Riccitelli v. Broekhuizen, No. 98-0329-FT

CourtUnited States State Supreme Court of Wisconsin
Citation595 N.W.2d 392,227 Wis.2d 100
Docket NumberNo. 98-0329-FT
Parties135 Ed. Law Rep. 817 Guy RICCITELLI, M.D., Plaintiff-Appellant, v. Fredrik BROEKHUIZEN, M.D. and Carole Hagarty, R. N., Ph.D., Defendants-Respondents-Petitioners, Aurora Health Care, Inc., Sinai Samaritan Medical Center, Inc. and Alan M. Wagner, M.D., Defendants.
Decision Date24 June 1999

Page 392

595 N.W.2d 392
135 Ed. Law Rep. 817
Guy RICCITELLI, M.D., Plaintiff-Appellant,
v.
Fredrik BROEKHUIZEN, M.D. and Carole Hagarty, R. N., Ph.D.,
Defendants-Respondents-Petitioners,
Aurora Health Care, Inc., Sinai Samaritan Medical Center,
Inc. and Alan M. Wagner, M.D., Defendants.
No. 98-0329-FT.
Supreme Court of Wisconsin.
Argued June 2, 1999.
Decided June 24, 1999.

Page 394

For the defendants-respondents-petitioners the cause was argued by David T. Flanagan, assistant attorney general, with whom on the briefs was James E. Doyle, attorney general.

For the plaintiff-appellant there was a brief by Mark J. Goldstein, and Padway & Padway, Ltd., Milwaukee and oral argument by Mark J. Goldstein.

Amicus curiae was filed by Edward E. Robinson and Warshafsky, Rotter, Tarnoff, Reinhardt & Bloch, S.C., Milwaukee for the Wisconsin Academy of Trial Lawyers.

Page 395

¶1 JON P. WILCOX, J.

The defendants, Fredrik Broekhuizen, M.D., and Carole Hagarty, R.N., Ph.D, seek review of a decision of the court of appeals 1 subjecting them to tort liability under the "dual persona" doctrine for actions arising out of their affiliation with Sinai Samaritan Medical Center. Even though the plaintiff, Dr. Riccitelli, failed to file a timely notice of claim under Wis. Stat. § 893.82(3), the court of appeals held that Drs. Broekhuizen and Hagarty, faculty members of the University of Wisconsin-Madison Medical School who were assigned to Sinai Samaritan Medical Center pursuant to an affiliation agreement, could be sued for their work as director and associate director, respectively, of a residency program at Sinai Samaritan Medical Center because they possessed "dual personas," a doctrine borrowed from worker's compensation law. We do not agree. We further reject Dr. Riccitelli's estoppel claims, as well as his assertion that the notice of claim statute violates his equal protection and due process rights. The decision of the court of appeals is reversed.

I.

¶2 For purposes of this appeal, the facts are not in dispute. In June 1991, Dr. Riccitelli was accepted in a four-year obstetrics and gynecology (OB-GYN) residency training program operated by Sinai Samaritan Medical Center (Sinai Samaritan) in Milwaukee. Dr. Broekhuizen, a member of the University of Wisconsin Medical School (U.W. Medical School) faculty, was the program director. Dr. Hagarty, an assistant professor at the U.W. Medical School, was the assistant director.

¶3 The residency program existed under an "Affiliation Agreement" between the Board of Regents of the University of Wisconsin and Aurora Health Care, Inc. (Aurora), which operates Sinai Samaritan. Under the agreement, members of the U.W. Medical School faculty were to provide clinical and administrative services, teaching services for graduate medical education, continuing medical education, and other health science education. The U.W. Medical School was responsible for the recruitment and maintenance of quality faculty. Decisions on full-time faculty appointments, with either the Center for Health Sciences faculty, the clinical faculty or the tenured or tenure-track faculty, were to be made by the U.W. Medical School, with consultation from the President of Aurora; clinical and administrative assignments of the full-time faculty were to be jointly approved by the Dean of the U.W. Medical School and the President of Aurora; faculty members assigned to Sinai Samaritan were required to be qualified members of the medical staff where assigned; and faculty appointments were to be governed by University policy and procedures concerning appointments to the U.W. Medical School.

