Guy Riccitelli, M.D. v. Fredrik Broekhuizen, M.D.

Annotate this Case

Download PDF

SUPREME COURT OF WISCONSIN Case No.: 98-0329-FT Complete Title of Case: Guy Riccitelli, M.D., Plaintiff-Appellant, v. Fredrik Broekhuizen, M.D. and Carole Hagarty, R. N., Ph.D., Defendants-Respondents-Petitioners, Aurora Health Care, Inc., Sinai Samaritan Medical Center, Inc. and Alan M. Wagner, M.D., Defendants. ON REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at: 221 Wis. 2d 533, 585 N.W.2d 709 (Ct. App. 1998-Published) Opinion Filed: Submitted on Briefs: Oral Argument: June 24, 1999 June 2, 1999 Source of APPEAL COURT: COUNTY: JUDGE: Circuit Milwaukee John A. Franke JUSTICES: Concurred: Dissented: Not Participating: Abrahamson, C.J., did not participate. ATTORNEYS: For the defendants-respondents-petitioners the cause was argued by David T. Flanagan, assistant attorney general, with whom on the briefs was James E. Doyle, attorney general. For the plaintiff-appellant there was a brief by Mark J. Goldstein, and Padway & Padway, Ltd., Milwaukee and oral argument by Mark J. Goldstein. Amicus curiae was filed by Edward E. Robinson and Warshafsky, Rotter, Tarnoff, Reinhardt & Bloch, S.C., Milwaukee for the Wisconsin Academy of Trial Lawyers. No. 98-0329-FT NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 98-0329-FT STATE OF WISCONSIN : IN SUPREME COURT FILED Guy Riccitelli, M.D., JUN 24, 1999 Plaintiff-Appellant, v. Marilyn L. Graves Clerk of Supreme Court Madison, WI Fredrik Broekhuizen, M.D. and Carole Hagarty, R. N., PH.D., Defendants-RespondentsPetitioners, Aurora Health Care, Inc., Sinai Samaritan Medical Center, Inc. and Alan M. Wagner, M.D., Defendants. REVIEW of a decision of the Court of Appeals. ¶1 JON P. WILCOX, J. The Reversed. defendants, Fredrik Broekhuizen, M.D., and Carole Hagarty, R.N., Ph.D, seek review of a decision of the court of appeals1 subjecting them to tort liability under the dual persona doctrine for actions arising out of their affiliation with Sinai Samaritan Medical Center. Even though the plaintiff, Dr. Riccitelli, failed to file a timely notice of claim under Wis. Stat. § 893.82(3), the court of appeals held that Drs. Broekhuizen 1 and Hagarty, faculty Riccitelli v. Broekhuizen, 221 Wis. 2d 533, 585 N.W.2d 709 (Ct. App. 1998)(rev g an order for the Circuit Court of Milwaukee County, John A. Franke, Judge). 1 No. 98-0329-FT members of the University of Wisconsin-Madison Medical School who were assigned to Sinai Samaritan Medical Center pursuant to an affiliation agreement, could be sued for their work as director and associate director, respectively, of a residency program at Sinai Samaritan Medical Center because they possessed dual personas, a doctrine borrowed from worker s compensation law. We do not agree. We further reject Dr. Riccitelli s estoppel claims, as well as his assertion that the notice of claim statute rights. violates his equal protection and due process The decision of the court of appeals is reversed. I. ¶2 For purposes dispute. year this appeal, the facts are not in In June 1991, Dr. Riccitelli was accepted in a four- obstetrics program of and operated by gynecology Sinai Samaritan) in Milwaukee. University of Wisconsin (OB-GYN) Samaritan Dr. at the Medical U.W. Medical Broekhuizen, School faculty, was the program director. professor residency Medical Center a (U.W. training member Medical (Sinai of the School) Dr. Hagarty, an assistant School, was the assistant director. ¶3 The residency program existed under an Affiliation Agreement between the Board of Regents of the University of Wisconsin and Aurora Health Care, Inc. (Aurora), which operates Sinai Samaritan. Medical School Under faculty the agreement, were to members provide of the U.W. clinical and administrative services, teaching services for graduate medical education, continuing medical education, 2 and other health No. science education. 98-0329-FT The U.W. Medical School was responsible for the recruitment and maintenance of quality faculty. Decisions on full-time faculty appointments, with either the Center for Health Sciences faculty, the clinical faculty or the tenured or tenure-track faculty, were to be made by the U.W. Medical School, with consultation from the President of Aurora; clinical and administrative assignments of the full-time faculty were to be jointly approved by the Dean of the U.W. Medical School and the President of Aurora; faculty members assigned to Sinai Samaritan were required to be qualified members of the medical staff where governed by assigned; and University faculty policy appointments and