Wisconsin Medical Malpractice Laws

If you or a loved one has been a victim of medical malpractice, you’ve likely experienced enormous stress, pain and hardship. We place great trust in our health care providers; they diligently and dutifully administer remedies in times of need. The betterment of our health hinges on their competence and expertise. Finding that a trusted health care provider has failed in carrying out their duty can be frightening. If you were injured and wish to bring a claim of medical malpractice forward, you stand before a long and tedious legal battle. Maneuvering the complexities of a lawsuit is probably the last thing you are ready to tackle as you recover from your injuries.

A skilled medical malpractice attorney can take the reins in the case, fighting the claim on your behalf so you are free to focus on recovery. This page provides an overview of medical malpractice claims in Wisconsin, however you are strongly advised to consult with an experienced medical malpractice attorney licensed in Wisconsin to discuss the specifics of your case. An experienced malpractice attorney can help determine if your claim will stand up in the courtroom, while guiding you through the multistep and nuanced legal process. If you consider filing a claim, it is crucial to be aware of the time limits, damage caps, and expectations of the plaintiff in such cases. Successfully litigated malpractice claims can yield great compensation for an injured patient. The sooner you speak to an attorney about your claim the better your chances of success.

Suing For Medical Malpractice in Wisconsin

An plaintiff can take legal action to recover damages for any treatment, operation, or omission of information by a health care provider proximately resulting in injury. [1] The most important thing to remember is that a claim may only be commenced if the injury resulted from the health care provider’s negligence. Health care does not always yield a good outcome, even if it is flawlessly executed. In order to win a medical malpractice claim (in theory), the plaintiff must demonstrate that negligence was the cause of the injury, and the health care provider deviated from the standard of care that they owed to the patient. If no negligence occurred and the health care provider did all that was expected of them, then there is likely no basis for a malpractice claim. Furthermore, if the malpractice does not result in injury a claim cannot be filed. For example, the state ruled that a misdiagnosis in and of itself is not actionable if it did not result in injury. [2]

There are many aspects that come into play in medical malpractice lawsuits. There is a finite amount of time to file a claim. The passage of time might make your evidence less compelling to a jury, so timely consultation and litigation is of the utmost importance. The court examines cases to determine who is responsible for the injury, while immunizing certain parties from responsibility altogether. The ‘burden of proof’ falls on the plaintiff, who must bring in expert testimony to support their claim. The state limits the amount of money a plaintiff can collect if they win. Mediation is strongly encouraged as an alternative to the lengthy process of formal litigation; it allows both parties to present their arguments informally with the potential to reach a settlement before ever needing to go to trial. This is a commonly utilized option, and many cases settle outside of court before advancing to trial.

How Long Do I Have To A File A Medical Malpractice Case in Wisconsin?

The first step in bringing forth a malpractice claim is making sure you are still within the permitted timeframe to file. The time limit is known as the “statute of limitations.” If you attempt to file a claim after the statute of limitations has expired, the court may very likely dismiss your case. The main reason that courts impose a time limit on filing claims is the notion that evidence crucial to the foundation of a case is less compelling over time. In theory, the fresher the evidence, the greater the chances of successfully proving your claim.

A medical malpractice action may be commenced in Wisconsin no more than 3 years from the date the injury occurred, or one year from the date when the injury was discovered. If a healthcare provider fraudulently concealed their malpractice/negligence, then a claim must be commenced within one year of the patient discovering the concealment. If a foreign object is left in the patient’s body, action must be commenced within one year of discovery of the object. In cases where pertinent information was omitted and the patient could not give informed consent to the care they were receiving, a claim must likewise be brought within three years of the injury that proximately resulted from it. [3] For minors victimized by medical malpractice, a claim must be brought before the child reaches 10 years of age, or within the allotted 3 years to file a claim, whichever occurs later. [4]

Bear in mind that the statute of limitations does not begin to run until your injury has been discovered.

In Wisconsin Medical Malpractice Cases, Who Is Responsible?

A healthcare provider who errs, omits information, or is negligent in their duties could be liable for their actions. A healthcare provider could be an individual or institution. The term includes but is not limited to a physician, nurse, podiatrist, optometrist, therapist, psychologist, social worker, dentist, pharmacist, chiropractor, midwife, hospital, urgent care, adult family home, hospice, home health agency, nursing home, community based residential facility or residential care apartment complex. [5] Past court cases have called into question whether certain individuals and facilities should be rightly classified as “health care providers.” A court ruled that blood banks are not health care providers [6], and medical residents who hold M.D.’s but are not licensed will not be tried as health care providers. [7]

What If I Am Partially To Blame? Can I Still Recover Money For WI Medical Malpractice?

