Jeanette Ocasio v. Froedtert Memorial Lutheran Hospital

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2002 WI 89 SUPREME COURT CASE NO.: OF WISCONSIN 00-3056 COMPLETE TITLE: Jeanette Ocasio, Plaintiff-Appellant-Petitioner, v. Froedtert Memorial Lutheran Hospital, Defendant-Respondent, Michael Kefer, M.D., Defendant, ABC Insurance, DEF Insurance, GHI Insurance, JKL Insurance, and Wisconsin Patients Compensation Fund, Defendants-Respondents, Medical College of Wisconsin and Gary L. Swart, M.D., Defendants. REVIEW OF A DECISION OF THE COURT OF APPEALS 2001 WI App 264 Reported at: 248 Wis. 2d 932, 637 N.W.2d 459 (Published) OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: May 28, 2002 SOURCE OF APPEAL: COURT: COUNTY: JUDGE: Circuit Milwaukee Michael G. Malmstadt JUSTICES: CONCURRED: DISSENTED: July 3, 2002 CROOKS, J., dissents (opinion filed). SYKES, J., joins dissent. NOT PARTICIPATING: ATTORNEYS: For the plaintiff-appellant-petitioner there were briefs by Thomas A. Ogorchock and Miller & Ogorchock, S.C., Milwaukee, and Timothy J. Aiken and Aiken & Scoptur, S.C., Milwaukee, and oral argument by Thomas A. Ogorchock and Timothy J. Aiken. For defendants-respondents there was a brief by Todd M. Weir, Jennifer A. Slater Carlson, and Otjen, Van Ert, Lieb & Weir, S.C., Milwaukee, and oral argument by Jennifer A. Slater Carlson. An amicus curiae brief was filed by Mark E. Larson, Bradley S. Foley, and Gutglass, Erickson, Bonville, Seibel & Falkner, S.C., Milwaukee, on behalf of the Civil Trial Counsel of Wisconsin. An amicus curiae brief was filed by Randall E. Reinhardt and David M. Skoglind, Milwaukee, on behalf of the Wisconsin Academy of Trial Lawyers. 2 2002 WI 89 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 00-3056 (L.C. No. 99 CV 8454) STATE OF WISCONSIN : IN SUPREME COURT Jeanette Ocasio, Plaintiff-Appellant-Petitioner, v. Froedtert Memorial Lutheran Hospital, Defendant-Respondent, FILED Michael Kefer, M.D., JUL 3, 2002 Defendant, ABC Insurance, DEF Insurance, GHI Insurance, JKL Insurance, and Wisconsin Patients Compensation Fund, Cornelia G. Clark Clerk of Supreme Court Defendants-Respondents, Medical College of Wisconsin and Gary L. Swart, M.D., Defendants. REVIEW of a decision of the Court of Appeals. Reversed and cause remanded. ¶1 ANN WALSH BRADLEY, J. The petitioner, Jeanette Ocasio, seeks review of a court of appeals decision affirming a No. 00-3056 circuit court order dismissing her medical malpractice action against Froedtert defendants. Memorial Lutheran Hospital and other She asserts that the court of appeals erred by concluding that dismissal is mandated for noncompliance with the provision medical in Wis. Stat. malpractice statutory claimant mediation complaint. § 655.44(5) to period (1999-2000)1 wait before until the filing a requiring end of summons a the and We agree with Ocasio that failure to comply with that provision does not require as a remedy the circuit court's dismissal of the action. Accordingly, we reverse the decision of and the court of appeals remand for further proceedings consistent with this opinion. I ¶2 The decision in parties this October 17, 1996. agree case. to the facts necessary Ocasio was treated at to our Froedtert on She alleges that she sustained an injury to her arm after a nurse negligently injected her with Benadryl, an antihistamine used to treat symptoms of allergic reactions. ¶3 of Ocasio mailed a request for mediation to the Director State required Courts by by registered Wis. Stat. ch. 655. mail on October Chapter 655 8, 1999, provides, as among other things, for the establishment of a mediation system for medical malpractice actions as defined in the statute. See Wis. Stat. §§ 655.006, 655.007, and 655.42. 1 All subsequent references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise indicated. 2 No. ¶4 00-3056 Section 655.44(5) provides that no court action may be commenced until the expiration of a 90-day mediation period. The mediation period is intended to be a "cooling off" period.2 Schulz v. Nienhuis, 152 Wis. 2d 434, 441, 448 N.W.2d 655 (1989). ¶5 On mediation October period, circuit court. 