¶4 Also under the agreement, the State of Wisconsin was to provide liability protection, pursuant to Wis. Stat. §§ 895.46 and 893.82 (1989-90), for faculty participating in the U.W. Medical School educational programs at Aurora institutions on a full-time basis for acts within the scope of their employment (activities contemplated by the Agreement). The agreement explicitly directed that the statutory notification and claim procedures of § 893.82 (1989-90) be utilized for claims against the Board of Regents, or any of its employees or students.

¶5 Dr. Riccitelli's four-year residency was renewed annually. During Dr. Riccitelli's fourth year, he was notified by the Resident Evaluation Committee (Committee) that it would not certify his completion of the residency program. One month later, in April 1995, Dr. Riccitelli was notified that "in order to complete his residency, [he] must participate in a three month probationary period followed by a six (6)

Page 396

month remediation program." Despite his participation, in September 1995, the Committee voted to terminate Dr. Riccitelli from the residency program.

¶6 Dr. Riccitelli immediately sought an injunction barring his termination, as well as compensatory and punitive damages. 2 The complaint stated that Dr. Broekhuizen was a professor and the chairman and program director for OB-GYN Department at the U.W. Medical School Milwaukee clinical campus, and in that capacity, he was head of the residency program for the U.W. Medical School Milwaukee clinical campus operated in conjunction with Aurora and Sinai Samaritan. Dr. Riccitelli alleged that as a resident physician in the OB-GYN Department at the U.W. Medical School Milwaukee clinical campus, he held an academic/professional staff appointment and was, therefore, entitled to the procedural guarantees provided state employees under Wis. Stat. § 36.15(3)(1993-94).

¶7 In the course of the injunction hearing on Dr. Riccitelli's employment status, Dr. Broekhuizen testified that the residency program was Sinai Samaritan's medical program, and that as program director he acted on behalf of Sinai Samaritan and not in his role as a U.W. faculty member. When asked by Dr. Riccitelli's counsel whether the affiliation with the University was an essential component of the residency program, Dr. Broekhuizen replied "it's essential for me, since [the affiliation with the University is] the reason I'm there. ... but it's not essential for the residency program to have a U.W. affiliation." Dr. Broekhuizen further explained that he wears three, sometime overlapping, hats as a practicing physician, as an OB-GYN residency program director, and as a U.W. Medical School faculty member.

¶8 Following the evidentiary hearing, the Milwaukee County Circuit Court, the Honorable John DiMotto, found that residents, such as Dr. Riccitelli, in the OB-GYN residency program were solely employees of Sinai Samaritan, and were not granted appointments as academic staff with the U.W. Medical School. Because the residency program was run by Sinai Samaritan, and because Dr. Riccitelli was not a University employee, the circuit court denied Dr. Riccitelli injunctive relief. Following the dismissal of Dr. Riccitelli's request for an injunction, the Committee terminated him from the residency program.

¶9 In August 1997, Dr. Riccitelli filed the current action, alleging, among other claims, intentional interference with contract/hindrance of contract on the part of Drs. Broekhuizen and Hagarty. Drs. Broekhuizen and Hagarty moved to dismiss, arguing that they were employees of the University, and that Dr. Riccitelli's failure to comply with the notice of claim statute, Wis. Stat. § 893.82 (1995-96), 3 required dismissal. 4 The Milwaukee County Circuit Court, the Honorable John A. Franke, treating the motion as one for summary judgment, agreed that § 893.82 was applicable, and that it was not complied with; the court thereby dismissed Drs. Broekhuizen and Hagarty as defendants in the action. Dr. Riccitelli appealed.

¶10 A majority of the court of appeals reversed. The court concluded that Drs. Broekhuizen and Hagarty were employees

Page 397

and/or agents of both the U.W. Medical School and Aurora/Sinai; therefore, they each had a "dual 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 review.

II.

¶11 On review of a summary judgment order, we employ the same methodology, set forth in Wis. Stat. § 802.08(2), as do the circuit courts and the court of appeals. Green Spring Farms v. Kersten, 136 Wis.2d 304, 315, 401 N.W.2d 816 (1987). Under § 802.08(2), summary judgment shall be granted only if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."

III.

¶12 The issue in this case is whether Dr. Riccitelli's failure to timely file a notice of claim with the state, pursuant to Wis. Stat. § 893.82, mandates dismissal of Drs. Broekhuizen and Hagarty from this action. Section 893.82(3) provides in part:

[N]o 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....