were procedures to be concerning appointments to the U.W. Medical School. ¶4 to Also under the agreement, the State of Wisconsin was provide liability protection, pursuant to Wis. Stat. §§ 895.46 and 893.82 (1989-90), for faculty participating in the U.W. Medical School educational programs at Aurora institutions on a full-time employment agreement and claim basis (activities explicitly procedures for acts within contemplated directed of by that the § 893.82 the the scope of their Agreement). The statutory (1989-90) be notification utilized for claims against the Board of Regents, or any of its employees or students. ¶5 annually. Dr. Riccitelli s four-year residency was renewed During Dr. Riccitelli s fourth year, he was notified by the Resident Evaluation Committee (Committee) that it would not certify his completion of the residency program. 3 One month No. 98-0329-FT later, in April 1995, Dr. Riccitelli was notified that in order to complete his residency, month probationary [he] must period remediation program. followed participate by a six in a three (6) month Despite his participation, in September 1995, the Committee voted to terminate Dr. Riccitelli from the residency program. ¶6 Dr. Riccitelli immediately sought an injunction barring his termination, as well as compensatory and punitive damages.2 professor The and complaint the stated chairman and that Dr. program Broekhuizen director for was a OB-GYN Department at the U.W. Medical School Milwaukee clinical campus, and in that capacity, he was head of the residency program for the U.W. Medical School Milwaukee clinical campus operated in conjunction with Aurora and Sinai Samaritan. Dr. Riccitelli alleged that as a resident physician in the OB-GYN Department at the U.W. Medical School Milwaukee clinical campus, he held an academic/professional staff appointment and was, therefore, entitled to the procedural guarantees provided state employees under Wis. Stat. § 36.15(3)(1993-94). ¶7 In the course of the injunction hearing on Dr. Riccitelli s employment status, Dr. Broekhuizen testified that the residency program was Sinai Samaritan s medical program, and that as program director he acted on behalf of Sinai Samaritan and not in his role as a U.W. faculty member. 2 When asked by Dr. The attorney general appeared for and represented Dr. Broekhuizen, the U.W. Medical School, and the Board of Regents in Dr. Riccitelli s request for an injunction. 4 No. 98-0329-FT Riccitelli s counsel whether the affiliation with the University was an essential Broekhuizen component replied affiliation with it s the of the residency essential for University program, Dr. since [the reason I m me, is] the there. . . . but it s not essential for the residency program to have a U.W. affiliation. Dr. Broekhuizen further explained that he wears three, sometime overlapping, hats as a practicing physician, as an OB-GYN residency program director, and as a U.W. Medical School faculty member. ¶8 Following the evidentiary hearing, the Milwaukee County Circuit Court, the Honorable John DiMotto, found that residents, such as Dr. Riccitelli, in the OB-GYN residency program were solely employees of Sinai Samaritan, and were not granted appointments as academic staff with the U.W. Medical School. Because Samaritan, employee, relief. and the the residency because circuit Dr. program Riccitelli court denied was was Dr. run not by Sinai a University Riccitelli injunctive Following the dismissal of Dr. Riccitelli s request for an injunction, the Committee terminated him from the residency program. ¶9 In August 1997, Dr. Riccitelli filed the current action, alleging, among other claims, intentional interference with contract/hindrance Broekhuizen and Hagarty. of contract on the part of Drs. Drs. Broekhuizen and Hagarty moved to dismiss, arguing that they were employees of the University, and that Dr. Riccitelli s failure to comply with the notice of claim 5 No. statute, The Wis. Stat. Milwaukee County (1995-96),3 § 893.82 Circuit Court, required the 98-0329-FT dismissal.4 Honorable John A. Franke, treating the motion as one for summary judgment, agreed that § 893.82 was applicable, and that it was not complied with; the court thereby dismissed defendants in the action. ¶10 A majority Drs. Broekhuizen and Hagarty as Dr. Riccitelli appealed. of the court of appeals reversed. The court concluded that Drs. Broekhuizen and Hagarty were employees and/or agents of both the U.W. Medical School and Aurora/Sinai; therefore, they each had a dual persona which obviated the need for Dr. Riccitelli to comply with the notice requirements of Wis. Stat. § 893.82. Riccitelli, 221 Wis. 2d at 546, 556. We accepted Drs. Broekhuizen and Hagarty s petition for review. II. ¶11 On review of a summary judgment order, we employ the same methodology, set forth in Wis. Stat. § 802.08(2), as do the circuit courts and the court of appeals. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987). § 802.08(2), summary judgment shall be granted only Under if the 3 All references are to the 1995-96 version of the statutes unless otherwise noted. 4 Drs. Broekhuizen and Hagarty submitted affidavits in support of their motion to dismiss. Both averred that they are currently, and were throughout the period during which Dr. Riccitelli was a resident physician, employees of the State of Wisconsin as members of the U.W. Medical School faculty. In the course of their duties as State of Wisconsin employees, both were assigned by the University to supervise, instruct, and evaluate resident physicians in the obstetrics and gynecology residency training program at Sinai Samaritan. 6 No. pleadings, depositions, answers to 98-0329-FT 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. III. ¶12 failure The issue in this case is whether Dr. Riccitelli s to pursuant timely to Wis. file Stat. a notice § 893.82, of claim mandates Broekhuizen and Hagarty from this action. with the dismissal state, of Drs. Section 893.82(3) provides in part: [N]o civil action or civil proceeding may be brought against any state officer, employe or agent for or on account of any act growing out of or committed in the course of the discharge of the officer s, employe s or agent s duties . . . unless within 120 days of the event causing the injury, damage or death giving rise to the civil action or civil proceeding, the claimant in the action or proceeding serves upon the attorney general written notice of a claim . . . . ¶13 with It is undisputed that Dr. Riccitelli failed to comply the notice statute. Regarding Dr. Hagarty, both Dr. Riccitelli and the court of appeals insist that she is similarly situated with Dr. Broekhuizen regarding her employment status. Riccitelli, 221 Wis. 2d at 536 n.1, 555-56. Dr. Hagarty, who was the associate We do not agree. director of the Sinai Samaritan OB-GYN residency program, was not a party in the 1995 case, and did not director position. offer testimony regarding her associate Dr. Hagarty s affidavit in which she averred to be an employee of the State of Wisconsin who was assigned by 7 No. 98-0329-FT the U.W. Medical School to assist physicians involved in the residency program, is the only evidence in the record regarding her employment status. We conclude that without any evidence to the contrary, Dr. Hagarty is entitled to judgment as a matter of law. Wis. Stat. § 802.08(2). ¶14 We will now address Dr. Riccitelli s arguments as to the remaining defendant, Dr. Broekhuizen. argues that Dr. Broekhuizen s 1995 Dr. Riccitelli first testimony precludes him, under the doctrines of judicial estoppel and equitable estoppel, from claiming that he is a state employee in this suit; therefore, the notice statute is inapplicable. ¶15 The equitable doctrine of judicial estoppel precludes a party from asserting a position in a legal proceeding and then subsequently Petty, 201 asserting Wis. 2d an 337, inconsistent 347, doctrine may be invoked if: 548 position. N.W.2d 817 State (1996). v. The (1) the later position is clearly inconsistent with the earlier position; (2) the facts at issue are the same in both cases; and (3) the party to be estopped convinced the first court to adopt its position. Determining the elements and considerations Id. at 348. involved before invoking the doctrine of judicial estoppel are questions of law which we decide independently of the circuit court or court of appeals. ¶16 Id. at 347. We conclude that the principles for applying judicial estoppel are not present in this case. Two of the requirements for the application of the doctrine are absent here. First, the record does not support Dr. Riccitelli s contention that Dr. 8 No. Broekhuizen has consistently asserted inconsistent positions as to his status. 