Rouse v. Theda Clark Medical Center, Inc.

Citation2007 WI 87,735 N.W.2d 30
Decision Date06 July 2007
Docket NumberNo. 2005AP2743.,2005AP2743.
PartiesAaron T. ROUSE, Plaintiff-Appellant-Petitioner, Network Health Plan, Plaintiff, v. THEDA CLARK MEDICAL CENTER, INC., Christopher P. Hugo, M.D., Mark Westfall, D.O., OHIC Insurance Company, Thomas L. Tolly, M.D., Jeffrey S. Burkett, M.D. and Injured Patients & Families Compensation Fund, Defendants, University of Wisconsin Hospital & Clinics Authority, Patrick Keller, M.D., Scott Dull, M.D., Everett Hughes, M.D., Aaron Johnson, M.D., Physicians Insurance Company of Wisconsin, Inc., Defendants-Respondents.
CourtUnited States State Supreme Court of Wisconsin

For the plaintiff-appellant-petitioner there were briefs by J. Michael End, Jerome A. Hierseman, Lora A. Kaelber, and End, Hierseman & Crain, LLC, Milwaukee, and oral argument by J. Michael End.

For the defendants-respondents there were briefs by Michael B. Van Sicklen, Matthew D. Lee, and Foley & Lardner LLP, Milwaukee, and oral argument by Michael B. Van Sicklen.

An amicus curiae brief was filed by Linda V. Meagher and Habush, Habush & Rottier, S.C., Waukesha, and Rhonda L. Lanford and Habush, Habush & Rottier, S.C., Madison, on behalf of the Wisconsin Academy of Trial Lawyers.

An amicus curiae brief was filed by Charles D. Hoornstra, Madison, on behalf of the Board of Regents of the University of Wisconsin System.

An amicus curiae brief was filed on behalf of the Wisconsin Department of Justice by Bruce A. Olsen, Assistant Attorney General, with whom on the brief was J.B. Van Hollen, Attorney General.


This is a review of an unpublished court of appeals decision, Rouse v. Theda Clark Medical Center, Inc., No.2005AP2743, 297 Wis.2d 584, 724 N.W.2d 703, unpublished slip opinion (Wis.Ct.App. October 4, 2006). The court of appeals affirmed a judgment of the Calumet County Circuit Court, Donald A. Poppy, Judge. Judge Poppy dismissed with prejudice Aaron T. Rouse's (Rouse) action against the University of Wisconsin Hospital & Clinics Authority; Patrick Keller, M.D.; Scott Dull, M.D.; Everett Hughes, M.D.; Aaron Johnson, M.D.; and Physicians Insurance Company of Wisconsin, Inc. (collectively UWHCA)1 because Rouse failed to provide notice pursuant to Wis. Stat. § 893.80.2

¶ 2 This case presents one issue: Is the UWHCA, as a statutorily-created, public body corporate and politic, a "political corporation" for the purposes of § 893.80? We hold that the UWHCA is a "political corporation" because of the power and structure provided by the legislature in Wis. Stat. ch. 233. The circuit court properly dismissed Rouse's action against the UWHCA with prejudice.3 Accordingly, we affirm the court of appeals.


¶ 3 On May 19, 2001, Rouse was involved in a motor vehicle accident. The vehicle he was driving reportedly hit a tree, rolled repeatedly, and burst into flames. Rouse suffered multiple fractures and burns.

¶ 4 From the scene of the accident, Rouse was transported to Theda Clark Medical Center in Neenah, Wisconsin. After receiving some treatment, MedFlight transported Rouse to the University of Wisconsin Hospital and Clinics (UW Hospital) in Madison, Wisconsin. At UW Hospital, Rouse received further treatment.

¶ 5 Over three years after receiving treatment for his injuries, Rouse commenced a medical malpractice action against the UWHCA; Theda Clark Medical Center, Inc.; Christopher P. Hugo, M.D.; Mark Westfall, D.O.; OHIC Insurance Company; Thomas L. Tolly, M.D.; Jeffrey S. Burkett, M.D.; and Injured Patients & Families Compensation Fund.

¶ 6 The UWHCA filed a consolidated motion to dismiss. The UWHCA asserted that Rouse failed to serve the notice of claim required by Wis. Stat. § 893.80. In support of its motion, the UWHCA filed an affidavit from Rosemary Waitkus, Risk Management Analyst at the UWHCA. The affidavit stated that in her position she maintained the files for all notices of claims received by the UWHCA. The affidavit also stated that in reviewing the files she did not locate a notice of claim from Rouse.

¶ 7 In responding to the motion to dismiss, Rouse argued that § 893.80 did not apply to his case because the UWHCA does not fall within the scope of § 893.80. To support his position, Rouse also filed an affidavit and exhibits. The exhibits were the paramedics' report and the medical records from Theda Clark Medical Center and UW Hospital.

