      of     appeals    to     address      the
Paynters'       argument     that      the       circuit      court    erred       in    its
determination that Dr. Hamp's insurance policy did not provide
coverage for the Paynters' claims.                 Id., ¶13.

      ¶115 I     part    ways     with       the    majority,        however,      in     its

treatment of the Paynters' informed consent claim.2                          In my view,
the majority's proffered test is unworkable.
      ¶116 Instead of applying Wisconsin's statute of limitations
to   an   informed      consent     claim     when      the   injury    is    "felt"       in
Wisconsin, I would turn to the familiar International Shoe test.3

Applying     that    test,    I   determine        that    the   Paynters'         informed



      1   The borrowing statute, Wis. Stat. § 893.07, provides:

      (1) If an action is brought in this state on a foreign
      cause of action and the foreign period of limitation
      which applies has expired, no action may be maintained
      in this state.

      (2) If an action is brought in this state on a foreign
      cause of action and the foreign period of limitation
      which applies to that action has not expired, but the
      applicable Wisconsin period of limitation has expired,
      no action may be maintained in this state.
      2Accordingly, I join                the      majority      opinion       with       the
exception of part IV.B.
      3See International Shoe Co. v. Washington, 326 U.S. 310,
316 (1945).


                                             1
                                                                         No.    2017AP739.awb


consent cause of action is not a "foreign cause of action" for
purposes of the borrowing statute and therefore can proceed.
       ¶117 Accordingly, I concur in part and dissent in part.
                                          I
       ¶118 The    alleged      violation          of     Mr.    Paynter's        right    to
informed      consent occurred      during the phone                call       of June    14,
2010.    Majority op., ¶33.         During this phone call, Dr. Hamp told
Mr. Paynter that the growth on his neck was not cancerous and he
did not need any further treatment.                     Id., ¶17.     It is undisputed

that    Mr.   Paynter    was    located       in    his     Michigan       home    when    he
received this phone call.          Id., ¶33.
       ¶119 Analyzing      these    facts,          the     majority       endeavors       to
determine      whether    the    informed      consent           cause     of    action    is
"foreign" for purposes of the borrowing statute.                            In doing so,
it relies on an unpublished federal case setting forth the legal
test as follows:          "the injury occurs where it is felt rather
than where it originates . . . ."                       Id., ¶98 (citing Studio &

Partners, s.r.l. v. KI, No. 06-C-628, 2007 WL 3342597, *3 (E.D.
Wis. Nov. 7, 2007)).
       ¶120 Applying this test, the majority determines that the
Paynters' informed consent claim is a "foreign cause of action"
pursuant to the borrowing statute.                      Majority op., ¶95.           In the
majority's      view,    "[t]o     the    extent          Dr.     Hamp     violated       Mr.
Paynter's right to informed consent, that injury was felt in
Michigan      because    Mr.    Paynter   was       in     Michigan      when     Dr.     Hamp
allegedly informed him that his growth was not malignant and
needed no further treatment."             Id., ¶99.             "Because [Mr. Paynter]

                                          2
                                                              No.    2017AP739.awb


was located in Michigan at that time, his alleged injury——i.e.,
the loss of the opportunity to choose his course of treatment——
occurred in Michigan, not Wisconsin."            Id.

     ¶121 In   my        view,   the     majority's    proffered       test    is
unworkable.    Given       the   rise   of    telemedicine,   the     majority's
focus on where the injury is "felt" creates unreasonable and
unpredictable results.
     ¶122 For example, what if a patient gets a call from the
doctor while traveling in another country?              Does that mean the

foreign country's statute of limitations applies?                   What if the
call comes in when the patient is on an airplane?                       What if
medical test results are transmitted electronically?                     What if
the notice that those results have been transmitted is received
in one state but the results are first viewed in another?
     ¶123 Patients and doctors are more mobile than ever before,
and technology now allows us to be connected worldwide at all
times of the day and night.             Rather than tethering the statute

of limitations for a patient's informed consent cause of action
to the patient's location at the time of the alleged violation,
I would use a predictable and familiar guide.                 Namely, I would
answer this question using the test set forth in International
Shoe Co. v. Washington, 326 U.S. 310, 316 (1945).
     ¶124 Thus,      I     conclude      that    Wisconsin's        statute    of
limitations applies to a cause of action premised on a violation
of a patient's right to informed consent if the defendant has
"certain   minimum       contacts      with   [Wisconsin]     such    that    the
maintenance of the suit does not offend traditional notions of

