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November 1, 1983


Review of a decision of the Court of Appeals. Reversing Louis J. Ceci, J.

The opinion of the court was delivered by: Ceci

This is a review of a court of appeals decision *fn1 which affirmed the judgment of the circuit court for Milwaukee county, Honorable Marvin C. Holz, circuit Judge. The question for review by this court is whether a malpractice claim which alleges no bodily injury and arises by reason of a third-party complaint must be submitted to a ch. 655, Stats., patients compensation panel.

On May 11, 1978, the third-party plaintiff, Lillie Griffin (Griffin), was injured in an automobile accident. Dr. Jerry N. Yee (Dr. Yee), the third-party defendant in this case, treated Griffin for these injuries, prescribing hospitalization as part of his treatment procedures. Griffin was hospitalized at Northwest General Hospital from May 17, 1978, until June 24, 1978, and consequently incurred a debt to the hospital, arising from Dr. Yee's prescription, of $5,484.40.

On March 19, 1981, Northwest General Hospital commenced an action against Griffin for the debt she had incurred to the hospital during her stay. Griffin subsequently filed a third-party complaint against Dr. Yee on August 25, 1981, alleging that his treatment of her through extensive hospitalized care was unreasonable, unnecessary, and negligent and because of this, Dr. Yee should be held at least partially accountable for the debt she owed to Northwest General Hospital. Dr. Yee answered and moved to dismiss the third-party complaint, based upon the grounds that the circuit court lacked subject matter jurisdiction and that the claim was barred by the statute of limitations.

The circuit court interpreted Griffin's complaint as alleging malpractice on the part of Dr. Yee and stated that although no bodily injury was alleged by Griffin, unnecessary treatment and hospitalization amounted to an interference with the person and constituted a personal injury. Therefore, the circuit court concluded that Griffin should have submitted her claim to a ch. 655 patients compensation panel because her third-party complaint against Dr. Yee was clearly within the chapter's purview. Consequently, the circuit court dismissed Griffin's complaint against the doctor, holding that it did not have jurisdiction over the claim. The court of appeals affirmed the judgment of the circuit court. We reverse the court of appeals.

Initially, we would like to stress that this court and other jurisdictions have found unnecessary and improper treatment to constitute malpractice. *fn2 Kuechler v. Volgmann, 180 Wis. 238, 192 N.W. 1015 (1923), and Hood v. Phillips, 537 S.W.2d 291 (Tex. Civ. App. 1976). Therefore, if the instant case centered solely around the issue of unnecessary treatment, ch. 655 would clearly apply to Griffin's claim. However, we are also faced here with the complicating factors that Griffin has not alleged any bodily injury or aggravation of an existing injury due to Dr. Yee's negligence, nor was this case initiated as a malpractice claim against the doctor. Rather, it arose from a contract action between Northwest General Hospital as plaintiff and Griffin as defendant.

Generally, no court action for injuries arising from a medical malpractice claim may be brought until the matter has been reviewed by a ch. 655 patients compensation panel. Section 655.04(1) (b), Stats.; State ex rel. Strykowski v. Wilkie, 81 Wis. 2d 491, 261 N.W.2d 434 (1978). The dispute in this case arises from an apparent inconsistency in the statutes of ch. 655. The inconsistency centers around the meaning of the terms "injury" and "bodily injury" as utilized within the chapter. Section 655.007, entitled, "Patients' claims," provides:

"ny patient or the patient's representative, having a claim for injury or death on account of malpractice is subject to this chapter." (Emphasis added.)

Section 655.04(1) (a), Stats., reads:

"ny patient or the patient's representative, having a claim under this chapter for bodily injury or death, on account of a tort or breach of contract based upon professional services rendered or which should have been rendered by a health care provider, may, . . . file a submission of controversy with the director in accordance with this chapter. . . ." (Emphasis added.)

Griffin asserts that because sec. 655.04 utilizes the term "bodily injury," her claim against Dr. Yee for unreasonable and unnecessary treatment is clearly outside the purview of the chapter, because she has in fact alleged no bodily injury.

Because of the references to "injury" and "bodily injury," there appears to be an ambiguity within ch. 655, since it may be interpreted in two different ways by well-informed persons. In Matter of Athans, 107 Wis. 2d 331, 335, 320 N.W.2d 30 (Ct. App. 1982). Chapter 655 may be viewed as applying only to those claims which allege actual bodily injury, or it may be viewed as applying to any claims against a health care provider for a legally recognized injury. The rule of statutory construction is that the primary source for the construction is the statutory language itself. State v. Derenne, 102 Wis. 2d 38, 45, 306 N.W.2d 12 (1981). In this case, the ambiguity arises from the interaction of the separate statutes within the chapter. Thus, because the entire chapter is in pari materia, all of ch. 655 should be examined together. Wis. Environmental Decade v. Public Service Comm., 81 Wis. 2d 344, 350, 260 N.W.2d 712 (1978). However, examining all of ch. 655 leads us only to conclude that the terms are indeed ambiguous, since they are defined nowhere else within the chapter. As this court noted in Wis. Environmental Decade, when such an ambiguity is found:

". . . it is permissible to look to the legislative intent, which is to be found in the language of the statute in relation to its scope, history, context, subject matter, and object intended to be accomplished." Id.

The legislative intent underlying ch. 655's enactment has been set forth in ch. 37, sec. 1, Laws of 1975. The findings enacted by the legislature include an increased number of malpractice suits and a resulting increase in the size and number of awards from these suits, as well as a rise in malpractice insurance premiums and numerous other side effects associated with these factors. *fn3 This court has also looked to the legislative intent in past decisions. In ...

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