¶13 It is undisputed that Dr. Riccitelli failed to comply with the notice statute. Regarding Dr. Hagarty, both Dr. Riccitelli and the court of appeals insist that she is similarly situated with Dr. Broekhuizen regarding her employment status. Riccitelli, 221 Wis.2d at 536 n. 1, 555-56, 585 N.W.2d 709. We do not agree. Dr. Hagarty, who was the associate director of the Sinai Samaritan OB-GYN residency program, was not a party in the 1995 case, and did not offer testimony regarding her associate director position. Dr. Hagarty's affidavit in which she...

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48 practice notes
  • Guzman v. St. Francis Hospital, Inc., No. 98-2710.
    • United States
    • Court of Appeals of Wisconsin
    • December 19, 2000
    ...ambiguous. ¶ 38. The constitutionality of a statute also presents a question of law, which we review de novo. Riccitelli v. Broekhuizen, 227 Wis. 2d 100, 119, 595 N.W.2d 392 (1999). Statutes are presumed to be constitutional. Id. As the supreme court has explained: One who challenges a stat......
  • State v. Wood, No. 2007AP2767-CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • March 19, 2010
    ...Id. That presumption and burden apply to facial as well as to as-applied constitutional challenges. See, e.g., Riccitelli v. Broekhuizen, 227 Wis.2d 100, 119, 595 N.W.2d 392 (1999) (stating presumption and burden for an as-applied due process challenge); Hansford, 219 Wis.2d at 234, 580 N.W......
  • Rouse v. Theda Clark Medical Center, Inc., No. 2005AP2743.
    • United States
    • Wisconsin Supreme Court
    • July 6, 2007
    ..."investigate a claim against an employee, to avoid needless litigation, and to settle all reasonable claims." Riccitelli v. Broekhuizen, 227 Wis.2d 100, 120, 595 N.W.2d 392 (1999); see also Thorp, 235 Wis.2d 610, ¶ 23, 612 N.W.2d ¶ 20 Wisconsin Stat. § 893.80 is entitled "Claims against gov......
  • Porter v. State, No. 2016AP1599
    • United States
    • United States State Supreme Court of Wisconsin
    • June 27, 2018
    ...we presume the anti-combination laws are constitutional. Aicher, 237 Wis. 2d 99, ¶ 18, 613 N.W.2d 849 ; Riccitelli v. Broekhuizen, 227 Wis. 2d 100, 119, 595 N.W.2d 392 (1999). "The court indulges every presumption to sustain the law if at all possible, and if any doubt exists about a statut......
  • Request a trial to view additional results
48 cases
  • Guzman v. St. Francis Hospital, Inc., No. 98-2710.
    • United States
    • Court of Appeals of Wisconsin
    • December 19, 2000
    ...ambiguous. ¶ 38. The constitutionality of a statute also presents a question of law, which we review de novo. Riccitelli v. Broekhuizen, 227 Wis. 2d 100, 119, 595 N.W.2d 392 (1999). Statutes are presumed to be constitutional. Id. As the supreme court has explained: One who challenges a stat......
  • State v. Wood, No. 2007AP2767-CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • March 19, 2010
    ...Id. That presumption and burden apply to facial as well as to as-applied constitutional challenges. See, e.g., Riccitelli v. Broekhuizen, 227 Wis.2d 100, 119, 595 N.W.2d 392 (1999) (stating presumption and burden for an as-applied due process challenge); Hansford, 219 Wis.2d at 234, 580 N.W......
  • Rouse v. Theda Clark Medical Center, Inc., No. 2005AP2743.
    • United States
    • Wisconsin Supreme Court
    • July 6, 2007
    ..."investigate a claim against an employee, to avoid needless litigation, and to settle all reasonable claims." Riccitelli v. Broekhuizen, 227 Wis.2d 100, 120, 595 N.W.2d 392 (1999); see also Thorp, 235 Wis.2d 610, ¶ 23, 612 N.W.2d ¶ 20 Wisconsin Stat. § 893.80 is entitled "Claims against gov......
  • Porter v. State, No. 2016AP1599
    • United States
    • United States State Supreme Court of Wisconsin
    • June 27, 2018
    ...we presume the anti-combination laws are constitutional. Aicher, 237 Wis. 2d 99, ¶ 18, 613 N.W.2d 849 ; Riccitelli v. Broekhuizen, 227 Wis. 2d 100, 119, 595 N.W.2d 392 (1999). "The court indulges every presumption to sustain the law if at all possible, and if any doubt exists about a statut......
  • Request a trial to view additional results

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