                                         3
                                                                  No.   2017AP739.awb


fair     play       and   substantial     justice."        See    id.    (citations

omitted).       This approach provides predictability and workability
that the majority's "where the injury is felt" standard lacks.
       ¶125 Applying the International Shoe test to the facts of
this case, I determine that Dr. Hamp had the requisite minimum
contacts       so    as   to   make    Wisconsin's      statute   of    limitations
applicable to the informed consent cause of action.                            As the
majority acknowledges, Dr. Hamp is licensed to practice medicine
in Wisconsin and maintains an office in Ashland.                    Majority op.,

¶86 n.73 (explaining that "we have no trouble concluding that
Dr. Hamp had the requisite 'minimum contacts' with Wisconsin"
based    on his medical          licensure and      maintenance of       an    office
within the state).
       ¶126 Accordingly, I            conclude   that   Wisconsin's statute        of
limitations applies to the informed consent cause of action in
addition to the negligence cause of action.                  Thus, the Paynters
should    be    able      to   continue   their   pursuit    of   both    of    these

claims.
       ¶127 For the foregoing reasons, I respectfully concur in
part and dissent in part.




                                           4
                                                                        No.   2017AP739.rgb


      ¶128 REBECCA         GRASSL       BRADLEY,        J.     (concurring         in    part,
dissenting      in   part).         I    agree      with      the   majority       that     the
borrowing statute does not bar the Paynters' negligence claim,
but   not   with     the   tests        the    majority       adopts   for    determining
whether     Wisconsin's       borrowing             statute     applies       in        medical
malpractice cases alleging a negligent failure to diagnose or a
violation of a patient's right to informed consent.                                The tests
embraced by the majority lack statutory support and will result
in    absurdities.         Unlike        the    majority,       I   would     remand        the

informed consent claim to the circuit court to consider whether
the Paynters state a claim upon which relief may be granted.
                                                I
      ¶129 If a plaintiff brings a foreign cause of action into a
Wisconsin       court,     Wisconsin's          borrowing       statute,      Wis.        Stat.
§ 893.07,    commands       the     application          of    whichever      statute       of
limitations——Wisconsin's or the foreign state's——is shorter:

           (1) If an action is brought in this state on a
      foreign cause of action and the foreign period of
      limitation which applies has expired, no action may be
      maintained in this state.

           (2) If an action is brought in this state on a
      foreign cause of action and the foreign period of
      limitation which applies to that action has not
      expired, but the applicable Wisconsin period of
      limitation has expired, no action may be maintained in
      this state.
The purpose of Wisconsin's borrowing statute is to reduce forum
shopping, preclude stale claims, encourage expedient litigation,
and    ensure    litigants        know        whether    their      claims    are        timely
without having to ask a court to decide.                            Guertin v. Harbour

Assurance Co., 141 Wis. 2d 622, 631-32, 415 N.W.2d 831 (1987).
                                                1
                                                                       No.    2017AP739.rgb


The statute discourages suits arising in other states from being
filed in Wisconsin courts when they would be time-barred in the
foreign venue.        The statute does not define "foreign cause of
action."
       ¶130 The     majority      says       whether      a     medical       malpractice
misdiagnosis-of-cancer           action       is     "foreign"       for     purposes    of
Wisconsin's    borrowing         statute      is     determined       "by    whether    the
plaintiff's       first     injury      occurred         outside       of     Wisconsin."
Majority op., ¶10.         Consequently, if the plaintiff happens to be

outside of Wisconsin when the injury caused by the misdiagnosis
arises, the case will be considered a foreign cause of action
even if the plaintiff resides in Wisconsin and the allegedly
negligent physician treated the plaintiff in Wisconsin.                                 The
majority derives this test not from the text of the statute but
from   three   cases      applying      the        borrowing       statute    but   having
nothing else in common with medical malpractice misdiagnosis-of-
cancer    cases:      (1) Guertin,           141    Wis. 2d 622;       (2)    Abraham    v.