18, 1999, well Ocasio filed a before summons the and end of complaint the in No party's answer to the complaint raised the issue of the premature commencement of the action. Because of scheduling problems,3 mediation was not held ¶6 within the statutory period. Instead the mediation session was conducted on February 4, 2000, approximately three weeks outside the mediation period. A few days later, Ocasio filed an amended summons and complaint, action, but she essentially otherwise to repeated drop the a party originally from the asserted allegations against the remaining defendants. ¶7 On February 17, expired.4 Subsequently, Wisconsin, raised the 2000, the the statute defendant, noncompliance of Medical with limitations College § 655.44(5) of by asserting that the court lacked jurisdiction and competence over the defendants. Froedtert, however, made no assertion of 2 Because Ocasio sent her request for mediation by registered mail, the mediation period spanned 93 days, beginning with the date her request was mailed. Wis. Stat. § 655.465(7). 3 Counsel for Ocasio stated at oral argument that this was the reason for the delay. 4 The statute of limitations was tolled from the date Ocasio mailed the mediation request until 30 days after the last day of the mediation period. Wis. Stat. § 655.44(4). 3 No. 00-3056 Ocasio's noncompliance with § 655.44(5) in its answer to the amended complaint. ¶8 The Medical College of Wisconsin moved for dismissal on March 17, 2000, and argued that Ocasio failed to comply with § 655.44(5) by filing her action before the expiration of the statutory mediation period under Wis. Stat. § 655.465(7). Section 655.44(5) states: 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). Froedtert then joined in the motion to dismiss, and the circuit court concluded that because Ocasio had failed to comply with § 655.44(5), her suit must be dismissed. ¶9 circuit In the court court erred of in appeals, Ocasio dismissing her argued suit that the because the requirement in § 655.44(5) that a claimant must wait for the mediation period to expire before filing a medical malpractice action was merely directory. In addition, she asserted that her amended any pleadings rectified problem, and that Froedtert waived any jurisdictional objections. ¶10 the The court of appeals concluded that the expiration of mediation period is a condition precedent to the commencement of a filing of a medical malpractice action and that noncompliance required dismissal of Ocasio's claim. Further the court opined that there was no waiver here because there can be no waiver of a court's 4 lack of competency to No. proceed. Accordingly, the court of appeals 00-3056 affirmed the decision of the circuit court. II ¶11 The question we address is whether a circuit court must dismiss an action when a ch. 655 claimant fails to comply with the provision in § 655.44(5) stating that no court action may be commenced until the expiration of the mediation period under § 655.465(7). presents review. a question This of issue law of statutory subject to interpretation independent appellate Patients Comp. Fund v. Lutheran Hosp., 223 Wis. 2d 439, 454, 588 N.W.2d 35 (1999).5 III ¶12 as The language in § 655.44(5) is clear and unambiguous applied 655.445, no to the court facts action here: may "Except be as provided in commenced . . . until expiration of the mediation period under s. 655.465(7)." failed to comply with this statutory provision. s. the Ocasio The question becomes what is the proper remedy. ¶13 Section 655.44(5) is silent as to failure to comply with the timing provision. the remedy for Thus, we look to the purpose of § 655.44(5) and previous interpretations given 5 Although the court of appeals discussed competence and subject matter jurisdiction, we do not view this case as implicating those concepts. There is no question that Ocasio failed to comply with the language of the statute. The question is what remedy ensues as a result of this statutory violation, since the statute does not provide one. 5 No. 00-3056 other timing provisions in ch. 655 in order to determine the proper remedy. ¶14 of The purpose of ch. 655 is apparent from the statement legislative expressly intent in that the stated the statutes. mediation The system is legislature intended to provide claimants with an "informal, inexpensive, and expedient means for resolving disputes." Wis. Stat. § 655.42(1). The informal, flexible nature of the mediation system under ch. 655 has been recognized repeatedly by this court. See Eby v. Kozarek, 153 Wis. 2d 75, 83, 450 N.W.2d 249 (1990); Schulz, 152 Wis. 2d at 439. The court also