Wisconsin Medical Malpractice Summary

Email This Share on LinkedIn Share on Facebook Tweet This

Statutes of Limitations

Wisconsin requires that all medical malpractice actions for personal injury or death be filed within three years from the date of injury. Wis. Stat. Ann. § 893.55(1) (West 1997). The statute also provides that a claimant may bring an action for medical malpractice within one year from the date of discovery, subject to a maximum limit of five years from the date of the negligent act. Id. However, the five-year limit was recently held to be unconstitutional insofar as it applied to a claimant who could not reasonably have known of her injury, which was caused by a failure to diagnose cancer, until after five years had passed. Estate of Makos v. Wisconsin Masons Health Care Fund, 211 Wis. 2d 41, 564 N.W.2d 662 (1997). Foreign object cases must be brought within one year from the date of discovery or three years from the date of the incident. Wis. Stat. Ann. § 893.55(3) (West 1997).

Actions brought by or on behalf of a minor are subject to the above-noted limitation, or such actions must be brought by the time the minor reaches ten years of age, whichever is later. Wis. Stat. Ann. § 893.56 (West 1997). For claimants who are disabled by reason of insanity, an action may be commenced two years from the date the disability has been lifted, with a maximum of five years from the date of the negligent act. Wis. Stat. Ann. § 893.16 (West 1997).

Contributory or Comparative Negligence

In Wisconsin, a claimant’s negligence does not bar recovery if that negligence was not greater than that of the person against whom recovery is sought. Wis. Stat. Ann. § 895.045 (West 1997). The claimant’s negligence is compared separately to the negligence of each person against whom recovery is sought, and damages are diminished in proportion to the claimant’s negligence. Id.

Joint and Several Liability

Under the statutory system of comparative negligence discussed in Contributory or Comparative Negligence, only a defendant found to be 51 percent or more causally negligent is jointly and severally liable. A defendant who is less than 51 percent causally negligent is liable only for his own percentage of negligence, unless he acted as part of a common scheme or plan. Wis. Stat. Ann. § 895.045 (West 1997).

Contribution

A joint tortfeasor who pays more than his equitable share of the total damages is afforded a right to contribution against the other tortfeasors. State Farm Mut. Auto. Ins. Co. v. Schara, 56 Wis. 2d 262, 201 N.W.2d 758 (1972). A settlement by one tortfeasor does not alter the right to contribution. Id. The equitable shares are determined by reference to the tortfeasors’ relative degrees of fault as allocated by the finder of fact under Wis. Stat. Ann. § 895.045 (West 1997). Pachowitz v. Milwaukee Suburban Transport Corp., 56 Wis. 2d 383, 202 N.W.2d 268 (1972). Wisconsin courts allow the issue of contribution to be determined in the original litigation. See, e.g., Johnson v. Heintz, 73 Wis. 2d 286, 243 N.W.2d 815 (1974).

Vicarious Liability

Wisconsin has recognized that a hospital may be liable for the negligent acts of an independent contracting physician based on an apparent agency theory. Pamperin v. Trinity Memorial Hospital, 144 Wis. 2d 188, 423 N.W.2d 848 (1988). The Wisconsin Supreme Court held in Pamperin that when a hospital holds itself out to the public as providing complete medical care, patients rely on the hospital to provide qualified and competent physicians, and thus, the hospital is responsible for the acts of physicians in its facilities.

Expert Testimony

Ordinarily, expert testimony is necessary to establish the standard of care and to clarify the manner in which the defendant’s act deviated from the standard of care, but it is not needed if only routine care within the jury’s common knowledge is at issue. Kujawski v. Arbor View Health Care Center, 139 Wis. 2d 455, 407 N.W.2d 249 (1987) (expert not needed to find liability against nursing home for failure to fasten wheelchair seat belt).

Damage Caps

Except in death cases, for any medical malpractice occurrence on or after May 25, 1995, the total limit on non-economic damages from all health care providers is $350,000. This limit is adjusted annually for inflation. Wis. Stat. Ann. § 893.55(4) (West 1997). The court will reduce any jury award that exceeds this amount. Id. (A former damage cap was found to be unconstitutional insofar as it applied retroactively, Martin v. Richardson, 192 Wis. 2d 156, 531 N.W.2d 70 (1995), but the current statute is prospective only.)

Damages in wrongful death cases are governed by Wis. Stat. Ann. § 895.04(4) (West 1997), even when the death is caused by medical malpractice. Wis. Stat. Ann. § 893.55(4) (West 1997). Until recently, non-economic damages were limited to $150,000. However, 1997 Wis. Act 89 has amended this section for cases filed on or after April 28, 1998, increasng the limit to $500,000 for the death of a minor and $350,000 for the death of an adult. 1997-1998 Wis. Legis. Serv. 1535 (West). (See Patient Compensation Funds and Physician Insurance for a discussion of state-sponsored excess insurance.)