General Cas. Co., 217 Wis. 2d 294, 576 N.W.2d 46 (1998); and (3)
Faigin v. Doubleday Dell Publ'g Grp., Inc., 98 F.3d 268 (7th
Cir. 1996).
       ¶131 Guertin       involved      a    resident      of      Wisconsin     who    was
injured    during    a    slip    and       fall    in   Illinois.          Guertin,    141
Wis. 2d at 624-25.          Abraham extended the borrowing statute to
contract cases, holding that the action is foreign if the "final
significant event giving rise to a suable claim occurs outside"
Wisconsin, reasoning that in a contract dispute, "location [in a
contract    case]    is not      easily       pinned     to    a    particular      state."

                                             2
                                                                    No.    2017AP739.rgb


Abraham, 217 Wis. 2d at 305, 311 (quoted source and internal

quotation     marks    omitted).          Faigin      involved      a      multi-state
defamation action in which the Seventh Circuit held that because
some injury occurred in Wisconsin, the cause of action was not
foreign.     Faigin, 98 F.3d at 272.             None of these cases support
adopting a place-of-first-injury test for applying the borrowing
statute in a medical malpractice misdiagnosis-of-cancer case.
       ¶132 The    typical      impossibility        of   pinpointing        when    the
injury     first   occurs    following     a    cancer     misdiagnosis       makes    a

place-of-first-injury          test    unworkable.           When         cancer    goes
undiagnosed, it is often unfeasible to know the exact moment the
patient suffers a "greater harm"1 than existed at the time of the
misdiagnosis.         Whether    the    cancer     cells    multiplied        seconds,
minutes,     hours,    days,     or    months    after     the    misdiagnosis        is
generally unknowable.           All that can be established is that the
injury surfaced sometime between the date of misdiagnosis and
the date on which the plaintiff was later diagnosed with cancer.

Even if the moment of greater harm could be ascertained to any
degree of certainty, the physical location of the patient at
that exact moment should not determine whether the patient's
case   constitutes a        foreign    cause    of    action     under     Wis. Stat.
§ 893.07.     The statutory text does not suggest such a test and
logic counsels against it.

       1
       The majority, citing Paul v. Skemp, 2001 WI 42, ¶25, 242
Wis. 2d 507, 625 N.W.2d 860, correctly notes that in medical
malpractice cases involving misdiagnoses, Wisconsin law holds
that the test for "actionable injury" is the time "when the
misdiagnosis causes a greater harm than existed at the time of
misdiagnosis." Majority op., ¶67 & n.55.

                                          3
                                                                          No.   2017AP739.rgb


       ¶133 For example, if a patient was on vacation in Florida
at the time of "first injury," then under the majority's test,
the action would be foreign even if the patient was a resident
of    Wisconsin,   all     treatment       occurred         in   Wisconsin,        and      the
doctor practiced only in Wisconsin.                   So too for the patient who
is retired and spends half the year in Arizona, was treated only
in Wisconsin by a doctor practicing only in Wisconsin, but who
was first injured while in Arizona.                   And for the patient who is
a Wisconsin resident, was treated in Wisconsin by a Wisconsin

doctor, but is a college student studying abroad when the injury
emerges.        Under     the    majority's      test,       a     lifelong       Wisconsin
resident,       treated     in     Wisconsin          by     a      Wisconsin-licensed
physician, would have his medical misdiagnosis case deemed a
foreign    cause   of     action    just    because        the     date    of    his       first
injury coincides with his presence on a cruise ship touring the
world.     Consider the inconsistency of the borrowing statute's
application under the following scenario:                          a Wisconsin doctor