98-0329-FT irreconcilably See id. at 349. Dr. Broekhuizen testified that he wore three, sometimes overlapping, hats, and that as the program director for the residency program Sinai Samaritan s program he acted on behalf of Sinai Samaritan and not in his role as a U.W. Medical School faculty member. However, Dr. Broekhuizen was not testifying as to his employment or difference between residency his employer. two programs one Rather, training in the he was explaining programs medical province of student the and the U.W. Medical from 1991 through School and the other guided by Sinai Samaritan. ¶17 His affidavit corroborates that 1995, while serving as the director of the residency program, he was on the U.W. Medical School facility and that all acts he undertook in the OB-GYN residency program were done in the course of [his] duty as an employee of the State of Wisconsin. We do not view Dr. Broekhuizen s statements as irreconcilably inconsistent. ¶18 Similarly, Dr. Riccitelli s claim that the facts at issue in the two cases are the same is unfounded. case, the circuit court residency program and determined the status of Dr. Broekhuizen. status the of Dr. status In the first of the Riccitelli, OB-GYN not the For these reasons, we conclude that equity does not require estopping Dr. Broekhuizen from claiming he was, and continues to be, a state employee. Riccitelli s judicial estoppel argument. 9 We reject Dr. No. ¶19 Dr. Riccitelli further argues that Dr. 98-0329-FT Broekhuizen should be equitably estopped from claiming that he was a state employee because Dr. Broekhuizen testified to the contrary in the prior case and because Dr. Riccitelli reasonably relied on Dr. Broekhuizen s sworn testimony. ¶20 Equitable estoppel, which focuses on the conduct of the parties, requires: (1) action or non-action, (2) on the part of the one against whom estoppel is asserted, (3) which induces reasonable reliance thereon by the other, either in action or non-action, and (4) which is to his or her detriment. Milas v. Labor Ass n of Wisconsin, 214 Wis. 2d 1, 11-12, 571 N.W.2d 656 (1997). ¶21 We do not agree that the estoppel are present in this case. elements of equitable Dr. Riccitelli s premise that the focus is upon the testimony (action) of Dr. Broekhuizen (the party against whom estoppel is asserted) Broekhuizen s employment status is incorrect. did not testify Broekhuizen s characterized to, nor employment Dr. did the status. Broekhuizen s first Dr. Dr. Broekhuizen case Rather, employment regarding as involve Dr. a Dr. Riccitelli U.W. Medical School faculty member as the basis for Dr. Riccitelli s claim that as an OB-GYN resident, he too was a state employee subject to the procedural protections afforded state employees. ¶22 1995 If Dr. Riccitelli in fact relied on Dr. Broekhuizen s testimony to conclude, as a matter of law, that Dr. Broekhuizen was not a state employee, then such reliance was 10 No. unreasonable. first 98-0329-FT As the court of appeals noted, Dr. Riccitelli s action was premised, in part, Broekhuizen was a state employee. on his theory that Dr. Riccitelli, 221 Wis. 2d at 548. Even if Dr. Broekhuizen s testimony in the injunction suit left Dr. Riccitelli with the impression or belief that Dr. Broekhuizen was not a state employee, the statutory mandates provide no exception for plaintiffs who have an honest but mistaken belief about the status of the defendant as a state employee. 2d 602, Id. at 549 (quoting Mannino v. Davenport, 99 Wis. 608, 299 N.W.2d 823 (1981)(discussing § 895.45 (1977), now Wis. Stat. § 893.82). Wis. Stat. Because the elements of equitable estoppel and judicial estoppel have not been met, these doctrines do not preclude summary judgment in this second action. IV. ¶23 suit Dr. Riccitelli next contends that he may maintain his against Dr. Broekhuizen, based on the dual persona doctrine, a concept taken from worker s compensation law. He insists that if Dr. Broekhuizen has but one persona, it is that of a Sinai Simaritan employee. ¶24 exclusive The dual persona doctrine is an exception to the remedy provision of the Worker s Compensation Act. Henning v. General Motors Assembly Div., 143 Wis. 2d 1, 7, 419 N.W.2d 551 (1988). Under this doctrine, [a]n employer may become a third person, vulnerable to tort suit by an employee, if and only if he possesses a second persona so completely independent from and unrelated to his status as employer that by 11 No. 98-0329-FT established standards the law recognizes it as a separate legal person. Id. at 15 (quoting 2A A. Larson, Workmen s Compensation Law, § 72.81 at 14-229 (1987)); Rauch v. Officine Curioni, S.P.A., 179 Wis. 2d 539, 543, 508 N.W.2d 12 (Ct. App. 1993); Schweiner v. Hartford Accident & Indem. Co., 120 Wis. 2d 344, 352, 354 N.W.2d 767 (Ct. App. 1984). The dual persona exists where the duality is firmly entrenched in common law or equity or where the duality is one created by modern statute. Henning, 143 Wis. 2d at 19 (quoting 2A A. Larson, supra, § 72.81 at 14-232). ¶25 to be The court of appeals