2019 WI 65 

SUPREME COURT OF WISCONSIN

CASE NO.: 2017AP739 

COMPLETE TITLE: David W. Paynter and Kathryn M. Paynter, 

 Plaintiffs-Appellants-Petitioners, 

 v. 

ProAssurance Wisconsin Insurance Company, James 

A. Hamp and American Physicians Assurance 

Corporation, 

 Defendants-Respondents, 

Continental Casualty Company, Wisconsin Injured 

Patients and Families Compensation Fund, Keith 

A. Henry and Blue Cross Blue Shield of Michigan, 

 Defendants. 

REVIEW OF DECISION OF THE COURT OF APPEALS 

Reported at 381 Wis. 2d 239,911 N.W.2d374 

PDC No:2018 WI app 27 - Published 

OPINION FILED: June 7, 2019 

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: February 1, 2019 

SOURCE OF APPEAL: 

 COURT: Circuit 

 COUNTY: Ashland 

 JUDGE: Robert E. Eaton 

 

JUSTICES: 

 CONCURRED: A.W. BRADLEY, J. concurs and dissents 

(opinion filed). 

R.G. BRADLEY, J. concurs and dissents, joined by 

KELLY, J. (opinion filed). 

 DISSENTED: 

 NOT PARTICIPATING: 

 

ATTORNEYS: 

For the plaintiffs-appellants-petitioners, there were 

briefs filed by D. James Weis, Susan R. Tyndall, and Habush 

Habush & Rottier S.C., Waukesha. There was an oral argument by 

Eric J. Ryberg. 

For the defendants-respondents (James A. Hamp, M.D., and 

American Physicians Assurance Corporation), there was a brief 
2

filed by Jason J. Franckowiak, Lori Gendelman, and Otjen, 

Gendelman, Zitzer, Johnson & Weir, S.C., Waukesha. There was an 

oral argument by Jason J. Franckowiak. 

For the defendants-respondents (Proassurance Wisconsin 

Insurance Company), there was a brief filed by Mark E. Larson, 

Bradley S. Foley, and Gutglass, Erickson, Bonville & Larson, 

S.C., Milwaukee. There was an oral argument by Mark E. Larson.
2019 WI 65

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2017AP739 

(L.C. No. 2015CV80) 

STATE OF WISCONSIN : IN SUPREME COURT 

David W. Paynter and Kathryn M. Paynter,

 Plaintiffs-Appellants-Petitioners, 

 v. 

ProAssurance Wisconsin Insurance Company, James 

A. Hamp and American Physicians Assurance 

Corporation, 

 Defendants-Respondents, 

Continental Casualty Company, Wisconsin Injured 

Patients and Families Compensation Fund, Keith 

A. Henry and Blue Cross Blue Shield of 

Michigan, 

 Defendants. 

FILED 

JUN 7, 2019 

Sheila T. Reiff 

Clerk of Supreme Court 

REVIEW of a decision of the Court of Appeals. Affirmed in 

part, reversed in part, and cause remanded. 

¶1 SHIRLEY S. ABRAHAMSON, J. This is a review of a 

published decision of the court of appeals affirming an order of 

the Circuit Court for Ashland County, Robert E. Eaton, Judge, 
No. 2017AP739 

2 

granting summary judgment in favor of Defendant-Respondent Dr. 

James A. Hamp. 

¶2 Plaintiffs-Appellants-Petitioners David and Kathryn 

Paynter live in Bessemer, Michigan, a city located near the 

Wisconsin-Michigan border. The Paynters sued Dr. Hamp, a 

medical doctor who practiced in both Wisconsin and Michigan, 

alleging that he negligently failed to diagnose Mr. Paynter with 

cancer. The Paynters also allege that Dr. Hamp violated Mr. 

Paynter's right to informed consent. 

¶3 Dr. Hamp moved for summary judgment, arguing that the 

Paynters' claims are "foreign cause[s] of action" pursuant to 

Wisconsin's borrowing statute, Wis. Stat. § 893.07 (2015-16).1 

¶4 Wisconsin's borrowing statute adopts the limitations 

rule of a foreign jurisdiction and applies it to any "foreign 

cause of action" as if it were Wisconsin's own statute, provided 

that the foreign period of limitation is shorter than 

Wisconsin's period of limitation.2

¶5 Dr. Hamp argues that pursuant to Wisconsin's borrowing 

statute, Michigan's statute of limitations applies to the 

Paynters' claims. It is undisputed that if Michigan's statute 

of limitations applies, the Paynters' claims are untimely. 

 

1 All subsequent references to the Wisconsin Statutes are to 

the 2015-16 version unless otherwise indicated. 

2 Wis. Stat. § 893.07; Guertin v. Harbour Assur. Co. of 

Bermuda, Ltd., 141 Wis. 2d 622, 624 n.1, 415 N.W.2d 831. 
No. 2017AP739 

3 

¶6 The Paynters argue that their claims are not "foreign 

cause[s] of action" under the borrowing statute. Thus, they 

argue that Wisconsin's statute of limitations applies to their 

claims. It is undisputed that if Wisconsin's statute of 

limitations applies, the Paynters' claims are timely. 

¶7 The circuit court granted Dr. Hamp's motion for 

summary judgment. It considered five factors that are 

traditionally used to resolve choice-of-law questions and 

concluded that those factors favored applying Michigan's statute 

of limitations. The Paynters appealed. 

¶8 The court of appeals, applying a different analysis 

than the circuit court, affirmed the circuit court's order 

granting summary judgment to Dr. Hamp. The court of appeals 

announced that "in cases involving an injury or injuries that 

allegedly occurred in multiple states, the plaintiff's cause of 

action is not foreign, for purposes of the borrowing statute, 

when the first instance of injury occurred in Wisconsin."3 

¶9 The court of appeals held that because the Paynters 

lived in Michigan during the four-year period between Dr. Hamp's 

alleged misdiagnosis and Mr. Paynter's discovery of his injury, 

the Paynters' negligence claim was "foreign" for purposes of the 

borrowing statute. The court of appeals further held that the 

Paynters' informed consent claim was "foreign" for purposes of 

the borrowing statute because Mr. Paynter was located in 

 

3 Paynter v. ProAssurance Wis. Ins. Co., 2018 WI App 27, 

¶29, 381 Wis. 2d 239, 911 N.W.2d 374. 
No. 2017AP739 

4 

Michigan at the time his right to informed consent was allegedly 

violated. Accordingly, the court of appeals applied the 

Michigan statute of limitations to both claims and affirmed the 

circuit court order granting summary judgment in favor of Dr. 

Hamp. The Paynters petitioned this court for review. 

¶10 On this issue of first impression, we hold that in 

medical malpractice cases involving a negligent misdiagnosis 

that results in a latent, though continuous, injury, whether the 

action is "foreign" for purposes of Wisconsin's borrowing 

statute is determined by whether the plaintiff's first injury 

occurred outside of Wisconsin. 

¶11 We disagree with the court of appeals' conclusion that 

the borrowing statute applies to the Paynters' negligence claim. 

On the record before the court, Mr. Paynter's place of first 

injury appears to be beyond ascertainment to any reasonable, 

non-speculative degree. When the plaintiff's place of first 

injury is unknowable, as in the instant case, Wisconsin's 

borrowing statute does not apply. 

¶12 However, we agree with the court of appeals that the 

Paynters' informed consent claim is "foreign" for purposes of 

Wisconsin's borrowing statute. Therefore, we apply Michigan's 

statute of limitations to the Paynters' informed consent claim 

and conclude that the claim is untimely. Dr. Hamp is entitled 

to summary judgment as to that claim. 

¶13 Accordingly, the court of appeals' decision is 

affirmed in part and reversed in part. We remand the cause to 

the court of appeals in order to address the Paynters' argument 
No. 2017AP739 

5 

that the circuit court erred by determining that an insurance 

policy issued to Dr. Hamp by Defendant-Respondent ProAssurance 

Wisconsin Insurance Company did not provide coverage for the 

Paynters' claims.4

I 

¶14 Unless otherwise noted, the following facts are 

undisputed. 

¶15 David Paynter and his wife, Kathryn Paynter, live in 

Bessemer, Michigan, a city located near the Wisconsin-Michigan 

border. In April 2010, Mr. Paynter saw Dr. Peter Areson, a 

Wisconsin physician, regarding a growth on the upper right side 

of his neck. Dr. Areson referred Mr. Paynter to Dr. Hamp, an 

ear, nose, and throat specialist, who practiced both in Ashland, 

Wisconsin, and Ironwood, Michigan. 

¶16 On June 10, 2010, Dr. Hamp performed an aspiration5 of 

the growth on Mr. Paynter's neck. The aspiration was performed 

in Dr. Hamp's Michigan office. Dr. Hamp's staff transported the 

samples from Mr. Paynter's growth to Wisconsin to be analyzed by 

a pathologist. 

 

4 Paynter, 381 Wis. 2d 239, ¶3 n.3 ("Because we conclude the 

circuit court properly dismissed the Paynters' claims on other 

grounds, we need not address the Paynters' insurance coverage 

argument."). 

5 In this context, the term "aspiration" refers to the 

"[w]ithdrawal of fluid from a cavity by suctioning off with an 

aspirator" for the purpose of "obtain[ing] specimens." Paynter, 

381 Wis. 2d 239, ¶5 n.4. 
No. 2017AP739 

6 

¶17 On June 14, 2010, Dr. Hamp's office received the 

pathologist's report, which indicated that Mr. Paynter's growth 

was cancerous. That same day, Dr. Hamp called the Paynters' 

home telephone in Michigan and told Mr. Paynter that the growth 

was not cancerous and that Mr. Paynter did not need any further 

treatment.6

¶18 Four years later, on June 19, 2014, Mr. Paynter had 

surgery to remove the growth and was diagnosed with cancer the 

same day. The doctor who performed the surgery requested that 

the pathology materials from the procedure be compared to the 

slides from the aspiration Dr. Hamp performed in June 2010. The 

following week, the doctor informed Mr. Paynter that his cancer 

had been present in June 2010. 

¶19 The Paynters mailed a request for mediation7 to 

Wisconsin's Medical Mediation Panels in May 2015.8 On August 31, 

2015, the Paynters filed the instant lawsuit in Ashland County 

 

6 As the court of appeals noted, certain facts relating to 

the telephone call appear to be in dispute. In his briefing 

before this court, Dr. Hamp does not appear to dispute that the 

call was made, at least for purposes of our review. 

We assume that the call was made on June 14, 2010, and we 

note that Dr. Hamp's location at the time the call was made does 

not affect our analysis. 

7 Wisconsin Stat. § 655.44(4) tolls the statute of 

limitations applicable to medical malpractice actions "on the 

date of mailing if [the request is] sent by registered mail." 

8 The parties dispute the exact date that the Paynters 

mailed their request for mediation. The dispute does not affect 

our analysis. 
No. 2017AP739 

7 

Circuit Court against Dr. Hamp; his Michigan medical malpractice 

insurer, American Physicians Assurance Company; and his 

Wisconsin medical malpractice insurer, ProAssurance Wisconsin 

Insurance Company.9 

¶20 Mr. Paynter alleged that as a result of Dr. Hamp's 

negligent failure to diagnose his cancer in June 2010, he was 

required to undergo extensive surgery and radiation, resulting 

in permanent injuries and damages, including facial paralysis. 

Mrs. Paynter alleged that as a result of injuries sustained by 

Mr. Paynter, she was deprived of the society and companionship 

of her spouse. 

¶21 During his deposition, Dr. Hamp admitted that "[Mr. 

Paynter's] survival and prognosis would be improved if he had 

been treated in 2010 versus 2014." On this point, Dr. Hamp was 

confident, testifying: "I'm not guessing." 

¶22 Dr. Hamp claimed in his deposition that he did not see 

the pathologist's report, but that if he had, he would have 

recommended that Mr. Paynter have the growth on his neck 

surgically removed regardless of whether it was malignant 

because even benign growths will continue to expand and, 

 

9 The Paynters' complaint named two other physicians and 

their respective insurers as defendants. However, the Paynters 

stipulated to the dismissal of their claims against one of those 

physicians and his insurer, and they did not oppose the other 

physician's motion for summary judgment, which the circuit court 

granted. 
No. 2017AP739 

8 

eventually, get to the point where they will break down the 

skin. 

¶23 Mr. Paynter also alleged that Dr. Hamp violated his 

right to informed consent, resulting in permanent injuries and 

damages. Mrs. Paynter alleged that as a result of Dr. Hamp's 

violation of Mr. Paynter's right to informed consent, she was 

deprived of the society and companionship of her spouse. 

¶24 The Paynters asserted in their complaint that Mr. 

Paynter first knew or should have known of his injury on or 

after June 19, 2014. 

¶25 ProAssurance moved for summary judgment, arguing that 

the policy it issued to Dr. Hamp did not provide coverage for 

the Paynters' claims. The circuit court denied ProAssurance's 

motion, stating that "if there was failure to provide 

information that fell short of the standard of care that failure 

occurred in Wisconsin, and it wasn't because the biopsy was done 

in a manner that fell beyond the professional standard. It is 

clearly the interpretation and communication of the results. 

And none of that happened in Michigan . . . ." 

¶26 Based on these statements, the Paynters and Dr. Hamp 

believed that they were entitled to summary judgment on the 

coverage issue. The Paynters moved for summary judgment, and 

Dr. Hamp joined the Paynters' motion. 

¶27 This time, however, the circuit court concluded that a 

"professional incident" occurred in Michigan because Dr. Hamp 

gave Mr. Paynter a preliminary opinion that the growth was 

benign immediately after the aspiration was performed. 
No. 2017AP739 

9 

Accordingly, the circuit court granted summary judgment to 

ProAssurance. After additional arguments regarding what actions 

Dr. Hamp took in Wisconsin, the circuit court indicated that the 

Paynters should file a motion for reconsideration. 

¶28 Before the circuit court decided the Paynters' motion 

for reconsideration, Dr. Hamp moved for summary judgment, 

arguing that Wisconsin's borrowing statute required the 

application of Michigan's statute of limitations to the 

Paynters' claims, and under Michigan's statute of limitations, 

the Paynters' claims were untimely. 

¶29 The circuit court granted Dr. Hamp's motion for 

summary judgment. It considered five factors that are 

traditionally used to resolve choice of law questions10 and 

concluded that those factors favored applying Michigan's statute 

of limitations. Having granted Dr. Hamp's motion for summary 

judgment, the circuit court never addressed the Paynters' motion 

for reconsideration regarding whether the ProAssurance policy 

covered their claims against Dr. Hamp. The Paynters appealed. 

¶30 The court of appeals affirmed the circuit court's 

order, but on different grounds. The court of appeals announced 

that "in cases involving an injury or injuries that allegedly 

 

10 See State Farm Mut. Auto. Ins. Co. v. Gillette, 2002 WI 

31, ¶53, 251 Wis. 2d 561, 641 N.W.2d 662 (setting forth the 

following factors: (1) predictability of results; (2) 

maintenance of interstate and international order; (3) 

simplification of the judicial task; (4) advancement of the 

forum's governmental interests; and (5) application of the 

better rule of law). 
No. 2017AP739 

10 

occurred in multiple states, the plaintiff's cause of action is 

not foreign, for purposes of the borrowing statute, when the 

first instance of injury occurred in Wisconsin."11 

¶31 Before determining where the "first injury" occurred, 

the court of appeals first sought to determine when the first 

injury occurred. In determining when Mr. Paynter's first injury 

occurred, the court of appeals observed that in negligent 

misdiagnosis cases, "an actionable injury occurs when the 

misdiagnosis causes a greater harm than existed at the time of 

the misdiagnosis."12

¶32 The court of appeals concluded that in the instant 

case, Dr. Hamp made a prima facie showing that Mr. Paynter's 

first injury occurred in Michigan because the record showed that 

the Paynters resided in Michigan during the four-year period of 

time between Dr. Hamp's alleged misdiagnosis and Mr. Paynter's 

discovery of his injury. The court of appeals further concluded 

that Mr. Paynter's averment that he "was frequently in Wisconsin 

in between the years 2010 and 2015" failed to rebut Dr. Hamp's 

prima facie case that the Paynters' suit was a "foreign cause of 

action" under Wisconsin's borrowing statute. The court of 

appeals stated that the Paynters did not provide sufficient 

evidence to "establish——or even suggest——at what point in time 

 

11 Paynter, 381 Wis. 2d 239, ¶29. 

12 Id., ¶3 (citing Paul v. Skemp, 2001 WI 42, ¶25, 242 

Wis. 2d 507, 625 N.W.2d 860). 
No. 2017AP739 

11 

[Mr. Paynter] first experienced a greater harm than that which 

existed at the time of the misdiagnosis."13 

¶33 The court of appeals further concluded that the 

Paynters' informed consent claim was "foreign" for purposes of 

the borrowing statute. The court noted that Dr. Hamp first 

allegedly violated Mr. Paynter's right to informed consent 

during the June 14, 2010 phone call, and it is undisputed that 

Mr. Paynter was located in his Michigan home when he received 

that call. "Because [Mr. Paynter] was located in Michigan at 

that time, his alleged injury——i.e., the loss of the opportunity 

to choose his course of treatment——occurred in Michigan, not 

Wisconsin."14

¶34 Accordingly, the court of appeals applied the Michigan 

statute of limitations to both claims and affirmed the circuit 

court order granting summary judgment in favor of Dr. Hamp.15 

The Paynters petitioned this court for review. 

II 

 

13 Id., ¶36. 

14 Id., ¶39. 

15 Before the court of appeals, the Paynters conceded that 

the viability of Mrs. Paynter's derivative claims depends on the 

viability of Mr. Paynter's claims. Because the court of appeals 

concluded that Mr. Paynter's claims were untimely, it further 

concluded that the circuit court properly granted summary 

judgment to Dr. Hamp on Mrs. Paynter's claims. Paynter, 381 

Wis. 2d 239, ¶44 n.13. 
No. 2017AP739 

12 

¶35 This court applies the same method of analysis to a 

motion for summary judgment as does the circuit court.16 Summary 

judgment is appropriate under Wis. Stat. § 802.08(2) where "the 

pleadings, depositions, answers to interrogatories, and 

admissions on file, together with the affidavits, if any, show 

that there is no genuine issue as to any material fact and that 

the moving party is entitled to a judgment as a matter of law."17 

¶36 Our review of the instant case also requires us to 

interpret and apply Wisconsin's borrowing statute, Wis. Stat. 

§ 893.07. "[S]tatutory construction is a question of law, which 

we review de novo, even though we benefit from the analyses of 

the circuit court and the court of appeals."18 

III 

A 

¶37 Dr. Hamp argues that the Paynters' claims are "foreign 

cause[s] of action" pursuant to Wisconsin's borrowing statute, 

Wis. Stat. § 893.07. As such, Dr. Hamp contends that Michigan's 

statute of limitations applies to the Paynters' claims. It is 

undisputed that if Michigan's statute of limitations applies, 

the Paynters' claims are time barred. 

 

16 Paul, 242 Wis. 2d 507, ¶8. 

17 Wis. Stat. § 802.08(2). 

18 Paul, 242 Wis. 2d 507, ¶10 (citing Czapinski v. St. 

Francis Hosp., 2000 WI 80, ¶12, 236 Wis. 2d 316, 613 

N.W.2d 120). 
No. 2017AP739 

13 

¶38 "[S]tatutory interpretation 'begins with the language 

of the statute. If the meaning of the statute is plain, we 

ordinarily stop the inquiry.'"19

¶39 Wisconsin's borrowing statute, Wis. Stat. § 893.07, 

provides as follows: 

(1) If an action is brought in this state on a 

foreign cause of action and the foreign period of 

limitation which applies has expired, no action 

may be maintained in this state. 

(2) If an action is brought in this state on a 

foreign cause of action and the foreign period of 

limitation which applies has not expired, but the 

applicable Wisconsin period of limitation has 

expired, no action may be maintained in this 

state. 

¶40 The meaning of the phrase "foreign cause of action" is 

far from plain. The phrase "foreign cause of action" is not, 

and has never been, expressly defined in Wisconsin's borrowing 

statute. The phrase also appears to be unique to the borrowing 

statute; that is, the phrase appears nowhere else in the 

Wisconsin statutes. 

¶41 In Guertin v. Harbour Assurance Company of Bermuda, 

Ltd., 141 Wis. 2d 622, 415, N.W.2d 831 (1987), this court was 

required to determine whether the plaintiff's cause of action 

constituted a "foreign cause of action" pursuant to Wisconsin's 

borrowing statute. The plaintiff, Frank Guertin, was a 

 

19 State ex rel. Kalal v. Circuit Court for Dane Cty., 2004 

WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110 (quoting Seider v. 

O'Connell, 2000 WI 76, ¶43, 236 Wis. 2d 211, 612 N.W.2d 659). 
No. 2017AP739 

14 

Wisconsin resident who was injured in the state of Illinois when 

he slipped and fell off the fuel tank of a semi-trailer he was 

employed to drive.20

¶42 We determined that the phrase "foreign cause of 

action" was ambiguous, and therefore, we turned "to extrinsic 

sources to determine what the legislature meant by the phrase."21 

Before turning to extrinsic sources, however, we examined the 

statutory history of Wisconsin's borrowing statute. 

¶43 We observed that "[i]n 1979, the legislature 

restructured Chapter 893, Limitations of Commencement of Actions 

and Proceedings and Procedure for Claims Against Governmental 

Units."22 In that revision, the Judicial Council redrafted 

Wisconsin's borrowing statute, then numbered Wis. Stat. 

§ 893.205, and renumbered it Wis. Stat. § 893.07. 

¶44 Former Wis. Stat. § 893.205(1) did not use the phrase 

"foreign cause of action," but instead referred to "injuries to 

the person, received without this state."23 

¶45 We then examined the Judicial Council Committee's Note 

to Wis. Stat. § 893.07 to help us determine the significance of 

the changes to the statutory text and derive meaning from the 

 

20 Guertin v. Harbour Assur. Co. of Bermuda, Ltd., 141 

Wis. 2d 622, 624-25, 415 N.W.2d 831 (1987). 

21 Id. at 628; see also Kalal, 271 Wis. 2d 633, ¶50. 

22 Guertin, 141 Wis. 2d at 628. 

23 Wis. Stat. § 893.205(1) (1977-78); Guertin, 141 Wis. 2d 

at 629. 
No. 2017AP739 

15 

newly enacted language. Although the revised version of the 

statute substantively changed the borrowing statute in ways that 

are not relevant to the present case,24 the Committee observed 

that other provisions of ch. 893 retained the same form in which 

they had previously existed and were "redrafted only for greater 

clarity and ease of application[.]"25 

¶46 We concluded that it was "apparent from the 

Committee's comments that the Council considered the phrase 

'foreign cause of action' to be synonymous with the language of 

the former borrowing statute, sec. 893.205(1), Stats. (1977), 

which barred actions 'for injuries to the person, received 

without this state.'"26 

¶47 Accordingly, we declared that a cause of action is 

"foreign" for purposes of Wisconsin's borrowing statute if the 

plaintiff's injury occurred outside of Wisconsin.27 

¶48 We then applied the "place of injury" test. This was 

a simple task, given that the injury in Guertin was immediate 

and discrete. Mr. Guertin fell off his semi-trailer and 

 

24 For example, the revisions changed the law of prior Wis. 

Stat. § 893.205(1), which had provided that a resident in 

Wisconsin could sue in Wisconsin state courts to recover damages 

for personal injuries experienced outside of Wisconsin even if 

the foreign period of limitation had expired. Guertin, 141 

Wis. 2d at 629. 

25 Guertin, 141 Wis. 2d at 629. 

26 Id. at 630. 

27 Id. at 630-31. 
No. 2017AP739 

16 

sustained injuries in Illinois. Therefore, Mr. Guertin's claims 

were "foreign cause[s] of action" pursuant to Wisconsin's 

borrowing statute. The Illinois statute of limitations for 

personal injury actions applied to his claims, and therefore, 

they were properly dismissed as untimely. 

B 

¶49 Although it was clear how to apply the "place of 

injury" test under the facts of Guertin, application of the test 

in subsequent cases proved more difficult. The test needed 

additional gloss to cleanly apply to other claims and fact 

scenarios where the plaintiff's "place of injury" was not easily 

pinned down to one particular time and location. 

¶50 For example, in Abraham v. General Casualty Company of 

Wisconsin, 217 Wis. 2d 294, 576 N.W.2d 46 (1998), we had to 

decide whether Wisconsin's borrowing statute applied to contract 

actions. 

¶51 In the Abraham case, the plaintiff, Paul Abraham, was 

injured by an automobile while riding his bicycle in the state 

of Florida.28 After exhausting the tortfeasor's liability 

insurance policy limits, Mr. Abraham notified his insurer, 

General Casualty Company of Wisconsin, that he intended to seek 

underinsured motorist benefits.29 When General Casualty refused 

 

28 Abraham v. General Cas. Co. of Wis., 217 Wis. 2d 294, ¶3, 

576 N.W.2d 46 (1998). 

29 Id., ¶¶4-7. 
No. 2017AP739 

17 

to pay the underinsured motorist benefits, Mr. Abraham sued 

General Casualty in Wisconsin for breach of contract.30

¶52 We held that the borrowing statute applied to contract 

actions,31 but we were mindful that determining the location of 

the plaintiff's injury "may be more difficult 'in the case of a 

dispute over a contract, whose 'location' is not easily pinned 

to a particular state if, for example, as is common, the 

contract is negotiated in one state, signed in another, and 

performed in a third.'"32 

¶53 After "wad[ing] into [a] morass of arguments and 

precedent,"33 we determined that the location of "the final 

significant event giving rise to a suable claim" should be the 

determinative factor in deciding whether a claim sounding in 

contract constitutes a "foreign cause of action" for purposes of 

the borrowing statute.34 

¶54 We explained that this standard was "not only 

consistent with Guertin's interpretation of Wis. Stat. 

 

30 Id., ¶¶7-8. 

31 Id., ¶15. 

32 Id., ¶21 (quoting Johnson v. Deltadynamics, Inc., 813 

F.2d 944, 946 (7th Cir. 1987)). 

33 See Abraham, 217 Wis. 2d 294, ¶¶21-31. 

34 Id., ¶35; see also Mack Trucks, Inc. v. BendixWestinghouse Auto. Air Brake Co., 372 F.2d 18 (3d Cir. 1966); 

Terranova v. Terranova, 883 F. Supp. 1273 (W.D. Wis. 1995). 
No. 2017AP739 

18 

§ 893.07," but also clarified, if imperfectly,35 how that 

interpretation was to apply "to causes of action sounding in 

contract where it is frequently difficult to attach the 

plaintiff's contractual 'injury' to any one locale."36 

¶55 Applying this framework to the facts of Abraham, we 

concluded that the "final significant event" giving rise to a 

suable claim for underinsured motorist benefits was the 

insurance company's refusal to pay the benefits upon Mr. 

Abraham's request. That denial occurred in Wisconsin, and 

therefore, Mr. Abraham's claim for underinsured motorist 

benefits was not a "foreign cause of action" under Wisconsin's 

borrowing statute. 

¶56 Likewise, in Faigin v. Doubleday Dell Publishing 

Group, Inc., 98 F.3d 268 (7th Cir. 1996), it was not obvious how 

to properly apply Wisconsin's borrowing statute and our "place 

of injury" test in the context of a multi-state defamation suit. 

¶57 In Faigin, sports agent A.J. Faigin represented James 

E. Kelly, a former quarterback for the National Football 

League's Buffalo Bills.37 Mr. Kelly spoke unfavorably of Mr. 

 

35 See Abraham, 217 Wis. 2d 294, ¶35 n.7 (recognizing "that 

in certain factual situations," the final significant event test 

"would not be without ambiguity," but emphasizing that, "as with 

any judicial standard, no one 'test' can give complete certainty 

to future litigants.'"). 

36 Id., ¶35. 

37 Faigin v. Doubleday Dell Pub. Grp., Inc., 98 F.3d 268, 

269 (7th Cir. 1996). 
No. 2017AP739 

19 

Faigin in an autobiography published by the defendant, Doubleday 

Dell Publishing Group.38 Of the 28,600 copies of the 

autobiography that were sold to bookstores, only 41 of them were 

sold to bookstores in Wisconsin; that is, "a staggering 99.86 

percent occurred outside Wisconsin."39

¶58 When Mr. Faigin sued Doubleday for defamation in the 

Eastern District of Wisconsin, Doubleday argued that Mr. 

Faigin's suit was a "foreign cause of action" under Wisconsin's 

borrowing statute. The district court agreed and granted 

summary judgment to Doubleday, concluding "that when the 

plaintiff's injury has occurred in more than one state, it 

amounts to a 'foreign' cause of action governed by Wisconsin's 

borrowing statute, notwithstanding the fact that Wisconsin is 

one of the states in which injury occurred."40

¶59 The Seventh Circuit reversed. It stated that 

determining the locations of Mr. Faigin's injuries was 

"straightforward enough."41 There was evidence supporting the 

conclusion that Mr. Faigin was injured in Wisconsin, albeit 

minimally, and there was also evidence supporting the conclusion 

that Mr. Faigin was injured in other states where the 

autobiography was sold.42 The Faigin court explained that 

 

38 Id. at 269. 

39 Id. at 273 (Evans, J., dissenting). 

40 Id. at 269-70. 

41 Id. at 270. 

42 Id. 
No. 2017AP739 

20 

"[t]his is a quirk of libel law: the plaintiff is generally 

considered to be injured wherever the defamatory writing is 

published. In other words, although it is clear where Faigin 

allegedly was injured, the place of injury cannot be narrowed to 

one state."43

¶60 This "quirk of libel law" forced the Seventh Circuit 

"to decide between a rule that deems all multi-state libel 

claims foreign or all of them not[.]"44 The Faigin court 

ultimately decided "that the latter is the better of two 

imperfect choices[.]"45 "As it stands," the Faigin court 

explained, "the Wisconsin statute asks one question: did the 

injury occur inside Wisconsin?"46 Because the answer in Faigin 

was "yes, if not exclusively[,]" Mr. Faigin's defamation claim 

did not constitute a foreign cause of action for purposes of the 

borrowing statute.47

C 

¶61 Our discussion of the case law above illustrates that 

both state and federal courts construing Wisconsin's borrowing 

statute have focused on the location of the plaintiff's injury 

in determining whether a cause of action is "foreign" for 

 

43 Id. 

44 Id. at 272. 

45 Id. 

46 Id. 

47 Id. 
No. 2017AP739 

21 

purposes of the borrowing statute. Generally speaking, the 

plaintiff's injury is the "final significant event" giving rise 

to a cause of action, and it is the plaintiff's location when 

that injury is sustained that determines whether the cause of 

action is "foreign" for purposes of Wisconsin's borrowing 

statute. Although the "place of injury" test has not always 

been easy to apply, the focus has always remained on identifying 

the location in which the plaintiff suffered his or her injury. 

