Mannino v. Davenport, 79-1140

Decision Date06 January 1981
Docket NumberNo. 79-1140,79-1140
PartiesPatricia MANNINO and Stanley Mannino, Plaintiffs-Appellants, v. Gordon DAVENPORT, M. D., and G. W. Strand, M. D., Defendants-Respondents.
CourtWisconsin Supreme Court

Theodore V. Lyons, Jr. (argued), John C. Wickhem and Wickhem, Consigny, Andrews & Hemming, S. C., Janesville, on briefs, for plaintiffs-appellants.

Bradway A. Liddle, Jr., Molly K. Martin (argued), and Boardman, Suhr, Curry & Field, Madison, on brief, for Gordon Davenport, M. D.

Bradley D. Armstrong (argued), Bruce A. Schultz and Brynelson, Herrick, Gehl & Bucaida, Madison, on brief, for G. W. Strand, M. D.

BEILFUSS, Chief Justice.

This controversy arose from a medical malpractice action commenced by Patricia Mannino and Stanley Mannino against two physicians, G. W. Strand, M.D., and Gordon Davenport, M.D.

On June 6, 1979, an order was entered granting defendant-respondent Davenport's motion for summary judgment, and judgment was thereafter entered accordingly. On September 17, 1979, the trial court entered a second order granting the summary judgment motion of defendant-respondent Strand. Judgment was also entered against the plaintiffs-appellants as to this party. The plaintiffs-appellants appealed from these judgments and on July 8, 1980, the court of appeals certified the matter to this court pursuant to sec. 809.61, Stats. We accepted the certification.

In 1975, Patricia and Stanely Mannino, plaintiffs, initiated this action against Dr. Strand and Dr. Davenport, defendants. The complaint, filed in 1977, alleged that Mrs. Mannino had contacted University Hospitals in the City of Madison for the purpose of arranging for the services of a plastic surgeon. It was further alleged that she was referred by hospital staff to Dr. Davenport who, in turn, referred her to a resident physician, Dr. Strand. It is alleged that Mrs. Mannino agreed to undergo cosmetic surgery performed by Dr. Strand under the supervision of Dr. Davenport. The complaint states that Strand negligently performed the operation and that Davenport negligently failed to be present during the surgery to guide and supervise the resident physician. It was claimed that this negligence proximately caused physical injury and suffering to Mrs. Mannino and also caused Mr. and Mrs. Mannino to suffer a joint monetary loss of $2,048.44 for corrective surgery. The plaintiffs prayed for relief in the form of a judgment in the sum of $27,048.44.

The physicians answered generally denying any negligence on their part. No affirmative defenses were raised in their pleading. 1

The matter was set down for a jury trial to be held on May 21, 1979. Several weeks before the scheduled trial date both defendants moved for summary judgment. The basis of these motions was that both physicians were acting as state employees during their treatment of Mrs. Mannino and that the plaintiffs' action was barred by the failure to give proper notice under sec. 895.45, Stats. 2

The supporting affidavits submitted in conjunction with the motions indicated that Dr. Strand, as a salaried resident physician training under University of Wisconsin faculty in the Division of Plastic Surgery, was a state employee. 3 The sworn statement of Dr. Davenport indicates that he was a salaried member of the faculty of the Division of Plastic Surgery. He also maintained a private practice at an office located in the City of Madison. According to Davenport's supporting papers, the educational program of the Division of Plastic Surgery was two-fold. First, resident physicians were expected to observe and assist in the treatment of patients by faculty members. Secondly, residents (who were qualified general surgeons in their own right) would treat patients under the supervision and guidance of faculty members. A patient treated by a faculty member at University Hospitals received a bill for the services of that physician. No bill was issued if the patient was treated by a resident. Patients would initially be assigned to a faculty member for treatment unless they expressed a disinclination to pay for services rendered by the faculty physician. When examining patients in the course of his private practice, Dr. Davenport worked at his local office or at Madison General Hospital. The doctor admits that he may have conducted an initial consultation with Mrs. Mannino but that if he did, he did so in the course of his duties as a faculty member without billing her for his services.

