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Statute of Limitations for Wrongful Death Caused by Medical Malpractice begins to Run Prior to Death

If you have lost a loved one due to medical malpractice, there are strict time limitations within which you must act in order to protect your rights. Failure to begin your wrongful death suit by filing an action within the required time may mean that you could be barred forever from pursuing your claim.

Wrongful Death Wisconsin: Attorney’s Note

Section 893.55(1m) of the Wisconsin Statutes governs the time limits for filing claims based upon medical malpractice:

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

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

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

(2) If a health care provider conceals from a patient a prior act or omission of the provider which has resulted in injury to the patient, an action shall be commenced within one year from the date the patient discovers the concealment or, in the exercise of reasonable diligence, should have discovered the concealment or within the time limitation provided by sub. (1m), whichever is later.

(3) When a foreign object which has no therapeutic or diagnostic purpose or effect has been left in a patient’s body, an action shall be commenced within one year after the patient is aware or, in the exercise of reasonable care, should have been aware of the presence of the object or within the time limitation provided by sub. (1m), whichever is later.

The Wisconsin Supreme Court has held that the statute of limitations for wrongful death based upon medical malpractice begins running at the time of the negligent treatment, not at the time of the death. Estate of Robert Genrich v. OHIC Insurance Co., 2009 WI 67.

On July 24, 2003, doctors left a sponge in Robert Genrich during surgery to repair an ulcer.  Doctors discovered the error on Aug. 8, 2003, after Genrich developed an infection.  They performed surgery to remove the sponge the same day but, despite their efforts, Genrich died on Aug. 11, 2003, from sepsis allegedly related to the sponge.

On Aug. 9, 2006, Genrich’s estate and his wife filed suit, alleging medical malpractice and wrongful death, respectively.  The circuit court, the Court of Appeals, and the Supreme Court all held that both claims were barred by the statute of limitations — that they had been filed too late.

While Genrich’s spouse argued that a claim for wrongful death does not accrue until after a person has died, the Supreme Court concluded that the surviving spouse’s action for wrongful death was derivative of the malpractice action, and accrued at the time of the surgery, rather than death.

The court acknowledged that, in previous cases, it has suggested that wrongful death claims do not accrue until the date of death. But the court limited those holdings to cases not involving medical malpractice.

Because the wrongful death action accrued at the same time as the malpractice action, the court held both were time-barred.

Wrongful Death Wisconsin: Contact a Wrongful Death Lawyer

If you have lost a loved one as a result of an accident or medical negligence, contact the attorneys at our office to discuss wrongful death claims in Wisconsin.  Call 715.843.6700 to discuss wrongful death Wisconsin. Email regarding your wrongful death Wisconsin claim.

Do you have questions regarding wrongful death Wisconsin? If you have lost a loved one as a result of an accident or medical negligence and have questions about wrongful death Wisconsin, we can advise you as to your rights. Wrongful death attorneys serving clients throughout Wisconsin. Call 715.843.600 for more information about wrongful death claims in Wisconsin.