Jeanette Ocasio, Plaintiff-Appellant-Petitioner, v. Froedtert Memorial Lutheran Hospital, Defendant-Respondent, Michael Refer, M.D., Defendant, ABC Insurance, DEF Insurance, GHI Insurance, JKL Insurance, and Wisconsin Patients Compensation Fund, Defendants-Respondents, Medical College of Wisconsin and Gary L. Swart, M.D., Defendants, 254 Wis. 2d 367

ANN WALSH BRADLEY, J. ¶ 1. The petitioner, Jeanette Ocasio, seeks review of a court of appeals decision affirming a circuit court order dismissing her medical malpractice action against Froedtert Memorial Lutheran Hospital and other defendants. She asserts that the court of appeals erred by concluding that dismissal is mandated for noncompliance with the provision in Wis. Stat. § 655.44(5) (1999-2000) requiring a medical malpractice claimant to wait until the end of the statutory mediation period before filing a summons and complaint.

We agree with Ocasio that failure to comply with that provision does not require as a remedy the circuit court's dismissal of the action. Accordingly, we reverse the decision of the court of appeals and remand for further proceedings consistent with this opinion. HH ¶ 2. The parties agree to the facts necessary to our decision in this case. Ocasio was treated at Froed-tert on October 17,1996. She alleges that she sustained an injury to her arm after a nurse negligently injected her with Benadryl, an antihistamine used to treat symptoms of allergic reactions. ¶ 3.

Ocasio mailed a request for mediation to the Director of State Courts by registered mail on October 8, 1999, as required by Wis. Stat. ch. 655.

Chapter 655 provides, among other things, for the establishment of a mediation system for medical malpractice actions as defined in the statute. See Wis. Stat. §§ 655.006, 655.007, and 655.42. ¶ 4.

Section 655.44(5) provides that no court action may be commenced until the expiration of a 90-day mediation period. The mediation period is intended to be a "cooling off' period. Schulz v. Nienhuis, 152 Wis. 2d 434, 441, 448 N.W.2d 655 (1989). ¶ 5. On October 18, 1999, well before the end of the mediation period, Ocasio filed a summons and complaint in circuit court. No party's answer to the complaint raised the issue of the premature commencement of the action. ¶ 6. Because of scheduling problems, mediation was not held within the statutory period.

Instead the mediation session was conducted on February 4, 2000, approximately three weeks outside the mediation period. A few days later, Ocasio filed an amended summons and complaint, essentially to drop a party from the action, but she otherwise repeated the originally asserted allegations against the remaining defendants. ¶ 7. On February 17, 2000, the statute of limitations expired. Subsequently, the defendant, Medical College of Wisconsin, raised the noncompliance with § 655.44(5) by asserting that the court lacked jurisdiction and competence over the defendants.

Froedtert, however, made no assertion of Ocasio's noncompliance with § 655.44(5) in its answer to the amended complaint. ¶ 8. The Medical College of Wisconsin moved for dismissal on March 17, 2000, and argued that Ocasio failed to comply with § 655.44(5) by filing her action before the expiration of the statutory mediation period under Wis. Stat. § 655.465(7).

Section 655.44(5) states: Except as provided in s. 655.445, no court action may be commenced unless a request for mediation has been filed under this

section and until the expiration of the mediation period under s. 655.465(7). Froedtert then joined in the motion to dismiss, and the circuit court concluded that because Ocasio had failed to comply with § 655.44(5), her suit must be dismissed. ¶ 9. In the court of appeals, Ocasio argued that the circuit court erred in dismissing her suit because the requirement in § 655.44(5) that a claimant must wait for the mediation period to expire before filing a medical malpractice action was merely directory.

In addition, she asserted that her amended pleadings rectified any problem, and that Froedtert waived any jurisdictional objections. ¶ 10. The court of appeals concluded that the expiration of the mediation period is a condition precedent to the commencement of a medical malpractice action and that noncompliance required dismissal of Ocasio's claim. Further the court opined that there was no waiver here because there can be no waiver of a court's lack of competency to proceed. Accordingly, the court of appeals affirmed the decision of the circuit court. HH HH ¶ 11.

The question we address is whether a circuit court must dismiss an action when a ch. 655 claimant fails to comply with the provision in § 655.44(5) stating that no court action may be commenced until the expiration of the mediation period under § 655.465(7). This issue of statutory

interpretation presents a question of law subject to independent appellate review. Patients Comp. Fund v. Lutheran Hosp., 223 Wis. 2d 439, 454, 588 N.W.2d 35 (1999). H-1 HH HH ¶ 12. The language in § 655.44(5) is clear and unambiguous as applied to the facts here: "Except as provided in s. 655.445, no court action may be commenced ... until the expiration of the mediation period under s. 655.465(7)." Ocasio failed to comply with this statutory provision. The question becomes what is the proper remedy. ¶ 13.

Section 655.44(5) is silent as to the remedy for failure to comply with the timing provision. Thus, we look to the purpose of § 655.44(5) and previous

interpretations given other timing provisions in ch. 655 in order to determine the proper remedy. ¶ 14. The purpose of ch. 655 is apparent from the statement of legislative intent in the statutes. The legislature expressly stated that the mediation system is intended to provide claimants with an "informal, inexpensive, and expedient means for resolving disputes." Wis. Stat. § 655.42(1). The informal, flexible nature of the mediation system under ch. 655 has been recognized repeatedly by this court. See Eby v. Kozarek, 153 Wis. 2d 75, 83, 450 N.W.2d 249 (1990); Schulz, 152 Wis. 2d at 439.

