Protic v. Castle Co., 85-0391

Decision Date25 June 1986
Docket NumberNo. 85-0391,85-0391
Citation392 N.W.2d 119,132 Wis.2d 364
PartiesVeda PROTIC, Plaintiff-Co-Appellant, v. CASTLE COMPANY, division of Sybron Corporation, a foreign corporation, and Hartford Accident and Indemnity Company, a foreign insurance corporation, Defendants and Third-Party Plaintiffs- Appellants, Gordon M. Derzon, Folkert O. Belzer, M.D., Venkat K. Rao, M.D., Lynn Martin, M.D., Marie J. Zimmer, R.N., Dottie Ivers, R.N. and Lew Cole, Third-Party Defendants-Respondents.
CourtWisconsin Court of Appeals

John M. Moore and Jan A. Smokowicz, and Bell, Metzner & Gierhart, S.C., Madison, for defendants and third-party plaintiffs-appellants.

Bronson C. La Follette, Atty. Gen., and Charles R. Larsen, Asst. Atty. Gen., for third-party defendants-respondents.

Before GARTZKE, P.J., and DYKMAN and EICH, JJ.

EICH, Judge.

Veda Protic, Castle Company and Hartford Accident and Indemnity Corporation appeal from an order dismissing their complaints against several physicians, nurses and administrators employed by the University of Wisconsin Hospitals.

The dispositive issue in Protic's appeal is whether she filed a notice of her claim with the attorney general within the time prescribed by sec. 893.82, Stats. We conclude that the notice was timely but only as to injuries she suffered on and after September 8, 1982. And, since Protic named only Dr. V. Rao in her notice, she may maintain her action only against him.

The issues in the Castle/Hartford appeal are: (1) whether a 1983 amendment to sec. 893.82, Stats., applies to their claim against Rao and the other employees; and (2) if so, whether the notice filed by Protic fulfilled Castle's and Hartford's obligations under the statute. Because application of the amended statute depends upon facts which must be determined by the trial court, we remand on that issue. On the second issue, we conclude that if the amendment is found to apply to the Castle/Hartford claim, they could not rely on Protic's notice but were required to serve and file their own.

Protic filed a notice of claim with the attorney general on January 6, 1983, alleging that she suffered burns and other injuries while being treated at University Hospitals between August 30 and October 14, 1982. She claimed that the injuries occurred in a "continuous course of treatment" between those dates and that they were caused by the "continuing negligence" of Dr. Rao and the nurses and other hospital personnel who attended her during that time. The notice named only Rao, but it incorporated various hospital records which, Protic asserted, contained the names of all persons who attended and treated her during her hospital stay.

A year later, Protic filed a lawsuit against Castle. She alleged that Castle, a manufacturer of surgical lighting, was negligent in manufacturing and installing the lamps used in the hospital's operating room and that she suffered burns, scarring and other injuries as a result of her exposure to the lamps while undergoing surgery on August 30, 1982.

Castle and its insurer, Hartford, filed a third-party complaint against Dr. Rao and several other hospital employees who, it is alleged, either removed safety shields from the lights or performed surgery when they knew or should have known that the shields had been removed. Protic then filed an amended complaint adding Rao and the other named employees as defendants, alleging that all were negligent in administering a "continuous course of treatment" to her between August 30 and October 14, 1982.

Rao and the other hospital employees, all "state employees" within the meaning of sec. 893.82(3), Stats., moved to dismiss both complaints on grounds that neither Protic nor Castle served a timely notice of claim on the attorney general as required by the statute. The trial court agreed and granted the motion.

Section 893.82(3), Stats., provides:

No 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 stating the time, date, location and the circumstances of the event giving rise to the claim for the injury, damage or death and the names of persons involved, including the name of the state officer, employe or agent involved....

A notice of claim served on January 6, 1983, would thus be timely if the "event causing the injury" occurred within the preceding 120 days--on or after September 8, 1982. It appears from Protic's notice of claim and her amended complaint that the burns--the primary injury of which she complains--were incurred during her exposure to the surgical lamps on August 30, 1982. Because that "event" occurred beyond the 120-day cutoff period, the resulting claim was never timely noticed to the attorney general. Protic alleges in both documents, however, that she suffered injuries as a result of treatment by Rao and the other hospital employees which continued after September 8, 1982, and her notice was timely as to any such injuries she may be able to prove at trial.

The hospital employees contend that the notice of claim was insufficient to allow an action against any of them except Dr. Rao, as he was the only person named in the notice. We agree. Section 893.82(3), Stats., requires that the notice include the name of any person or persons involved in causing the injury, and we have held that substantial compliance with the statute is insufficient. Yotvat v. Roth, 95 Wis.2d 357, 361, 290 N.W.2d 524, 527 (Ct.App.1980). One of the stated purposes of the notice requirement is to provide the attorney general with adequate time to investigate claims, sec. 893.82(1)(a)1, and the statute is to be liberally construed to effectuate its purposes. Sec. 893.82(1)(b). The attorney general's efforts to investigate would be hindered if it were necessary to sift through medical records to determine who attended Protic and then speculate as to which employees were potential defendants. The notice was sufficient only as to Dr. Rao.

Rao argues, however, that Protic's amended complaint should have been dismissed because it fails to allege that he breached a ministerial duty. Generally, public employees are liable only for the negligent performance of duties that are purely ministerial, or for willful or malicious conduct. Ibrahim v. Samore, 118 Wis.2d 720, 728, 348 N.W.2d 554, 558 (1984). They are immune from liability for damages resulting from negligent acts undertaken in...

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