¶62 Like Abraham and Faigin, the instant case provides 

another example of a category of cases in which the "place of 

injury" test requires more gloss. Unlike the single, discrete 

injury at issue in Guertin (the plaintiff's fall from his truck 

in Illinois) and the multiple, discrete injuries in Faigin (the 

sale of libelous books in multiple states, including Wisconsin), 

the instant case involves an alleged negligent misdiagnosis that 

resulted in a latent, though continuous, injury. 

¶63 We have previously determined what constitutes an 

actionable "injury" in negligent misdiagnosis cases for purposes 

of triggering the medical malpractice statute of limitations, 

Wis. Stat. § 893.55(1m). 

¶64 In Paul v. Skemp, 2001 WI 42, 242 Wis. 2d 507, 625 

N.W.2d 860, an arteriovenous malformation (AVM) in Jennifer 

Paul's brain ruptured, causing extensive hemorrhaging and, 

eventually, her death.48 Jennifer's parents and Jennifer's 

 

48 Paul v. Skemp, 2001 WI 42, ¶5, 242 Wis. 2d 507, 625 

N.W.2d 860. 
No. 2017AP739 

22 

estate sued two of Jennifer's doctors, claiming that the doctors 

misdiagnosed the cause of Jennifer's recurring headaches, 

resulting in the ruptured AVM.49

¶65 The doctors maintained that Jennifer's "injury" was 

the alleged misdiagnosis.50 They argued that because the Pauls' 

claims were not brought within three years of Jennifer's last 

complaint about her headaches, the Pauls' claims were time 

barred. 

¶66 The Pauls, on the other hand, maintained that what 

triggered the statute of limitations was not the alleged 

misdiagnosis, but rather the rupture of the AVM and the 

resultant hemorrhaging.51 They argued that their claims were 

timely because they were brought within three years of the 

rupture of Jennifer's AVM.52 The Pauls additionally submitted, 

in opposition to the doctors' motion for summary judgment, an 

affidavit from an expert witness, who concluded to a reasonable 

degree of medical certainty that had Jennifer's AVM "been 

properly diagnosed at any time prior to May 1, 1995, it [was] 

more likely than not that [Jennifer] would not have sustained 

the injury and disability she ultimately experienced on May 22, 

1995."53 

 

49 Id., ¶1. 

50 Id., ¶12. 

51 Id., ¶13. 

52 Id. 

53 Id. 
No. 2017AP739 

23 

¶67 In resolving what event constituted the actionable 

"injury," we relied on persuasive authority from other 

jurisdictions that had previously faced the same issue and 

concluded that "[a] misdiagnosis, in and of itself, is not, and 

cannot, be an actionable injury[]" because "[t]he misdiagnosis 

is the negligent omission, not the injury."54 We explained that 

"[t]he actionable injury arises when the misdiagnosis causes a 

greater harm than existed at the time of the misdiagnosis."55 

¶68 Applying this standard to the facts of the case, the 

Paul court concluded that Jennifer's actionable injury occurred 

"either at the time that Jennifer's AVM ruptured, or at the time 

that Jennifer's AVM could no longer be treated."56 Because both 

of these events would have occurred within the applicable threeyear statute of limitations, we held that the Pauls' claims were 

timely.57

D 

¶69 The Paynters maintain that the Seventh Circuit's 

reasoning in Faigin should apply to their medical malpractice 

claims. That is, because Dr. Hamp admitted that Mr. Paynter's 

 

54 Paul, 242 Wis. 2d 507, ¶25; see St. George v. Pariser, 

484 S.E.2d 888, 891 (Va. 1997) (concluding that the plaintiff's 

injury was not the failure to diagnose a mole as cancerous, but 

rather, "the change in her cancerous condition" from a curable 

state to a potentially fatal state). 

55 Paul, 242 Wis. 2d 507, ¶25. 

56 Id., ¶45. 

57 Id. 
No. 2017AP739 

24 

growth would continue to expand unless and until it was 

surgically removed, Mr. Paynter was essentially suffering one 

continuous injury as his growth expanded. Put another way, "the 

misdiagnosis cause[d] greater harm than existed at the time of 

the misdiagnosis" in a continuous fashion as the cancer grew.58 

Thus, they argue, if Mr. Paynter entered Wisconsin during the 

four-year period of time between the misdiagnosis on June 10, 

2010 and the growth's removal on June 19, 2014, "at least some" 

of Mr. Paynter's injury occurred in Wisconsin.59

¶70 We reject the Paynters' invitation to apply Faigin's 

reasoning to the facts of the instant case. While we do not 

comment on the merits of the Seventh Circuit's legal analysis in 

Faigin as applied to multi-state libel suits, it is clear to us 

that Faigin's analysis turned on the unique "quirk" of libel law 

that generally considers a plaintiff to be injured wherever the 

defamatory writing is published. That is, as the court of 

appeals correctly pointed out, "Faigin involved multiple, 

discrete injuries in different states[,]" whereas here, "the 

Paynters have asserted a single, continuous injury, which they 

allege was ongoing for the entire period between June 2010 and 

June 2014, during which time David was physically present in 

both Michigan and Wisconsin."60 

 

58 See id., ¶25. 

59 See Faigin, 98 F.3d at 270-72. 

60 Paynter, 381 Wis. 2d 239, ¶26. 
No. 2017AP739 

25 

¶71 The Paynters' proposed analysis, if adopted, would 

render non-foreign virtually all medical malpractice cases 

involving the failure to diagnose cancer. Given that one of the 

primary purposes underlying Wisconsin's borrowing statute is to 

prevent forum shopping,61 we cannot accept the ease with which a 

negligent misdiagnosis claim could be transformed from a 

"foreign" cause of action to a non-foreign one under the 

Paynters' theory. Such an interpretation would, without 

limitation, apply the Wisconsin statute of limitations to anyone 

who simply travels to Wisconsin, regardless of the frequency or 

duration of such travel. 

¶72 Instead, we agree with the court of appeals that in 

medical malpractice cases involving a negligent misdiagnosis 

that results in a latent, though continuous, injury, whether the 

action is "foreign" for purposes of Wisconsin's borrowing 

statute is determined by whether the plaintiff's first injury 

occurred in Wisconsin. 

¶73 In our view, the "first injury" test best comports 

with the case law construing Wisconsin's borrowing statute and 

the case law describing when a plaintiff suffers an actionable 

"injury" in the context of a negligent misdiagnosis. As in 

other cases in which the phrase "foreign cause of action" needed 

additional gloss to determine whether and how Wisconsin's 

borrowing statute should apply in a particular context,62 the 

 

61 Guertin, 141 Wis. 2d at 631. 

62 See supra ¶¶50-60 (describing Abraham and Faigin). 
No. 2017AP739 

26 

"first injury" test focuses on when a misdiagnosed plaintiff has 

a suable claim. A tort becomes "complete" when the plaintiff is 

injured, and the plaintiff in a negligent misdiagnosis case 

becomes injured when he or she first experiences greater harm as 

a result of the misdiagnosis than existed at the time of the 

misdiagnosis.63 If the plaintiff is located outside of Wisconsin 

when this occurs, the action is "foreign" for purposes of 

Wisconsin's borrowing statute.64 

 

63 See Paul, 242 Wis. 2d 507, ¶25 

64 In addition to being grounded in statutory history and 

our prior cases interpreting Wisconsin's borrowing statute, 

tying the application of the borrowing statute to the 

plaintiff's place of first injury provides the highest degree of 

certainty to the party most in need of that certainty, i.e., the 

plaintiff bringing the action. 

Plaintiffs need to know whether the borrowing statute 

applies so that they can timely file their claims. Generally 

speaking, plaintiffs are more likely to know where their injury 

occurred because they are in control of their own movements and 

actions. For example, if Mr. Paynter did not leave the state of 

Michigan during the four-year period of time relevant to the 

instant case, he would know that regardless of when his first 

injury occurred, it occurred in Michigan because he never left 

the state. He would know with a significant degree of certainty 

that the borrowing statute applied to his claim. 

However, in addition to lacking support in the statutory 

history and our case law, alternative approaches also provide 

lesser, not greater certainty from the perspective of a 

plaintiff. If operation of the borrowing statute depended on 

whether every element of the claim occurred outside of 

Wisconsin, plaintiffs who first suffered an injury at a 

reasonably discernable time and place outside of Wisconsin would 

be left with the additional (and difficult) task of determining 

where the other elements of their claim occurred. 
No. 2017AP739 

27 

¶74 As we explain more fully below, however, the time and 

location of plaintiff's "first injury" must be capable of 

ascertainment to a reasonable, non-speculative degree. When the 

plaintiff's place of first injury is unknowable, but could have 

occurred within or outside of Wisconsin, Wisconsin's borrowing 

statute does not apply. 

IV 

A 

¶75 We first address the Paynters' negligence claim. 

¶76 Dr. Hamp argues, and the court of appeals agreed, that 

he made a prima facie showing that Mr. Paynter suffered his 

first injury in Michigan by presenting evidence that the 

Paynters lived continuously in Michigan during the four-year 

period of time between Dr. Hamp's alleged misdiagnosis and Mr. 

Paynter's discovery of his injury. 

¶77 Dr. Hamp further argues, and the court of appeals 

agreed, that Mr. Paynter's averment that he "was frequently in 

Wisconsin in between the years 2010 and 2015" fails to rebut Dr. 

Hamp's prima facie case because, as the court of appeals held, 

the Paynters did not provide sufficient evidence to "establish——

or even suggest——at what point in time [Mr. Paynter] first 

experienced a greater harm than that which existed at the time 

of the misdiagnosis," and where Mr. Paynter was located when he 

experienced that greater harm.65

 

65 See Paynter, 381 Wis. 2d 239, ¶36. 
No. 2017AP739 

28 

¶78 We conclude that, on the record before the court, Mr. 

Paynter's place of first injury is beyond ascertainment to any 

reasonable, non-speculative degree. In such circumstances, 

Wisconsin's borrowing statute does not apply. 

¶79 In reaching this conclusion, we are guided by the 

court of appeals' decision in Brusa v. Mercy Health System, 

Inc., 2007 WI App 166, 304 Wis. 2d 138, 737 N.W.2d 1. 

¶80 In Brusa, it was alleged that a negligent delay in 

correctly diagnosing Mr. Brusa with colon cancer caused Mr. 

