Seitzinger v. Community Health Network, No. 02-2002.

• Court: United States State Supreme Court of Wisconsin
• Citation: 270 Wis.2d 1,2004 WI 28,676 N.W.2d 426
• Decision Date: 25 March 2004
• Parties: Michael SEITZINGER, M.D., Plaintiff-Appellant, v. COMMUNITY HEALTH NETWORK and Berlin Memorial Hospital, Defendants-Respondents.
• Docket Number: No. 02-2002.

270 Wis.2d 1
2004 WI 28
676 N.W.2d 426

Michael SEITZINGER, M.D., Plaintiff-Appellant,
v.
COMMUNITY HEALTH NETWORK and Berlin Memorial Hospital, Defendants-Respondents

No. 02-2002.

Supreme Court of Wisconsin.

Oral argument November 4, 2003.

Decided March 25, 2004.

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For the plaintiff-appellant there were briefs by Richard F. Rice and Fox & Fox S.C., Madison, and oral arguments by Nicholas Kardar, M.D.

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For the defendants-respondents there was a brief by James W. Greer, Dennis J. Purtell and Whyte Hirschboeck Dudek S.C., Milwaukee, and oral arguments by James W. Greer.

An amicus curiae brief was filed by George Burnett, Green Bay, and Thomas Basting, Sr., Madison, on behalf of the State Bar of Wisconsin.

¶ 1. N. PATRICK CROOKS, J.

This case is before us on certification from the court of appeals pursuant to Wis. Stat. § (Rule) 809.61 (2001-02).¹ Michael Seitzinger, M.D. (Seitzinger) appeals an order of the circuit court, which denied his motion for declaratory judgment and Nicholas Kadar, M.D., J.D.'s (Kadar) petition to be admitted pro hac vice. The court of appeals certified two issues to this court. The first issue certified is whether the legal representation of a physician at a peer review hearing constitutes the practice of law, thereby requiring representation by a licensed Wisconsin attorney. If we answer in the affirmative to the first issue, the second issue is whether there should be an exception to the unauthorized practice of law statute, Wis. Stat. § 757.30 (2001-02),² to allow for such unlicensed representation.³

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¶ 2. While we do not answer the first issue certified as to all peer review hearings, we decide in this case that, as a matter of contract, the words "legal counsel" as used in the contract in question are reasonably interpreted to apply only to an attorney licensed to practice law in Wisconsin. We hold that Community Health Network's (CHN) interpretation of the words "legal counsel" in the Corrective Action Procedures and Fair Hearing Plan Addendum to the Medical Staff Bylaws of the Hospital (Bylaws) as referring to an attorney licensed to practice law in Wisconsin was a reasonable one. The general rule is that hospital bylaws can constitute a contract between a hospital and its staff members such as Seitzinger. Since the reasonable interpretation of the contract would require that a person representing Seitzinger be an attorney licensed in Wisconsin, and since the activities that it is reasonable to anticipate Kadar would be engaging in on behalf of Seitzinger would, at the very least, focus on legal issues, we conclude that the circuit court properly denied Seitzinger's motion for declaratory judgment and the petition for Kadar's admission pro hac vice

¶ 3. While we find that Kadar's likely activities on behalf of Seitzinger would, at the very least, focus on legal issues, it is not necessary that we determine whether such representation would constitute the practice of law, since the reasonable interpretation of the contract resolves this case. A reasonable person would

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understand that the words "legal counsel" in the Bylaws mean an attorney licensed to practice law in Wisconsin

¶ 4. We further decline to construct an interpretation, or create an exception, to Wis. Stat. § 757.30 that would permit Kadar, an attorney unlicensed in this state, to represent Seitzinger at his peer review hearing. If Seitzinger appears with an attorney, he must appear with an attorney licensed to practice law in Wisconsin, consistent with the reasonable interpretation of the contract.

I

¶ 5. Seitzinger is a board certified obstetrician-gynecologist licensed to practice medicine in Wisconsin. CHN is a not-for-profit Wisconsin corporation that owns and operates Berlin Hospital (Hospital). Seitzinger was employed with CHN from October 1995 to July 2001.