Wisconsin joins 32 other states that follow the doctrine of modified comparative fault. The doctrine permits the court to assign a percentage of blame for the injury to each party involved in the lawsuit. Any damages awarded to the plaintiff will be reduced in proportion to their percentage of fault. Of the 33 states that follow a modified version of comparative fault, Wisconsin is one of 22 states (Connecticut, Delaware, Hawaii, Illinois, Indiana, Iowa, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, Texas, Vermont and Wyoming) that have adopted the 51% bar rule, which holds that you are only able to recover damages for an injury if the court determines that your share of fault for your own injury is 50% or less. In simple terms, the health care provider has to be more responsible for causing the injury than you were. If you were both responsible for the injury, but the court determines you were more to blame then you cannot collect damages. You can be as much as half responsible for your injury; but if you are more than half or 51% responsible as deemed by the court, you are ineligible for damages. After blame is assigned, if you are below 51% and therefore eligible, your share of damages equates to the provider’s share of blame. The principle sounds confusing when explained, but is simple in practice. Here is a good example of this principle at play: the court finds that you were 45% responsible for your injury, and your health care provider was 55% responsible. $100,000 in damages is awarded. You will receive $55,000. Your share of the damages was reduced by 45% or $45,000, because that is the amount that you contributed to the injury.

How could fault lay with both the patient and the provider? Let’s take a look at an example. Imagine you become sick after ingesting medication that was prescribed to you by your doctor. A court finds that your sickness was caused by a combination of a disclosed allergy and food that was against the doctor’s instructions that you consumed while on the medication. The court ultimately finds that the doctor should never have prescribed that specific type of medication due to your allergy and assigns the defendant 50% of the blame while assigning 50% of the blame to you for not following the doctor’s instructions when you consumed food that was not permitted while on the medication. Since you were assigned 50% of the blame, you would be able to recover a portion of damages because you were not found to have been 51% or more at fault for your injury. If the court awarded $100,000 in damages, you would be able to recover $50,000 after the apportioned 50% of fault is applied.

Some states follow a doctrine of pure comparative fault, which allows injured claimants to recover damages even when they are as much as 99% at fault for their own injury. Nevertheless, their share of the damages would be similarly reduced by their share of blame, so the costs of litigation would probably outweigh the awards in such extreme cases. [8]

Are There Medical Malpractice Recovery Caps in Wisconsin?

When a plaintiff wins their malpractice case, the court may award a sum of money to compensate for their losses – this sum is referred to as “damages,” to be paid by the defendant. There are different types of damages a plaintiff may be entitled to upon winning their case. Economic damages compensate ‘hard’ losses that can be readily quantified, like medical expenses and lost wages. Non-economic damages compensate losses that are not readily quantifiable and usually more abstract in nature, like pain and distress.

Economic damages may include:

• Medical bills
• Prescription fees
• Nursing costs
• Physical therapy costs
• Wages lost from an inability to work

Non-economic damages specifically cited in Wisconsin law:

• pain and suffering
• humiliation
• embarrassment
• worry
• mental distress
• loss of enjoyment of normal activities
• loss of mental or physical health, well-being or bodily functions
• loss of consortium, society and companionship
• loss of love and affection [9]

Many states limit the maximum amount of non-economic damages an injured claimant can receive, if they win their malpractice case. A minority of states impose no limit at all, while others have stringent limits on the very low end of the spectrum. Critics argue that recovery caps deprive the injured party of money they are rightfully owed, given what they have suffered. Others believe caps are necessary to keep physicians’ insurance premiums down so that health care remains affordable. The state of Wisconsin took a long, hard look at the question of recovery caps. They aimed to set a cap that would provide “reasonable compensation” to injured claimants, without throwing the delicate balance of malpractice insurance into whack, thus keeping health care costs in check. The magic number they arrived at after several “actuarial studies” was $750,000. Wisconsin determined that the amount was high enough to adequately compensate even the gravest injury. [10] With this max dollar figure for liability, medical malpractice insurance would remain in check without “depriving the injured victim” of reasonable damages, or impeding the accessibility of health care.

Keeping a wary eye on medical malpractice insurance, in 1975 Wisconsin decided to take measures further. The state ultimately adopted a patient compensation fund, to which doctors must contribute. The fund works “to provide excess medical malpractice coverage to Wisconsin health care providers,” ensuring the patient’s damages are paid out, while also alleviating some of the burden of health care providers’ liability. The existence of the fund illustrates the state’s very pro-defendant stance, meaning they enact legislation that benefits health care providers above all. This has given way to an extremely low rate of medical malpractice cases in the state. The ballooning ‘patient compensation fund’ has reached approximately one billion dollars and been “dipped into” at least a handful of times.

