Snopek v. Lakeland Medical Center, 96-3645

• Decision Date: 21 January 1999
• Docket Number: No. 96-3645,96-3645
• Parties: Belinda SNOPEK and Russell Snopek, Plaintiffs-Respondents, v. LAKELAND MEDICAL CENTER, Defendant-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

Page 19

588 N.W.2d 19

223 Wis.2d 288

Belinda SNOPEK and Russell Snopek, Plaintiffs-Respondents, v. LAKELAND MEDICAL CENTER, Defendant-Appellant-Petitioner.

No. 96-3645.

Supreme Court of Wisconsin.

Argued Sept. 10, 1998.

Decided Jan. 21, 1999.

For the defendant-appellant-petitioner there were briefs by Lori Gendelman, Jeffrey J.P. Conta and Otjen, Van Ert, Stangle, Lieb Weir, S.C., Milwaukee and oral argument by Lori Gendelman.

For the plaintiffs-respondents there was a brief by Richard J. Steinberg, Richard D. Steinberg and Steinberg Law Offices, S.C Brookfield and oral argument by Richard D. Steinberg.

¶1 WILLIAM A. BABLITCH, J

Lakeland Medical Center (Lakeland), a medical facility previously owned by Walworth County, seeks review of a published court of appeals' decision ¹ which held that Belinda Snopek was not time-barred from suing Lakeland for an injury she sustained in 1979 but for which she did not bring suit until discovery of the injury in 1995. At the time of Snopek's injury in 1979, a plaintiff had to give a governmental entity notice of the injury within 120 days after the injury-causing event before bringing an action against that governmental entity. In 1986 the legislature amended the statute to require a notice of injury for medical malpractice claims within 180 days from when the injury was discovered or should have been discovered. The issue presented by this case is whether this 1986 legislative amendment can be applied retroactively. Because the legislature clearly stated its intent that the amendment would only apply to injuries occurring after the date of enactment of the statute, we hold that the legislative amendment requiring notice of injury within 180 days of discovery can be applied prospectively only. Accordingly, we reverse the court of appeals' decision.

¶2 The facts underlying this action are these. On June 20, 1979, Snopek was treated at Lakeland for injuries she sustained in an automobile accident. The parties do not dispute that at that time, Lakeland was owned and operated by Walworth County and therefore was a governmental subdivision or agency for purposes of the notice of injury statute. Accordingly, before a party could bring an action against Lakeland, Lakeland as a governmental agency, was entitled to notice of injury.

¶3 Snopek had injured her knee in the automobile accident. From the time of the accident until 1995 Snopek had intermittent pain, swelling and weakness in her knee. In February 1995, during arthroscopic knee surgery, the surgeon discovered a piece of plastic lodged in Snopek's knee. Because Snopek's knee improved considerably after removing the plastic, her physician concluded in June 1995 that her knee problems had been caused by the plastic left imbedded in her knee from the accident in 1979.

¶4 On July 31, 1995, Snopek filed a Request for Mediation with the Medical Mediation Panel. Later, on December 8, 1995, Snopek filed a summons and complaint alleging that Lakeland was negligent in its acts and omissions in Snopek's care. In its answer Lakeland alleged that Snopek failed to file a notice of injury and notice of claim and therefore her claim was barred because she failed to timely meet a condition precedent. Lakeland then filed a motion for summary judgment. Lakeland asserted that the notice statute in effect at the time of the accident, Wis. Stat. § 895.43 (1977) (reprinted below), ² which required the plaintiff to give notice of injury within "120 days after the happening of the event giving rise to the claim," governed this action. Snopek countered that the applicable notice statute was the one in effect at the time she discovered her injury, Wis. Stat. § 893.80(1m) (1993-94) (reprinted below), ³ which requires notice of injury within 180 days from when the plaintiff discovers or should have discovered her injury.

¶5 The Circuit Court for Walworth County, Judge James L. Carlson presiding, determined that Wis. Stat. § 893.80(1m), the statute in effect when Snopek discovered her injury, was controlling.

¶6 The court of appeals affirmed the circuit court's order. Snopek v. Lakeland Medical Center, 215 Wis.2d 539, 540, 573 N.W.2d 213 (Ct.App.1997). The court of appeals reasoned that the notice statute is a procedural condition precedent to bringing or maintaining an action against the governmental entities listed in Wis. Stat. § 893.80 and therefore can be applied retroactively. See id. at 540, 573 N.W.2d 213. This court accepted Lakeland's petition for review of the court of appeals' decision.

¶7 The issue presented by this case is whether the 1986 amendment which changed the prescribed time within which to give notice of injury for medical malpractice claims from 120 days after the injury-causing event to 180 days after the injury is discovered or should have been discovered, can be applied retroactively. The question of whether Wis. Stat. § 893.80(1m) can be applied retroactively is a question of law which this court reviews de novo. In re Marriage of Schulz v. Ystad, 155 Wis.2d 574, 596, 456 N.W.2d 312 (1990) (citing Chappy v. LIRC, 136 Wis.2d 172, 180, 401 N.W.2d 568 (1987)).

