Wisconsin Medical Malpractice Laws

I. Overview of Basic Principles and Concepts

What is Medical Malpractice in Wisconsin?

Medical malpractice is a specific type of professional negligence by a healthcare provider.  In the medical malpractice context, negligence means that the healthcare provider’s actions deviated from or fell below the applicable accepted standards of medical practice.  When that negligence results in the patient sustaining injury, becoming ill, or illness worsening, then medical malpractice may have occurred.

Medical malpractice actions in Wisconsin are governed by Wisconsin Statutes (“WS”) Chapter 655—Health Care Liability and Injured Patients and Families Compensation.  The Wisconsin Supreme Court observed that Chapter 655 provides the exclusive procedure for a person to pursue a malpractice claim against a healthcare provider.  Rouse v. Theda Clark Medical Center, Inc., 735 N.W.2d 30, 40 (2007).  WS §655.006(1)(a) states that “every patient, every patient’s representative and every health care provider shall be conclusively presumed to have accepted to be bound by this chapter.”

However, it is important to understand that Chapter 655 does not provide a comprehensive set of procedural rules for maintaining a medical malpractice claim.  Rouse, 735 N.W.3d at 40.  The Supreme Court pointed out that Chapter 655 “does not exist in a procedural vacuum.  Other procedures governing civil litigation apply to medical malpractice claims, unless they conflict with chapter 655.”  Id. at 40-41.  For example, Chapter 655 does not contain the governing statute of limitations or statute of repose for medical malpractice claims.  Instead, they are found in WS §§893.55(1)(a) and 893.55(1)(b), respectively.

Required Elements of a Medical Malpractice Claim in Wisconsin

Introduction

It is important to understand that not all mistakes made (instances of negligence) by healthcare providers constitute compensable medical malpractice under Wisconsin law.  Similarly, not all injuries following medical treatment amount to medical malpractice entitling the injured patient to compensation.  Some degree of risk is inherent in most medical procedures.  The law does not require healthcare providers to guarantee that no harm or unfavorable consequence will arise from treatment.  The law simply requires that healthcare providers meet the legally required standard of care while rendering medical treatment.  While negligence and subsequent injury are necessary factors for a legally valid medical malpractice claim, their mere presence alone is not sufficient for a compensable claim.

Wisconsin medical malpractice law requires the injured patient to also prove causation between the negligence and the subsequent injury.  The negligence must be the actual cause in fact of the patient’s injury.  The law does not hold a healthcare provider who was negligent legally responsible for any and all injuries sustained by a patient simply because they happen to occur or manifest themselves after the negligent behavior.  That is, the negligent act must have been the actual cause of the injury, not simply precede it in time, for a viable medical malpractice claim.

The Four Basic Elements

There are four basic elements of a compensable medical malpractice claim that must all be proven by the plaintiff.

1. Duty—the healthcare provider owed the injured patient a legal duty of care;
2. Breach—the healthcare provider’s actions deviated from or fell below the required standard of care thereby breaching the legal duty of care owed;
3. Causation—the healthcare provider’s breach of the required standard of care caused or contributed to causing injury to the patient; and
4. Damages—the injured patient suffered actual loss or damages because of the injury.  Martindale v. Ripp, 246 Wis.2d 67, 90 (2001).

Duty and Breach

The Wisconsin Supreme Court described healthcare practitioners’ duty as follows: “physicians, like all others in this state, are bound by a duty to exercise due care.  Every person in Wisconsin must conform to the standard of a reasonable person under like circumstances; so too, then, ‘[t]he duty of a physician or surgeon is to exercise ordinary care.’”  Nowatske v. Osterloh, 198 Wis.2d 419, 432-433 (1996) (quoting Scaria v. St. Paul Fire & Marine Insurance Company, 68 Wis.2d 1, 11 (1975)).  The Court added “the basic standard—ordinary care—does not change when the defendant is a physician.  The only thing that changes is the makeup of the group to which the defendant’s conduct is compared.” Id. at 433.  The Court then summed up the duty owed by healthcare practitioners as follows:

The standard of care applicable to physicians in this state cannot be conclusively established either by what the majority of practitioners do or by a sum of the customs which those practitioners follow.  It must instead be established by a determination of what it is reasonable to expect of a professional given the state of medical knowledge at the time of the treatment in issue.