The court also has indicated that ch. 655 is intended to provide a cooling off period regardless of whether a mediation session occurs during that period. Schulz, 152 Wis. 2d at 441. ¶ 15. This court and the court of appeals previously have concluded that dismissal for failure to comply with certain timing requirements in ch. 655 is inconsistent with the purpose of ch. 655. Eby, 153 Wis. 2d at 83; Schulz, 152 Wis. 2d at 443; Gauger v. Mueller, 149 Wis. 2d 737, 742, 439 N.W.2d 637 (Ct. App. 1989). ¶ 16.

For example, in Eby, this court addressed a plaintiffs failure to comply with the statutory requirement in § 655.44's companion statute, Wis. Stat. § 655.445, that a claimant file a request for mediation within 15 days of filing an action. The court concluded that failure to comply did not require dismissal despite the use of the word "shall" in the statute. Eby, 153 Wis. 2d at 77. ¶ 17. Similarly, in Gauger, the court of appeals addressed whether the time period in § 655.465(7) was mandatory where the plaintiff failed to participate in mediation within the statutory period. 149 Wis. 2d at 739.

Despite the use of the term "shah" in the statute, the court of appeals concluded that the statute was directory rather than mandatory, and that dismissal was not required. See id. at 743. ¶ 18. Finally, in Schulz, this court concluded that failure to participate in a mediation session within the statutory mediation period under § 655.465(7) does not require the circuit court to dismiss the action. 152 Wis. 2d at 436. The court noted that its decision was consistent with that of the court of appeals in Gauger. Id. at 439. ¶ 19.

In all of these decisions, the courts relied on the purpose of the statute as providing for a system of informal, flexible procedures. Dismissal for failure to comply with a ch. 655 timing provision was considered inconsistent with this purpose despite the legislature's use of the term "shall." Thus, in none of these cases did the courts determine that failure to comply with the statute necessitated dismissal. ¶ 20. A conclusion that the failure to abide by the timing provision in § 655.44(5) mandates dismissal would be inconsistent with these prior holdings.

All of the statutory provisions are part of the same mediation system. Each was created by the legislature to serve the same objectives, as stated in § 655.42(1). ¶ 21. Accordingly, we follow Eby, Schulz, and Gauger in determining that failure to comply with the timing provision in § 655.44(5) also does not require dismissal. We agree with this reasoning by the court in Schulz and apply it here: If the legislature intended the result the defendants urge, it could have expressly stated that a claimant's failure to participate in a mediation session within the statutory mediation period results in dismissal.

It did not do so. In the absence of express language, we are unwilling to read the harsh penalty of dismissal of the lawsuit into the mediation statute. The tenor of modern law is to avoid dismissal of cases on technical grounds and to allow adjudication on the merits. 152 Wis. 2d at 443. Holding claimants to "precise and inflexible requirements" does not comport with the legislature's stated intent in § 655.42 to make procedures in medical malpractice cases informal and flexible. Eby, 153 Wis. 2d at 83; see also Bertorello v. St. Joseph's Hosp., 685 F. Supp. 192, 195 (W.D. Wis. 1988). ¶ 22.

In addition, if failure to comply with § 655.44(5) mandated dismissal, the statute would promote game playing rather than an informal, flexible procedure for dispute resolution. An

interpretation of the statute to mandate dismissal would allow defendants to lie in the weeds until the statute of limitations ran, then move to dismiss based on the plaintiffs failure to comply with § 655.44(5). The statute would serve as a trap for the unwary, not the informal and flexible system intended. ¶ 23. In short, we follow precedent and the purpose of the statute to conclude that a plaintiffs failure to comply with the timing provision in § 655.44(5) does not mandate that the circuit court dismiss an action.

As in Schulz, in the absence of language expressly mandating the remedy of dismissal, we are unwilling to read into the statute the requirement of such a harsh remedy for noncompliance with this mediation provision. ¶ 24. The chronology of events in this case reinforces our concern that interpreting § 655.44(5) to mandate the remedy of dismissal will result in game playing by defendants and a trap for unwary plaintiffs. Here, the defendants filed their initial answers before the statute of limitations on Ocasio's claim had run, and they made no objection to Ocasio's failure to comply with § 655.44(5).

It was only after the running of the statute of limitations that the defendants raised Ocasio's failure to comply with § 655.44(5) as grounds for dismissal. ¶ 25. Having concluded that the failure to comply with the timing provision in § 655.44(5) does not mandate dismissal, we still must determine what sanction is available for failure to comply with the statute. A defendant is not without any recourse when a plaintiff fails to comply with § 655.44(5).

We follow Eby in concluding that the circuit court retains discretion to determine the appropriate sanction, if any, for the failure to comply with the timing provision in § 655.44(5). See 153 Wis. 2d at 82. The sanction may range from no sanction to dismissal in the most egregious cases. Id. IV ¶ 26. In sum, we conclude that failure to comply with the timing provision in § 655.44(5) does not require the circuit court to dismiss the ch. 655 claimant's action.

We therefore reverse the court of appeals, and we remand for the circuit court to exercise its discretion in determining what sanction, if any, is appropriate for Ocasio's failure to comply with the statute. By the Court. — The decision of the court of appeals is reversed, and the cause is remanded to the circuit court for further proceedings consistent with this opinion. All subsequent references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise indicated.

Because Ocasio sent her request for mediation by registered mail, the mediation period spanned 93 days, beginning with the date her request was mailed. Wis. Stat. § 655.465(7). Counsel for Ocasio stated at oral argument that this was the reason for the delay. The statute of limitations was tolled from the date Ocasio mailed the mediation request until 30 days after the last day of the mediation period. Wis. Stat. § 655.44(4). Although the court of appeals discussed competence and subject matter jurisdiction, we do not view this case as implicating those concepts.

There is no question that Ocasio failed to comply with the language of the statute. The question is what remedy ensues as a result of this statutory violation, since the statute does not provide one.