PUBLISHED OPINION
Case No.: 95-0692-FT
†PETITION FOR REVIEW FILED
Complete Title
of Case:
FRED H. GEIGER, JR.,
Plaintiff-Appellant,
v.
WISCONSIN HEALTH CARE
LIABILITY INSURANCE PLAN
AND WISCONSIN PATIENTS
COMPENSATION FUND,
Defendants-Respondents.
Oral Argument: AUGUST 1, 1995
COURT COURT
OF APPEALS OF WISCONSIN
Opinion Released: AUGUST 22, 1995
Opinion Filed: AUGUST
22, 1995
Source of APPEAL Appeal from a judgment
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Eric J. Wahl
(If "Special", JUDGE: Eau Claire
so indicate)
JUDGES: Cane, P.J., LaRocque and Myse, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSOn
behalf of plaintiff-appellant, the cause was submitted on the briefs of Jill
R. Schilling and orally argued by Harry Hertel of Hertel, White,
Johnson & Schilling, S.C. of Eau Claire.
Respondent
ATTORNEYSOn
behalf of defendants-respondents, the cause was submitted on the brief of J.
Drew Ryberg and Kristina M. Bourget and orally argued by J. Drew
Ryberg of Kelly & Ryberg, S.C. of Eau Claire.
|
COURT OF APPEALS DECISION DATED AND RELEASED AUGUST 22, 1995 |
NOTICE |
|
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-0692-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
FRED H. GEIGER, JR.,
Plaintiff-Appellant,
v.
WISCONSIN HEALTH CARE
LIABILITY INSURANCE
PLAN
AND WISCONSIN PATIENTS
COMPENSATION FUND,
Defendants-Respondents.
APPEAL from a judgment
of the circuit court for Eau Claire County:
ERIC J. WAHL, Judge. Affirmed
in part; reversed in part and cause remanded for further proceedings.
Before Cane, P.J.,
LaRocque and Myse, JJ.
LaROCQUE, J. Fred Geiger appeals a summary judgment
dismissing his medical malpractice claim against Wisconsin Health Care
Liability Insurance Plan (WHCLIP) and Wisconsin Patients Compensation Fund.[1] The circuit court dismissed the action on
grounds that Geiger failed to toll the statute of limitations as provided by §
655.44, Stats.,[2]
in that he named a deceased health care provider rather than a recognizable
legal entity and that Geiger failed to join the Fund in a timely manner. The issues are whether Geiger's failure to
join the Fund within thirty days of the completion of mediation was timely and
whether Geiger's petition tolled the statute as provided in § 655.44(4), Stats.
We conclude that Geiger failed to timely name the Fund in his amended
complaint and therefore affirm that part of the judgment dismissing the claim
against the Fund; we conclude that Geiger complied with the statutory
requirement to toll the statute of limitations and reverse the part of the
judgment dismissing the claim against WHCLIP.
Doctor Frederick Fitz
treated Geiger from November 22, 1988, to March 22, 1990.[3] Fitz died shortly after his last treatment
of Geiger. Upon Fitz's death, Geiger
consulted another doctor. In July 1990,
as a result of this subsequent consultation and treatment, Geiger discovered
Fitz's alleged negligence.
In pursuit of his
malpractice claim, Geiger made a request for mediation on March 22, 1993,
exactly three years from the last day of treatment by Fitz. The statute of limitations in a medical
malpractice action is the later of three years from the date of injury or one
year from the date of discovery.
Section 893.55(1), Stats.
The request for
mediation named "Dr. Frederick W. Fitz, deceased" as the health care
provider. However, the parties do not
dispute that WHCLIP and the Fund received notice in time to prepare for the
mediation. The parties held the
mediation on November 12, 1993. No
agreement was reached, and Geiger filed suit directly against WHCLIP under §
632.24, Stats., on December 13,
1993. Geiger added the Fund as a
defendant on May 16, 1994.
The defendants filed a
motion for summary judgment, claiming that the statute of limitations barred
the action because the request for mediation failed to toll the statute in that
the request named the deceased physician, not an existing legal entity such as
the estate, WHCLIP or the Fund.
Alternatively, the motion stated that Geiger's suit was untimely as to
the Fund because Geiger did not add the fund as a defendant within thirty days
of the mediation period. The circuit
court granted the motion for summary judgment on the grounds that Geiger should
have named a recognizable legal entity in the request for mediation and,
alternatively, that Geiger filed the action against the Fund outside the
statute of limitations because it was not filed within thirty days of the
mediation.
Interpretation of a
statute is a question of law and is appropriate for summary judgment. State v. Williams, 104 Wis.2d
15, 21-22, 310 N.W.2d 601, 604-05 (1981).