sees two patients in his Wisconsin office on the same day and
the    doctor   fails     to    diagnose       each    patient's          cancer.           Each
patient's    injury     first      appears      four       years    after       the    missed
diagnosis.      At that time, the first patient is in Wisconsin, so
he can seek redress in a Wisconsin court applying the Wisconsin
statute of limitations.            But the second patient's injury arises
while visiting relatives in Michigan so his case would be deemed
a foreign cause of action.            Limitless scenarios demonstrate the
irrationality      of     the    place-of-injury            test     adopted          by    the
majority in medical malpractice misdiagnosis-of-cancer cases.

                                           4
                                                                             No.    2017AP739.rgb


       ¶134 Extending           a   "place-of-first-injury"               test      to    medical
malpractice           misdiagnoses-of-cancer                 cases        contravenes         the
judicially-divined              purpose       of     the   statute     by        elevating    the
physical location of the patient at the moment the misdiagnosis
causes "greater harm" above every other element comprising a
medical malpractice claim.                    A Wisconsin patient who treats only
with Wisconsin physicians would be barred from pursuing a claim
that is timely under the Wisconsin statute of limitations simply
because her injury surfaced when she happened to be on vacation

in     another     place        with      a     shorter      statute        of     limitations.
Wisconsin residents treated only by Wisconsin doctors but who
happen    to     be    beyond       Wisconsin's         borders      when    their       injuries
arise are not forum shoppers.                      Nevertheless, under the rule the
majority adopts, each patient's cause of action will be deemed
foreign    and        subject       to    the      shorter    statute        of     limitations
controlled by the physical place each patient happened to be at
the     moment        their      injuries          materialize.             The      majority's

interpretation         of     the     borrowing        statute     will     thereby       deprive
Wisconsin residents of the benefit of Wisconsin laws whenever
they    happen        to   be    outside        of     Wisconsin     at     the     time     their
respective injuries surface.                       A fortuitous event will lead to
different        statutes        of      limitation        for     identically           situated
patients, depending solely upon the geographic location of each
patient when the misdiagnosis causes "greater harm."                                     The rule
of law cannot be based upon such happenstance.
       ¶135 Instead of squeezing medical malpractice misdiagnosis-
of-cancer cases into an ill-fitting test designed for immediate,

                                                   5
                                                                           No.    2017AP739.rgb


discrete,          and      visible     injuries,         the      unique         nature        of
misdiagnosis-of-cancer cases demands a different test.                                   In the
context of a missed cancer diagnosis, the test could be linked
to     the    easily-ascertainable           location         of   the     actual     alleged
negligent treatment.             Alternatively, only when every element of
the    claim       occurred    outside    of      Wisconsin        would    the     cause       of
action       be    deemed    foreign.        Given      the     fact     that     Wis.    Stat.
§ "893.07 operates as               a legislative choice               of law" the            test
could appropriately employ a choice-of-law analysis.                                Wenke v.

Gehl Co., 2004 WI 103, ¶14, 274 Wis. 2d 220, 682 N.W.2d 405.
Nothing in the borrowing statute's text suggests the fluke of
wherever      a     patient    happens    to      be    physically        located        at    the
moment of first injury as its foundation, no case commands a
test based on pure happenstance, and using the place-of-first-
injury test in misdiagnosis-of-cancer cases defies common sense
and reasonableness.
       ¶136 The          majority   asserts       the   place-of-first-injury                 test

"provides the highest degree of certainty to the party most in
need     of       that    certainty,     i.e.,      the    plaintiff         bringing         the
action."          Majority op., ¶73 n.64.               The majority reasons that
"plaintiffs are more likely to know where their injury occurred
because they are in control of their own movements and actions."
Id.      This rationale for            the    majority's test            contradicts the
majority's conclusion that the borrowing statute does not apply
to     the    Paynters'        negligence      claim      because         the      moment       of
Paynter's injury is unknowable.                    Id., ¶¶74, 83.                The majority
"can think of no test by which a finder of fact could determine