¶8 Generally, statutes are applied prospectively. Schulz, 155 Wis.2d at 597, 456 N.W.2d 312. "Strong common-law tradition defines the legislature's primary function as declaring law to regulate future behavior. Thus, as a matter of justice, no law should be enforced before people can learn of its existence and conduct themselves accordingly. In short, retroactivity disturbs the stability of past transactions." Id. (citing Employers Ins. v. Smith, 154 Wis.2d 199, 453 N.W.2d 856 (1990)).

¶9 There are, however, exceptions to this general rule. A statute may be applied retroactively if: 1) by express language or by necessary implication, the statutory language reveals legislative intent that it apply retroactively, Schulz, 155 Wis.2d at 597, 456 N.W.2d 312; or 2) the statute is remedial or procedural rather than substantive, Gutter v. Seamandel, 103 Wis.2d 1, 17-18, 308 N.W.2d 403 (1981). If a statute falls under the second exception that is, it is remedial or procedural it nonetheless cannot be applied retroactively if the legislature clearly expressed its intent that it be applied prospectively only, or retroactive application would impair contracts or vested rights. Modica v. Verhulst, 195 Wis.2d 633, 643, 536 N.W.2d 466 (Ct.App.1995).

¶10 The parties in this case do not argue, and we find no support for the first exception to prospective application of Wis. Stat. § 893.80(1m). Section 893.80(1m) contains no express language, nor is there a necessary implication, that the statute apply retroactively. See, e.g., Schulz, 155 Wis.2d at 597, 456 N.W.2d 312.

¶11 Snopek argues that the notice of injury statute, Wis. Stat. § 893.80(1m), applies retroactively because it falls within the second exception to prospective application it is a condition precedent which is procedural. Lakeland agrees that the notice of injury statute is a condition precedent. However, Lakeland asserts that the change in the time in which plaintiffs must act, from 120 days from the injury-causing event [223 Wis.2d 295] to 180 days after discovery of the injury, is substantive and therefore applied prospectively only.

¶12 We agree that the notice of injury statute is a condition precedent. A condition precedent limits " 'the time within which a certain prescribed act, necessary to the enforcement of [the plaintiff's] cause of action, shall be done.' " Ocampo v. Racine, 28 Wis.2d 506, 509, 137 N.W.2d 477 (1965) (quoting Troschansky v. Milwaukee E.R. & L. Co., 110 Wis. 570, 571, 86 N.W. 156 (1901)). It is well-established that the notice of injury statute which sets the time (previously 120 days from the injury-causing event and now 180 days from the discovery of the injury) within which a certain prescribed act (notice of injury) shall be done, is a condition precedent to the plaintiff's right to recover from a governmental entity such as county-owned Lakeland. Ocampo, 28 Wis.2d at 508-10, 137 N.W.2d 477. Failure of a party to fulfill the procedure of giving a governmental entity a notice of injury within the prescribed time results in such party losing the right to proceed with an action against the governmental entity. Id. (citing Troschansky, 110 Wis. at 571, 86 N.W. 156). See also Modica, 195 Wis.2d at 643, 536 N.W.2d 466.

¶13 A procedural statute is usually an exception to the general rule that a statute is applied prospectively. See Gutter, 103 Wis.2d at 17-18, 308 N.W.2d 403. However, we must further determine whether the legislature clearly expressed its intent that the statute apply prospectively only. See Modica, 195 Wis.2d at 643, 536 N.W.2d 466.

¶14 When the legislature created Wis. Stat. § 893.80(1m) in 1985 Wis. Act 340, it clearly expressed its intent that the statute be applied prospectively only. In a non-statutory provision entitled "Initial applicability" the legislature specified that § 893.80(1m) "first applies to claims arising from occurrences on the effective date of this subsection." 1985 Wis. Act 340, § 75(14). In other words, § 893.80(1m), requiring notice of injury within 180 days from when the injury was, or should have been discovered, first applies to occurrences happening on the effective date of the act, June 14, 1986. Although the legislature did not define "occurrences," we determine that, as in most insurance contracts, "occurrence" refers to the event or accident which causes harm. See, e.g., Kremers-Urban Co. v. American Employers Ins., 119 Wis.2d 722, 737-40, 351 N.W.2d 156 (1984); Welter v. Singer, 126 Wis.2d 242, 248, 376 N.W.2d 84 (Ct.App.1985). By specifying the initial applicability of § 893.80(1m), the legislature clarified that the notice conditions to bringing and maintaining an action for medical malpractice against the governmental entities listed in the statute would apply prospectively only.

¶15 Our conclusion is supported...