Wisconsin Wrongful Death Statute of Limitations Starts with Malpractice

According to a decision issued by the Wisconsin Supreme Court earlier this week, the clock starts ticking on the deadline to file a wrongful death lawsuit in the state over negligent medical treatment before the victim is even dead. The Court found that the statute of limitations starts running on the date the medical malpractice occurs, not the date of the death.

The decision was issued in the case of Estate of Robert Genrich v. OHIC Insurance Co., involving a complaint against Genrich’s doctors for accidentally leaving a sponge inside his body during a surgery on July 24, 2003. Genrich subsequently became infected and it was discovered that a sponge was the source of the problems on August 8, 2003.

After Genrich died on August 11, 2003, his family filed a Wisconsin wrongful death lawsuit on August 9, 2006, more than three years after it was discovered that the sponge was left behind, but less than three years after Genrich’s death.

A majority of the Court’s judges ruled that the wife of Robert Genrich brought the wrongful death case too late, reasoning that the cause of action arises when the injury is no longer treatable, not when he died. The Court found that wrongful death lawsuits are an extension of negligence lawsuits, thus the statute of limitations is not restarted by the subsequent injury from the same act.

Dissenting judges criticized the ruling for being inconsistent and muddying the waters by creating more questions than answers. Justice Ann Walsh Bradley noted in her dissent that if there was a case where death occurred years after the medical malpractice, then the plaintiff would have to file a wrongful death lawsuit before their death actually occurred, and in some cases before the effects of the malpractice had even been determined.

“It seems odd that the cause of action could accrue…years before the injury even occurs,” Judge Bradley wrote.

Justice N. Patrick Cooks’ dissent was even more direct, saying that the ruling “may foster a public perception that common sense sometimes is lacking in court decisions.”