                                              6
                                                                  No.   2017AP739.rgb


the location of Mr. Paynter's first injury without speculating,"2
thereby undermining the suitability of the majority's place-of-
first-injury test in cancer misdiagnosis cases.                      The nature of
missed cancer diagnosis cases makes detecting the moment the
cancer       creates    a    "greater        harm"     virtually        impossible.
Consequently,     perhaps    the    borrowing        statute    is   incapable     of
being applied in any cases involving a misdiagnosis of cancer.3
      ¶137 I agree with the majority that the borrowing statute
does not apply to the Paynters' medical malpractice claim and

therefore the Paynters' negligence claim is not time-barred.                       I
reject the majority's adoption of a place-of-first-injury test
in misdiagnosis-of-cancer cases.               The majority "cannot accept
the   ease with which a          negligent     misdiagnosis       claim    could   be
transformed from a 'foreign' cause of action to a non-foreign
one" if the patient entered Wisconsin between the time of the
misdiagnosis and the time of its discovery.                    Majority op., ¶71.
The majority's concern applies equally to the ease with which

its   test    results   in   a    Wisconsin     resident       having     her   claim
transformed into a foreign cause of action based merely on her
temporary absence from Wisconsin at the time her injury happens
to emerge.
                                        II


      2   Majority op., ¶83.
      3Although the majority notes that the moment of "greater
harm" in some misdiagnosis cases may be possible to determine,
citing Paul v. Skemp, that case did not involve a cancer
misdiagnosis. See majority op., ¶86 n.72.


                                        7
                                                                       No.    2017AP739.rgb


     ¶138 The majority also errs in basing the application of
the borrowing statute to medical malpractice informed consent
claims on where the resulting injury was "felt."                             The majority
deems    the    Paynters'      informed     consent       claim       foreign     because
Paynter "felt" the effect of Dr. Hamp's alleged violation of
Paynter's       right    to    informed     consent       in    Michigan        where     he
received    a    phone     call   from     the    doctor,       who    allegedly        told
Paynter    the    pathology       report       revealed    no     malignancy.            The
majority takes this test from an unpublished federal district

court case, Studio & Partners, s.r.l. v. KI, No. 06-C-628, 2007

WL 3342597 (E.D. Wis. Nov. 7, 2007), involving a dispute between
two feuding businesses over economic losses.                           The majority's
"injury is felt" test makes no more sense than the majority's
place-of- first-injury test.
     ¶139 Besides         being an   unpublished          federal      district      court
case and therefore not binding on this court, Studio & Partners
is inapposite.          Studio & Partners involved a dispute between KI,

a   Wisconsin       furniture      manufacturer/seller,               and      Studio      &
Partners,      a furniture design          company based in            Italy,      over    a
chair.      Id. at *1.          Studio & Partners sued KI in Wisconsin
alleging KI misappropriated its chair design, illegally patented
the design, and profited $50 million from selling the chairs.
Id. at *1-*2. The district court concluded the case constituted
a   foreign     cause     of   action     and    applied       Italy's        statute     of
limitations because Studio & Partners' injuries were economic
losses suffered in Italy, not in Wisconsin.                      Id. at *3.          Under



                                           8
                                                                   No.    2017AP739.rgb


this holding, when the injury is economic, courts look to where
the "economic effects were felt."            See id.

