Riccitelli v. Broekhuizen

Decision Date25 August 1998
Docket NumberNo. 98-0329-FT,98-0329-FT
Parties, 130 Ed. Law Rep. 264 Guy RICCITELLI, M.D., Plaintiff-Appellant, v. Fredrik BROEKHUIZEN, M.D. and Carole Hagarty, R.N., PH.D., Defendants-Respondents, d Aurora Health Care, Inc., Sinai Samaritan Medical Center, Inc. and Alan M. Wagner, M.D., Defendants.
CourtWisconsin Court of Appeals

On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Mark J. Goldstein of Padway & Padway, Ltd., of Milwaukee.

On behalf of the defendants-respondents, the cause was submitted on the briefs of James E. Doyle, Attorney General, and David T. Flanagan, Assistant Attorney General.

Amicus Curiae brief was filed by David M. Skoglind, of Milwaukee, for Wisconsin Academy of Trial Lawyers.

Before WEDEMEYER, P.J., and FINE and SCHUDSON, JJ.

SCHUDSON, Judge.

Guy Riccitelli, M.D., appeals from the trial court order dismissing his action against Fredrik Broekhuizen, M.D., and Carole Hagarty, R.N., Ph.D. Dr. Riccitelli argues that the trial court erred in concluding that he was required to provide notice to Drs. Broekhuizen and Hagarty, pursuant to § 893.82, STATS. He contends that his earlier action against Dr. Broekhuizen established that when Drs. Broekhuizen and Hagarty acted to terminate him from a University of Wisconsin Medical School residency program, they did so not as employees of the University, but rather, as employees of Aurora Health Care, Inc., and Sinai Samaritan Medical Center, Inc. Thus, he contends, under equitable principles and the doctrine of "issue preclusion," Drs. Broekhuizen and Hagarty could not claim state employee status to gain the protections of § 893.82, STATS.

The Wisconsin Academy of Trial Lawyers (WATL), in an amicus curiae brief, supports some of Dr. Riccitelli's arguments but ultimately offers a different theory. WATL maintains that although Dr. Broekhuizen may have been acting as a state employee, the record establishes that he also may have been acting as an Aurora/Sinai employee and, therefore, under the "dual persona" doctrine, Dr. Riccitelli could bring an action against Dr. Broekhuizen without complying with the notice requirements of § 893.82, STATS. 1

We conclude that the trial court correctly determined that the record in Dr. Riccitelli's first action did not establish issue preclusion. Further, although we acknowledge the strength of Dr. Riccitelli's equitable argument, we do not resolve his appeal on that basis because, we conclude, WATL correctly argues that the dual persona doctrine allows Dr. Riccitelli to bring his second action against Dr. Broekhuizen without complying with § 893.82, STATS. We also conclude that although the record regarding Dr. Hagarty is, in one respect, less explicit than that regarding Dr. Broekhuizen, in all other respects it ineluctably leads to the conclusion that Dr. Hagarty, like Dr. Broekhuizen, was an employee or agent of both the University and Aurora/Sinai. Therefore, we reverse the order dismissing Dr. Riccitelli's claims against both Dr. Broekhuizen and Dr. Hagarty.

I. BACKGROUND

Beginning in 1991, Dr. Riccitelli was enrolled in a four-year obstetrics and gynecology residency training program at Sinai Samaritan Medical Center in Milwaukee. Dr. Broekhuizen, a member of the University of Wisconsin Medical School faculty, was the program director; Dr. Hagarty, an Assistant Professor of Clinical Obstetrics and Gynecology at the University, was the assistant director.

The residency program existed under an "Affiliation Agreement" between the Board of Regents of the University of Wisconsin and Aurora Health Care, Inc., the entity under which Sinai Samaritan operated. 2 Under the agreement, the University was "responsible for maintaining quality programs of undergraduate medical education and of research and for providing services to Aurora in graduate medical education." 3 Aurora was "responsible for managing its programs in graduate medical education and cooperating with the Medical School in research, while maintaining quality patient care and meeting the standards of hospital accrediting and licensing bodies." Although the University was "responsible for the recruitment and maintenance of sufficient numbers of quality faculty," the University's medical school departments would "consult with the President of Aurora or his designee" before making faculty appointments, and "[i]nitial and subsequent clinical and administrative assignments of the full-time faculty must be jointly approved in advance of such assignments by the Dean of the Medical School and the President of Aurora or his designee, as appropriate." Further, "[e]ach faculty member assigned to Sinai Samaritan must at all times be a qualified member of the medical staff of the Medical Center where assigned."