Brusa's death.66 Mr. Brusa's son, Joseph, who was four months 

old at the time of his father's death, brought a derivative suit 

against the doctor.67

¶81 The right to pursue a derivative claim for medical 

malpractice is determined by the plaintiff's status at the time 

of the patient's injury.68 The court of appeals, therefore, was 

tasked with determining Mr. Brusa's "date of injury" and 

deciding whether Joseph had been conceived by that date.69

¶82 After a discussion of this court's decision in Paul,70

the court of appeals stated: 

 

66 Brusa v. Mercy Health Sys., Inc., 2007 WI App 166, ¶1, 

304 Wis. 2d 138, 737 N.W.2d 1. 

67 Id., ¶1. 

68 Id. (citing Conant v. Physicians Plus Med. Group, Inc., 

229 Wis. 2d 271, 274, 600 N.W.2d 21 (Ct. App. 1999)). 

69 Brusa, 304 Wis. 2d 138, ¶15. 

70 See supra ¶¶64-68. 
No. 2017AP739 

29 

Here, Brusa's date of injury has not been established 

and is not ascertainable from the record. An 

injurious change may have occurred shortly after Brusa 

first consulted with Dr. Fasano, it may have occurred 

four weeks later when Brusa was to have had a 

colonoscopy, it may have occurred at some later date, 

or it may be that Brusa's cancer was untreatable even 

before he first consulted Dr. Fasano. Even if we 

accept Dr. Fasano's concession of negligence, which 

was offered only for the sake of argument on appeal, 

this question remains: When did Dr. Fasano's 

misdiagnosis cause Brusa "greater harm" than existed 

on December 27, 2002?[71] 

¶83 In this respect, the record in the instant case is 

similar to Brusa. When Dr. Hamp's alleged negligent 

misdiagnosis caused Mr. Paynter "greater harm" than existed at 

the time of the misdiagnosis appears to be unknowable. We can 

think of no test by which a finder of fact could determine the 

location of Mr. Paynter's first injury without speculating. 

¶84 Dr. Hamp admitted in his deposition that Mr. Paynter's 

prognosis would have been improved had Mr. Paynter been treated 

in 2010 as opposed to 2014; that is, it is undisputed that Mr. 

Paynter suffered an injurious change in condition at some point 

between June 2010, when Dr. Hamp is alleged to have negligently 

failed to diagnose Mr. Paynter's cancer, and June 2014, when Mr. 

Paynter discovered that his cancer had been present in June 

2010. 

¶85 Dr. Hamp's argument that Mr. Paynter suffered his 

first injury in Michigan rests entirely upon the fact that the 

Paynters resided in Michigan during the four-year period of time 

 

71 Brusa, 304 Wis. 2d 138, ¶14. 
No. 2017AP739 

30 

in which Mr. Paynter suffered his first injury. There is 

nothing in the record showing that the Paynters were 

continuously in the state of Michigan for four years. In fact, 

the opposite is true. Mr. Paynter averred that he was 

frequently in Wisconsin during that four-year period of time. 

¶86 On the record before the court, when and where Mr. 

Paynter suffered his first injury appears to be beyond 

ascertainment to any reasonable, non-speculative degree. The 

record is insufficient to make a reasonable inference one way or 

the other.72 Wisconsin's borrowing statute applies only to 

"foreign cause[s] of action," and if the plaintiff's place of 

 

72 Although we acknowledge that the first injury test may 

result in some degree of uncertainty in particular cases, 

especially when the period of time between misdiagnosis and 

discovery of the injury is extensive, no judicial standard can 

give complete certainty to future litigants. Abraham, 217 

Wis. 2d 294, ¶35 n.7. 

Additionally, we note that not every fact scenario will 

result in complete uncertainty as to the time and location of 

the plaintiff's first injury. For example, in Paul, the period 

of time between the last misdiagnosis and the plaintiff's first 

injury was, at most, five weeks. It does not appear that it 

would have been an impossible task to determine where the 

plaintiff was located during those five weeks had it been 

relevant to decide the issue. 

However, the record before this court is an example of a 

set of facts under which the plaintiff's place of first injury 

is unknowable, and when the record is such that a fact finder 

can only speculate as to the location of the plaintiff's first 

injury, the borrowing statute does not apply. 
No. 2017AP739 

31 

first injury is unknowable, as in the instant case, the 

borrowing statute does not apply.73

¶87 Because the borrowing statute does not apply to the 

Paynters' negligence claim, we apply Wisconsin's medical 

malpractice statute of limitations to that claim. 

¶88 Dr. Hamp concedes, and we agree, that the Paynters' 

negligence claim is timely under Wisconsin's medical malpractice 

statute of limitations, Wis. Stat. § 893.55(1m). 

¶89 Section 893.55(1m) provides that: 

 

73 That is not to say that every plaintiff whose place of 

first injury is unknowable may bring an action in Wisconsin 

courts. 

Separate and apart from whether the borrowing statute 

applies to the Paynters' claims, the jurisdictional requirements 

set forth in International Shoe Co. v. State of Washington, 326 

U.S. 310, 316 (1945), must still be met. 

In International Shoe, the United States Supreme Court 

explained that due process requires that a defendant "have 

certain minimum contacts" with the forum state "such that the 

maintenance of the suit does not offend 'traditional notions of 

fair play and substantial justice'". Int'l Shoe, 326 U.S. at 

316. 

The parties did not brief this issue. Nonetheless, we have 

no trouble concluding that Dr. Hamp had the requisite "minimum 

contacts" with Wisconsin. Dr. Hamp is licensed to practice 

medicine in Wisconsin. He maintains an office in Ashland, 

Wisconsin. Although Dr. Hamp performed the aspiration on Mr. 

Paynter's growth in his Michigan office, Dr. Hamp sent the 

samples to Wisconsin where they were analyzed by a pathologist. 

Given these contacts with the state of Wisconsin, it does not 

offend "traditional notions of fair play and substantial 

justice" to subject Dr. Hamp to the jurisdiction of Wisconsin 

state courts. 
No. 2017AP739 

32 

[A]n 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. 

¶90 It is undisputed that Mr. Paynter first discovered his 

injury on June 19, 2014. It is also undisputed that the 

Paynters mailed their request for mediation to the Wisconsin 

Medical Mediation Panels sometime during May 2015, which was 

within one year of June 19, 2014, and was not more than five 

years after the act giving rise to the Paynters' injury——i.e., 

the June 14, 2010 misdiagnosis. 

¶91 Accordingly, the Paynters' negligence claim against 

Dr. Hamp is timely. Dr. Hamp is not entitled to summary 

judgment as to that claim. 

B 

¶92 Next, we address the Paynters' claim that Dr. Hamp 

violated Mr. Paynter's right to informed consent. 

¶93 Dr. Hamp argues that, to the extent Dr. Hamp violated 

Mr. Paynter's right to informed consent, that injury occurred in 

Michigan because Mr. Paynter was in Michigan when Dr. Hamp 

allegedly informed him that his growth was not malignant and 

needed no further treatment. 
No. 2017AP739 

33 

¶94 The Paynters urge us to apply the reasoning set forth 

in Abraham74 and conclude that their informed consent claim is 

not foreign because the "last significant event" giving rise to 

their claim——i.e., Dr. Hamp's conveyance of his incorrect 

diagnosis——occurred in Wisconsin. 

¶95 We agree with Dr. Hamp and conclude that the Paynters' 

informed consent claim is a "foreign cause of action" for 

purposes of Wisconsin's borrowing statute. 

¶96 In reaching our conclusion, we are guided by the 

Eastern District of Wisconsin's decision in Studio & Partners, 

s.r.l. v. KI, No. 06-C-628, 2007 WL 3342597 (E.D. Wis. Nov. 7, 

2007). 

¶97 In Studio & Partners, plaintiff Studio & Partners 

(S&P), an Italian company, claimed that KI, a Wisconsin company, 

unlawfully misappropriated S&P's design for a chair used in 

schools and other academic settings.75 S&P argued that it 

sustained injuries in Wisconsin because that is where KI 

allegedly: (1) misappropriated S&P's design; (2) concealed its 

misappropriation; (3) sold the products; (4) caused the filings 

for fraudulent patents; and (5) earned profits on the stolen 

design.76

 

74 See supra ¶¶50-55. 

75 Studio & Partners, s.r.l. v. KI, No. 06-C-628, 

2007WL3342597, *1 (E.D. Wis. Nov. 7, 2007). 

76 Id., *3. 
No. 2017AP739 

34 

¶98 The Eastern District of Wisconsin rejected S&P's 

argument, explaining that "it is apparent that these events 

reflect where the alleged injury was caused, not where it 

occurred."77 The court in Studio & Partners concluded that the 

injury occurs where it is felt rather than where it originates, 

and it was undisputed that "S&P became poorer (if at all) in 

Italy, not Wisconsin."78

¶99 We agree with the reasoning set forth in Studio & 

Partners. To the extent Dr. Hamp violated Mr. Paynter's right 

to informed consent, that injury was felt in Michigan because 

Mr. Paynter was in Michigan when Dr. Hamp allegedly informed him 

that his growth was not malignant and needed no further 

treatment. As the court of appeals explained, "[b]ecause [Mr. 

Paynter] was located in Michigan at that time, his alleged 

injury——i.e., the loss of the opportunity to choose his course 

of treatment——occurred in Michigan, not Wisconsin."79 

 

77 Id. (emphasis in original). 

78 Id. 

79 Paynter, 381 Wis. 2d 239, ¶39. 

(continued) 
No. 2017AP739 

35 

¶100 Dr. Hamp proved that the Paynters' informed consent 

claim is a "foreign cause of action" for purposes of Wisconsin's 

borrowing statute. Accordingly, we apply Michigan's medical 

malpractice statute of limitations. 

¶101 Michigan's statute of limitations applicable to 

medical malpractice actions requires a plaintiff to file suit 

within the later of: (1) two years from the date his or her 

claim accrued;80 or (2) six months after the plaintiff discovered 

 

Basing the applicability of the borrowing statute on 

whether the test in International Shoe is met is not helpful. 

The jurisdictional test set forth in International Shoe 

addresses a different issue than the borrowing statute, namely, 

the former addresses a court's personal jurisdiction over a 

particular defendant while the latter addresses what statute of 

limitations applies to a claim that is lawfully brought in a 

Wisconsin court. If the International Shoe test is met, then 

the claim may be brought in Wisconsin, but that does not answer 

the question of whether the borrowing statute applies to the 

claim. If the International Shoe test is not met, then the 

claim may not be brought in Wisconsin at all. Under such a 

test, no claim lawfully brought in Wisconsin will ever be 

considered a "foreign cause of action" under the borrowing 

statute. 

