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Romero v. Schulze3/19/1999
sal is a drastic remedy, and is sparingly granted. Mostert v. CBL & Associates, 741 P.2d 1090, 1092 (Wyo. 1987) (quoting Moxley v. Laramie Builders, Inc., 600 P.2d 733, 734 (Wyo. 1979)). See also Harshfield v. Harshfield, 842 P.2d 535, 536 (Wyo. 1992).
DISCUSSION
A. Order Granting Summary Judgment
The Wyoming Governmental Claims Act was enacted in response to the "inherently unfair and inequitable results which occur in the strict application of the doctrine of governmental immunity." Wyo. Stat. Ann. § 1-39-102(a) (Michie 1997). Under the Wyoming Governmental Claims Act, governmental entities and public employees acting within the scope of their duties are generally immune from liability for the torts they commit. Wyo. Stat. Ann. § 1-39-104(a) (Michie 1997). Certain enumerated activities are specific exceptions to the general immunity rule. Wyo. Stat. Ann. §§ 1-39-105 to -112 (Michie 1997). Section 1-39-110(a) provides that " governmental entity is liable for damages resulting from bodily injury , wrongful death or property damage caused by the negligence of health care providers who are employees of the governmental entity... while acting within the scope of their duties."
Before a suit can be brought against a governmental entity or public employee, however, certain procedures must be adhered to. Among those procedures is the notice-of-claims requirement, which provides in part:
"(a) No action shall be brought under this act against a governmental entity unless the claim upon which the action is based is presented to the entity as an itemized statement in writing within two (2) years of the date of the alleged act, error or omission, except that a cause of action may be instituted not more than two (2) years after discovery of the alleged act, error or omission, if the claimant can establish that the alleged act, error or omission was:
(i) Not reasonably discoverable within a two (2) year period; or
(ii) The claimant failed to discover the alleged act, error or omission within the two (2) year period despite the exercise of due diligence." Wyo. Stat. Ann. § 1-39-113(a) (Michie 1997).
Romero alleges that she did not serve notice of her claim within the original two-year period because Dr. Schulze's status as a public employee was unknown to her and was not reasonably ascertainable before the two-year notice period expired. She maintains that, prior to receiving Dr. Schulze's responses to her discovery requests, all indications were that Dr. Schulze was an independent contractor rather than an employee of the hospital. She emphasizes the following facts to support her argument:
"1. Defendant Hospital's own "Conditions of Service" form, which... required Plaintiff Romero to sign before services would be provided to her, stated 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." (emphasis added).
2. All of the care and treatment provided by Dr. Schulze following the surgical procedure he performed on Plaintiff Romero was provided at or from his private office in the Wagon Circle Medical Clinic located at 2012 West Elm Street, Rawlins, Wyoming. His office is separate and distinct from the hospital and is located two blocks away.
3. Dr. Schulze's office has a name (Wagon Circle Medical Clinic) unrelated and entirely distinct from the hospital. In addition, prior to the time Romero filed her complaint, the Wagon Circle Medical Clinic was a for-profit corporate entity inacti
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