found the dual persona doctrine an exception determination to that the under notice the requirement affiliation based on agreement, its Dr. Broekhuizen had apparent dual employment/agency status as U.W. Medical School Aurora/Sinai. faculty and administration assigned Riccitelli, 221 Wis. 2d at 553-54. to The court relied on Rauch, 179 Wis. 2d 539, and Kashishian v, Port, 167 Wis. 2d 24, 481 N.W.2d 277 (1992) for the application of the doctrine. ¶26 We are not convinced that the dual persona doctrine should be applied to circumvent a party s failure to file a timely notice of claim under Wis. Stat. § 893.82(3). The notice statute provides that no required notice is given. action shall Id. be brought unless the No time exception is permitted. Renner v. Madison Gen. Hosp., 151 Wis. 2d 885, 889, 447 N.W.2d 97 (Ct. App. 1989); Yotvat v. Roth. 95 Wis. 2d 357, 361, 290 N.W.2d 524 (Ct. App. 1980)(interpreting 12 Wis. Stat. No. § 895.45(1)(1977), now § 893.82); 98-0329-FT § 893.82(3). As a jurisdictional statute, § 893.82(3) requires strict compliance. Oney v. Schrauth, 197 Wis. 2d 891, 904, 541 N.W.2d 229 (Ct. App. 1995). ¶27 The purpose of the notice of claim statute is to enable the governmental unit to investigate a claim against an employee, to avoid reasonable claims. needless litigation, and to settle all Ibrahim v. Samore, 118 Wis. 2d 720, 726-27, 348 N.W.2d 554 (1984); Mannino v. Davenport, 99 Wis. 2d 602, 609, 299 N.W.2d 823 (1981); see also Wis. Stat. § 893.82(1)(a)13. The dual persona doctrine, on the other hand, serves as part of the worker s delicate balancing compensation of laws. interests Henning, represented 143 Wis. in at 2d the 11. Importing the dual persona doctrine to allow a party to vitiate the notice of claim provision, does not fit well with the purposes of either § 893.82(3) or the dual persona doctrine. To the extent that the present law may be disparate, unequal or uneven in its application, it is a question for the legislature to address. Henning, 143 Wis. 2d at 26-27 (quoting Jenkins v. Sabourin, 104 Wis. 2d 309, 323, 311 N.W.2d 600 (1981)). ¶28 Moreover, for the dual persona doctrine to apply, the two persona must be completely independent from and unrelated to one another such that the law recognizes them as separate legal persons. Henning, 143 Wis. 2d at 15. Even if we were to conclude that the dual persona doctrine could be applied in this case, we agree with the dissent in Riccitelli that the elements have not been met. Dr. Broekhuizen s 13 participation in the No. 98-0329-FT decision to release Dr. Riccitelli grew out of and was related to his employment with the U.W. Medical School. Riccitelli, 221 Wis. 2d at 562 (Fine, J., dissenting). ¶29 The record supports this conclusion. Dr. Broekhuizen was, and continues to be a full-time member of the U.W. Medical School faculty. ¶30 This fact is not controverted. Moreover, Dr. Broekhuizen explained in 1995 why he was practicing academic medicine in Milwaukee he was assigned there because of Samaritan. the U.W. Medical School s affiliation with Sinai The affiliation agreement confirmed that the U.W. Medical School was to assign its faculty to provide teaching services for graduate medical programs, at Sinai Samaritan. education, i.e., residency The agreement also stated that the State of Wisconsin was to provide liability protection for its faculty (and students) participating in the U.W. Medical School education programs at Aurora institutions. ¶31 Dr. Broekhuizen reaffirmed in his affidavit, without contradiction, that he was a full-time faculty member of the U.W. Medical School. School assigned Dr. As a faculty member, the U.W. Medical Broekhuizen to the OB-GYN Department at Sinai Samaritan in accordance with the affiliation agreement the U.W. Medical School had entered into with Aurora. ¶32 As the State points out, there is no evidence to suggest that what Dr. Broekhuizen did in supervising a resident physician is in any way different from that which he did in supervising a medical demonstrate that the student. clinical 14 The evidence supervision of does a not resident No. 98-0329-FT physician or director of the residency program is so unrelated and independent create of the what the law entities.5 ¶33 supervision recognizes as of a medical separate student persons to or legal at Sinai See Henning, 143 Wis. 2d at 15. We conclude that Dr. Broekhuizen s work Samaritan as director of the OB-GYN residency program grew out of and was entirely dependent upon his employment as a faculty member with the U.W. Medical School. Accordingly, we reverse the decision