Moreover, as we explained more fully in footnote 64 supra, 

our approach supplies the highest degree of certainty possible 

to plaintiffs. Mr. Paynter knew where he was located when he 

allegedly lost the opportunity to choose his course of 

treatment. However, that certainty would be undermined if the 

applicability of the borrowing statute turned on where Dr. Hamp 

was located when he committed the allegedly tortious act. Given 

the increased utilization of telemedicine in our healthcare 

system, Mr. Paynter and similarly situated plaintiffs should not 

be tasked with divining where their physician happened to be 

located when the alleged tortious act was committed. 

80 Mich. Comp. Laws § 600.5805(8) (2018). 
No. 2017AP739 

36 

or should have discovered the existence of his or her claim.81 

In Michigan, a claim for medical malpractice "accrues" when the 

malpractice occurs.82

¶102 Again, it is undisputed that the Paynters mailed their 

mediation request in May 2015, which was more than two years 

after the June 14, 2010 misdiagnosis. It is further undisputed 

that the Paynters discovered or should have discovered the 

existence of their claim on June 19, 2014, but they did not mail 

their mediation request within six months of that date. 

¶103 Accordingly, the Paynters' informed consent claim 

against Dr. Hamp is untimely. Dr. Hamp is entitled to summary 

judgment as to this claim. 

V 

¶104 Finally, before concluding, we address the Paynters' 

appeal from the circuit court's order determining that an 

insurance policy issued to Dr. Hamp by Defendant-Respondent 

ProAssurance Wisconsin Insurance Company did not provide 

coverage for the Paynters' claims. The court of appeals did not 

resolve the coverage issue because it concluded that all of the 

Paynters' claims were time barred. 

¶105 The Paynters' petition for review raised the insurance 

coverage issue only to preserve it. Their petition states that 

"[b]ecause the unique policy language in issue does not meet 

 

81 Mich. Comp. Laws § 600.5838a(2) (2018). 

82 Mich. Comp. Laws § 600.5838a(1) (2018). 
No. 2017AP739 

37 

this court's criteria for review, the Paynters request that this 

issue be remanded to the appellate court upon reinstatement of 

their cause of action." 

¶106 ProAssurance did not state a preference as to which 

court (i.e., this court or the court of appeals) should resolve 

the insurance coverage dispute, if the issue was reached at all. 

To the extent ProAssurance did state a preference as to which 

court should decide the issue if the issue were revived, 

ProAssurance admitted that the insurance coverage issue "d[id] 

not by itself warrant acceptance of the petition for review." 

Dr. Hamp, ProAssurance's insured, did not address the issue at 

all in his response to the Paynters' petition. 

¶107 It was surprising, then, to see ProAssurance spend a 

significant portion of its response brief83 addressing the merits 

of the insurance coverage issue. The Paynters did not address 

the merits of the coverage issue in their brief-in-chief. By 

waiting until its response brief to raise arguments on the 

merits of the insurance coverage issue, ProAssurance placed the 

Paynters in the unenviable position of deciding whether to 

address the merits of the insurance coverage issue in the 

limited space available in their reply brief.84 

¶108 More importantly, ProAssurance's actions deprived Dr. 

Hamp of any opportunity to address the insurance coverage issue 

 

83 Approximately 8 pages of a 20-page argument. 

84 See Wis. Stat. §§ (Rules) 809.19(8)(c)2. & 809.63. 
No. 2017AP739 

38 

to this court in writing. It is for this reason that arguments 

raised for the first time in reply briefs are generally not 

addressed——"[i]t prevents the opposing party from having an 

adequate opportunity to respond."85

¶109 We therefore decline to address the insurance coverage 

issue. We instruct the court of appeals to resolve this issue 

on remand in such a fashion that is consistent with this 

opinion. 

VI 

¶110 On this issue of first impression, we hold that in 

medical malpractice cases involving a negligent misdiagnosis 

that results in a latent, though continuous, injury, whether the 

action is "foreign" for purposes of Wisconsin's borrowing 

statute is determined by whether the plaintiff's first injury 

occurred outside of Wisconsin. 

¶111 We disagree with the court of appeals' conclusion that 

the borrowing statute applies to the Paynters' negligence claim. 

On the record before the court, Mr. Paynter's place of first 

injury is beyond ascertainment to any reasonable, nonspeculative degree. When the plaintiff's place of first injury 

is unknowable, as in the instant case, Wisconsin's borrowing 

statute does not apply. 

¶112 However, we agree with the court of appeals that the 

Paynters' informed consent claim is "foreign" for purposes of 

 

85 A.O. Smith Corp. v. Allstate Ins. Cos., 222 Wis. 2d 475, 

492, 588 N.W.2d 285 (Ct. App. 1998). 
No. 2017AP739 

39 

Wisconsin's borrowing statute. Accordingly, we apply Michigan's 

statute of limitations to the Paynters' informed consent claim 

and conclude that the claim is untimely. Dr. Hamp is entitled 

to summary judgment as to that claim. 

¶113 Finally, we decline to address the Paynters' appeal 

from the circuit court's order determining that an insurance 

policy issued to Dr. Hamp by Defendant-Respondent ProAssurance 

Wisconsin Insurance Company did not provide coverage for the 

Paynters' claims. Instead, we remand the cause to the court of 

appeals to resolve the insurance coverage issue in such a 

fashion that is consistent with this opinion. 

By the Court.—The decision of the court of appeals is 

affirmed in part, reversed in part, and the cause is remanded to 

the court of appeals for further proceedings consistent with 

this opinion. 
No. 2017AP739.awb 

1 

¶114 ANN WALSH BRADLEY, J. (Concurring in part, 

dissenting in part). I agree with the majority that the 

borrowing statute1 does not apply to the Paynters' negligence 

claim. Majority op., ¶11. Additionally, I agree that the case 

should be remanded to the court of appeals to address the 

Paynters' argument that the circuit court erred in its 

determination that Dr. Hamp's insurance policy did not provide 

coverage for the Paynters' claims. Id., ¶13. 

¶115 I part ways with the majority, however, in its 

treatment of the Paynters' informed consent claim.2 In my view, 

the majority's proffered test is unworkable. 

¶116 Instead of applying Wisconsin's statute of limitations 

to an informed consent claim when the injury is "felt" in 

Wisconsin, I would turn to the familiar International Shoe test.3 

Applying that test, I determine that the Paynters' informed 

 

1 The borrowing statute, Wis. Stat. § 893.07, provides: 

(1) If an action is brought in this state on a foreign 

cause of action and the foreign period of limitation 

which applies has expired, no action may be maintained 

in this state. 

(2) If an action is brought in this state on a foreign 

cause of action and the foreign period of limitation 

which applies to that action has not expired, but the 

applicable Wisconsin period of limitation has expired, 

no action may be maintained in this state. 

2 Accordingly, I join the majority opinion with the 

exception of part IV.B. 

3 See International Shoe Co. v. Washington, 326 U.S. 310, 

316 (1945). 
No. 2017AP739.awb 

2 

consent cause of action is not a "foreign cause of action" for 

purposes of the borrowing statute and therefore can proceed. 

¶117 Accordingly, I concur in part and dissent in part. 

I 

¶118 The alleged violation of Mr. Paynter's right to 

informed consent occurred during the phone call of June 14, 

2010. Majority op., ¶33. During this phone call, Dr. Hamp told 

Mr. Paynter that the growth on his neck was not cancerous and he 

did not need any further treatment. Id., ¶17. It is undisputed 

that Mr. Paynter was located in his Michigan home when he 

received this phone call. Id., ¶33. 

¶119 Analyzing these facts, the majority endeavors to 

determine whether the informed consent cause of action is 

"foreign" for purposes of the borrowing statute. In doing so, 

it relies on an unpublished federal case setting forth the legal 

test as follows: "the injury occurs where it is felt rather 

than where it originates . . . ." Id., ¶98 (citing Studio & 

Partners, s.r.l. v. KI, No. 06-C-628, 2007 WL 3342597, *3 (E.D. 

Wis. Nov. 7, 2007)). 

¶120 Applying this test, the majority determines that the 

Paynters' informed consent claim is a "foreign cause of action" 

pursuant to the borrowing statute. Majority op., ¶95. In the 

majority's view, "[t]o the extent Dr. Hamp violated Mr. 

Paynter's right to informed consent, that injury was felt in 

Michigan because Mr. Paynter was in Michigan when Dr. Hamp 

allegedly informed him that his growth was not malignant and 

needed no further treatment." Id., ¶99. "Because [Mr. Paynter] 
No. 2017AP739.awb 

3 

was located in Michigan at that time, his alleged injury——i.e., 

the loss of the opportunity to choose his course of treatment——

occurred in Michigan, not Wisconsin." Id. 

¶121 In my view, the majority's proffered test is 

unworkable. Given the rise of telemedicine, the majority's 

focus on where the injury is "felt" creates unreasonable and 

unpredictable results. 

¶122 For example, what if a patient gets a call from the 

doctor while traveling in another country? Does that mean the 

foreign country's statute of limitations applies? What if the 

call comes in when the patient is on an airplane? What if 

medical test results are transmitted electronically? What if 

the notice that those results have been transmitted is received 

in one state but the results are first viewed in another? 

¶123 Patients and doctors are more mobile than ever before, 

and technology now allows us to be connected worldwide at all 

times of the day and night. Rather than tethering the statute 

of limitations for a patient's informed consent cause of action 

to the patient's location at the time of the alleged violation, 

I would use a predictable and familiar guide. Namely, I would 

answer this question using the test set forth in International 

Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). 

¶124 Thus, I conclude that Wisconsin's statute of 

limitations applies to a cause of action premised on a violation 

of a patient's right to informed consent if the defendant has 

"certain minimum contacts with [Wisconsin] such that the 

maintenance of the suit does not offend traditional notions of 
No. 2017AP739.awb 

4 

fair play and substantial justice." See id. (citations 

omitted). This approach provides predictability and workability 

that the majority's "where the injury is felt" standard lacks. 

¶125 Applying the International Shoe test to the facts of 

this case, I determine that Dr. Hamp had the requisite minimum 

contacts so as to make Wisconsin's statute of limitations 

applicable to the informed consent cause of action. As the 

majority acknowledges, Dr. Hamp is licensed to practice medicine 

in Wisconsin and maintains an office in Ashland. Majority op., 

¶86 n.73 (explaining that "we have no trouble concluding that 

Dr. Hamp had the requisite 'minimum contacts' with Wisconsin" 

based on his medical licensure and maintenance of an office 

within the state). 