has indicated that ch. 655 is intended to provide a cooling off period regardless of whether a mediation session occurs during that period. Schulz, 152 Wis. 2d at 441. ¶15 This court and the court of appeals previously have concluded that dismissal for failure to comply with certain timing requirements in ch. 655 is inconsistent with the purpose of ch. 655. Eby, 153 Wis. 2d at 83; Schulz, 152 Wis. 2d at 443; Gauger v. Mueller, 149 Wis. 2d 737, 742, 439 N.W.2d 637 (Ct. App. 1989). ¶16 For example, in Eby, this court addressed a plaintiff's failure to comply with the statutory requirement in § 655.44's companion statute, Wis. Stat. § 655.445, that a claimant file a request for mediation within 15 days of filing an action. The court concluded that failure to comply did not require dismissal despite the use of the word "shall" in the statute. Eby, 153 Wis. 2d at 77. 6 No. ¶17 00-3056 Similarly, in Gauger, the court of appeals addressed whether the time period in § 655.465(7) was mandatory where the plaintiff failed to statutory period. participate in mediation 149 Wis. 2d at 739. within the Despite the use of the term "shall" in the statute, the court of appeals concluded that the statute was directory dismissal was not required. ¶18 to rather than mandatory, and that See id. at 743. Finally, in Schulz, this court concluded that failure participate in a mediation session within the statutory mediation period under § 655.465(7) does not require the circuit court to dismiss the action. 152 Wis. 2d at 436. The court noted that its decision was consistent with that of the court of appeals in Gauger. ¶19 Id. at 439. In all of these decisions, the courts relied on the purpose of the statute as providing for a system of informal, flexible procedures. Dismissal for failure to comply with a ch. 655 timing provision was considered inconsistent with this purpose Thus, despite in none the of legislature's these cases did use of the the courts term "shall." determine that failure to comply with the statute necessitated dismissal. ¶20 A conclusion that the failure to abide by the timing provision in § 655.44(5) mandates dismissal inconsistent with these prior holdings. by the legislature to serve stated in § 655.42(1). 7 the be All of the statutory provisions are part of the same mediation system. created would same Each was objectives, as No. ¶21 Accordingly, we follow Eby, Schulz, and 00-3056 Gauger in determining that failure to comply with the timing provision in § 655.44(5) also does not require dismissal. We agree with this reasoning by the court in Schulz and apply it here: If the legislature intended the result the defendants urge, it could have expressly stated that a claimant's failure to participate in a mediation session within the statutory mediation period results in dismissal. It did not do so. In the absence of express language, we are unwilling to read the harsh penalty of dismissal of the lawsuit into the mediation statute. The tenor of modern law is to avoid dismissal of cases on technical grounds and to allow adjudication on the merits. 152 Wis. 2d at 443. Holding claimants to "precise and inflexible requirements" does not comport with the legislature's stated intent in § 655.42 to make procedures malpractice cases informal and flexible. in medical Eby, 153 Wis. 2d at 83; see also Bertorello v. St. Joseph's Hosp., 685 F. Supp. 192, 195 (W.D. Wis. 1988). ¶22 mandated rather In addition, dismissal, than resolution. if the failure statute an informal, An interpretation to comply would flexible of with § 655.44(5) promote game playing procedure for dispute to mandate the statute dismissal would allow defendants to lie in the weeds until the statute of limitations ran, then move to dismiss based on the plaintiff's failure to comply with § 655.44(5). The statute would serve as a trap for the unwary, not the informal and flexible system intended. 