In reviewing the circuit court's grant of summary judgment, appellate
courts independently apply the same methodology as the circuit court. Kloes v. Eau Claire Cavalier
Baseball Ass'n, 170 Wis.2d 77, 83, 487 N.W.2d 77, 79-80 (Ct. App.
1992).
WHCLIP and the Fund
argue that Geiger failed to satisfy the tolling provisions of § 655.44, Stats.
Section 655.44(2), Stats.,
lists the statutory requirements of the content of the request for
mediation. At issue is the requirement
in ¶ (c), which requires the request to contain the "name and address of
the health care provider alleged to have been negligent ...." There is no requirement that any other party,
including the insurer or the Fund, be named, served or notified.
WHCLIP and the Fund
argue that Geiger failed to satisfy § 655.44(2)(c), Stats., because his request did not
name a recognizable legal entity as the health care provider. WHCLIP and the Fund cite Brickley v.
Neuling, 256 Wis. 334, 336, 41 N.W.2d 284, 285 (1950), as meaning that
a deceased party cannot be named in any proceeding, not just circuit court
actions, in which it is necessary that someone appear for and be bound by
actions taken against the decedent.[4] Brickley, however, only holds
that a "deceased cannot be a party to an action." Id. at 336, 41 N.W.2d at 285
(emphasis added). We conclude that the
statute does not treat mediation proceedings akin to an action.
First, § 655.44(1),
Stats., is entitled "Request
for mediation prior to court action."
Further, both the legislature and the Wisconsin Supreme Court have
recognized a distinction between initial mediation proceedings and circuit
court actions in the context of naming parties. Section 655.27(5)(a), Stats.,
states that "[a] person filing a claim may recover from the fund only if
... the fund is named as a party in the action." (Emphasis added.) In Tamminen v. Aetna Cas. & Surety Co., 109
Wis.2d 536, 327 N.W.2d 55 (1982), the Wisconsin Supreme Court interpreted this
section to allow a plaintiff to commence suit against the Fund even though the
plaintiff did not name the Fund in the mediation hearing, only the subsequent
action. Id. at 562, 327
N.W.2d at 67.
Alternatively, WHCLIP
and the Fund argue that even if naming the deceased health care provider in a
mediation request is sufficient to toll the statute of limitations against the
estate, § 655.44(4), Stats., the
request does not toll the statute of limitations as to them because neither
WHCLIP nor the Fund is a health care provider and consequently neither is subject
to ch. 655. In other words, even though
§ 655.44(4) tolls "[a]ny applicable statute of limitations" during
the mediation, WHCLIP and the Fund suggest an untolled three-year period
applies to them.
WHCLIP and the Fund cite
Dippel v. Wisconsin Patients Comp. Fund, 161 Wis.2d 854, 468
N.W.2d 789 (Ct. App. 1991), in support of the argument that a request for
mediation does not toll the statute of limitations as to parties who are not
health care providers. In Dippel,
the plaintiff named one allegedly negligent health care provider and his
insurer in his request for mediation, but failed to name other health care
providers who were also allegedly negligent.
The court held that § 655.44(4), Stats.,
does not toll the statute of limitations for the health care providers not
named in the request. Id.
at 859-61, 468 N.W.2d at 791-92.
Unlike Dippel,
the plaintiff here named the only relevant health care provider in the request
for mediation. The unnamed health care
providers in Dippel received no notice of mediation, and the
court construed the reference to tolling any statute of limitations
inapplicable to the unnamed health care providers. Here, WHCLIP and the Fund stand in the shoes of the health care
provider and no notice problem exists.
We conclude that Geisel
v. Odulio, 807 F. Supp. 500 (W.D. Wis. 1992), is more analogous to this
case. In Geisel, the
plaintiff failed to name the Fund as a party in a request for mediation. The Fund consequently argued that the
mediation did not toll the statute of limitations as to it and moved for
summary judgment on the grounds that the statute of limitations had
lapsed. The court rejected this
argument, holding that the mediation request tolled the statute of limitations
against the Fund. The court reasoned
that:
The
failure to involve the Fund in the mediation process did not render it
defenseless: under the mediation
statute insurers providing insurance for health care providers covered by the
Fund must "provide an adequate defense of the fund on any claim filed that
may potentially affect the fund ...."
Wis.Stat. s 655.27(5)(b).
Id. at
505-06. In this case, our
interpretation of the statute does not adversely affect WHCLIP. In cases where an insured failed to notify
his insurer of mediation, he or she may do so at the risk of violating the
terms of the insurance contracts requiring notice of claim to the insurer. Section 655.44(4), Stats., did toll the statute of limitations as to both WHCLIP
and the Fund. In fact, in this case
WHCLIP concedes it had actual and timely notice of mediation. We therefore need not address the result of
a mediation held without notice to an insurer.