¶126 Accordingly, I conclude that Wisconsin's statute of 

limitations applies to the informed consent cause of action in 

addition to the negligence cause of action. Thus, the Paynters 

should be able to continue their pursuit of both of these 

claims. 

¶127 For the foregoing reasons, I respectfully concur in 

part and dissent in part. 
No. 2017AP739.rgb 

1 

¶128 REBECCA GRASSL BRADLEY, J. (concurring in part, 

dissenting in part). I agree with the majority that the 

borrowing statute does not bar the Paynters' negligence claim, 

but not with the tests the majority adopts for determining 

whether Wisconsin's borrowing statute applies in medical 

malpractice cases alleging a negligent failure to diagnose or a 

violation of a patient's right to informed consent. The tests 

embraced by the majority lack statutory support and will result 

in absurdities. Unlike the majority, I would remand the 

informed consent claim to the circuit court to consider whether 

the Paynters state a claim upon which relief may be granted. 

I 

¶129 If a plaintiff brings a foreign cause of action into a 

Wisconsin court, Wisconsin's borrowing statute, Wis. Stat. 

§ 893.07, commands the application of whichever statute of 

limitations——Wisconsin's or the foreign state's——is shorter: 

(1) If an action is brought in this state on a 

foreign cause of action and the foreign period of 

limitation which applies has expired, no action may be 

maintained in this state. 

(2) If an action is brought in this state on a 

foreign cause of action and the foreign period of 

limitation which applies to that action has not 

expired, but the applicable Wisconsin period of 

limitation has expired, no action may be maintained in 

this state. 

The purpose of Wisconsin's borrowing statute is to reduce forum 

shopping, preclude stale claims, encourage expedient litigation, 

and ensure litigants know whether their claims are timely 

without having to ask a court to decide. Guertin v. Harbour 

Assurance Co., 141 Wis. 2d 622, 631-32, 415 N.W.2d 831 (1987). 
No. 2017AP739.rgb 

2 

The statute discourages suits arising in other states from being 

filed in Wisconsin courts when they would be time-barred in the 

foreign venue. The statute does not define "foreign cause of 

action." 

¶130 The majority says whether a medical malpractice 

misdiagnosis-of-cancer action is "foreign" for purposes of 

Wisconsin's borrowing statute is determined "by whether the 

plaintiff's first injury occurred outside of Wisconsin." 

Majority op., ¶10. Consequently, if the plaintiff happens to be 

outside of Wisconsin when the injury caused by the misdiagnosis 

arises, the case will be considered a foreign cause of action 

even if the plaintiff resides in Wisconsin and the allegedly 

negligent physician treated the plaintiff in Wisconsin. The 

majority derives this test not from the text of the statute but 

from three cases applying the borrowing statute but having 

nothing else in common with medical malpractice misdiagnosis-ofcancer cases: (1) Guertin, 141 Wis. 2d 622; (2) Abraham v. 

General Cas. Co., 217 Wis. 2d 294, 576 N.W.2d 46 (1998); and (3) 

Faigin v. Doubleday Dell Publ'g Grp., Inc., 98 F.3d 268 (7th 

Cir. 1996). 

¶131 Guertin involved a resident of Wisconsin who was 

injured during a slip and fall in Illinois. Guertin, 141 

Wis. 2d at 624-25. Abraham extended the borrowing statute to 

contract cases, holding that the action is foreign if the "final 

significant event giving rise to a suable claim occurs outside" 

Wisconsin, reasoning that in a contract dispute, "location [in a 

contract case] is not easily pinned to a particular state." 
No. 2017AP739.rgb 

3 

Abraham, 217 Wis. 2d at 305, 311 (quoted source and internal 

quotation marks omitted). Faigin involved a multi-state 

defamation action in which the Seventh Circuit held that because 

some injury occurred in Wisconsin, the cause of action was not 

foreign. Faigin, 98 F.3d at 272. None of these cases support 

adopting a place-of-first-injury test for applying the borrowing 

statute in a medical malpractice misdiagnosis-of-cancer case. 

¶132 The typical impossibility of pinpointing when the 

injury first occurs following a cancer misdiagnosis makes a 

place-of-first-injury test unworkable. When cancer goes 

undiagnosed, it is often unfeasible to know the exact moment the 

patient suffers a "greater harm"1 than existed at the time of the 

misdiagnosis. Whether the cancer cells multiplied seconds, 

minutes, hours, days, or months after the misdiagnosis is 

generally unknowable. All that can be established is that the 

injury surfaced sometime between the date of misdiagnosis and 

the date on which the plaintiff was later diagnosed with cancer. 

Even if the moment of greater harm could be ascertained to any 

degree of certainty, the physical location of the patient at 

that exact moment should not determine whether the patient's 

case constitutes a foreign cause of action under Wis. Stat. 

§ 893.07. The statutory text does not suggest such a test and 

logic counsels against it. 

 

1 The majority, citing Paul v. Skemp, 2001 WI 42, ¶25, 242 

Wis. 2d 507, 625 N.W.2d 860, correctly notes that in medical 

malpractice cases involving misdiagnoses, Wisconsin law holds 

that the test for "actionable injury" is the time "when the 

misdiagnosis causes a greater harm than existed at the time of 

misdiagnosis." Majority op., ¶67 & n.55. 
No. 2017AP739.rgb 

4 

¶133 For example, if a patient was on vacation in Florida 

at the time of "first injury," then under the majority's test, 

the action would be foreign even if the patient was a resident 

of Wisconsin, all treatment occurred in Wisconsin, and the 

doctor practiced only in Wisconsin. So too for the patient who 

is retired and spends half the year in Arizona, was treated only 

in Wisconsin by a doctor practicing only in Wisconsin, but who 

was first injured while in Arizona. And for the patient who is 

a Wisconsin resident, was treated in Wisconsin by a Wisconsin 

doctor, but is a college student studying abroad when the injury 

emerges. Under the majority's test, a lifelong Wisconsin 

resident, treated in Wisconsin by a Wisconsin-licensed 

physician, would have his medical misdiagnosis case deemed a 

foreign cause of action just because the date of his first 

injury coincides with his presence on a cruise ship touring the 

world. Consider the inconsistency of the borrowing statute's 

application under the following scenario: a Wisconsin doctor 

sees two patients in his Wisconsin office on the same day and 

the doctor fails to diagnose each patient's cancer. Each 

patient's injury first appears four years after the missed 

diagnosis. At that time, the first patient is in Wisconsin, so 

he can seek redress in a Wisconsin court applying the Wisconsin 

statute of limitations. But the second patient's injury arises 

while visiting relatives in Michigan so his case would be deemed 

a foreign cause of action. Limitless scenarios demonstrate the 

irrationality of the place-of-injury test adopted by the 

majority in medical malpractice misdiagnosis-of-cancer cases. 
No. 2017AP739.rgb 

5 

¶134 Extending a "place-of-first-injury" test to medical 

malpractice misdiagnoses-of-cancer cases contravenes the 

judicially-divined purpose of the statute by elevating the 

physical location of the patient at the moment the misdiagnosis 

causes "greater harm" above every other element comprising a 

medical malpractice claim. A Wisconsin patient who treats only 

with Wisconsin physicians would be barred from pursuing a claim 

that is timely under the Wisconsin statute of limitations simply 

because her injury surfaced when she happened to be on vacation 

in another place with a shorter statute of limitations. 

Wisconsin residents treated only by Wisconsin doctors but who 

happen to be beyond Wisconsin's borders when their injuries 

arise are not forum shoppers. Nevertheless, under the rule the 

majority adopts, each patient's cause of action will be deemed 

foreign and subject to the shorter statute of limitations 

controlled by the physical place each patient happened to be at 

the moment their injuries materialize. The majority's 

interpretation of the borrowing statute will thereby deprive 

Wisconsin residents of the benefit of Wisconsin laws whenever 

they happen to be outside of Wisconsin at the time their 

respective injuries surface. A fortuitous event will lead to 

different statutes of limitation for identically situated 

patients, depending solely upon the geographic location of each 

patient when the misdiagnosis causes "greater harm." The rule 

of law cannot be based upon such happenstance. 

¶135 Instead of squeezing medical malpractice misdiagnosisof-cancer cases into an ill-fitting test designed for immediate, 
No. 2017AP739.rgb 

6 

discrete, and visible injuries, the unique nature of 

misdiagnosis-of-cancer cases demands a different test. In the 

context of a missed cancer diagnosis, the test could be linked 

to the easily-ascertainable location of the actual alleged 

negligent treatment. Alternatively, only when every element of 

the claim occurred outside of Wisconsin would the cause of 

action be deemed foreign. Given the fact that Wis. Stat. 

§ "893.07 operates as a legislative choice of law" the test 

could appropriately employ a choice-of-law analysis. Wenke v. 

Gehl Co., 2004 WI 103, ¶14, 274 Wis. 2d 220, 682 N.W.2d 405. 

Nothing in the borrowing statute's text suggests the fluke of 

wherever a patient happens to be physically located at the 

moment of first injury as its foundation, no case commands a 

test based on pure happenstance, and using the place-of-firstinjury test in misdiagnosis-of-cancer cases defies common sense 

and reasonableness. 

¶136 The majority asserts the place-of-first-injury test 

"provides the highest degree of certainty to the party most in 

need of that certainty, i.e., the plaintiff bringing the 

action." Majority op., ¶73 n.64. The majority reasons that 

"plaintiffs are more likely to know where their injury occurred 

because they are in control of their own movements and actions." 

Id. This rationale for the majority's test contradicts the 

majority's conclusion that the borrowing statute does not apply 

to the Paynters' negligence claim because the moment of 

Paynter's injury is unknowable. Id., ¶¶74, 83. The majority 

"can think of no test by which a finder of fact could determine 
No. 2017AP739.rgb 

7 

the location of Mr. Paynter's first injury without speculating,"2

thereby undermining the suitability of the majority's place-offirst-injury test in cancer misdiagnosis cases. The nature of 

missed cancer diagnosis cases makes detecting the moment the 

cancer creates a "greater harm" virtually impossible. 

Consequently, perhaps the borrowing statute is incapable of 

being applied in any cases involving a misdiagnosis of cancer.3

¶137 I agree with the majority that the borrowing statute 

does not apply to the Paynters' medical malpractice claim and 

therefore the Paynters' negligence claim is not time-barred. I 

reject the majority's adoption of a place-of-first-injury test 

in misdiagnosis-of-cancer cases. The majority "cannot accept 

the ease with which a negligent misdiagnosis claim could be 

transformed from a 'foreign' cause of action to a non-foreign 

one" if the patient entered Wisconsin between the time of the 

misdiagnosis and the time of its discovery. Majority op., ¶71. 