We recognize that in most situations there will be no significant difference between customary and reasonable practices.  In most situations physicians, like other professionals, will revise their customary practices so that the care they offer reflects a due regard for advances in the profession.  An emphasis on reasonable rather than customary practices, however, insures that custom will not shelter physicians who fail to adopt advances in their respective fields and who consequently fail to conform to the standard of care which both the profession and its patients have a right to expect.  Id. at 438-439.

According to the Wisconsin Supreme Court, in “medical malpractice actions, Wisconsin law generally requires the plaintiff to introduce expert testimony as to the standard of care and the defendant’s departure from it.”  Olfe v. Gordon, 93 Wis.2d 173, 180 (1980).  The Court instructed:

In order to hold a physician liable, the burden is upon the plaintiff to show that the physician failed in the requisite degree of care and skill.  That degree of care and skill can only be proved by the testimony of experts.  Without such testimony the jury has no standard which enables it to determine whether the defendant failed to exercise the degree of care and skill required of him.  Froh v. Milwaukee Medical Clinic, S.C., 85 Wis.2d 308, 317 (1978).

However, expert medical testimony is not required when the matter at issue is within the common knowledge and lay comprehension.  Olfe, 93 Wis.2d at 180.  Wisconsin Supreme Court explained:

This court has long distinguished between matters of common knowledge and those needing expert testimony to explain and has held that expert testimony should be adduced concerning matters involving special knowledge or skill or experience on subjects which are not within the realm of the ordinary experience of mankind, and which required special learning, study, or experience.

By way of example, the Supreme Court noted that it has held that expert testimony was required in the following situations: (1) to determine whether medical or dental treatment is necessary to effect a cure or to promote healing, (2) the permanency of an injury, (3) whether pain will continue in the future; and if so, for how long a period of time, (4) whether future medical expenses will be incurred, (5) whether fall occurred because of a prior leg injury, and (6) whether a piece of bone entered the bloodstream, and whether that formed a blood clot which entered the patient’s lung.  Cramer v. Theda Clark Memorial Hospital, 45 Wis.2d 147, 151-152 (1969).  According to the Supreme Court, the foregoing examples involve facts and issues “so complex or technical that a jury without the assistance of expert testimony would be speculating and consequently such testimony was required.”  Id. at 152.

Causation

The issue of causation in a medical malpractice case is a question of fact for the trier of fact to decide.  Ehlinger v. Sipes, 155 Wis.2d 1, 14 (1990).  To establish causation in Wisconsin, the plaintiff has the burden of proving that the defendant’s negligence was a substantial factor in causing the plaintiff’s injury.  Id. at 13.  According to the Wisconsin Supreme Court, “[o]nce the question of causation is submitted to the trier of fact, the issue [in medical malpractice cases] is the same as in other negligence causes of action: was the defendant’s negligence a substantial factor in producing the plaintiff’s injuries?”  Fischer v. Ganju, 168 Wis.2d 834, 842 (1992).

In Ehlinger, the Supreme Court provided the following discussion of substantial factor.

The phrase “substantial factor” denotes that the defendant’s conduct has such an effect in producing the harm as to lead the trier of fact, as a reasonable person, to regard it as a cause, using that word in the popular sense.  The test has been described as one of significance rather than quantum.  All that is required in negligence cases is for the plaintiff to present probable facts from which negligence and causal relations may be reasonably inferred.  One who negligently creates a dangerous condition may be held liable even though another cause is also a substantial factor in contributing to the result.  There may be more than one substantial causative factor in any given case.  The defendant’s negligent conduct, need not be the sole or primary factor in causing the plaintiff’s harm. [internal citations and quotation marks omitted]  Ehlinger, 155 Wis.2d at 12-13.

The issue regarding the standard of certainty of an expert’s opinion testimony necessary for admitting such testimony into evidence is extremely important and often vigorously contested.  The Wisconsin Supreme Court stated “that medical testimony is not always based upon absolute certitude.  It is sometimes based upon empirical knowledge and experience in the area of cause and effect.”  Martindale, 246 Wis.2d at 102.  The standard is best referred to as “medical probability.”  Id.  The Supreme Court warned that “an expert opinion expressed in terms of possibility or conjecture is insufficient.”  Pucci v. Rausch, 51 Wis.2d 513, 519 (1971).  However, the test is not the use of a particular word or phrase “but the meaning or sense in which the word or phrase was used….”  Id.

