## Facts

- Robert V. Genrich underwent ulcer-repair surgery on July 23–24, 2003.
- A surgical sponge was inadvertently left in his abdomen.
- After surgery, Genrich developed fever and an elevated white blood cell count consistent with infection.
- The retained sponge was discovered and removed on August 8, 2003 during a second surgery.
- Genrich died on August 11, 2003.
- On August 9, 2006, Genrich’s estate sued for medical negligence and his wife sued for wrongful death against healthcare providers and insurers.
- Defendants sought summary judgment, asserting the claims were barred by Wis. Stat. § 893.55(1m)(a)’s statute of limitations.

## Issues

1. Under Wis. Stat. § 893.55(1m)(a), when did Genrich’s “injury” occur for purposes of the estate’s medical-negligence limitations period?
2. For a wrongful-death claim predicated on medical negligence, does accrual occur on the date of death or on the date of the decedent’s “injury” under § 893.55(1m)(a)?

## Decision

- The Wisconsin Supreme Court affirmed summary judgment for defendants.
- The court held the estate’s medical-negligence claim was time-barred because the “injury” occurred when Genrich first sustained a physical injurious change, which happened more than three years before suit.
- The court held the wife’s wrongful-death claim, because based on alleged medical negligence, was also governed by § 893.55(1m)(a) and accrued on the same “date of injury,” not the date of death; it was likewise time-barred.

## Legal Principles

- For claims governed by Wis. Stat. § 893.55(1m)(a), “injury” occurs when the patient first experiences a physical injurious change attributable to the alleged malpractice, rather than on the date of the negligent act.
- In identifying the “date of injury,” courts focus on when symptoms or bodily changes first manifested from the malpractice-caused condition.
- A wrongful-death claim predicated on medical negligence is subject to Wis. Stat. § 893.55(1m)(a)’s limitations framework and accrues on the decedent’s date of injury (physical injurious change), not the date of death.
- When the first physical injurious change precedes filing by more than three years, both the medical-negligence claim and the related wrongful-death claim are barred.

## Conclusion

The court treated “injury” under Wis. Stat. § 893.55(1m)(a) as the first malpractice-caused physical injurious change and held that both the estate’s malpractice claim and the spouse’s wrongful-death claim accrued on that date; because suit was filed more than three years later, both claims were untimely.


Estate of Genrich v. OHIC Ins. Co., 769 N.W.2d 481 (Wis. 2009)