¶ 8 Because materials outside of the pleadings were submitted and considered by the court, the circuit court treated the UWHCA's motion to dismiss as a motion for summary judgment. In a written decision, it concluded that the UWHCA was a "political corporation" as set forth in § 893.80. The circuit court believed that the UWHCA's purpose is governmental in nature. In addition, the circuit court found it to be significant that the institution that preceded the UWHCA, the University of Wisconsin Hospital and Clinics, was protected by sovereign immunity. The circuit court stated that the legislature was aware of the predecessor's immunity and if the legislature intended for the immunity not to extend to the UWHCA it could have easily eliminated the immunity in the new legislation that created the UWHCA. The circuit court dismissed the action on its merits with prejudice. Costs of $950.73 were assessed against Rouse.

¶ 9 Rouse appealed the circuit court's decision to the court of appeals. The court of appeals filed a certification with this court. The certification noted that the legislature's treatment of the UWHCA led to conflicting views as to its nature. The court of appeals described the UWHCA as a body that possesses some qualities of a public entity, but that the legislature created the UWHCA as a way to make the University of Wisconsin Hospital and Clinics more competitive with private hospitals. In addition, the court of appeals noted that in Takle v. University of Wisconsin Hospital & Clinics Authority, 402 F.3d 768 (7th Cir.2005), the United States Court of Appeals for the Seventh Circuit concluded that the UWHCA did not have sovereign immunity. This court denied the certification.

¶ 10 Following this court's denial of the certification, the court of appeals affirmed the circuit court's order of dismissal. The court of appeals noted its concerns with the application of § 893.80 to the UWHCA, but found itself bound by the judicial notice this court took in Lewis v. Physicians Insurance Co. of Wisconsin, 2001 WI 60, ¶ 25 n. 18, 243 Wis.2d 648, 627 N.W.2d 484, that the UWHCA was one of only three government-owned hospitals in Wisconsin.

¶ 11 Rouse filed a petition for review with this court, which was granted.


¶ 12 We review a grant of summary judgment independently, while applying the same methodology as the circuit court. AKG Real Estate, LLC v. Kosterman, 2006 WI 106, ¶ 14, 296 Wis.2d 1, 717 N.W.2d 835. Summary judgment is appropriate if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Wis. Stat. § 802.08(2).

¶ 13 In this case, there is no genuine issue of material fact. We must interpret § 893.80 to determine whether the UWHCA is entitled to judgment as a matter of law. Statutory interpretation presents an issue of law that we review de novo. Megal Dev. Corp. v. Shadof, 2005 WI 151, ¶ 8, 286 Wis.2d 105, 705 N.W.2d 645.

¶ 14 Interpreting § 893.80 in this context presents an issue of first impression. Courts have addressed the predecessor of the notice of claim requirement in § 893.80. Townsend v. Wisconsin Desert Horse Ass'n, 42 Wis.2d 414, 423, 167 N.W.2d 425 (1969)(concluding the notice of claim requirement did not apply to the state or its agencies); Majerus v. Milwaukee County, 39 Wis.2d 311, 316, 159 N.W.2d 86 (1968) (stating that failure to comply with the notice of claim requirement was not a jurisdictional defect, if it was a defect at all). They have also addressed the term "political corporation," but in the context of obtaining personal jurisdiction. Hagen v. City of Milwaukee Employee's Ret. Sys. Annuity & Pension Bd., 2003 WI 56, ¶ 15, 262 Wis.2d 113, 663 N.W.2d 268 (citing Milwaukee City Charter § 36-09-6 for the proposition that the City of Milwaukee Employees' Retirement System/Annuity and Pension Board was a political corporation); Watkins v. Milwaukee County Civil Serv. Comm'n, 88 Wis.2d 411, 416-18, 276 N.W.2d 775 (1979)(interpreting Wis. Stat. § 801.11(4)(a), which deals with obtaining personal jurisdiction over a defendant that is a political corporation or body politic). Courts have also addressed the status of the UWHCA as an entity. Takle, 402 F.3d at 772-73 (concluding that the UWHCA did not have sovereign immunity); Lewis, 243 Wis.2d 648, ¶ 25 n. 18, 627 N.W.2d 484 (taking judicial notice that the UWHCA was a government-owned facility). However, a court has not previously interpreted the term "political corporation" in the context of § 893.80 and determined whether the UWHCA falls within its scope.

¶ 15 Our goal in interpreting statutory provisions is to give effect to the intent of the legislature, which we assume is expressed in the text of the statute. State ex rel. Kalal v. Cir. Ct. for Dane County, 2004 WI 58, ¶ 44, 271 Wis.2d 633, 681 N.W.2d 110. To this end, absent ambiguity in a statute, we do not resort to extrinsic aids of interpretation and instead apply the plain meaning of the words of a statute in light of its textually manifest scope, context, and purpose. Id., ¶¶ 45-46, 681 N.W.2d 110. A statute is ambiguous if it is susceptible to more than one reasonable understanding. Id., ¶ 47, 681 N.W.2d 110. If a statute is ambiguous, we may examine extrinsic sources in order to guide our interpretation. Id., ¶ 50, 681 N.W.2d 110.

¶ 16 Wisconsin Stat. § 893.80(1)(a) provides the following:

(1) Except as provided in subs. (1g), (1m), (1p) and (8), no action may be brought or maintained against any volunteer fire company organized under ch. 213, political corporation, governmental subdivision or agency thereof nor against any officer,...

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