II. Filing Deadlines for Medical Malpractice Claims

Introduction to Statute of Limitations

Filing deadlines are among the most important preliminary issues to consider with respect to any potential legal case.  In particular, medical malpractice claims must be initiated by a specific deadline, or you may be completely barred from proceeding with your lawsuit, even if you have a valid claim that would otherwise entitle you to recover damages for your injuries.

These strict filing deadlines are referred to as a statute of limitations.  Each state establishes deadlines by which you must file various types of legal claims in order to preserve your right to have the substantive merits of your case heard.  In addition to filing deadlines for initiating the lawsuit itself, a statute of limitations commonly prescribes other deadlines by which certain actions must be performed, or once again, you may be barred from proceeding with your lawsuit.

A statute of limitations can often be tolled or extended.  Tolling refers to delaying or pausing the running (or active countdown) of the applicable time period.  For example, if a statute is tolled for 90 days, then the countdown towards the deadline is paused for that duration of time.  The deadline to carry out a specified action under a statute of limitations can also be extended.  For instance, many statutes of limitations add a specified number of years to the applicable deadline if the prospective defendant engaged in fraud or other intentional actions in an attempt to conceal his or her liability.

Statute of Limitations for Medical Malpractice Claims in Wisconsin

Wisconsin’s standard statute of limitations governing medical malpractice claims is contained in WS §893.55(1m).  Basically, a plaintiff seeking to bring a civil action based upon a claim of medical malpractice must commence that action within three years from the date of the injury. WS §893.55(1m)(a).  The critical issue, then, is what constitutes the date of the injury because that date will trigger the running of the three-year limitations period in which a plaintiff must commence an action or be forever time-barred from doing so.

The Wisconsin Supreme Court explained that “there are three points in time when a tort claim may be said to accrue [i.e., when a plaintiff has a legal right of action]: (1) when negligence occurs, (2) when a resulting injury is sustained, and (3) when the injury is discovered.”  Hansen v. AH Robins, Inc., 113 Wis.2d 550, 554 (1983).  The Court clarified

that the time of the negligent act alone is not the key to accrual of tort claims….  A tort claim is not capable of enforcement until both a negligent act and an accompanying injury have occurred.  Although the negligence and resulting injury are often simultaneous, occasionally an injury will not be sustained until a subsequent date.  There, we have held that tort claims accrue on the date of injury.

The foregoing rule equitably regulates the statute of limitations in the majority of cases.  Most often a claimant is aware of an injury when it occurs.  Therefore, the claimant has the full statutory period in which to initiate an action.  In some instances, however, the negligence my cause an injury which is initially latent.  Such an injury may not be discovered until it is manifested at a later date.

According to the Wisconsin Supreme Court, the “running of the statute of limitations turns on when the claims accrue, as compared with when the action is filed.”  Paul v. Skemp, 242 Wis.2d 507, 520 (2001).  Under WS §893.55(1m)(a), claims accrue at the time of an injury; this is the injury rule of accrual component of the statute.  Id.  The Supreme Court made it clear that the negligent act or omission does not also constitute the injury necessary to trigger the running of the limitations period, stating the “legislature did not intend that ‘omission’ [or act] and ‘injury’ would be so conflated.”  Id. at 521.  The plain language of the statute makes it clear that “it is not the negligence, but the injury resulting from the negligent act or omission which initiates the limitations period.”  Id.

In cases where the negligence and the injury occur simultaneously, the date upon which the limitations period begins to run is easily identified.  Examples include cases in which the wrong limb is amputated and where the patient is poked in the eye during a procedure in which sharp objects are used in close proximity to the eye.  It is easy to distinguish the negligence and injury in these types of cases.  They both occurred on the same date, but it is the injury sustained that triggers the limitations period in both examples, not the negligent act.

It is when the negligence and injury do not occur on the same date that disputes arise over the start date of the limitations period.  That was the situation in Paul.  Jennifer Paul first complained to the defendant Skemp Clinic about headaches when she was nine years old in 1984.  For the next ten years, she complained about vomiting, nausea, and headaches.  Doctors at the clinic repeatedly told her that it was likely due to a sinus problem.  On May 22, 1995, she went to the emergency room where it was discovered that an arteriovenous malformation (“AVM”) in her right cerebellum and had ruptured.  She died the next day.

