View this article online: https://www.claimsjournal.com/news/midwest/2011/11/30/195879.htm
Talk about your legal technicalities.
Three state doctors are fighting a malpractice suit by arguing their patient sent a claim notice to the state Justice Department’s headquarters in Madison. The doctors contend state law says such notices must be mailed to the attorney general’s state Capitol office and nowhere else.
There’s just one problem. Nobody delivers certified mail to that office. All of the Justice Department’s incoming certified mail goes to its headquarters. A Madison judge shot down the doctors’ argument earlier this year, and on Wednesday the 4th District of Appeals killed it again.
“Enforcing literal compliance with a statute when literal compliance is impossible would, of course, be an absurd and unreasonable result,” the three-judge panel wrote.
Adding to the irony is the Justice Department itself is representing the doctors. A spokeswoman said agency attorneys are reviewing the decision.
According to court briefs and the appeal ruling, Melissa Hines claimed the doctors – Daniel Resnick, Kirkland Davis and Richard Kijowski – botched her back surgery at University of Wisconsin Hospital and Clinics in May 2007. She claimed she was forced to undergo surgery again less than two weeks after the first operation. She filed a claim notice, the precursor to a lawsuit, with the attorney general that October.
State law says anyone who files such a claim against a state employee must serve the attorney general with the written notice by certified mail in the attorney general’s Capitol office.
However, the Department of Administration retrieves all state agencies’ mail from the post office and delivers it. The agency delivers all certified mail addressed to the attorney general to the Justice Department’s main office across the street from the Capitol, regardless of whether it’s addressed to the Capitol office, the Justice Department’s main office or its post office box.
Hines addressed her notice to the Justice Department’s main office, adding the agency’s post office box on the address as well. The doctors and their DOJ attorney picked up on it and tried to persuade Dane County Circuit Judge John Markson to toss the case, saying she didn’t comply with the statutory requirement to send the notice to the agency’s Capitol office.
Markson refused and the appeals court backed him up.
The appeals judges acknowledged the statutes require notices to be served by certified mail to the Capitol office. But they said they can’t interpret the statute literally because regardless of how the notice is addressed it goes to the Justice Department’s headquarters.
The court concluded that any notice sent by certified mail and addressed to the attorney general’s office, Justice Department headquarters or the agency’s post office box would satisfy the law.
The ruling means the case can continue at the trial court level. Hines’ attorney, Shawn Crain, said he was pleased.
“The ruling demonstrates that hyper-technical requirements will not deny access to the courthouse for the people of Wisconsin pursing claims against the state,” he said.