of the court of appeals. IV. ¶34 Dr. application Riccitelli s of the notice remaining claims of provision, 5 claim are that Wis. the Stat. The court of appeals summarily concluded that Dr. Broekhuizen was an employee/agent of Sinai Samaritan. Riccitelli, 221 Wis. 2d at 553-54. We do not believe that the record supports a conclusion that he was the servant of Sinai Samaritan subject to its right of control, and not the U.W. Medical School. Cf. Kashishian v. Port, 167 Wis. 2d 24, 33-34, 481 N.W.2d 277 (1992). It is also clear from the record that the doctor s roles as director of the residency program and as U.W. Medical School faculty member were not separate legal entities like the owner/lessor in Rauch v. Officine Curioni, S.P.A., 179 Wis. 2d 539, 546, 508 N.W.2d 12 (Ct. App. 1993)(dual persona doctrine applied to Anderson, a majority stockholder who personally purchased and then leased a machine to the corporate employer). And this court has previously held that a medical malpractice suit could not be maintained against a state employee absent compliance with the notice requirement, even if the employee was acting as an apparent agent of the private hospital. Kashishian, 167 Wis. 2d at 50-51. Even if Dr. Broekhuizen was acting as an apparent agent for Sinai Samaritan, that does not change the fact that in directing the resident physicians he was acting in accordance with the affiliation agreement (thus, within the scope of state employment), and such apparent agency does not negate the notice requirements. Id. at 50. 15 No. § 893.82(3), violates the due process and equal 98-0329-FT protection clauses of both the United States and Wisconsin Constitutions. See U.S. Const. amend. XIV; Wis. Const. art. I, § 1. The constitutionality of a statute is a question of law that we review de novo. N.W.2d 166 Castellani v. Bailey, 218 Wis. 2d 245, 260, 578 (1998). constitutional. a statute has All 580 acts Yotvat, 95 Wis. 2d at 363. a heavy burden beyond a reasonable doubt. 863, legislative N.W.2d 660 proving it are presumed A party challenging is unconstitutional State v. Hezzie R., 219 Wis. 2d 849, (1998), cert. denied, 119 S. Ct. 1051 (1999). ¶35 Dr. Riccitelli s equal protection claim seems to be that the U.W. Medical School through its affiliation agreements has created a class, of which Dr. Broekhuizen is a member, of otherwise private citizens who are now protected by Wis. Stat. § 893.82(3). According to Dr. Riccitelli, this classification was neither created nor intended by the Wisconsin legislature and has no rational basis. ¶36 In an equal protection claim, unless government action involves classifications based on a suspect class, such as race or alienage, or invidious classifications that arbitrarily deprive a class of persons of a fundamental right, the rational basis test applies. State v. Post, 197 Wis.2d 279, 319, 541 N.W.2d 115 (1995), cert. denied, 117 S. Ct. 2507 (1997). Riccitelli concedes the rational basis test is applicable. Dr. In a rational basis analysis, [t]he basic test is not whether some inequality results from the 16 classification, but No. whether . . . any classification. reasonable basis [exists] to 98-0329-FT justify the Omernik v. State, 64 Wis.2d 6, 19, 218 N.W.2d 734 (1974) (footnotes omitted); State v. McManus, 152 Wis.2d 113, 131, 447 N.W.2d 654 (1989). ¶37 As we explained in section III, the purpose of the notice of claim statute is to enable the governmental unit to investigate a claim against an employee, to avoid litigation, and to settle all reasonable claims. needless Ibrahim, 118 Wis. 2d at 726-27; Mannino, 99 Wis. 2d at 609. Investigation may disclose facts substantiating a defense to a claim or show that the employee is not entitled to immunity because the employee did not act within the scope of his or her employment. Classifications made between victims of public employee tortfeasors to protect public funds from unwarranted disbursements have a rational basis. Yotvat, 95 Wis. 2d at 368-69. ¶38 Dr. affiliation Riccitelli agreement seems to the between suggest, Board however, of that the of the Regents University and Aurora is not sanctioned by the legislature, and should therefore eliminate the state s need for timely notice. We do not agree. ¶39 system, One of the missions of the University of Wisconsin which is governed by the Board of Regents, is to develop human resources, to discover and disseminate knowledge, to extend knowledge and its application beyond the boundaries of its campuses. Wis. Stat. § 36.01(2). The Board of Regents is also directed to maintain, control and supervise