Appeals court expands notice of claim statute in state medical malpractice case
Based on the state’s practice for delivering mail to the attorney general, a state appeals court has ruled that a notice of claims statute lacks practical meaning, expands it.
By Joe Forward, Legal Writer, State Bar of Wisconsin
Nov. 29, 2011 – A state appeals court refused to dismiss medical malpractice case based on a statute that demands claim notices against state employees, agents, or officers be sent to the attorney general at his or her “office in the capitol” by certified mail.
That’s because “service by certified mail to the attorney general’s capitol office never occurs, and cannot occur, regardless of how a claimant addresses a notice,” Judge Brian Blanchard wrote in his opinion for the District IV Wisconsin Court of Appeals.
Pursuant to Wis. Stat. 893.82(3), plaintiff Melissa Hines sent a notice of claim to the state’s attorney general alleging medical malpractice claims against several state-employed physicians. She sent the notice to the attorney general’s post office box, which is not in the state capitol.
But section 893.82(5) requires a claim notice be sent, before a civil action or proceeding is commenced, to the attorney general’s “office at the capitol.” Thus, the appellant physicians moved to dismiss the medical malpractice action based on non-compliance with 893.82(5).
However, the appeals court in Hines v. Resnick, 2011AP109 (Nov, 23, 2011), explained that enforcing “literal compliance with a statute when literal compliance is impossible would, of course, be an absurd and unreasonable result,” and denied the physicians’ motion.
Compliance is impossible because, under the system in place, acknowledgment or receipt of certified mail at the capitol office is impossible. All certified mail directed to the attorney general is delivered to the Main Street office, regardless of the address.
The court rejected the physicians’ argument that all mail must be specifically addressed to “114 East, State Capitol,” in order to distinguish potential notice of claims.
Under an appeals court ruling, it is acceptable to send notice of claims to the state attorney general, under Wis. Stat. § 893.82(5), to any of the following addresses:
- 114 East State Capitol, Madison, WI 53702-7857
- 17 West Main Street, Madison, WI 53703
- P.O. Box 7857, Madison, WI 53707-7857
“Instead, a notice is properly served if a claimant sends the notice by certified mail addressed to the attorney general at his or her capital office, Main Street office, or post office box, or any combination of those three addresses, assuming that the notice otherwise complies with § 893.82(5), …” Judge Blanchard wrote.
The court noted that the state’s mail practice, not the court’s interpretation of the statute, deprives the phrase “in the capitol” of practical meaning.
“As the circuit court explained, what has rendered the phrase ‘in the capitol’ surplusage is the attorney general’s chosen procedure for processing certified mail. There is no service in the capitol office,” Judge Blanchard wrote.
