In Forbes v. Stoeckl, Case No. 2006 AP 1654, __WI App __ (May 9, 2007) (publication recommended), the Wisconsin Court of Appeals held that when a health care provider engages in a "continuum of negligent treatment," the statute of limitations for bringing legal action against the health care provider starts to run when the course of treatment ends. In so holding, the Court of Appeals reversed a circuit court ruling which had dismissed claims against a dentist as time-barred.
In ruling on the legal issue, the Court accepted the Plaintiff Forbes’ allegations that she had been a patient of Dr. Stoeckl from 1985 through 2001. In 1989, Forbes was diagnosed with temporomandibular joint disorder, commonly known as "TMJ." The diagnosis was followed by various treatments and procedures, including treatments and procedures to address adverse effects of the TMJ treatments. Treatment ended on September 18, 2001 and suit was filed on July 7, 2004. Forbes alleged misdiagnosis and various acts of negligence throughout the course of treatment for TMJ.
By statute, malpractice actions against health care providers must be brought, in most situations, within three years of the date of injury. Wis. Stat. § 893.55(1m)(a). However, there are two exceptions. The first exception is a statutory "discovery rule" which allows an action to be commenced within one year after an injury is discovered, even though the three-year statute of limitations has run. The "discovery rule," applies if the injury was not discovered earlier, and could not have been discovered earlier in the exercise of reasonable diligence. Wis. Stat. § 893.55(1m)(b). In addition, even if the "discovery rule" extends the normal three-year statute of limitations, an action is still barred if the negligent act or omission occurred more than five years before legal action is commenced.
The second exception to the usual three-year statute of limitations is known as the "doctrine of continuous negligent treatment." This doctrine was first recognized by the Wisconsin Supreme Court in Tamminen v. Aetna Casualty and Surety Co., 109 Wis. 2d 536, 327 N.W.2d 55 (1982). Under Tamminen, if negligent acts or omissions are continuous, a cause of action is not complete until the last act or omission occurs. Therefore, if an action is timely with respect to the last act or omission, it is timely with respect to the entire course of treatment.
In Forbes, the Court of Appeals clarified the interaction between the two exceptions by holding that, in essence, the five-year statute of repose in Wis. Stat. § 893.55(1m)(b), will not bar legal action based on acts or omissions that occurred more than five years ago, if there was a continuous course of negligence and the last act was within the generally applicable three-year statute of limitations.
Because the rules applied to Dr. Stoeckl also apply to other health care providers, the Forbes decision also has implications for hospitals, nursing homes, physicians and other providers. In particular, if there is a continuous course of treatment, there is no assurance that a provider cannot be sued for acts or omissions that occurred three or even five years earlier. For providers who purchase liability coverage on a "claims made" basis, the Forbes rule makes it even more important to consider "tail coverage" or "extended reporting coverage."