Under the agreement, the University and Aurora shared significant, overlapping authority for the program director and faculty. The University and Aurora would jointly propose "such physicians or professional personnel intended to act as medical directors" of programs, including the residency program involved in this case, but the president of Sinai Samaritan would have the actual authority to "appoint or terminate" the directors. The medical directors "shall be responsible for the administration and supervision of clinical functions and personnel, Aurora-approved departmental budgets, records and policies in conformity with the rules and standards prescribed by the [Medical] Center." Further, each medical director "is responsible to the President of the Medical Center."

Although the exact financial arrangements under the affiliation agreement are not entirely clear, and although the fiscal arrangements depend on several factors, including additional "departmental and research agreements," it is undisputed that Aurora/Sinai reimbursed the University for the salaries of faculty assigned to the program. 4

In a section titled, "Liability Protection," the agreement explicitly referred to § 893.82, STATS., and declared that the "State of Wisconsin provides liability protection for faculty appointed to the Medical School on a full-time basis during the time they participate in Medical School educational programs at Aurora institutions, for acts within the scope of their employment or agency." The section goes on to refer to "employment or agency" and "employees or agents" without differentiating whether faculty members are employees, agents, or both, of the University, Aurora/Sinai, or both.

Dr. Riccitelli's four-year residency was renewed annually. The February 11, 1994 letter offering Dr. Riccitelli his "appointment as a fourth year resident" and detailing many of the contractual terms of his position was signed by Dr. Broekhuizen as "Chairman and Program Director" of the "Department of Obstetrics and Gynecology," and by William I. Jenkins, "President" of "Sinai Samaritan Medical Center." According to the letter, the offer was from, "The Department of Obstetrics and Gynecology and Sinai Samaritan Medical Center," and was on stationery with a letterhead reading, "Sinai Samaritan Medical Center / Aurora Health Care."

According to the complaint, during his fourth year of residency, "Dr. Broekhuizen perceived a personality conflict between himself and Dr. Riccitelli" and, a few months later, the program's Resident Evaluation Committee notified Dr. Riccitelli that it had advised Dr. Broekhuizen not to certify his completion of the residency program. The next month, however, the Committee, through Dr. Broekhuizen, "notified Dr. Riccitelli that, in order to complete his residency, [he] must participate in a three month probationary period followed by a six month remediation program." The complaint alleges that although Dr. Riccitelli participated in the probation/remediation program, Dr. Broekhuizen violated its terms by not affording Dr. Riccitelli the required monthly meetings and evaluations. Subsequently, according to the complaint, Dr. Broekhuizen notified Dr. Riccitelli of the Committee's decision to terminate him from the residency program.

In an action preceding the one leading to this appeal, Dr. Riccitelli challenged the anticipated termination in an action seeking compensatory and punitive damages, and an injunction. Claiming he had been denied due process, Dr. Riccitelli asserted that, as a resident, he held an academic/professional staff appointment and, therefore, was a state employee entitled to the protections of § 36.15, STATS. 5 Following an evidentiary hearing, however, the trial court 6 rejected Dr. Riccitelli's theory, concluding that the residency program was "of Sinai Samaritan," not "of the University of Wisconsin Medical School," and that, as a resident, he was an employee of Aurora/Sinai, not the University. Therefore, the court concluded, because Dr. Riccitelli was not a University employee, he was not entitled to the due process protections of § 36.15.

The trial court based its conclusion, in part, on testimony that subsequently proved critical to the issue in this appeal. Dr. Broekhuizen, responding to questions from Dr. Riccitelli's counsel and the court, testified:

Q Now, doctor, you've also discussed the fact that this program is operated in conjunction with Sinai Samaritan Hospital and its rules and regulations; correct?

A I've gone farther than that. This is Sinai Samaritan's medical program. And wherever I have made decisions and communications, I've done that as a program director right under the assumption that I'm acting on behalf of Sinai Samaritan Medical Center, not on--not in my role as U.W. faculty member.

There is not--there is no confusion among faculty and residents about, you know, who is the residency program, what is the residency program like, and what is being asked here. There is--there might be the confusion that's being created here is by ultimate...

To continue reading

Request your trial
2 cases
  • Riccitelli v. Broekhuizen
    • United States
    • Wisconsin Supreme Court
    • June 24, 1999
    ...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, 585 N.W.2d 709. We accepted Drs. Broekhuizen and Hagarty's petition for ¶11 On review of a summary judgment order, we employ the same method......
  • Powell v. Milwaukee Area Technical College Dist. Bd.
    • United States
    • Wisconsin Court of Appeals
    • January 20, 1999
    ...we instructed counsel to address the "possible application of the 'dual persona' doctrine as discussed in Riccitelli v. Broekhuizen, 221 Wis.2d 533, 585 N.W.2d 709 (Ct.App.1998)." Upon review of the record we are satisfied that the dual persona role is inapplicable under our facts as the du......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT