On June 23, 2016, the Wisconsin Supreme Court issued a decision enforcing the three-year statute of limitations in a medical malpractice action. What makes this otherwise routine decision noteworthy is its exceedingly rare context: sexual assault of minors by a family physician. Though the legal issue before the court was the application of the statute of limitations, the case—and the decision—brings up several related concerns affecting patients and health care providers alike.
In Doe v. Mayo Clinic Health System – Eau Claire Clinic, Inc., 2016 WI 48, the plaintiffs, John Doe 56 and John Doe 57, alleged that their family physician, Defendant, David A. Van de Loo, M.D., manipulated their penises without wearing gloves during genital examinations. During the time of the alleged assaults, the boys were respectively aged 10-15 and 8-14. The complaint alleges several causes of action, including sexual battery, however, the only claim before the court on this appeal was for medical malpractice.
Statute of Limitations
The court was tasked with determining when the medical malpractice cause of action accrued in order to appropriately apply the statute of limitations. Wisconsin Stat. § 893.55(1m)(a) provides that a claim for medical malpractice shall be commenced within three years from the date of injury or within one year from the date the injury was discovered or, in the exercise of reasonable diligence, should have been discovered (the so-called ‘discovery rule’), except that an action under the discovery rule may not be brought more than five years from the date of the act or omission.
The Defendants proposed, and the court agreed, that the cause of action accrued on the last date that Dr. Van de Loo physically touched Doe 56 and Doe 57, respectively, in 2008 and 2009. Therefore, by the time the plaintiffs filed suit in October 2013, the three-year limitations period had expired, and the claims were dismissed.
The court rejected the plaintiffs’ argument that their cause of action accrued in October 2012 when they learned that Dr. Van de Loo’s conduct may have constituted a criminal act. The plaintiffs argued that in October 2012, they heard news reports that allegations of similar conduct were brought by another minor patient, leading to 16 felony charges against Dr. Van de Loo for his conduct with male patients. As a result of learning this information, the plaintiffs realized that they, too, were victims and suffered profound psychological damage. The court clarified that the plaintiffs were not arguing that they ‘discovered’ the injury as a result of the media reports under the ‘discovery rule.’ Rather, they argued that the 2012 media reports caused the injury. Before that time, any damage done by the physical act was suppressed; no injury existed, and, therefore, no cause of action could have accrued. Rejecting this line of reasoning, the court explained that psychological injury resulting from one’s physical conduct cannot accrue based on a fortuitous event such as a report of misconduct filed by others, media coverage of such a report or the claimant’s chance attention to such reports. Therefore, finding that the plaintiffs’ causes of action accrued in 2008 and 2009, the court held that their claims were time-barred under the statute.
Additional issues were addressed—but not decided—by the court and have wider application to providers and patients alike.
Sexual Assault Rarely Presents a Medical Malpractice Claim
In dicta, the Wisconsin Supreme Court explained that allegations of sexual assault by a health care provider are typically viewed as stating an intentional tort cause of action. In fact, sexual battery is one of the causes of action pled in the plaintiffs’ complaint. A sexual assault will only support an action for medical malpractice; however, if there exists “a legitimate medical purpose for a genital examination,” during which the sexual assault is committed. On this basis, only a very limited number of physicians are exposed to medical malpractice claims involving sexual assault. Outside those specialties, the court advised that “[s]exual assault is an intentional act and therefore should be pursued as an intentional tort in the civil arena or as a criminal matter, not under a claim of medical negligence.” 2016 WI 48 at ¶ 2.
The court discussed two Wisconsin cases where the alleged sexual assault was and was not found to state a medical malpractice cause of action.
In J.W. v. B.B., 2005 WI App 125, 284 Wis. 2d 493, 700 N.W.2d 277, the Court of Appeals found that a digital-rectal prostate exam done as part of a pre-employment physical properly fell within medical malpractice where the physician had a legitimate medical purpose or reason for the allegedly inappropriate touching. The issue in that case was whether the prostate exam was ‘unnecessary and improper treatment’ in the context of a pre-employment physical examination of healthy 25-year-old males.
Conversely, in Deborah S.S. v. Yogesh N.G., 175 Wis. 2d 436, 499 N.W.2d 272 (Ct. App. 1993), the Court of Appeals found touching a patient’s vagina, buttocks and breasts “did not serve any medical reason” related to her neurological examination and was therefore not part of her medical treatment. The appeals court therefore found that the plaintiff failed to state a cause of action for medical malpractice.
Other Claims Available to Patients
A health care provider who commits sexual assault of a patient during the course of examination is not relieved of liability simply because a cause of action does not lie in medical malpractice, or a cause of action is not brought within three years of the last alleged assault. To be sure, depending on the policy language, only the malpractice carrier is relieved of contractual liability in those circumstances. As stated above, a wronged patient may file intentional tort claims against the physician, and the physician may be criminally prosecuted for his or her conduct.
Practical Takeaways for Physician Employers
Employers, too, should expect to be named as defendants in lawsuits against employed physicians, and employers may face real exposure depending on their knowledge of the physician’s conduct. Claims against employers can range from negligent hiring and supervision to fraudulent misrepresentation for employing a known sexual assailant. Although sexual assaults by physicians are exceedingly rare, in the unlikely event that a patient complaint arises, it is important to have policies and procedures in place for thoroughly investigating the allegations and complying with state and federal reporting requirements.