The Fund argues,
alternatively, that the statute of limitations had run on Geiger's claim
against it because it was not joined within thirty days of the end of
mediation. We agree. Because Geiger filed his request for
mediation on November 12, 1993, the last day of the statute of
limitations, and § 655.44(4), Stats.,
tolls any applicable statute of limitations until thirty days after the last
day of the mediation period, Geiger had until December 13, 1993, to commence an
action within the statute of limitations.
Geiger filed an action against WHCLIP on December 13, 1993, but did not
add the Fund as a defendant until he amended his complaint on May 16, 1994.
Geiger argues that the
Fund can be added as a party at any time as long as the suit against WHCLIP was
commenced within the statute of limitations because the Fund derives its
liability from WHCLIP. Geiger cites Tamminen
v. Aetna Cas. & Surety Co., 109 Wis.2d 536, 562, 327 N.W.2d 55, 67
(1982), in support of this proposition.
In Tamminen, the Wisconsin Supreme Court held that the
Fund does not have to be joined within a statutorily prescribed period of time
as long as a timely suit is filed against the insured because the Fund's
liability derives from the liability of the insured. Id. at 562, 327 N.W.2d at 67.
Per Tamminen,
if Geiger would have filed suit against the insured (Fitz's estate) on time,
the Fund could have been added as a derivative party after the statute of
limitations had expired. However,
Geiger filed suit directly against WHCLIP, not the insured. The claim against the Fund is not derivative
of the suit against WHCLIP because the Fund's liability is based on the
liability of the insured, not WHCLIP.[5] Therefore, we affirm the circuit court's
conclusion that Geiger's claim against the Fund must be dismissed because it
was not filed within thirty days of mediation.
In conclusion, we hold
that Geiger's request for mediation did toll the statute of limitations for his
action against WHCLIP and the Fund until December 13, 1993. Because Geiger filed an action against
WHCLIP on that date, Geiger's suit against WHCLIP was timely. However, summary judgment should be granted
for the Fund because Geiger failed to timely add it as a defendant.
By the Court.—Judgment
affirmed in part; reversed in part and cause remanded for further
proceedings. No costs on appeal.
[2]
Section 655.44, Stats.,
provides:
Request for mediation prior to
court action. (1) Request and fee. Beginning September 1, 1986, any person
listed in s. 655.007 having a claim or a derivative claim under this chapter
for bodily injury or death because of a tort or breach of contract based on
professional services rendered or that should have been rendered by a health
care provider may file a request for mediation and shall pay the fee under s.
655.54.
(2) Content of request. The
request for mediation shall be in writing and shall include all of the
following information:
(a) The claimant's name and city, village or town, county and state
of residence.
(b) The name of the patient.
(c) The name and address of the health care provider alleged to have
been negligent in treating the patient.
(d) The condition or disease for which the health care provider was
treating the patient when the alleged negligence occurred and the dates of
treatment.
(e) A brief description of the injury alleged to have been caused by
the health care provider's negligence.
(3) Delivery or registered mail.
The request for mediation shall be delivered in person or sent by registered
mail to the director of state courts.
(4) Statute of limitations. Any
applicable statute of limitations is tolled on the date the director of state
courts receives the request for mediation if delivered in person or on the date
of mailing if sent by registered mail.
The statute remains tolled until 30 days after the last day of the
mediation period under s. 655.465 (7).
(5) No court action commenced
before mediation. Except as provided in s. 655.445, no court action may be
commenced unless a request for mediation has been filed under this section and
until the expiration of the mediation period under s. 655.465 (7).
(6) Notice of court action to director of state courts. A claimant who files a request for mediation under this section and who commences a court action after the expiration of the mediation period under s. 655.465 (7) shall send notice of the court action by 1st class mail to the director of state courts.
[3] In sum, the relevant dates are
as follows:
3/22/90 Last day of treatment by Dr. Fitz
7/90 Plaintiff's discovery of
alleged malpractice
3/22/93 Request for mediation
11/12/93 Mediation takes place
12/13/93 Filing of summons and complaint against WHCLIP
5/16/94 Filing of an amended summons and complaint adding the Fund as a party
[4] WHCLIP and the Fund's interpretation of Brickley v. Neuling, 256 Wis. 334, 41 N.W.2d 284 (1950), focuses on potential notice problems. Notice problems often arise in the context of a due process claim. However, WHCLIP and the Fund do not raise a due process issue here as it does not dispute that it received adequate and timely notice of the mediation proceedings.
[5] Section 655.27(1), Stats., provides that "[t]he fund shall provide occurrence coverage for claims against health care providers ...." (Emphasis added.) Sections 655.001(8) and 655.002, Stats., define "Health care provider" as those who actually perform the health care services, not their malpractice insurers. Thus the Fund derives its liability from Fitz, not WHCLIP, because WHCLIP is not a health care provider.