The majority's concern applies equally to the ease with which 

its test results in a Wisconsin resident having her claim 

transformed into a foreign cause of action based merely on her 

temporary absence from Wisconsin at the time her injury happens 

to emerge. 

II 

 

2 Majority op., ¶83. 

3 Although the majority notes that the moment of "greater 

harm" in some misdiagnosis cases may be possible to determine, 

citing Paul v. Skemp, that case did not involve a cancer 

misdiagnosis. See majority op., ¶86 n.72. 
No. 2017AP739.rgb 

8 

¶138 The majority also errs in basing the application of 

the borrowing statute to medical malpractice informed consent 

claims on where the resulting injury was "felt." The majority 

deems the Paynters' informed consent claim foreign because 

Paynter "felt" the effect of Dr. Hamp's alleged violation of 

Paynter's right to informed consent in Michigan where he 

received a phone call from the doctor, who allegedly told 

Paynter the pathology report revealed no malignancy. The 

majority takes this test from an unpublished federal district 

court case, Studio & Partners, s.r.l. v. KI, No. 06-C-628, 2007 

WL 3342597 (E.D. Wis. Nov. 7, 2007), involving a dispute between 

two feuding businesses over economic losses. The majority's 

"injury is felt" test makes no more sense than the majority's 

place-of- first-injury test. 

¶139 Besides being an unpublished federal district court 

case and therefore not binding on this court, Studio & Partners 

is inapposite. Studio & Partners involved a dispute between KI, 

a Wisconsin furniture manufacturer/seller, and Studio & 

Partners, a furniture design company based in Italy, over a 

chair. Id. at *1. Studio & Partners sued KI in Wisconsin 

alleging KI misappropriated its chair design, illegally patented 

the design, and profited $50 million from selling the chairs. 

Id. at *1-*2. The district court concluded the case constituted 

a foreign cause of action and applied Italy's statute of 

limitations because Studio & Partners' injuries were economic 

losses suffered in Italy, not in Wisconsin. Id. at *3. Under 
No. 2017AP739.rgb 

9 

this holding, when the injury is economic, courts look to where 

the "economic effects were felt." See id. 

¶140 An informed consent claim does not involve lost 

profits. Paynter characterizes his injury as a "loss of the 

opportunity to choose his course of treatment." Majority op., 

¶33. Lost opportunity to choose treatment is not an economic 

loss and should therefore not be controlled by where the loss is 

"felt." Using a test based on where an injury is "felt" may 

make sense for an economic loss, but in the context of medical 

malpractice informed consent cases it results in the same 

randomness and suffers from the same irrationality as the placeof-first-injury test in medical misdiagnosis cases. 

¶141 Wisconsin Stat. § 448.30 governs informed consent and 

provides: 

Any physician who treats a patient shall inform the 

patient about the availability of reasonable alternate 

medical modes of treatment and about the benefits and 

risks of these treatments. The reasonable physician 

standard is the standard for informing a patient under 

this section. The reasonable physician standard 

requires disclosure only of information that a 

reasonable physician in the same or a similar medical 

specialty would know and disclose under the 

circumstances. The physician's duty to inform the 

patient under this section does not require disclosure 

of: 

(2) Detailed technical information that in all 

probability a patient would not understand. 

(3) Risks apparent or known to the patient. 

(4) Extremely remote possibilities that might 

falsely or detrimentally alarm the patient. 
No. 2017AP739.rgb 

10 

(5) Information in emergencies where failure to 

provide treatment would be more harmful to the patient 

than treatment. 

(6) Information in cases where the patient is 

incapable of consenting. 

(7) Information about alternate medical modes of 

treatment for any condition the physician has not 

included in his or her diagnosis at the time the 

physician informs the patient. 

Informed consent is unique to the medical field. The injury 

from a physician's failure to comply with the informed consent 

statute is not lost profits or other economic loss. The injury 

is a patient's inability to make an informed treatment choice 

because the physician failed to fully present all options. Any 

test for applying the borrowing statute to an informed consent 

claim must be linked to the treating physician's alleged 

tortious act. A "feel" test is imponderable. 

¶142 The "feel" test in Studio & Partners may be suitable 

in cases involving economic losses because where the economic 

losses a business suffers may be objectively measured. "Feel" 

in the informed consent context cannot. By "feel," the majority 

really means where Paynter happened to be when he took the phone 

call from Dr. Hamp. This test produces the same fortuity 

problem as the majority's place-of-first-injury test for 

misdiagnosis claims. 

¶143 The Defendants-Respondents allege in their Answers to 

the Paynters' complaint that the Paynters' informed consent 

claim fails to state a claim upon which relief can be granted. 

Because the issues presented to this court relate solely to the 

borrowing statute, none of the parties address whether Paynter 
No. 2017AP739.rgb 

11 

can assert an informed consent claim under these facts (namely 

that Dr. Hamp did not treat him because Dr. Hamp believed there 

was no malignancy) and the majority does not decide it. 

Accordingly, I decline to address it further. I would remand 

this claim to the circuit court to do so. 

III 

¶144 Although I agree with the majority's decision to 

remand the insurance coverage issue to the court of appeals, I 

disagree with the majority's decision to base this disposition 

on (1) ProAssurance's decision to brief the merits of coverage 

despite Dr. Hamp's failure to address the issue in his response 

to the Paynters' petition for review and (2) ProAssurance's 

statement in its response to the petition that the insurance 

coverage issue alone did not warrant this court's review. 

ProAssurance is the Wisconsin insurer for Dr. Hamp, but Dr. Hamp 

and ProAssurance have separate counsel because of the insurance 

coverage dispute. 

¶145 The majority expresses "surpris[e]" that ProAssurance 

spent "a significant portion of its response brief addressing 

the merits of the insurance coverage issue." Majority op., ¶107 

(footnote omitted). The majority suggests that by doing so, 

ProAssurance prevented the other parties from having an 

opportunity to respond. The majority's criticism of 

ProAssurance is unwarranted. 

¶146 The circuit court granted summary judgment to 

ProAssurance on coverage. The operative policy language in 

ProAssurance's policy provides: 
No. 2017AP739.rgb 

12 

We will neither defend nor pay damage for any 

liability arising from, relating to, or in any way 

connected with the rendering or failure to render 

professional services by James A. Hamp, M.D., at the 

following location(s): in the State of Michigan 

and/or outside the State of Wisconsin. 

(Emphasis added.) The court of appeals did not address coverage 

because it disposed of the case on other grounds. The Paynters' 

petition for review to this court raised the coverage issue 

solely to preserve it: 

The Paynters also raise an insurance coverage issue 

not addressed by the appellate court (see Paynter, 

2018 WL 1512092, ¶3, n. 3) to preserve this issue. 

Because the unique policy language in issue does not 

meet this court's criteria for review, the Paynters 

request that this issue be remanded to the appellate 

court upon reinstatement of their cause of action. 

¶147 In its response to the Paynters' petition for review, 

ProAssurance refuted the substance of the Paynters' claims based 

on Wis. Stat. § 893.07 and asserted "the issue of insurance 

coverage is moot and does not by itself warrant acceptance of 

the petition for review." 

¶148 In their initial brief, the Paynters do not argue the 

merits of the coverage issue: "The Paynters have raise[d] the 

insurance coverage issue to preserve this issue and request that 

this issue be remanded to the appellate court upon reinstatement 

of their cause of action." In response, ProAssurance devoted 

relatively little of its response brief to the merits of the 

coverage issue. 

¶149 It is disingenuous for the majority to ground its 

decision to remand the coverage determination to the court of 

appeals on the basis that ProAssurance included an insurance 
No. 2017AP739.rgb 

13 

coverage argument in its merits brief to this court despite 

asserting in its response to the Paynters' petition for review 

that the coverage issue alone did not warrant granting of the 

petition. There was no reason for ProAssurance to make a 

coverage argument at the petition-for-review stage of the 

proceedings. The Paynters did not argue coverage existed, but 

simply preserved the issue. ProAssurance, at that point, had a 

coverage determination in its favor from the circuit court, as 

well as a favorable court of appeals decision that did not 

address coverage because the court of appeals disposed of the 

case under Wis. Stat. § 893.07 and the statute of limitations. 

¶150 When this court granted the Paynters' petition for 

review, however, ProAssurance's counsel had no reasonable choice 

but to argue the merits of coverage even though the Paynters and 

Dr. Hamp did not. Insurance coverage is an issue of law, which 

this court reviews independently. Water Well Sols. Serv. Grp., 

Inc. v. Consolidated Ins. Co., 2016 WI 54, ¶12, 369 Wis. 2d 607, 

881 N.W.2d 285. Although neither the Paynters nor Dr. Hamp 

argued the merits of coverage, it was among the issues presented 

in the Paynters' petition this court granted for review. 

Accordingly, this court could have chosen to decide insurance 

coverage. A reasonable reading of ProAssurance's brief reveals 

that it included its insurance coverage argument so that if this 

court chose to decide the issue, ProAssurance's position was 
No. 2017AP739.rgb 

14 

presented. ProAssurance did not ask this court to decide 

coverage; instead, it asked us to affirm the court of appeals.4

¶151 Given the procedural posture of this case, it is 

proper to remand the insurance coverage decision to the court of 

appeals, before which the issue can be thoroughly briefed and 

argued before a decision is rendered. It is unreasonable for 

the majority to suggest that ProAssurance's presentation of the 

issue somehow necessitated remand. 

¶152 For these reasons, I respectfully concur with the 

majority in allowing the Paynters' negligence claim to proceed 

although I do not join its reasoning. I also agree that the 

insurance coverage issue should be remanded to the court of 

appeals. I dissent from the majority's application of the 

borrowing statute to bar the informed consent claim. I would 

instead remand the issue of whether the Paynters' informed 

consent claim states a claim upon which relief may be granted. 

¶153 I am authorized to state that JUSTICE DANIEL KELLY 

joins this concurrence/dissent. 

 

4 The majority criticizes an insurer's lawyer for spending 

eight pages of a 32-page brief arguing against coverage, based 

on the language of the policy. The only thing "surprising" is 

the majority's expectation that an insurance coverage lawyer 

would not make a coverage argument. 
No. 2017AP739.rgb 

1