Romero v. Schulze
| Decision Date | 19 March 1999 |
| Docket Number | No. 98-112,98-112 |
| Citation | 974 P.2d 959 |
| Parties | Rebecca ROMERO, Appellant (Plaintiff), v. Kenneth W. SCHULZE, M.D.; and Board of Trustees of Memorial Hospital of Carbon County, d/b/a Carbon County Memorial Hospital, Appellees (Defendants). |
| Court | Wyoming Supreme Court |
Michael Rosenthal, Dominique D.Y. Cone, and Martin L. Hardsocg of Hathaway, Speight & Kunz, LLC, Cheyenne, Wyoming, Representing Appellant.
George E. Powers, Jr. of Sundahl, Powers, Kapp & Martin, Cheyenne, Wyoming, Representing Appellees.
Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN and TAYLOR, * JJ.
Appellant Rebecca Romero appeals from the summary judgment which was entered in favor of Appellee Kenneth Schulze, M.D. and from the order which dismissed her lawsuit against Appellee Board of Trustees of Memorial Hospital of Carbon County, d/b/a Carbon County Memorial Hospital (the hospital).
We reverse and remand.
Romero presents the following issues for our review:
A. In light of prior representations to the public which indicated that Dr. Schulze was not a public employee, should the Appellees be allowed to invoke the Wyoming Governmental Claims Act?
B. Based upon the terms of his employment contract and his qualifications as a surgeon, was Dr. Schulze acting within the scope of his duties as defined in the Wyoming Governmental Claims Act?
C. Did Romero provide timely notice, as required by the Wyoming Governmental Claims Act, within two years of discovering her causes of action against Memorial Hospital?
Romero worked as a housekeeper for Rip Griffin's Truck Stop in Rawlins. On August 26, 1994, she accidentally cut the little finger of her right hand with a knife while she was opening a cardboard box. Romero was admitted to the hospital where she was examined by Dr. Schulze, an orthopedic surgeon. Dr. Schulze diagnosed two severed tendons and recommended immediate surgery. Romero consented to the surgery and signed the hospital's conditions-of-service form, which provided in part: "The undersigned recognizes that all doctors furnishing services to the patient, including the radiologist, pathologist, anesthesiologist and the like are independent contractors and are not employees or agents of the hospital." Dr. Schulze performed the surgery on Romero's finger later that evening.
In mid-September 1994, Dr. Schulze prescribed occupational therapy for Romero, which she participated in until she moved to Albuquerque, New Mexico, in mid-November of 1994. Despite the therapy, Romero began experiencing inflammation; swelling; stiffness; a flexion contracture (claw hand); and loss of motion, atrophy, and pain in the fingers of her right hand, wrist, and arm. Dr. Schulze provided ongoing medical care to Romero until her mid-November move.
Pursuant to a referral from Dr. Schulze, Romero began receiving medical treatment in mid-November from Laurel D. McGinty, M.D., an orthopedic surgeon and hand specialist in Albuquerque. She continued therapy but saw little improvement in her condition. On August 18, 1995, Dr. McGinty amputated Romero's right little finger.
Romero filed a lawsuit against Dr. Schulze on August 23, 1996, alleging negligence. After receiving an extension of time in which to respond, Dr. Schulze answered Romero's complaint on October 7, 1996. In paragraph 31 of Dr. Schulze's answer, he pleaded the following affirmative defense:
The Defendant, acting within the scope of his duties as an employee of Memorial Hospital of Carbon County, a governmental entity, affirmatively alleges immunity from tort liability except as specifically provided under the Wyoming Governmental Claims Act §§ 1-39-101 through 1-39-120 and hereby invokes all of the limitations, requirements and protection of said Act.
Romero subsequently served interrogatories, requests for production of documents, and requests for admission on Dr. Schulze. On November 19, 1996, Dr. Schulze responded to Romero's discovery requests and disclosed that he had been an employee of the hospital during the time he treated Romero. He also produced a copy of his 1994 employment contract.
Dr. Schulze moved for a summary judgment, claiming that Romero
a. last saw and treated with Dr. Schulze on October 27, 1994;
b. was discharged November 15, 1994, from the occupational therapy (ordered by Dr. Schulze) so as to move to New Mexico; and
c. formally became the patient of Dr. Laurel D. McGinty of Albuquerque, New Mexico thereafter.
He argued that, although Romero filed her lawsuit within the two-year statute of limitations for negligence actions, she failed to serve notice of her claim pursuant to the Wyoming Governmental Claims Act under which he claimed protection by virtue of his status as a public employee of a governmental entity.