¶ 6. On May 14, 2001, CHN indefinitely suspended all of Seitzinger's clinical privileges at the Hospital pursuant to Bylaw § 1.4.⁴ CHN then sent Seitzinger a letter detailing his right to request his choice of an expedited or standard peer review hearing and explaining the hearing process generally. In the letter, CHN informed Seitzinger that his suspension

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was based on cases in which he "demonstrated serious errors in the preoperative, perioperative and postoperative management of patients (and including surgical complications and follow-up care post-discharge) with the potential for severe harm to the patients." After receiving this letter, Seitzinger timely requested a peer review hearing

¶ 7. In order to provide some insight into the hearing process, it is necessary to give a brief explanation of the procedures involved. In accordance with the Bylaws, the hearing is held before a hearing committee, which is comprised of three to five active members of the medical staff. Prior to the hearing, the affected practitioner is given a list of seven individuals who may serve on the hearing committee. The affected practitioner is permitted to strike two of the names. During the hearing, pursuant to Bylaw § 3.4, both parties may examine witnesses, introduce exhibits, and submit a written statement at the end of the hearing.⁵

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¶ 8. Bylaw § 3.3 addresses representation at the peer review hearing. Bylaw § 3.3(a) explains that the affected practitioner is entitled to representation by a member of the active medical staff in good standing.⁶ Alternatively, Bylaw § 3.3(b) states that the affected practitioner may be represented by legal counsel at the peer review hearing.⁷

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¶ 9. Seitzinger hired Kadar to assist him at the peer review hearing. Kadar is a board certified obstetrician-gynecologist, a board certified subspecialist in gynecologic oncology, and a member of the New Jersey Bar. CHN objected to Kadar's representation of Seitzinger at the peer review hearing, stating that, since Kadar was not a member in good standing of CHN's medical staff, that he needed to be licensed to practice law in Wisconsin in order to represent Seitzinger.

¶ 10. Seitzinger filed a complaint for declaratory judgment in Green Lake County Circuit Court, seeking a declaration by the court that Kadar could represent him at the peer review hearing. In the alternative, Kadar filed a petition for admission pro hac vice for the hospital hearing and appellate review proceedings. Kadar requested that he be allowed to appear with Seitzinger at the peer review hearing and stated that Kadar would associate with a licensed Wisconsin attorney at those proceedings.⁸ Seitzinger subsequently amended his complaint to add a second claim. The second claim alleged that CHN committed a breach of contract,

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which arose out of the Medical Executive Committee's recommendation that Seitzinger's clinical privileges be terminated.

¶ 11. CHN filed a motion to dismiss Seitzinger's first claim for failure to state a claim upon which relief can be granted. CHN alleged that Kadar's representation of Seitzinger at the hearing would violate Wis. Stat. § 757.30 because it would allow Kadar to practice law in Wisconsin, even though he is not licensed to do so by this state. With respect to Seitzinger's second claim, CHN filed a motion for summary judgment on the basis that Seitzinger was time-barred from asserting that claim.

¶ 12. The circuit court concluded that Kadar's representation of Seitzinger at the peer review hearing would constitute the unauthorized practice of law under Wis. Stat. § 757.30(2). The circuit court noted that at the peer review hearing Kadar would function as Seitzinger's legal counsel, as that was the only role the Bylaws permitted him to assume. The circuit court further stated that it did not have the authority to admit Kadar pro hac vice. Supreme Court Rule 10.03(4) (2002)⁹ allows a judge to admit an attorney for appearances in "his or her court" and to participate "in association with an active member of the state bar of Wisconsin. . . ." The circuit court concluded that because a judge could only admit an attorney for an appearance in the judge's own court, and because the rule contemplates the active involvement of an attorney licensed to practice law in Wisconsin, Seitzinger failed two conditions set forth by SCR 10.03(4). Thus, the

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circuit court denied Seitzinger's motion for declaratory judgment and Kadar's petition for admission pro hac vice.

¶ 13. Regarding Seitzinger's second claim, the circuit court noted that there was no genuine issue of material fact, as Seitzinger failed to request a hearing regarding the termination of his hospital privileges within the 45-day time limit set by the Bylaws. Thus, the circuit court concluded that CHN was entitled to judgment as a matter of law. Seitzinger appealed the circuit court's decision with respect to his first claim.

¶ 14. As stated previously, the court of appeals certified two issues to this court. The first issue certified is whether the legal representation of a physician at a peer review hearing constitutes the practice of law, thereby requiring representation by a licensed Wisconsin attorney. If we answer in the affirmative to the first issue, the second issue is whether there should be an exception to the unauthorized practice of law statute, Wis. Stat. § 757.30, to allow for such unlicensed representation.

II

¶ 15. In its brief, CHN asserts that, because Seitzinger failed timely to request a hearing regarding the termination of his hospital privileges, his request for a hearing is now moot. Even if Seitzinger's suspension is lifted, CHN points out that his privileges will still be terminated.

¶ 16. Seitzinger asserts that this case is not moot because the underlying controversy is whether CHN's suspension of his hospital privileges was justified. Seitzinger argues that this court's decision as to whether Kadar may represent him at the peer review hearing

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will directly affect...