Hoffman v. Rankin

• Decision Date: 11 June 2002
• Docket Number: No. 01-3202.,01-3202.
• Citation: 649 N.W.2d 350,256 Wis.2d 678,2002 WI App 189
• Parties: Margaret HOFFMAN and Neil Hoffman, Plaintiffs-Appellants, v. Thomas V. RANKIN, M.D., The Medical Protective Company, and Wisconsin Patients Compensation Fund, Defendants-Respondents, AARP CLAIM UNIT and Medicare Parts A & B, Defendants.
• Court: Wisconsin Court of Appeals

256 Wis.2d 678

2002 WI App 189

649 N.W.2d 350

Margaret HOFFMAN and Neil Hoffman, Plaintiffs-Appellants, v.Thomas V. RANKIN, M.D., The Medical Protective Company, and Wisconsin Patients Compensation Fund, Defendants-Respondents,AARP CLAIM UNIT and Medicare Parts A & B, Defendants.

No. 01-3202.

Court of Appeals of Wisconsin.

Submitted on briefs May 13, 2002.

Decided June 11, 2002.

On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of C.M. Bye of Bye, Goff & Rohde, Ltd. of River Falls.

On behalf of the defendants-respondents, Thomas V. Rankin, M.D., and The Medical Protective Company, the cause was submitted on the brief of William R. Wick of Nash, Spindler, Grimstad & McCracken LLP of Manitowoc.

On behalf of the defendant-respondent, Wisconsin Patients Compensation Fund, the cause was submitted on the brief of Mark E. Larson of Gutglass, Erickson, Bonville, Seibel & Falkner, S.C. of Milwaukee.Before Cane, C.J., Hoover, P.J., and Peterson, J.

¶ 1.CANE, C.J.

Neil and Margaret Hoffman appeal the dismissal of their medical negligence action against Thomas Rankin, M.D., the Medical Protective Company and the Wisconsin Patients Compensation Fund (hereinafter, "the respondents").¹The sole issue involves the interpretation of WIS. STAT. § 655.445.²Specifically, we must decide whether "mailing" is the equivalent of "filing" within the meaning of the statute.

¶ 2.The Hoffmans argue that the trial court erroneously ruled that the terms were synonymous and incorrectly held that the Hoffmans failed to wait for the expiration of the mandatory mediation period before filing their lawsuit.Based upon the plain statutory language, we agree.We therefore reverse the order and remand for further proceedings.

BACKGROUND

¶ 3.Margaret Hoffman claimed she was injured as a result of spinal surgery that Rankin performed in January 1997.On December 13, 1999, the Hoffmans mailed a summons and complaint to the clerk of circuit court for filing and, on the same day, mailed their request for mediation to the administrator of Medical Mediation Panels.The clerk of the circuit court date stamped the pleadings as filed December 15, 1999.On December 15, the administrator received the Hoffmans' request for mediation.

¶ 4.Before trial, the respondents moved to dismiss the action.They contended that the Hoffmans failed to comply with WIS. STAT. § 655.44(5), providing for the expiration of a waiting period for mediation before filing their medical malpractice action.The respondents claimed that the court therefore lacked competency to exercise its jurisdiction.The Hoffmans opposed the motion, arguing that they followed an alternative procedure available under WIS. STAT. § 655.445, allowing them to file a mediation request within fifteen days of filing their lawsuit.

¶ 5.The trial court rejected the Hoffmans' argument.The trial court ruled that "the date of mailing is the date of filing" the mediation request.The court concluded that because the mediation request was mailed on December 13, 1999, it was filed before the lawsuit.Relying on Ocasio v. Froedtert Mem'l Luth. Hosp.,2001 WI App 264, 248 Wis. 2d 932, 637 N.W.2d 459, review granted,2002 WI 23, 250 Wis. 2d 555, 643 N.W.2d 93(No. 00-3056), the trial court determined that the Hoffmans failed to wait until the expiration of the mandatory mediation period under WIS. STAT. § 655.44(5) before filing their complaint, depriving the court of competency to exercise its subject matter jurisdiction.The court dismissed the Hoffmans' complaint.The Hoffmans appeal the order of dismissal.

DISCUSSION

¶ 6.The Hoffmans claim that they followed the appropriate procedure available under WIS. STAT. § 655.445 and the court had competency to proceed.The Hoffmans contend that mailing is not the same as filing and, therefore, the alternative under § 655.445, providing for the mediation request to be filed "within 15 days after the date of filing an action in court," applies.We conclude that the Hoffmans' statutory interpretation is correct.

A.Standard of Review

[1-3]

¶ 7.This issue is resolved by resort to statutory language, an issue of law we decide de novo.State v. Setagord,211 Wis. 2d 397, 405-06, 565 N.W.2d 506(1997).The purpose of statutory interpretation is to ascertain and give effect to the legislature's intent.Id. at 406.We first look to the language of the statute itself.Id.If the meaning of the statute is unambiguous, we do not look beyond the statutory language; we simply apply the statute to the case at hand.Id.