The state does not authorize punitive damages (money that the defendant must pay as punishment, which is not paid to the plaintiff) in medical malpractice cases. [11]

Expert Witness Reporting And Testimony

To assist the judge or jury in understanding the evidence, a qualified expert possessing relevant knowledge, experience, skill, training or education may present their testimony in the case. The expert’s testimony can not be admitted if they will be compensated in any part by the damages awarded in the claim. The facts on which an expert bases their testimony need not be admissible evidence in the case. Expert testimony on behalf of either the plaintiff or defendant may be subject to vigorous cross-examination and presentation of contrary evidence. A judge may appoint an expert witness of their own choosing, or one agreed upon by both parties so long as the expert consents to give testimony. Court appointed experts may be compensated in whatever sum the judge allows.

If two experts are in disagreement, only the jury may determine which argument is more credible. Expert testimony is admissible if it passes this three-pronged test:

1. The witness is qualified
2. The witness’s methodology is scientifically reliable
3. The testimony will assist the trier of fact to determine a fact in issue

Expert testimony is critical, if not indispensable, in establishing the credibility of the plaintiff’s claim. In some states, it is legally required and the claim may not advance without it. Since the plaintiff has the ‘burden of proof,’ (responsibility to prove that malpractice occurred and the claim possesses merit) expert testimony is often the chief means of proving that the standard of care was breached and malpractice occurred. Evidence of injury is likewise used in establishing the burden of proof, but expert testimony establishes the way in which it was a breach of duty, and confirms that the breach caused the injury incurred. [12]

Are some parties immune from medical negligence cases?

Not every party can be held liable in a medical malpractice suit. Some parties are legally immune. For example, if the prospective defendant does not meet the legal definition of ‘healthcare provider,’ they will likely be immune from suit. If you wish to sue for medical malpractice, make certain that the party you wish to file a claim against meets the legal definition of healthcare provider.

In most other states (but not in Wisconsin), action may not be brought against any government entity. A concept known as sovereign immunity shields the state from suit and consequently from liability. This applies to government employees acting within the scope of their employment. Governmental immunity intersects with medical malpractice claims usually in the form of university hospitals and any potential claims against them. In Wisconsin, governmental immunity does not protect government employed medical personnel from medical malpractice claims. A claimant indeed may file suit against a healthcare provider, even if they are a government employee or government organization acting within the scope of their employment. The same time limits apply for bringing suit against government employees and organizations. [13]

Many states have blurred lines about filing claims against government employed medical personnel, with the reach of sovereign immunity ever in question. There is little uniformity in court rulings state to state, or even within one state. New rulings overturn old ones with some regularity. The question is constantly in flux but Wisconsin firmly holds that medical personnel employed by the government may be held liable for any tort committed within the scope of their employment.

Settling medical malpractice cases in Wisconsin

Wisconsin is among a bevy of states that heavily encourage pretrial arbitration, as a means of avoiding lengthy and costly litigation. The claimant must make a request for mediation before filing suit, and pay the associated fee. This will toll (pause) the statute of limitations. No court action can be commenced until mediation has concluded, assuming the claim is not resolved during mediation. The director of state courts appoints the members of the mediation panel, which will consist of:

1. One public member who is neither an attorney nor a health care provider
2. One attorney licensed to practice law in Wisconsin
3. One health care provider licensed in the same health care field as the defendant [14]

All mediators are immune from liability. The mediation period shall last 90 days after the date of request, or a longer period of time if all parties agree on said duration. No record may be made of the mediation proceedings. No production of records may be ordered, no physical exams may take place, and no expert testimony may be used. That being said, the panel may informally consult with experts. [15] The purpose of mediation is to resolve the issue, reaching a settlement without means of a trial. Especially in the state of Wisconsin, mediation is an oft-used method. Medical malpractice lawsuits are very rare in the state.

Litigating medical negligence cases in Wisconsin

If you are within the allotted amount of time to file, if the perpetrator is a legally defined health care provider, and the claim could not be successfully arbitrated, it will advance to litigation. In Wisconsin, a claim for medical malpractice begins with the filing of a complaint. The complaint must specifically describe the alleged malpractice and name the defendant(s) in the case. The defendant is then required to file a document that is called the Answer which provides responses to the allegations you made in the Complaint and will also list the affirmative defenses that will be used.

