Wisconsin Borrowing Statute Applies If First Injury Occurred There
Patient and his wife sued an ear, nose and throat doctor for negligent failure to diagnose the patient's cancer and violating the duty of informed consent. The case involved treatment in both Wisconsin and Michigan. At issue before the Wisconsin Supreme Court for the first time was, in medical malpractice cases involving a negligent misdiagnosis resulting in a latent, though continuous, injury, does the plaintiff’s first injury determine whether the action is foreign under Wisconsin’s statute applying foreign statutes of limitation (“borrowing statute”). The Court held said yes, it is determinative whether the plaintiff's first injury occurred in Wisconsin. On the facts presented, the Court could not ascertain when and where the patient suffered his first injury without speculation, so the borrowing statute did not apply; rather Wisconsin's medical malpractice statute of limitations applied based on the failure to diagnose.