Mrs. Mannino submitted an affidavit in opposition to the defendant Davenport's motion for summary judgment. In essence, this affidavit indicates that Mrs. Mannino was "completely unaware that Dr. Davenport was an employee of the State of Wisconsin (and) that she was not seeing (him) as an employee of the State of Wisconsin, but rather was seeing him as a private physician." The sworn statement indicates that Mrs. Mannino expressed a preference for treatment by a resident only after she was told that she would be billed for $1,000 if Dr. Davenport treated her.

The plaintiffs apparently did not file nor rely upon supporting affidavits or other similar proofs in their opposition to the summary judgment motion of Dr. Strand.

The trial court granted the motions of both defendants and this appeal ensued.

This controversy presents three issues for our determination: (1) The plaintiffs contend that summary judgment should not have been granted because, at least as to Dr. Davenport, there existed a substantial and material question of fact not properly disposed of without a trial. (2) It is further contended that both defendants have waived any objection to the lack of notice under sec. 895.45, Stats., and it is argued that as a matter of law they should be barred from asserting such a defense. (3) As a final argument on this appeal, Mr. and Mrs. Mannino contend that under the facts of this case, application of sec. 895.45 would be an unconstitutional deprivation of their rights to due process under the United States and Wisconsin Constitutions, and their right to a remedy under Art. I, sec. 9 of the Wisconsin Constitution. 4

The focus of this appeal is upon sub. (1) of sec. 895.45, 1975 Stats., 5 which provides:

"No civil action or civil proceeding may be brought against any state officer or employe for or on account of any act growing out of or committed in the course of the discharge of such officer's or employe's duties, unless within 90 days of the event causing the injury, damage or death giving rise to such civil action or civil proceeding, the claimant in such action or proceeding serves upon the attorney general written notice of a claim stating the time, date, location and the circumstances of the event giving rise to the claim for such injury, damage or death and the names of persons involved, including the name of the state officer or employe involved."

Before discussing the statute we must first consider whether it was proper for the trial court to grant a motion for summary judgment. The plaintiffs contend that, at least with respect to Dr. Davenport, there was a substantial question of fact as to his status as a state employee when he treated Mrs. Mannino. It is argued that she saw him as a private physician and not in his capacity as a state employee. In light of this alleged question of material fact, it is argued that it was an improper exercise of discretion under sec. 270.635, 1973 Stats., 6 to grant defendant's motion. 7

We conclude the affidavits of the opposing parties in this case raise no issue of material fact and, in such instances, summary judgment is not inappropriate. 8

Dr. Davenport did not have a pre-existing doctor-patient relationship with Mrs. Mannino and saw her only as a result of his association with University Hospitals. Initial consultations with University Hospital patients- whether or not the patients ultimately were treated by faculty-were done by faculty physicians. Even if a faculty member treated a patient and thereafter directly or indirectly received remuneration from that person, such treatment was part of the instructor's educational tasks in that it was done with the understanding that residents would observe and assist in the treatment. We do not doubt that Mrs. Mannino perceived Dr. Davenport to be acting in a private capacity after he quoted to her the $1,000 fee. However, sec. 895.45, Stats., does not create an exception for plaintiffs who have an honest but mistaken belief about the status of the defendant as a state employee. We conclude there was not a material dispute of fact calling for a trial resolution.

The plaintiffs' principal argument on appeal is that the failure of the defendants to raise the objection of lack of notice under sec. 895.45, Stats., by virtue of their initial responsive pleading constitutes a waiver of their rights under that statute.

The plaintiffs argue that sec. 895.45, Stats., is not a notice of claim statute and therefore is not a "condition precedent" to the existence of their action as contemplated by our decision in Schwartz v. Milwaukee, 43 Wis.2d 119, 168 N.W.2d 107 (1969). It is argued that the notice required by sec. 895.45 is a condition precedent to personal jurisdiction, that the absence of notice gives rise to an objection which can be and has been waived by the defendants' failure to raise it in timely fashion. In the alternative, it is argued that sec. 895.45 is basically a "notice of injury" statute which, as a procedural notice, may be waived.

The plaintiffs' claim that sec. 895.45, Stats., is a waivable condition precedent to obtaining personal jurisdiction over a defendant is without merit. The essence of personal jurisdiction is a matter of physical presence within, or minimum contact with, the state. 9 The notice requirement under sec. 895.45 is not concerned with matters of personal jurisdiction.

The Manninos also claim that sec. 895.45,...

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