       ¶140 An    informed    consent       claim    does   not      involve        lost
profits.       Paynter characterizes his injury as a "loss of the
opportunity to choose his course of treatment."                      Majority op.,
¶33.    Lost opportunity to choose treatment is not an economic
loss and should therefore not be controlled by where the loss is
"felt."       Using a test based on where an injury is "felt" may
make sense for an economic loss, but in the context of medical

malpractice      informed    consent    cases       it   results     in       the   same
randomness and suffers from the same irrationality as the place-
of-first-injury test in medical misdiagnosis cases.
       ¶141    Wisconsin Stat. § 448.30 governs informed consent and
provides:

       Any physician who treats a patient shall inform the
       patient about the availability of reasonable alternate
       medical modes of treatment and about the benefits and
       risks of these treatments. The reasonable physician
       standard is the standard for informing a patient under
       this   section.   The   reasonable   physician   standard
       requires disclosure     only of information that        a
       reasonable physician in the same or a similar medical
       specialty   would    know   and    disclose   under   the
       circumstances. The physician's duty to inform the
       patient under this section does not require disclosure
       of:

            (2) Detailed technical information that                      in   all
       probability a patient would not understand.

              (3) Risks apparent or known to the patient.

            (4) Extremely remote possibilities that                        might
       falsely or detrimentally alarm the patient.




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            (5) Information in emergencies where failure to
       provide treatment would be more harmful to the patient
       than treatment.

            (6) Information in cases              where    the    patient     is
       incapable of consenting.

            (7) Information about alternate medical modes of
       treatment for any condition the physician has not
       included in his or her diagnosis at the time the
       physician informs the patient.
Informed consent is unique to the medical field.                          The injury
from a physician's failure to comply with the informed consent
statute is not lost profits or other economic loss.                       The injury
is a patient's inability to make an informed treatment choice
because the physician failed to fully present all options.                         Any
test for applying the borrowing statute to an informed consent
claim     must    be     linked    to     the   treating     physician's      alleged

tortious act.          A "feel" test is imponderable.
       ¶142 The "feel" test in Studio & Partners may be suitable

in cases involving economic losses because where the economic
losses a business suffers may be objectively measured.                         "Feel"
in the informed consent context cannot.                By "feel," the majority
really means where Paynter happened to be when he took the phone
call    from     Dr.    Hamp.      This    test   produces    the    same    fortuity
problem     as     the     majority's       place-of-first-injury           test   for
misdiagnosis claims.
       ¶143 The Defendants-Respondents allege in their Answers to
the    Paynters'       complaint    that    the   Paynters'      informed     consent
claim fails to state a claim upon which relief can be granted.
Because the issues presented to this court relate solely to the
borrowing statute, none of the parties address whether Paynter

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can assert an informed consent claim under these facts (namely
that Dr. Hamp did not treat him because Dr. Hamp believed there
was    no   malignancy)        and    the        majority     does    not      decide     it.
Accordingly, I decline to address it further.                            I would remand
this claim to the circuit court to do so.
                                             III
       ¶144 Although     I     agree       with        the   majority's        decision   to
remand the insurance coverage issue to the court of appeals, I
disagree with the majority's decision to base this disposition

on (1) ProAssurance's decision to brief the merits of coverage
despite Dr. Hamp's failure to address the issue in his response
to    the   Paynters'    petition          for    review     and   (2)    ProAssurance's
statement in its response to the petition that the insurance
coverage     issue     alone    did        not    warrant      this    court's      review.
ProAssurance is the Wisconsin insurer for Dr. Hamp, but Dr. Hamp
and ProAssurance have separate counsel because of the insurance
coverage dispute.

       ¶145 The majority expresses "surpris[e]" that ProAssurance
spent "a significant portion of its response brief addressing
the merits of the insurance coverage issue."                         Majority op., ¶107
(footnote omitted).            The majority suggests that by doing so,
ProAssurance      prevented          the     other       parties      from      having     an
opportunity       to    respond.                 The     majority's       criticism       of
ProAssurance is unwarranted.
       ¶146 The      circuit     court           granted      summary        judgment     to
ProAssurance      on   coverage.           The     operative       policy      language   in
ProAssurance's policy provides:

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      We will neither defend nor pay damage for any
      liability arising from, relating to, or in any way
      connected with the rendering or failure to render
      professional services by James A. Hamp, M.D., at the
      following location(s):     in the State of Michigan
      and/or outside the State of Wisconsin.
(Emphasis added.)     The court of appeals did not address coverage
because it disposed of the case on other grounds.              The Paynters'
petition    for review   to   this court raised        the   coverage     issue
solely to preserve it:

