Tamminen v. Aetna Cas. and Sur. Co.
| Citation | 327 N.W.2d 55,109 Wis.2d 536 |
| Decision Date | 30 November 1982 |
| Docket Number | No. 81-199,81-199 |
| Parties | Sue A. TAMMINEN and Leroy Tamminen, Plaintiffs-Appellants-Petitioners, v. AETNA CASUALTY AND SURETY CO., a foreign corporation, Gundersen Clinic, Ltd., a Wisconsin corporation, Dr. William A. Kisken, and Wisconsin Patients Compensation Fund, Defendants-Respondents. |
| Court | United States State Supreme Court of Wisconsin |
Irving D. Gaines, Milwaukee, for plaintiffs-appellants-petitioners; Maureen S. Komisar and Irving D. Gaines, S.C., Milwaukee, and David G. Anderson and Garvey, Anderson, Kelly & Ryberg, S.C., of counsel, Eau Claire, on brief.
Daniel T. Flaherty, La Crosse, argued, for defendants-respondents; Ellen M. Frantz and Johns, Flaherty & Gillette, S.C., La Crosse, on brief.
Thomas D. Bell and Doar, Drill & Skow, New Richmond, amicus curiae brief for Wisconsin Academy of Trial Lawyers.
This is a review of a decision of the court of appeals 1 which affirmed a judgment of the circuit court for La Crosse county, DENNIS G. MONTABON, circuit judge, which held that the medical malpractice claim of the plaintiff, Sue A. Tamminen, was barred by the statute of limitations.
On this review three component issues are presented. The first question is whether there is a conflict between sec. 655.04(6), Stats.1977, which provides that the applicable statute of limitations shall be tolled "until 30 days after the hearing panel issues its written decision," and sec. 655.19, 2 which provides that "any party to a panel hearing may, within 120 days after the date of an order made by a panel, commence an action for a trial in the circuit court." The second question is when the statute of limitations commences to run in a malpractice case when a portion of the negligence occurred more than three years before the commencement of the circuit court action but where it is alleged in the complaint and stated in affidavits submitted on summary judgment that the negligence was continuous during the entire course of treatment and a portion of the negligence occurred within the three-year period. The third question is whether an action in the circuit court may be maintained against the malpractice insurer and the Patients Compensation Fund when neither was made a party to the proceedings before the compensation panel.
We conclude, in agreement with the court of appeals, that there is no conflict between sec. 655.04(6) and sec. 655.19 and that both statutes must be complied with in order to commence a circuit court action.
We conclude that, where it is alleged and affidavits on summary judgment state that there is a continuing course of negligent treatment, but one cause of action or claim is stated; and, hence, if any portion of the continuing course of negligent treatment falls within the period of limitations, the entire cause of action is timely brought.
We also conclude that neither the insurer nor the Patients Compensation Fund need be joined in the proceedings before the compensation panel as a prerequisite to suing them in the circuit court. Because the court of appeals incorrectly concluded that the statute of limitations had run, we reverse its decision and remand the case for trial.
This case had its procedural origin when the plaintiff, Sue A. Tamminen, pursuant to ch. 655, subch. 2, Stats.1977, filed a "submission of controversy" with the administrator of the patients compensation panel, claiming that Dr. William A. Kisken and the Gundersen Clinic of La Crosse were guilty of malpractice in that they were negligent in respect to surgical, medical, and hospital care services in connection with gastric bypass surgery performed upon Sue Tamminen on November 4, 1975. 3
The "submission of controversy" was filed on October 30, 1978, and the final order of the panel was issued on September 26, 1979. The formal compensation panel decided that neither of the health care providers was negligent.
In accordance with sec. 655.19, Stats., a circuit court action was commenced by Tamminen on January 11, 1980, naming as defendants Kisken, the Gundersen Clinic, and Aetna Casualty and Surety Company, the health care providers' malpractice insurer. Subsequently, an amended complaint was filed on May 21, 1980, naming the Wisconsin Patients Compensation Fund as an additional defendant. The defendants moved to dismiss on the ground that the action was not commenced within the time permitted by sec. 893.205, Stats. and sec. 655.04(6). 4 Sec. 893.205, when read with prefatory sec. 893.14, requires that actions to recover damages for injuries to the person be commenced within three years after the cause of action has accrued. Sec. 655.04(6) tolls that applicable statute of limitations upon the filing of a submission of controversy with the patients compensation panel and further provides that the statute of limitations shall remain tolled until thirty days after the hearing panel issues its written decision.
