Tamminen v. Aetna Casualty and Surety Co
In Tamminen v. Aetna Casualty and Surety Co., 109 Wis. 2d 536, 327 N.W.2d 55 (1982), the supreme court considered whether a medical malpractice plaintiff was required to join the Fund during statutorily-required administrative proceedings as a prelude to litigation, and whether the Fund needed to be joined as a party to litigation within 120 days of the administrative decision, as were health care providers.
The court noted that Wis. Stat. 655.27(5) (1977) required the plaintiff to name the Fund "as a defendant in the 'suit,'" but determined that the pre-litigation administrative proceeding "is not a suit." See Tamminen, 109 Wis. 2d at 562.
The court also concluded that the 120-day limitation period for filing suit against health care providers did not apply to the Fund:
"It is clear that the Fund ... is the excess insurer for a health care provider who is found to have committed an act of malpractice. The liability of an excess insurer is derivative and depends upon the liability of the insured. There was no necessity ... to join the Fund within one hundred twenty days of the time of the panel's decision." Id.