the use of the University of Wisconsin Hospitals and Clinics for the purpose of 17 No. 98-0329-FT [a]ssisting health programs and personnel throughout the state and region in the § 36.25(13g)(b)4. delivery The of health affiliation Samaritan effectuates these goals. that faculty assigned under care. Wis. agreement Stat. with Sinai We believe it is reasonable such an agreement however, that are still protected as state employees.6 ¶40 Dr. Riccitelli insists, there rational basis for an absolute bar against claims. is no Especially in a case such as this, where the Attorney General not only had actual notice Flanagan between of the participated the parties. in claim, the Assistant proceedings Presumably the in Attorney the attorney General prior case general had actual notice and participated in Dr. Riccitelli s attempt to enjoin filed. his termination because a notice of claim was timely This second action is different from the first it was filed two years later, after his termination, and it involved allegations of interference with a contract. Wisconsin Stat. § 893.82(3) requires a notice be filed with the attorney general within 120-days of the event causing the injury. Because the two cases involve two different alleged injuries, we believe it is clear that two separate notice of claims were necessary as well. 6 The liability portion of the affiliation agreements directs that the State of Wisconsin will provide liability protection for faculty participating in the U.W. Medical School education programs at Aurora institutions for acts within the scope of their employment. 18 No. ¶41 98-0329-FT Based on the purposes of the notice of claim statute, and under the circumstances of this case, we conclude that there is a reasonable basis to require a party to file a notice of claim within 120 days of the event causing injury. We therefore conclude that Dr. Riccitelli s rights guaranteed under the equal protection clauses of the Wisconsin and United States Constitutions have not been violated. ¶42 Lastly, Dr. Riccitelli claims that the application of the notice of claim statute violates his right to due process. Due process requires that the means the legislature chooses bears a reasonable and rational relationship to the purpose or objective of the enactment. State v. Jackman, 60 Wis.2d 700, 705, The 211 N.W.2d 480 (1973). clear policy of Wis. Stat. § 893.82(3) is to provide notice to the governmental unit in advance of any civil actions committed by a state employee. for damages based upon acts Ibrahim, 118 Wis. 2d at 726-27. The statute requires a notice of claim be filed within 120 days of the event causing injury. rational method to further We conclude that § 893.82(3) is a the legislative goal allowing investigation, and/or settlement of claims brought against state employees. ¶43 Dr. Riccitelli more specifically argues that he was denied substantive and procedural due process because he relied on Dr. Broekhuizen s sworn testimony regarding Dr. Broekhuizen s employment status. We have concluded in part III of this opinion that Dr. Broekhuizen was not testifying, in 1995, about his employment status or his employer; rather, the issue in the 19 No. 98-0329-FT 1995 suit was the status of the OB-GYN residency program, and Dr. Riccitelli s status in that program. that any reliance by Dr. Riccitelli We also determined on Dr. Broekhuizen s testimony in concluding that Dr. Broekhuizen was not a state employee was unreasonable. ¶44 We also note that Dr. Riccitelli s first action was premised on employee. his theory that Dr. Broekhuizen was a state It is reasonable to presume that a timely notice of claim was filed in the first case since the attorney general represented Dr. Broekhuizen, the U.W. Medical School, and the Board of Regents. Clearly if Dr. Broekhuizen was not a state employee, he would not have been represented by the attorney general, he would have had his own personal counsel. It is rather ironic that Dr. Riccitelli has alleged in one action that Dr. Broekhuizen was a state employee (subject to the notice of claim statute), but has claimed in this subsequent action that he was unaware that Dr. Broekhuizen was a state employee such that he needed to file a second notice of claim. ¶45 We conclude that Wis. Stat. § 893.82(3) is constitutionally valid and applies to the present case to bar Dr. Riccitelli s cause of action against Dr. Broekhuizen. By the Court. The decision of the court of appeals is reversed. ¶46 SHIRLEY S. ABRAHAMSON, 20 C.J., did not participate. 1

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.