[4, 5]

¶ 8.In the absence of an applicable statutory definition, the legislature is presumed to intend the common usage of a term.Hilmes v. DILHR,147 Wis. 2d 48, 54, 433 N.W.2d 251(Ct. App.1988);see alsoWIS. STAT. § 990.01.The common and ordinary usage of words may be established by their definition in a recognized dictionary.Enpro Assessment Corp. v. Enpro Plus, Inc.,171 Wis. 2d 542, 546, 492 N.W.2d 325(Ct. App.1992).

B. WIS. STAT. Ch. 655

¶ 9.Turning to the language of the statutes in question, we observe that WIS. STAT. ch. 655, an "exclusive procedure for the prosecution of malpractice claims against a health care provider," sets out two alternative procedures to pursue claims.Ocasio,2001 WI App 264 at ¶¶ 9, 13 (citation omitted).The first, governed by WIS. STAT. § 655.44, is entitled "Request for mediation prior to court action."Under this section, an injured patient may file a request for mediation with the Wisconsin Patients Compensation Fund rather than file a lawsuit.³

¶ 10.When a person opts for the first method, the expiration of the mediation period is a condition precedent to the commencement of a medical malpractice action.Ocasio,2001 WI App 264 at ¶ 1."Once the request has been filed, the patient may not commence a court action until the mediation period under [WIS. STAT.] sec. 655.465(7) has expired."Id.at ¶ 9;see alsoWIS. STAT. § 655.44(5).The mediation period expires ninety days after the director of state courts receives the mediation request if delivered in person or ninety-three days after the date of mailing if sent by registered mail.WIS. STAT. § 655.465(7).⁴

¶ 11.In Ocasio,the claimant followed this first alternative, WIS. STAT. § 655.44.Because the waiting requirement is mandatory, the filing of the summons and complaint within the mediation period is void because failure to comply with a mandatory statutory provision eliminates "the ability of a court to exercise its subject matter jurisdiction."Ocasio,2001 WI App 264 at ¶ 27(citation omitted).Ocasio held therefore that the circuit court correctly dismissed a medical malpractice action for lack of competency to exercise its jurisdiction when a party filed her medical malpractice suit before the expiration of the statutory mediation period under § 655.465(7).Id. at ¶ 1.

¶ 12.WISCONSIN STAT. ch. 655 provides a second alternative to prosecute medical malpractice claims, WIS. STAT. § 655.445, entitled "Request for mediation in conjunction with court action."⁵Under this section, a party may commence a lawsuit in the usual manner.Eby v. Kozarek,153 Wis. 2d 75, 82, 450 N.W.2d 249(1990).A request for mediation shall then be filed within fifteen days of filing the court action.Id.This is the procedure the Hoffmans claim to have followed.

C.Filing vs. Mailing

¶ 13.The respondents contend that the Hoffmans' act of mailing their request for mediation was the equivalent of filing their request.We conclude that it was not.The recognized dictionary definition of to "file" is: "[T]o deliver (as a legal paper or instrument) after complying with any condition precedent (as the payment of a fee) to the proper officer for keeping on file or among the records of his office ... to place (as a paper or instrument) on file among the legal or official records of an office esp. by formally receiving, endorsing, and entering."WEBSTER'S THIRD NEW INT'L DICTIONARY 849 (unabr. 1993).To "mail" is to "send postal matter."Id. at 1361.⁶

¶ 14.Wisconsin courts have distinguished filing from mailing in a variety of contexts."To construe or define `mailing' as `filing' is to ignore the plain meaning of the word.Mailing merely initiates the process by which an article in the due course of the post will be delivered."E. M. Boerke, Inc. v. Williams,28 Wis. 2d 627, 635, 137 N.W.2d 489(1965)."We are not aware of any statute or court rule providing that when a paper is presented for filing by mail, the filing is complete upon mailing."First Wis. Nat'l Bank v. Nicholaou,87 Wis. 2d 360, 365, 274 N.W. 2d 704(1979);see alsoNelson v. DNR,90 Wis. 2d 574, 576, 280 N.W.2d 334(Ct. App.1979)(The date of filing notice of appeal is the date it is received in the clerk's office, "not the date it is mailed to the clerk.");see alsoHilmes,147 Wis. 2d at 53-54("In this case, [WIS. ADMIN. CODE] sec.Ind 88.01(6) accords with well-settled Wisconsin case law holding that `filing' entails delivery to the intended recipient.").

¶ 15.We are satisfied that under WIS. STAT. § 655.445, the term "filing" should be accorded its ordinary meaning, requiring delivery to the proper officer.Nothing in WIS. STAT. ch. 655 expressly alters this interpretation.Because the Hoffmans' mediation request was filed on the day it was actually received by the administrator, we conclude that their mediation request was filed within fifteen days of the filing of the summons and complaint.⁷Consequently, the Hoffmans proceeded properly under § 655.445.Ocasio, which solely addressed the first alternative pursuant to § 655.44, does not control.

¶ 16.The respondents argue, nonetheless, that a mediation request is filed when mailed because of the computation of the time for the mediation period in WIS. STAT. § 655.465(7).⁸Under that section, the mediation period expires ninety days after the director of state courts receives a request for...