Initiating the case

If the parties to a medical malpractice lawsuit are unable to reach a settlement, the claim will proceed to civil court. In Wisconsin, a civil action first begins with the filing of the complaint with the clerk of the appropriate court. The complaint is the legal document used to begin a civil lawsuit. The complaint document should include:

• Your name
• The names of all of the defendants
• The address of all named defendants
• The specific facts giving rise to your claim
• A general request for relief from the court

Preparing for litigation

After the complaint and the defendant’s answer have been filed with the clerk of the court, the parties may begin the process of discovery. Discovery is a procedure by which both sides of a lawsuit discover pertinent information and evidence, which lets both parties know what to expect at trial. Medical records released by the patient and the healthcare provider will more than likely be used in the discovery process.

Each side may obtain discovery by:

• Deposition
• Written interrogatories
• Production of documents
• Physical or mental examinations
• Requests for admission

A deposition is a fact-finding tool with which the opposing party may ask the deposed witness questions while they are under oath. A deposition usually doesn’t take place in the courtroom. Rather, questions are asked in an attorney’s office. Both parties’ attorneys are usually present to help advise their client on how to answer certain questions and make objections if necessary. The question and answer session is meant to help each side’s attorney in determining where the facts have a solid foundation and where they are being exaggerated.

Written interrogatories are written questions sent to the opposing side that request answers which are used to establish the facts that will be presented once the case goes to trial.

Production of documents is a request made to the opposing party whereby tangible documents are sought. In a medical malpractice case, an example of a request for production of documents would be a request to view the medical records of the claimant.

Request for admission is a set of statements drafted by one side and sent to the other where the receiver must answer in the affirmative or the negative. In a medical malpractice case, an example of a request for admission would be a statement like, “the defense has no evidence to support a basis that the claimant caused their own injuries.” If the defense answers in the negative, the claimant would know that the defense is intending to proffer some type of evidence in an attempt to prove that they were at least partially to blame for their own injury

Pretrial litigation

Litigation can be expensive and there is no guarantee that either side will come out unscathed. For these reasons, it is not uncommon for a case to settle prior to reaching the trial stage of litigation. As discussed, Wisconsin utilizes and encourages the method of mediation as an alternative to trial.

Trial

During a trial, all admissible evidence will be presented to the ‘trier of fact’ who is a person or group of people who hear testimony and review evidence in order to issue a ruling in favor of one party or another. There are two potential triers of fact in a personal injury case in the state of North Carolina: a judge or a jury. In North Carolina, juries are permitted in all cases involving claims for monetary damages and in some cases seeking equitable relief.

To choose a jury, a procedure known as “voir dire” is conducted whereby attorneys ask potential jurors questions in order to determine what biases the panel members may have in favor or against the cast being brought before the court. If an attorney does not feel a particular potential juror will be fair, the attorney can ask the judge not to allow that person to sit on the jury. Once each side finishes announcing the parties they wish to have removed, the jury is impaneled.

Jurors are selected at random from a source list using the Wisconsin Department of Transportation’s list of people with motor vehicle licenses or ID cards, who live in the area served by that circuit court.

A juror must be:

• at least 18 years old
• a U.S. citizen
• able to understand the English language
• not be convicted of a felony without having had their rights restored
• fair and impartial

After the jury selection is completed, opening statements will begin. During opening statements, each side will present what they believe the evidence will show during the course of the trial process.

From there, the plaintiff will begin to argue their case. Witnesses will likely be called and expert testimony will be used to attempt to show that the physician was negligent and that the negligence was the cause of the plaintiff’s injury.

Once the plaintiff finishes the presentation of their case, the defense will begin to present their case. The defense will present the physician’s side of the case and attempt to show why negligence was not involved in creating the patient’s injury.

Once both sides have argued their cases, closing arguments will take place and jury instructions will then be given by the judge to the jury. The jury is then free to deliberate and come back with a finding.

Appeal

Often, the losing party in a case will seek to appeal the court’s decision. The party seeking to appeal will have 45 days from the day a judgement is entered to file an appeal with the court, for which there is $195 filing fee. An appeal is usually based in the notion that the lower court made a clear error in resolving the facts of the case, abused its discretion in making the decision or misinterpreted or failed to follow the applicable law.

How to find the best Wisconsin Medical Malpractice Lawyer for your case

Taking legal action can be daunting and of course, exceptionally confusing, for those of us not ‘legally literate.’ If you wish to file suit for medical malpractice, you are likely contending with a difficult injury or helping a loved one heal. While you rightfully seek compensation for what you have endured, you are likely ill-equipped to immediately take on the legal labyrinth of a malpractice claim. A good medical malpractice attorney will be indispensable to you as you take on this battle. Skilled legal representation will deal with the deadlines, definitions, experts and general complexities of the case so that you are free to focus on the task truly at hand: recovery. So what factors should you consider when deciding who to hire for your case?

