If you believe that you were injured or otherwise harmed because of a Wisconsin health care provider’s medical negligence, you might be thinking about pursuing a medical malpractice lawsuit against the doctor, hospital, or other provider. Be forewarned: These cases are complicated, and it can be difficult for injured patients to prove that a health care provider is liable for a mistake. That’s why you should strongly consider finding a good medical malpractice attorney to help you navigate the process.
Still, you should also understand some of the basic rules when you’re first starting out. In particular, you don’t want to miss the all-important deadlines for taking action—which could doom your case before it has even started. This article gives an overview of the Wisconsin laws that could affect the outcome of your medical malpractice claim, including the time limits for filing a lawsuit, mediation requirements, and limits on the amount of compensation you can receive.
Laws that set deadlines for filing lawsuits in court are known as “statutes of limitations.” Under Wisconsin’s statute of limitations for medical malpractice cases, an injured patient must file a lawsuit within the later of:
However, most patients may not rely on the discovery rule to file a lawsuit more than five years after the alleged negligence—even if, at that point, they still haven’t learned (and couldn’t have learned) that they were harmed by the negligence. This five-year “statute of repose” does not apply when:
In either of those two situations, patients have a year to file a lawsuit after they discover or should’ve discovered the concealment or foreign object, even if more than five years have passed since the incident. (Wis. Stat. § 893.55(1m), (2), (3) (2021).)
It's worth pointing out that the law is not always clear-cut when it comes to applying the discovery rule and the five-year deadline. In fact, courts in Wisconsin have held that it would be unconstitutional to apply the statute of repose in certain situations—such as when a patient couldn't have known about a diagnostic error that overlooked her metastatic cancer until more than five years after the mistake. (See, for instance, Estate of Makos by Major v. Wisconsin Masons Health Care Fund, 564 N.W.2d 662 (Wis. 1997).) That's why it's always a good idea to speak with a medical malpractice attorney about your situation, even if you're worried that the filing deadline has passed.
Wisconsin has a different filing deadline for medical malpractice cases involving young children. In these cases, the child’s parent or guardian may file the lawsuit before the child’s tenth birthday or within the standard three-year/one-year standard time limit, whichever deadline comes later. Otherwise, the standard statute of limitations applies even if the injured patient was a minor (under the age of 18) at the time of the medical error, unless the minor is incarcerated or has a development or mental disability. (Wis. Stat. § 893.56 (2021).)
Wisconsin courts have held that when a patient has been under a health care provider’s continuing—and allegedly negligent—treatment for a specific medical condition, the “clock” for the statute of limitations doesn’t start running until the date of the last treatment. Also, the clock is paused (or “tolled” in legalese) under a few circumstances, including:
In the case of mentally ill patients, they generally may file a medical malpractice lawsuit within two years after they are no longer disabled, as long as the statute of limitations is not extended for more than five years. (Wis. Stat. §§ 893.15, 893.16 (2021).)
Many states have set up procedural hurdles at the beginning of medical malpractice lawsuits (such as certificate of merit requirements) that are meant to weed out frivolous cases. Wisconsin has a different approach. Instead of requiring injured patients to submit some proof of medical malpractice when they file a lawsuit, the state requires patients to participate in a mediation process with the defendant health care providers before a lawsuit can go forward.
Here’s how Wisconsin’s mandatory mediation works: As the plaintiff (the injured patient), you must request the mediation. You may submit that request either before filing a lawsuit or within 15 days after you’ve done so. If you make the request beforehand, the filing deadline will be extended until 30 days after the end of the mediation period (discussed below).
Your request for mediation should include:
You must deliver your written request to the Wisconsin Director of State Courts, either in person or by registered mail, along with the $11 filing fee. You won’t have to pay any other costs for the mediation.
The director of state courts will appoint a neutral, three-member panel (including one attorney, one health care provider, and one mediator who is neither a lawyer nor a health care provider) to conduct the mediation. You may have an attorney represent you during mediation; the same is true for the defendant health care providers. Although the mediation panel will review your medical records (and may consult with experts), there won’t be any reports or testimony from medical experts or other witnesses. The process is informal and confidential, and there will be no recording or transcript of the mediation sessions.
The goal of mediation is to encourage the two sides to reach a voluntary settlement before going through the time and expense of a lawsuit. Wisconsin law allows 60 days for the mediation process after you’ve delivered the request (or 63 days after the request was mailed), unless both sides agree to an extension. If you haven’t agreed on a settlement once that time expires, you may then proceed with your lawsuit, including the discovery process (when you and the defendant will exchange information and documents; learn more about the timeline of medical malpractice lawsuits). (Wis. Stat. §§ 655.43, 655.44, 655.445, 655.465, 655.54, 655.58 (2021).)
Like many other states, Wisconsin sets an upper limit on the amount of money you may receive in compensation for your “damages”—the losses you experienced as a result of medical malpractice. Wisconsin’s cap is currently $750,000, but it applies only to noneconomic damages like pain and suffering, embarrassment, mental distress, and diminished enjoyment of life and health.
When you go to trial, the jury will decide on the total amount of damages that you’re entitled to receive, regardless of the limit. If the total for noneconomic damages is over the $750,000 cap, the jury will then decide if that amount needs to be reduced because you were partly at fault for your injuries (more on that below). The court will then award you that reduced amount or $750,000, whichever is less. There is no limit on what you may receive for economic damages like past and future medical costs, lost income, and diminished earning capacity. (Wis. Stat. § 893.55(4) (2021).)
In 2018, the Wisconsin Supreme Court held that the $750,000 cap in medical malpractice cases does not violate the state's constitution (Mayo v. Wisconsin Injured Patients and Families Compensation Fund, 914 N.W.2d 678 (Wis. 2018)).
What happens if the defendant health care provider claims that you were partly to blame for the extent of your injuries? For instance, even if you suffered back problems because of a negligent mistake during spinal surgery, you might have made your condition worse by failing to follow your doctor’s orders about what to do (or not do) after the procedure.
In this type of situation, Wisconsin follows what’s known as a modified comparative negligence rule. This means that if the jury finds that you were partly at fault for your injuries, but your share of the blame wasn’t greater than the defendant’s share, your award will be reduced in proportion to your share of fault. So, for example, if the jury awarded you $200,000 in damages but also found that you were 25% at fault, you would receive $150,000. However, if the jury found that your share of the blame was more than 50%, you would receive nothing.
If you’re suing more than one health care provider (for instance, if you claim that a surgeon, an anesthesiologist, and a hospital were all negligent and contributed to your injuries), and the jury finds that you were partly at fault, your own negligence will be measured separately against each defendant. If any one of the defendants bears at least 51% of the total fault, you may collect all of your award from that defendant. (Wis. Stat. § 895.045 (2021).)