Wisconsin Court: Malpractice Claims Can Go to AG’s Headquarters

An appeals court has dealt a setback to three state doctors who are fighting a malpractice suit by arguing their patient sent a claim notice to the Minnesota 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 the 4th District of Appeals in late November 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.

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 AG that October.

State law says anyone who files a claim against a state employee must serve the AG with the written notice by certified mail in the AG’s Capitol office. However, the Department of Administration retrieves all state agencies’ mail from the post office and delivers it. All certified mail addressed to the attorney general goes 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.

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.