Wyoming Medical Malpractice Summary
Statutes of Limitations
A medical malpractice action must be brought within two years of the alleged act, error, or omission, or within two years of discovery if the act, error, or omission was not reasonably discoverable within two years or was not discovered despite due diligence. Wyo. Stat. Ann. § 1-3-107 (Michie 1997). If the claimant is a minor, he may also bring an action until his eighth birthday. Id. If the claimant is suffering from a legal disability other than minority, suit must be brought within one year from removal of the disability. In the case of either kind of disability, if the act, error, or omission is discovered during the second year of the two-year limitations period, it is extended by six months. Id.
A wrongful death action must be brought within two years after the decedent’s death. Wyo. Stat. Ann. § 1-38-102(d) (Michie 1997).
Contributory or Comparative Negligence
Wyoming has adopted the doctrine of modified comparative negligence. The contributory negligence of a tort claimant will bar recovery if the claimant’s negligence is more than 50 percent of the total fault. Wyo. Stat. Ann. § 1-1-109 (Michie 1997). Where the contributory negligence of the claimant constitutes 50 percent or less of the total fault, the claimant’s recovery is reduced in proportion to his percentage of fault. Id.
Joint and Several Liability
For actions accruing on or after June 11, 1986, Wyoming has replaced the rule of joint and several liability in tort cases with allocated several liability. A defendant is liable only for that portion of the total damages that is equal to his percentage of fault. Wyo. Stat. Ann. § 1-1-109(d) (Michie 1997).
Joint tortfeasors are no longer subject to joint and several liability, so the need for contribution no longer exists.
Wyoming recognizes that a hospital can be vicariously liable for the acts of a non-employed physician when the hospital holds out the physician as providing services on behalf of the institution, and the patient justifiably relies on that representation. Sharsmith v. Hill, 764 P.2d 667 (Wyo. 1988).
In Wyoming, a medical malpractice claimant has the burden of producing expert testimony to support his case, unless the case is one in which the physician’s alleged negligence consists of conduct so obviously wanting in reasonable medical skill and prudence that it may be adjudged by laymen. Vassos v. Roussalis, 658 P.2d 1284 (Wyo. 1983).
The Wyoming Constitution provides that “[n]o law shall be enacted limiting the amount of damages to be recovered for causing the injury or death of any person.” Wyo. Const. art. 10, § 4. Thus, Wyoming does not limit the amount of damages one may recover in a medical malpractice action.
Statutory Cap on Attorneys’ Fees
The following contingent fees are presumed reasonable and not excessive in casualty or wrongful death cases where the total recovery is $1,000,000 or less: (a) 33 1/3 percent, if the claim is settled prior to or within 60 days after suit is filed, or (b) 40 percent, if the claim is either settled more than 60 days after filing suit or judgment is entered upon a verdict. Wyo. Ct. Rules Ann., Contingent Fee R. 5 (Michie 1997). In addition, in casualty and wrongful death cases involving a recovery of more than $1,000,000, 30 percent of the excess over $1,000,000 is a reasonable contingent fee. Id. However, the contingent fee rules are not intended to abridge the freedom of the attorney and client to contract for different percentages. Id.
Wyoming law does not mandate the periodic payment of medical malpractice judgments.
Collateral Source Rule
The collateral source rule applies in Wyoming. A claimant’s receipt of collateral benefits does not serve to reduce his recovery. See Haderlie v. Sondgeroth, 866 P.2d 703 (Wyo. 1993).
Pre-judgment interest is recoverable on liquidated but not unliquidated claims. A claim is considered liquidated when it is readily computable by simple mathematical computation. Rissler & McMurry Co. v. Atlantic Richfield Co., 559 P.2d 25 (Wyo. 1977). A claim for unliquidated damages, however, draws interest only from the date of judgment. The current statutory rate is ten percent. Wyo. Stat. Ann. § 1-16-102(a) (Michie 1997); Belle Fourche Pipeline Co. v. Elmore Livestock Co., 669 P.2d 505 (Wyo. 1983). The nature of personal injury damages makes the award of pre-judgment interest in a medical malpractice case unlikely.
Patient Compensation Funds and Physician Insurance
The Wyoming legislature has created a medical liability compensation fund to provide physicians with excess insurance coverage. Wyo. Stat. Ann. §§ 26-33-101 to 26-33-105 (Michie 1997). To qualify, a physician must obtain malpractice insurance of at least $50,000 per claim and pay a surcharge levied by the state. Wyo. Stat. Ann. § 26-33-102 (Michie 1997). A qualified physician’s liability is limited to $50,000 per claim, except that if the insurance procured by the physician exceeds $50,000, the physician is liable to the extent of his insurance limits. Wyo. Stat. Ann. § 26-33-105 (Michie 1997). A medical malpractice judgment or settlement in excess of $50,000 against a qualified physician is paid by the fund to the extent of $1,000,000 per year per physician. Id.
In Wyoming, governmental entities and their employees, while acting within the scope of their duties, are granted immunity from liability for tort except as otherwise provided in the Act. Wyo. Stat. Ann. § 1-39-104 (Michie 1997). The term “governmental entity” is defined as the state, the University of Wyoming, cities, towns, counties, public corporations, and all other political subdivisions of the state. Wyo. Stat. Ann. § 1-39-103 (Michie 1997). Nonetheless, a governmental entity that is a health care provider, including a contracting physician, is liable for damages resulting from bodily injury or wrongful death caused by the negligence of its employees when acting within the scope of their duties. Wyo. Stat. Ann. § 1-39-110 (Michie 1997). The state’s liability for claims against state-employed physicians is limited to $1,000,000 per occurrence. Id. Governmental entities have a duty to defend and indemnify their employees in such actions.
Any action brought against a governmental entity must be presented to the entity in writing within two years after the cause of action arose or two years from the date the cause of action was or should reasonably have been discovered. Wyo. Stat. Ann. § 1-39-113 (Michie 1997). Actions against governmental entities must be commenced within one year after the claim is filed with the governmental entity, except a minor under seven years of age may bring an action within two years after the occurrence or until his eighth birthday, whichever period is longer. Wyo. Stat. Ann. § 1-39-114 (Michie 1997). Unless a governmental entity purchases liability insurance in greater amounts, the liability of the governmental entity or employee acting within the scope of his duties is limited to $250,000 per claimant per occurrence and $500,000 per occurrence. Wyo. Stat. Ann. § 1-39-118 (Michie 1997). (The $100,000 limit for state-employed physicians is an exception to this rule.) No judgment against a governmental entity may include an award of punitive damages, pre-judgment interest, or attorneys’ fees. Id.
In 1988, the Wyoming Supreme Court held that the mandatory submission of all medical malpractice claims to a medical review panel was unconstitutional because it denied equal protection. Hoem v. State, 756 P.2d 780 (Wyo. 1988). As a result of this case, currently there is no mandatory arbitration of medical malpractice claims.
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Revision Date: February 6, 1998