Statutory Cap on Attorneys’ Fees

Attorneys’ fees in medical malpractice cases are limited to the following: (a) 33 1/3 percent of the first $1,000,000 recovered, (b) 25 percent of the first $1,000,000 recovered if liability was stipulated within 180 days after the complaint was filed and no later than 60 days before the first day of trial, and (c) 20 percent of any amount that exceeds $1,000,000. The court, however, can approve attorneys’ fees beyond these limits in exceptional circumstances. Wis. Stat. Ann. § 655.013 (West 1995).

Periodic Payments

If a medical malpractice settlement or judgment resulting from an act or omission on or after May 25, 1995, provides for future medical expense payments in excess of $100,000, the present value of that excess is paid into the Wisconsin Patients Compensation Fund. Each claimant has his own account within the fund, which earns interest, and medical payments are made from that account until it is exhausted or the claimant dies. Wis. Stat. Ann. § 655.015 (West Supp. 1997). A somewhat similar system, which was in effect prior to 1986, was held to be constitutional. State ex rel. Strykowski v. Wilkie, 81 Wis. 2d 491, 261 N.W.2d 434 (1978).

Collateral Source Rule

Effective May 25, 1995, evidence of any compensation from a collateral source is admissible in an action to recover damages for medical malpractice. Wis. Stat. Ann. § 893.55(7) (West 1997). This is a change from the common law rule formerly applied, under which a claimant could recover the total value of his loss regardless of payments from other sources. Rixmann v. Somerset Public Schools, St. Croix County, 83 Wis. 2d 571, 266 N.W.2d 326 (1978).

Pre-Judgment Interest

As a general matter, Wisconsin does not allow claimants to collect pre-judgment interest on tort claims. However, if a party extends a settlement offer which is not accepted and the offering party recovers a judgment which is greater than or equal to the amount of the settlement offer, the offering party is entitled to interest at an annual rate of twelve percent determined from the date the offer was made until satisfaction of the judgment. Wis. Stat. Ann. § 807.01(4) (West 1994).

Patient Compensation Funds and Physician Insurance

Health care providers (principally physicians and hospitals) are required to pay a yearly assessment into the Wisconsin Patients Compensation Fund (the “Fund”) and provide proof of financial responsibility to the Commissioner of Insurance in the form of insurance, an approved plan of self-insurance, or a surety bond. Wis. Stat. Ann. § 655.23 (West 1995 & Supp. 1997). For occurrences prior to July 1, 1997, the prescribed limits are $400,000 for each occurrence and $1,000,000 in the annual aggregate. For occurrences after that date, the prescribed limits are $1,000,000 for each occurrence and $3,000,000 in the annual aggregate, although a phase-in exception allows per occurrence limits of $600,000 until July 1, 1999, and $800,000 until July 1, 2001. Health care providers are liable only to the extent of the limits of their insurance. Id.

The Fund provides compensation for claimants whose damages exceed the negligent health care provider’s liability insurance. Wis. Stat. Ann. § 655.27 (West 1995 & Supp. 1997). The Fund must be joined as a party in the case, although the initial duty to defend is that of the underlying insurer or self-insurer. In certain large cases resulting from acts or omissions on or after May 25, 1995, the Fund can make periodic payments. Id.

Immunities

The State of Wisconsin has waived sovereign immunity to a limited extent for political corporations, governmental subdivisions, and agencies, and for their agents and employees. Wis. Stat. Ann. § 893.80 (West 1997). Governmental subdivisions include cities and counties. Id. A claimant must notify the political subdivision within 180 days after discovery of an injury in order to bring an action based on medical malpractice. Id. Damages in a suit against the political subdivision cannot exceed $50,000. Id. Wisconsin governmental entities are immune from liability for punitive damages. Id. The presence of liability insurance does not constitute a waiver of these protections where the policy does not so state. Niedfelt v. Joint School Dist. No. 1, 23 Wis. 2d 641, 127 N.W.2d 800 (1964).

In order to pursue a medical malpractice action against a state employee, the claimant must notify the state of a possible suit within 180 days after the discovery of the injury, and the claimant cannot collect more than $250,000 in damages. Punitive damages are not recoverable for negligent acts by state employees. Wis. Stat. Ann. § 893.82 (West 1997).

Arbitration

Wisconsin has established a system of mediation panels to assist in the voluntary resolution of disputes between health care providers and patients or their families. Wis. Stat. Ann. § 655.42 (West 1995). The claimant must either request mediation before filing suit, in which case the statute of limitations is tolled and no court action can be commenced until the mediation is completed, Wis. Stat. Ann. § 655.44 (West 1995), or request mediation within 15 days after filing of a complaint in court, in which case the lawsuit is stayed until mediation is complete. Wis. Stat. Ann. § 655.445 (West 1995). The findings and discussions of the mediation panel are inadmissible in a subsequent court action. Wis. Stat. Ann. § 904.085 (West Supp. 1997).

Copyright © 1990-1998 McCullough, Campbell & Lane LLP. All Rights Reserved.
Revision Date: February 6, 1998