Irrespective of when the statute of limitations would otherwise have run, Tamminen contends that her filing of a circuit court action on January 11, 1980, one hundred eight days after the panel's decision, was the timely bringing of her malpractice action. Tamminen asserts that sec. 655.19, in addition to sec. 655.04(6), tolls the statute of limitations; and she argues that, because under no view was her cause of action time-barred when she commenced the proceedings before the compensation panel, she had one hundred twenty days after the panel order to commence an action in the circuit court. Sec. 655.19 provides:
It is conceded by all parties that, when Tamminen filed her submission of controversy with the patients compensation panel on October 30, 1978, four days remained before the statute of limitations ran out on the earliest claimed negligent act of the defendant Kisken, the surgery performed on November 4, 1975. Tamminen asserts that, under sec. 655.19, having made a timely submission to the panel, she had one hundred twenty days following the panel's final order of September 26, 1979, to commence her malpractice action in circuit court. If, however, as the trial court and the court of appeals concluded, sec. 655.19 did not toll the period of limitations, then the statute of limitations was tolled for only thirty days following the panel's decision and the action would have had to be commenced within thirty-four days thereafter (including the plaintiff's credit for the four days that had not expired at the time of submission). Because the action was not commenced until January 11, 1980, the court concluded that the statute of limitations had expired as to all negligent acts or omissions which occurred prior to January 12, 1976. 5
Although we disagree with the trial and appeals courts' determination of when the three-year period of limitations commenced to run, we are in accord with the conclusion of both courts that only sec. 655.04(6) tolls the statute of limitations and that sec. 655.19 serves a separate purpose--that of giving finality to a panel decision after one hundred twenty days even though the period of limitations would not expire until later. Both statutes must be complied with.
Chapter 655 requires that an aggrieved patient file a malpractice claim with the administrator of the patients compensation panels prior to the bringing of any court action. State ex rel. Strykowski v. Wilkie, 81 Wis.2d 491, 261 N.W.2d 434 (1978). Sec. 655.04(6) provides that, when a claim or submission of controversy is filed with the administrator, the applicable statute of limitations ceases to run. Moreover, the statute of limitations is tolled or remains suspended until thirty days after the hearing panel issues its written decision. After the thirty-day period, the statute again commences to run.
The effect of the statute is that the limitations period cannot run out while the controversy is before the panel, and a claimant is thereafter given a thirty-day grace period plus the time which remained on the period of limitations at the time of the filing.
Although the meaning of this statute is clear on its face, the plaintiff claims that sec. 655.04(6) conflicts with sec. 655.19, which provides in the part relevant to this controversy:
"... any party to a panel hearing may, within 120 days after the date of an order made by a panel, commence an action for a trial in the circuit court ...."
Tamminen argues that this latter statute extends the period of limitations so that a plaintiff who has filed with the panel before the three-year period has run will always have one hundred twenty days after the panel order to commence a circuit court action no matter how little of the three-year limitations period remains when the submission of controversy was filed. Under the plaintiff's theory, a filing made with the panel on the last day of the period of limitations would be sufficient not only to allow the submission to the panel, but would also assure the claimant one hundred twenty days following the panel's written decision to commence a court action. Both the trial court and the court of appeals properly determined that this view was erroneous.
We have frequently said that courts should avoid finding conflict between statutory provisions unless the conflict is clear. We stated in Moran v. Quality Aluminum Casting Co., 34 Wis.2d 542, 553, 150 N.W.2d 137 (1967):
"It is a cardinal rule of statutory construction that conflicts between different statutes, by implication or otherwise, are not favored and will not be held to exist if they may otherwise be reasonably construed."
We find no...
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