Wisconsin lawmakers have embraced concepts of tort reform when it comes to medical malpractice lawsuits, by instituting statutory caps on certain kinds of damages available to an injured patient, and by placing limits on attorney fees in these kinds of cases. But the state tempers these reforms with subtle changes that still provide medical malpractice claimants with several advantages. Read on for the details on Wisconsin laws that could affect a medical malpractice lawsuit filed in the state's courts.
Wisconsin law dictates that most medical malpractice lawsuits be filed within three years from the date the underyling medical error was committed. (Wisconsin Statutes section 893.55.)
However, Wisconsin does have a "discovery rule" under which the injured patient can file the lawsuit within one year from the date his or her injury was discovered "or, in the exercise of reasonable diligence should have been discovered," as long as no more than five years have passed since the commission of the medical error giving rise to the case.
Finally, in cases where a foreign object was accidentally left in a patient, or where the health care provider concealed the malpractice, the filing deadline is one year from the date the injury is discovered or, in the exercise of reasonable diligence, should have been discovered.
Wisconsin provides the opportunity for voluntary mediation of a medical malpractice lawsuit. A claimant must either ask for mediation prior to filing suit, or request mediation within 15 days of filing.
In the first instance, the statute of limitations is paused, or tolled, until the mediation process is complete, at which time the case is either settled or moves to suit.
In the second instance, when a suit has already been filed, the court issues an order staying proceedings until mediation is completed, whereupon the case is either settled or reinstated. The findings and deliberations of the mediation panels are not admissible in any subsequent court case.
The use of expert testimony to establish the standard of care, and to show how the defendant violated that standard, is usually necessary in a Wisconsin medical malpractice case. However, in cases dealing with "routine” care that is considered to be within a jury’s common knowledge, expert testimony is not necessary. Kujawski v. Arbor View Health Care Center, 139 Wis. 2d 455, 407 N.W. 2d 249 (1987).
Wisconsin imposes caps on non-economic damages in medical malpractice cases involving injury (not death). The cap is currently $750,000. This higher cap replaced a $350,000 cap that was deemed unconstitutional by the Wisconsin Supreme Court in 2005.
Editor's note: In July 2017, a Wisconsin appeals court ruled that the state's $750,000 cap on non-economic damages is "unconstitutional on its face." The decision is almost certain to be appealed to the Wisconsin Supreme Court, which could issue a definitive ruling on the issue, so stay tuned.
Wisconsin maintains a patient compensation fund that covers any verdicts that exceed a health care provider’s insurance limits. As a result, Wisconsin also requires all health care providers to carry at least $3 million in malpractice insurance, with a per-claim limit of at least $1 million. Wisconsin doctors must also pay a yearly fee to participate in the Wisconsin Patients’ Compensation Fund.
A claimant that thinks his or her claim will exceed insurance limits must join the Patients’ Compensation Fund as a party in the related lawsuit.
Wisconsin Statutes section 895.045 states that defendants must be at least 51% at-fault to be jointly and severally liable for a verdict. This means that if a doctor is only found to be 50% at fault for the injury, the claimant may only collect 50% of the total verdict from that doctor. If the doctor is 51% at fault or more, a claimant may seek to collect the entire verdict amount from that one doctor, even if other doctors were also found liable to a lesser degree. Claimants themselves are liable for any percentage of their own medical negligence, as long as they are less than 51% at fault.