8 No. ¶23 00-3056 In short, we follow precedent and the purpose of the statute to conclude that a plaintiff's failure to comply with the timing provision in § 655.44(5) does not mandate that the circuit court dismiss an action. As in Schulz, in the absence of language expressly mandating the remedy of dismissal, we are unwilling to read into the statute the requirement of such a harsh remedy for noncompliance with this mediation provision. ¶24 The chronology of events in this case reinforces our concern that interpreting § 655.44(5) to mandate the remedy of dismissal will result in game playing by defendants and a trap for unwary plaintiffs. Here, the defendants filed their initial answers before the statute of limitations on Ocasio's claim had run, and they made no objection to Ocasio's failure to comply with § 655.44(5). It was only after the running of the statute of limitations that the defendants raised Ocasio's failure to comply with § 655.44(5) as grounds for dismissal. ¶25 Having concluded that the failure to comply with the timing provision in § 655.44(5) does not mandate dismissal, we still must determine what sanction is available for failure to comply without any recourse when a plaintiff fails to comply with § 655.44(5). We follow with Eby the in statute. concluding A defendant that the is not circuit court retains discretion to determine the appropriate sanction, if any, for the failure to comply with the timing provision in § 655.44(5). See 153 Wis. 2d at 82. The sanction may range from no sanction to dismissal in the most egregious cases. IV 9 Id. No. ¶26 00-3056 In sum, we conclude that failure to comply with the timing provision in § 655.44(5) does not require the circuit court to dismiss the ch. 655 claimant's action. We therefore reverse the court of appeals, and we remand for the circuit court to exercise its discretion in determining what sanction, if any, is appropriate for Ocasio's failure to comply with the statute. By the Court. The decision of the court of appeals is reversed, and the cause is remanded to the circuit court for further proceedings consistent with this opinion. 10 No. ¶27 N. PATRICK CROOKS, J. 00-3056.npc I cannot join (dissenting). the majority's opinion because I disagree that failure to comply with Wis. Stat. § 655.44(5) does not necessitate dismissal. majority acknowledges that Ocasio failed to comply The with § 655.44(5), but then concludes that the statute is silent as to the appropriate remedy, requiring the court to look to the purpose of the statute and previous interpretations given other timing provisions in ch. 655. this analysis § 655.44(5) is wholly unambiguously I respectfully dissent because unnecessary. states, "no The court language action commenced" unless two conditions are satisfied. in may be I find this language unambiguous and instructive regarding the appropriate remedy for failure to comply with the statute. Failure to comply with § 655.44(5) necessitates dismissal since a statutory condition precedent was not met. ¶28 The majority first turns to the purpose of the medical malpractice mediation system and states that ch. 655 is intended to provide claimants with an "informal, inexpensive, and expedient means for resolving disputes." Majority op. at ¶14 (citing examining Wis. Stat. § 655.42(1)). interpreting various sections of After ch. 655, the case majority law then concludes, "in the absence of language expressly mandating the remedy of dismissal, we are unwilling to read into [§ 655.44(5)] the requirement of such a harsh remedy for noncompliance with this mediation provision." Id. at ¶23. objectives and purpose of ch. 655. I agree with the I disagree, however, that § 655.44(5) does not expressly mandate the remedy of dismissal 1 No. for noncompliance. Furthermore, I that conclude 00-3056.npc mandating dismissal for failure to comply with § 655.44(5) is consistent with the purpose of ch. 655. ¶29 itself The majority needs to look no further than the statute to determine that Wis. Stat. § 655.44(5) mandates that Ocasio's medical malpractice cause of action must be dismissed. Wisconsin Stat. § 655.44(5) states: "Except as provided in s. 655.445, no court action may be commenced unless a request for mediation has expiration been of the (Emphasis added). filed under mediation this period section under and s. until the 655.465(7)." It is undisputed that Ocasio did not follow the statutory requirements because she filed the summons and complaint 83 days before the mediation period expired. To determine the appropriate remedy for noncompliance, therefore, we need simply to interpret the meaning of this language: "no court action may be commenced." ¶30 By holding that Ocasio's lawsuit does not necessitate dismissal, the majority apparently concludes that the statutory language, "no court action rather than mandatory. may be I