Romero opposed Dr. Schulze's motion for a summary judgment, asserting, among other things, that Dr. Schulze's employment by the hospital was unknown to her and was not reasonably ascertainable before the two-year notice period expired. Romero argued that she was under the impression that Dr. Schulze was an independent contractor until November 19, 1996, just days after the two-year period had run, because all her interactions with Dr. Schulze supported that conclusion.
The district court granted Dr. Schulze's motion for a summary judgment. It reasoned that Dr. Schulze's affirmative defense put Romero on notice of his employment status on October 7, 1996, which gave her approximately five weeks to give notice of her claim. The district court decided that On May 13, 1997, Romero served the hospital with notices of claims concerning her independent allegations against the hospital of negligent hiring and supervision. She was granted leave to amend her complaint to add the hospital as a defendant on July 22, 1997, and she filed her first amended complaint on August 28, 1997, in which she pleaded, among other things, negligent hiring and negligent supervision causes of action against the hospital. The hospital subsequently filed a motion to dismiss Romero's complaint, claiming protection under the Wyoming Governmental Claims Act's two-year notice-of-claim requirement.
Romero's failure to serve a notice of her claim within the two-year period required by the Wyoming Governmental Claims Act deprived the district court of subject matter jurisdiction and, therefore, barred her cause of action against Dr. Schulze.
The district court granted the hospital's motion to dismiss Romero's complaint, finding that Romero did not give notice of her claim within the two-year period required by the Wyoming Governmental Claims Act. Romero appeals from the summary judgment which was entered in favor of Dr. Schulze and from the order which dismissed her causes of action against the hospital.
A summary judgment is appropriate when no genuine issue as to any material fact exists and the prevailing party is entitled to have a judgment as a matter of law. Estate of Noell v. Norwest Bank Wyoming, N.A., 960 P.2d 499, 500 (Wyo.1998). Because a dispute does not exist with regard to the material facts, the question presented for our review is one of law. Id. We do not accord special deference to the district court's decisions on matters of law. Id.
We will affirm a dismissal of a complaint only if the complaint
shows on its face that the plaintiff was not entitled to relief under any set of facts. In considering such a motion, the "facts alleged in the complaint are admitted and the allegations must be viewed in the light most favorable to plaintiffs." Dismissal is a drastic remedy, and is sparingly granted.
Mostert v. CBL & Associates, 741 P.2d 1090, 1092 (Wyo.1987) (quoting Moxley v. Laramie Builders, Inc., 600 P.2d 733, 734 (Wyo.1979)). See also Harshfield v. Harshfield, 842 P.2d 535, 536 (Wyo.1992).
The Wyoming Governmental Claims Act was enacted in response to the "inherently unfair and inequitable results which occur in the strict application of the doctrine of governmental immunity." Wyo. Stat. Ann. § 1-39-102(a) (Michie 1997). Under the Wyoming Governmental Claims Act, governmental entities and public employees acting within the scope of their duties are generally immune from liability for the torts they commit. Wyo. Stat. Ann. § 1-39-104(a) (Michie 1997). Certain enumerated activities are specific exceptions to the general immunity rule. Wyo. Stat. Ann. §§ 1-39-105 to -112 (Michie 1997). Section 1-39-110(a) provides that "[a] governmental entity is liable for damages resulting from bodily injury, wrongful death or property damage caused by the negligence of health care providers who are employees of the governmental entity ... while acting within the scope of their duties."
Before a suit can be brought against a governmental entity or public employee, however, certain procedures must be adhered to. Among those procedures is the notice-of-claims requirement, which provides in part:
(a) No action shall be brought under this act against a governmental entity unless the claim upon which the action is based is presented to the entity as an itemized statement in writing within two (2) years of the date of the alleged act, error or omission, except that a cause of action may be instituted not more than two (2) years after discovery of the alleged act, error or omission, if the claimant can establish that the alleged act, error or omission was:
(i) Not reasonably discoverable within a two (2) year period; or (ii) The claimant failed to discover the alleged act, error or omission within the two (2) year period despite the exercise of due diligence.
Wyo. Stat. Ann. § 1-39-113(a) (Michie 1997).
Romero alleges that she did not serve notice of her claim within the original two-year period because Dr. Schulze's status as a public employee was unknown to her and was not reasonably ascertainable before the two-year notice period expired. She maintains that, prior to receiving Dr....
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