      The Paynters also raise an insurance coverage issue
      not addressed by the appellate court (see Paynter,
      2018 WL 1512092, ¶3, n. 3) to preserve this issue.
      Because the unique policy language in issue does not
      meet this court's criteria for review, the Paynters
      request that this issue be remanded to the appellate
      court upon reinstatement of their cause of action.
      ¶147 In its response to the Paynters' petition for review,
ProAssurance refuted the substance of the Paynters' claims based
on   Wis.   Stat. § 893.07 and      asserted    "the   issue of      insurance
coverage is moot and does not by itself warrant acceptance of
the petition for review."
      ¶148 In their initial brief, the Paynters do not argue the
merits of the coverage issue:         "The Paynters have raise[d] the
insurance coverage issue to preserve this issue and request that
this issue be remanded to the appellate court upon reinstatement
of their cause of action."          In response, ProAssurance devoted
relatively little of its response brief to the merits of the
coverage issue.

      ¶149 It   is   disingenuous   for   the   majority     to    ground   its
decision to remand the coverage determination to the court of

appeals on the basis that ProAssurance included an insurance


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coverage     argument in its            merits brief to         this court despite
asserting in its response to the Paynters' petition for review
that the coverage issue alone did not warrant granting of the
petition.         There   was     no     reason     for    ProAssurance       to   make    a
coverage     argument       at    the     petition-for-review          stage       of    the
proceedings.        The Paynters did not argue coverage existed, but
simply preserved the issue.               ProAssurance, at that point, had a
coverage determination in its favor from the circuit court, as
well    as   a   favorable       court    of    appeals     decision    that       did   not

address coverage because the court of appeals disposed of the
case under Wis. Stat. § 893.07 and the statute of limitations.
       ¶150 When     this    court       granted     the   Paynters'     petition        for
review, however, ProAssurance's counsel had no reasonable choice
but to argue the merits of coverage even though the Paynters and
Dr. Hamp did not.           Insurance coverage is an issue of law, which
this court reviews independently.                   Water Well Sols. Serv. Grp.,

Inc. v. Consolidated Ins. Co., 2016 WI 54, ¶12, 369 Wis. 2d 607,

881    N.W.2d 285.        Although neither           the Paynters nor Dr. Hamp
argued the merits of coverage, it was among the issues presented
in     the   Paynters'      petition       this     court     granted        for   review.
Accordingly, this court could have chosen to decide insurance
coverage.        A reasonable reading of ProAssurance's brief reveals
that it included its insurance coverage argument so that if this
court chose to decide the issue, ProAssurance's position was




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presented.       ProAssurance      did    not    ask     this    court    to    decide
coverage; instead, it asked us to affirm the court of appeals.4
     ¶151 Given     the    procedural         posture    of     this   case,    it    is
proper to remand the insurance coverage decision to the court of
appeals, before which the issue can be thoroughly briefed and
argued before a decision is rendered.                   It is unreasonable for
the majority to suggest that ProAssurance's presentation of the
issue somehow necessitated remand.
     ¶152 For     these    reasons,      I    respectfully       concur    with      the

majority in allowing the Paynters' negligence claim to proceed
although I do not join its reasoning.                    I also agree that the
insurance    coverage     issue    should be      remanded       to the court         of
appeals.     I   dissent    from    the       majority's      application      of    the
borrowing statute to bar the informed consent claim.                           I would
instead    remand   the    issue    of    whether       the   Paynters'     informed
consent claim states a claim upon which relief may be granted.
     ¶153 I am authorized to state that JUSTICE DANIEL KELLY

joins this concurrence/dissent.




     4 The majority criticizes an insurer's lawyer for spending
eight pages of a 32-page brief arguing against coverage, based
on the language of the policy.    The only thing "surprising" is
the majority's expectation that an insurance coverage lawyer
would not make a coverage argument.


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