disagree. commenced," is directory Although the statute uses the word "may," which often indicates directory language, here it is coupled with "no." Using "may" in a negative sense such as statute "may not" makes the mandatory. For example, in Brookhouse v. State Farm Mutual Insurance, 130 Wis. 2d 166, 170, 387 N.W.2d 82 (Ct. App. 1986), the court of appeals concluded that the statutory language "may not be enlarged" is mandatory. The distinction is not between "shall" and "may" but between "may" and "may not." "May not" is a negative 2 No. 00-3056.npc term. Where statutory restrictions are couched in negative terms, they are usually held to be mandatory. Negative words in a grant of power should never be construed as directory. . . . Thus, where the statute says that the time for motions after verdict may not be enlarged, these are negative words regarding the grant of power. We hold that the language is mandatory. (Citations omitted.) ¶31 This case presents a similar question and accordingly, I conclude that "no court action may be commenced" is mandatory. When statutory language is unambiguous, the court's duty is to give that language its ordinary meaning. Gauger v. Mueller, 149 Wis. 2d 737, App 655.44(5) is 740, 439 N.W.2d 637 unambiguous and (Ct. means exactly 1989). what Section it states. Acting under the statute at issue, Ocasio may not commence a court action until the mediation period has expired. The unambiguous language in § 655.44(5) prohibits the commencement of Ocasio's court action here; thus, failure to comply with the statute necessitates dismissal.6 ¶32 plain I find further support for this conclusion because the language of Wis. Stat. § 655.44(5) creates a condition precedent, which, when not complied with, means that the cause of action has not been properly commenced. "If an action may not be brought except upon the happening of an event, then the occurrence of that event is a 6 condition precedent to the This interpretation of Wis. Stat. § 655.44(5) is consistent with this court's previous decision in Eby v. Kozarek, 153 Wis. 2d 75, 82, 450 N.W.2d 249 (1990). In that case, Justice Bablitch, writing for a unanimous court, cited § 655.44(5) and stated: "Once the request [for mediation] has been filed, the patient may not commence a court action until the mediation period under sec. 655.465(7) has expired." 3 No. commencement of the action." Siemering v. 00-3056.npc Siemering, Wis. 2d 111, 114, 288 N.W.2d 881 (Ct. App. 1980). 95 The plain language in § 655.44(5) states that a cause of action may not be brought except upon the expiration of the mediation period under § 655.465(7). a condition Expiration of the mediation period, therefore, is precedent and a suit filed prematurely is void because of the failure to comply with the condition precedent. ¶33 Applied here, Ocasio failed to comply with the condition precedent in Wis. Stat. § 655.44(5); thus, the circuit court did not have competency to hear the case.7 See Colby v. Columbia County, 202 Wis. 2d 342, 362, 550 N.W.2d 124 (1996) ("A cause of action is not properly commenced when a plaintiff prematurely files a summons and complaint. . . . "); McMillanWarner Mut. Ins. v. Kauffman, 159 Wis. 2d 588, 594, 465 7 The court of appeals correctly noted that the terms "competence" and "jurisdiction" are not synonymous. Ocasio v. Froedtert Memorial Lutheran Hospital, 2001 WI App 264, ¶1 n.2, 248 Wis. 2d 932, 637 N.W.2d 459. In Figgs v. City of Milwaukee, 121 Wis. 2d 44, 51-52 n.6, 357 N.W.2d 548 (1984), this court specifically discussed the difference: [W]e point out that this court has stated that [] statutory conditions or conditions precedent have nothing to do with subject matter jurisdiction of a circuit court. They deal only with the appropriate conditions set by the legislature as a prerequisite for commencing or maintaining an action. Subject matter jurisdiction is conferred on the circuit courts by the constitution. Whether or not a proper claim has been filed, the circuit court has jurisdiction of the subject matter. (Internal citations omitted). Several years later this court revisited that language with approval in Gillen v. City of Neenah, 219 Wis. 2d 806, 824-825, 580 N.W.2d 628 (1998). 