Experience is, above all, the most valuable asset an attorney can offer you. If they have litigated cases similar to yours in the past, they will be able to give you more informed responses regarding the length of time involved, the damages you could expect, and the kind of costs you should anticipate. Do not be shy to inquire as to an attorney’s level of experience.

In the attorney search process, take your time and interview multiple candidates. Do not be pressured into hiring a lawyer or firm on the spot. “Shop around” to find an attorney who you communicate well with, and who is a good fit for you and your family. If the attorney has a large case load, it may be more difficult for them to give your case adequate focus, so ask how many cases they are currently taking on. Do not be afraid to ask about their fee structure, and if they litigate on an hourly or contingency rate.

Some notable medical malpractice law decisions from Wisconsin

Medical malpractice lawsuits are notoriously difficult win and even too difficult to file in Wisconsin. Expert legal representation and a bulletproof claim of negligence are usually necessary for courtroom success in this state. If and when a plaintiff does win their medical malpractice lawsuit in Wisconsin, damage awards can reach sky-high figures, given the rarity of such an outcome and an enormous compensation fund that usually sits idle. The following are a few cases in which the plaintiff won and was awarded very high damages but again bear in mind that this outcome is rare.

Mayo v. Wisconsin Injured Patients and Families Compensation Fund

The title of the case errs on the side of misleading. Naturally, the suit was against a negligent physician and not against the Fund that compensates injured claimants. Damage awards in the case were so high that the Fund itself and the limits imposed in legislation were challenged. The case centered around the plaintiff, Ascaris Mayo, who lost all four of her limbs after a common strep infection. The defendants, Wyatt Jaffe and Donald Gibson evidently failed to identify and treat the strep. The specific breach of standard of care cited in court documents was a failure to provide “alternative medical diagnoses” that would have led Mayo to pursue other treatment. The jury awarded $8.2 million in future and past medical expenses alone, with an additional $1.5 million for her husbands loss of companionship, as well as $15 million for pain and suffering. Awards to compensate medical expenses are not subject to state caps, so the defendants could not appeal the 8 million figure, but they did seek to appeal the award for pain and suffering. The case was notable because the judge blatantly chose to ignore the legislative caps on non-economic damages. News outlets trumpeted that the judge was “striking down” these limits, on the grounds that they did not provide sufficient compensation to the victim. This case stands in stark contrast to the overall medical malpractice landscape in the state, which notoriously discourages claims and legislatively is slanted toward physicians/defendants. [16]

Disch vs. St. Mary’s/Dean Ventures

37 year old Travis Disch suffered irreversible brain damage and subsequently died during a routine endoscopy at St. Mary’s Hospital in Madison. Disch’s wife filed suit on his behalf, seeking damages for the pain, suffering and fright Disch experienced while consciously sedated. Hospital staff allegedly ignored warning signs such as mottled skin, and doubled the recommended dosage of fentanyl and midazolam. By the time Disch was transferred to the ICU, he had suffered extensive brain damage and passed away after being taken off life support. The case settled, damages were kept confidential but had to have totaled at least $3.75 million dollars because the compensation fund paid $2.75 million to the family and will only take over after at least $1 million is paid by insurance.

Footnotes

[1] Wis. Stat. Ann. § 893.55(1m)

[2] Paul v. Skemp, 2001 WI 42, 242 Wis. 2d 507, 625 N.W.2d 860, 99-1810

[3] Wis. Stat. Ann. § 893.55(1m)(a)(b)

[4] Wis. Stat. Ann. § 893.56

[5] Wis. Stat. Ann. § 893.555(1)(a)

[6] Doe v. American National Red Cross, 176 Wis. 2d 610, 500 N.W.2d 264 (1993)

[7] Phelps v. Physicians Insurance Company of Wisconsin, Inc. 2005

[8] Wis. Stat. Ann. § 895.045(1)

[9] Wis. Stat. Ann. § 893.55(4)(a)

[10] Wis. Stat. Ann. § 893.55(1d)(c)

[11] Lund v. Kokemoor, 195 Wis. 2d 727, 537 N.W.2d 21 (Ct. App. 1995), 95-0453

[12] Wis. Stat. Ann. § 907.02

[13] Wis. Stat. Ann. § 893.80(1m)

[14] Wis. Stat. Ann. § 655.465

[15] Wis. Stat. Ann. § 655.58

[16] Mayo v. Wisconsin Injured Patients Compensation Fund, et al., 2012CV006272 (Oct. 3, 2014)