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Romero v. Schulze3/19/1999
Appeal from the District Court of Carbon County
The Honorable Jeffrey A. Donnell, Judge
MACY, J., delivered the opinion of the Court; LEHMAN, C. J., filed a Dissenting opinion in which THOMAS, J., joined.
Appellant Rebecca Romero appeals from the summary judgment which was entered in favor of Appellee Kenneth Schulze, M.D. and from the order which dismissed her lawsuit against Appellee Board of Trustees of Memorial Hospital of Carbon County, d/b/a Carbon County Memorial Hospital (the hospital).
We reverse and remand.
ISSUES
Romero presents the following issues for our review:
A. In light of prior representations to the public which indicated that Dr. Schulze was not a public employee, should the Appellees be allowed to invoke the Wyoming Governmental Claims Act?
B. Based upon the terms of his employment contract and his qualifications as a surgeon, was Dr. Schulze acting within the scope of his duties as defined in the Wyoming Governmental Claims Act?
C. Did Romero provide timely notice, as required by the Wyoming Governmental Claims Act, within two years of discovering her causes of action against Memorial Hospital?
FACTS
Romero worked as a housekeeper for Rip Griffin's Truck Stop in Rawlins. On August 26, 1994, she accidentally cut the little finger of her right hand with a knife while she was opening a cardboard box. Romero was admitted to the hospital where she was examined by Dr. Schulze, an orthopedic surgeon. Dr. Schulze diagnosed two severed tendons and recommended immediate surgery. Romero consented to the surgery and signed the hospital's conditions-of-service form, which provided in part: "The undersigned recognizes that all doctors furnishing services to the patient, including the radiologist, pathologist, anesthesiologist and the like are independent contractors and are not employees or agents of the hospital." Dr. Schulze performed the surgery on Romero's finger later that evening.
In mid-September 1994, Dr. Schulze prescribed occupational therapy for Romero, which she participated in until she moved to Albuquerque, New Mexico, in mid-November of 1994. Despite the therapy, Romero began experiencing inflammation; swelling; stiffness; a flexion contracture (claw hand); and loss of motion, atrophy, and pain in the fingers of her right hand, wrist, and arm. Dr. Schulze provided ongoing medical care to Romero until her mid-November move.
Pursuant to a referral from Dr. Schulze, Romero began receiving medical treatment in mid-November from Laurel D. McGinty, M.D., an orthopedic surgeon and hand specialist in Albuquerque. She continued therapy but saw little improvement in her condition. On August 18, 1995, Dr. McGinty amputated Romero's right little finger.
Romero filed a lawsuit against Dr. Schulze on August 23, 1996, alleging negligence. After receiving an extension of time in which to respond, Dr. Schulze answered Romero's complaint on October 7, 1996. In paragraph 31 of Dr. Schulze's answer, he pleaded the following affirmative defense:
"The Defendant, acting within the scope of his duties as an employee of Memorial Hospital of Carbon County, a governmental entity, affirmatively alleges immunity from tort liability except as specifically provided under the Wyoming Governmental Claims Act ยงยง 1-39-101 through 1-39-120 and hereby invokes all of the limitations, requirements and protection of said Act."
Romero subsequently served interrogatories, requests for production of documents, and requests for admission on Dr. Schulze. On November 19, 1996, Dr. Schulze responded to Romero's di
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