4 No. N.W.2d 201 (Ct. "competency to App. act 1990) when a (noting that properly subscribed complaint is filed with the court.").8 that the circuit court properly the 00-3056.npc court has summons and I conclude, therefore, dismissed Ocasio's medical malpractice claim since the circuit court lacked competency to proceed with the matter. ¶34 Contrary to the majority's approach, I further conclude that mandating dismissal for failure to comply with Wis. Stat. § 655.44(5) is consistent with medical malpractice mediation system. the purpose of the The majority claims that dismissal is a harsh penalty in a system where procedures are intended to be informal and flexible. Majority op. at ¶21. Again, I disagree. ¶35 In establishing the mediation system in ch. 655, the legislature provided for flexibility by creating two options for commencing a medical malpractice case. See Eby v. Kozarek, 153 Wis. 2d 75, 82, 450 N.W.2d 249 (1990) (describing the current statutory scheme as "two alternatives for pursuing redress"); Seaquist v. Physicians Ins. Co., 192 Wis. 2d 530, 541, 531 N.W.2d 437 (Ct. App. 1995) ("A claimant must choose one of two ways of participating in the mediation system."). First, under Wis. Stat. § 655.445 a plaintiff can initially file a claim in court and then within fifteen days file a request for mediation. 8 As the court of appeals in this case noted, the condition precedent in Wis. Stat. § 655.44(5) is analogous to notice of claim statutes. Ocasio, 2001 WI App 264, ¶16 (analogizing to § 893.80 where failure of a plaintiff to give notice within the statutory time period results in the party losing the right to proceed). 5 No. 00-3056.npc Second, under § 655.44, which Ocasio relied on, a plaintiff can initially request mediation and then, after the mediation period has expired, file a claim in court. These two procedures are clearly written in the statutes to provide the flexibility that the legislature intended for medical malpractice cases. The majority's decision here unnecessarily bends those procedures to allow for further options that are contrary to the unambiguous language of § 655.44. ¶36 with the Finally, mandating condition dismissal precedent in for failure to comply Wis. Stat. § 655.44(5) is consistent with the legislature's intent of having a "cooling off" period. Chapter 655 provides that during the mediation period, the statutes of limitations are tolled, and furthermore, no discovery, pretrial conference, or scheduling conference is to take place until the Wis. Stat. § 655.445(2) and (3). mediation period expires. Moreover, this court discussed the mediation period in Schulz v. Nienhuis, 152 Wis. 2d 434, 448 N.W.2d 655 (1989). Now Chief Justice Abrahamson, writing for a unanimous court, described the mediation period: Section 655.445(3) provides that "no trial, pretrial conference or scheduling conference may be held until the expiration of the mediation period under sec. 655.465(7)." Thus litigation cannot proceed until the statutory mediation period ends. The prohibition on pretrial activities applies to the entire 90-day period. No provision is made for allowing parties who complete the mediation session before the statutory mediation period expires to proceed to trial. The period for mediation under the statutes therefore seems to be a statutory "cooling off" period, apparently unrelated to whether a mediation session occurs during that period. 6 No. 00-3056.npc 152 Wis. 2d at 441 (emphasis added). I acknowledge that Schulz was § 655.445, addressing § 655.44(5). the procedure in rather than Nonetheless, the purpose of the mediation period to allow the parties to "cool off" applies to both statutes. The legislature intended that litigation neither be initiated nor proceed during the mediation period. Consequently, the circuit court appropriately dismissed Ocasio's claim for failure to follow that statutory mandate. ¶37 In conclusion, ch. 655 unambiguously and explicitly provides two options for commencement of a medical malpractice claim. Ocasio did not follow either. Her actions were contrary to the unambiguous language in Wis. Stat. § 655.44(5). I agree with the circuit court and the court of appeals, therefore, that her failure to comply with § 655.44(5) mandates dismissal of her medical malpractice claim competency to hear the case. since the circuit court lacked For these reasons, I respectfully dissent. ¶38 I am authorized to state that Justice DIANE S. SYKES joins this dissent. 7 No. 1 00-3056.npc

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