On March 16, 1998, her parents filed a complaint against the Skemp doctors for failing to diagnose the AVM and misdiagnosing the cause of her headaches.  The defendants argued that the claim was time-barred by the statute of limitations because it was filed more than three years after Jennifer’s injury, which they claimed was the last alleged misdiagnosis on December 20, 1994.  In contrast, her parents argued that the injury which triggered the limitations period was the rupture of the AVM on May 22, 1995.

The Supreme Court rejected the defendant’s position that the date of the final misdiagnosis was also the date of injury thereby triggering the limitations period.  Id. at 540.  The Court ruled: “we conclude that the alleged misdiagnosis in this case was not the injury that triggered the running of the limitations period….  Instead … the injury that resulted from the alleged misdiagnosis occurred when the rupture of the AVM in Jennifer’s brain happened on May 22, 1995….”  Id.  The Court explained: “A misdiagnosis, in and of itself, is not, and cannot, be an actionable injury.  The misdiagnosis is the negligent omission, not the injury.  The actionable injury arises when the misdiagnosis causes a greater harm than existed at the time of the misdiagnosis.”  Id. at 525.  The Court added: “the negligence and its result—an injury—should be considered separately.  The negligence must cause an injury before there is an accrual of a claim.”  Id. at 530.

Therefore, under the injury accrual three-year statute of limitations, the limitations period is triggered upon sustaining the injury on which the medical malpractice claim is based, not the occurrence of the negligent act or omission.

The Discovery Rule

Introduction

Every state has some version of the Discovery Rule.  In general, the Discovery Rule is an exception to the standard statute of limitations.  It tolls the applicable statute of limitations until the injury stemming from the alleged medical negligence is or should have been discovered by the plaintiff.  Injuries resulting from medical negligence often do not materialize until years after the negligent act, omission, or decision.  The rationale underlying the Discovery Rule is to prevent the statute of limitations barring a plaintiff from pursuing a medical malpractice claim until the injury has been discovered or should have been discovered.

The Discovery Rule in Wisconsin

Wisconsin has codified the Discovery Rule with respect to medical malpractice claims in the same statute as its standard three-year injury accrual statute of limitations, i.e., WS §893.55(1m).  WS §893.55(1m)(b) provides that a claim based on medical malpractice must be commenced within one year from the date “the injury was discovered or, in the exercise of reasonable diligence should have been discovered….”  The statute states that the applicable limitations period is the later of either the standard three-year injury accrual or alternative one-year Discovery Rule statute of limitations. WS §893.55(1m).  Accordingly, if both limitations period apply to a claim, it must be commenced within the limitations period that ends at the later date.

The Wisconsin Supreme Court described the Discovery Rule contained in WS §893.55(1m)(b) as follows:

Typically, the discovery rule of accrual embodied in Wis. Stat. § 893.55(1)(b) extends the accrual time, specifically, where the negligence and the injury occurred at the same time, but the injury was latent.  Section 893.55(1)(b) allows a claimant to bring a medical malpractice claim where an injury was discovered more than three years after the injury occurred, so long as the action is brought within one year from the date of the discovery of the injury, or within one year of when, with exercise of reasonable efforts, the injury should have been discovered….”  Paul v. Skemp, 242 Wis.2d 507, 537 (2001).

In addition, the Supreme Court explained the plaintiff’s duty to conduct due diligence under the Discovery Rule as follows:

Plaintiffs have a duty to inquire into the injury that results from tortious activity. The measure of diligence required of a plaintiff to discover the elements of his or her cause of action is such diligence as the great majority of persons would use in the same or similar circumstances. Plaintiffs may not ignore means of information reasonably available to them, but must in good faith apply their attention to those particulars which may be inferred to be within their reach…. If the plaintiff has information providing the basis for an objective belief as to his or her injury and its cause, he or she has discovered the injury and its cause. [internal citations omitted]  Doe v. Archdiocese of Milwaukee, 211 Wis.2d 312, 340-341 (1997).

Special Provisions

Minors

A separate statute governs the limitations period in which minors may bring a medical malpractice claim. WS §893.56 sets forth the applicable statute of limitations for minors.  It states that minors must bring an action for medical malpractice within the limitations periods contained in the general medical malpractice statute of limitations in WS §893.55 or by the time the minor reaches the age of ten, whichever is later.

Mental Illness

If at the time a person entitled to bring a medical malpractice claim is mentally ill, “the action may be commenced within two years after the disability ceases.”  WS §893.16(1).  What constitutes mental illness for purposes of the statute is critical in determining whether a plaintiff may invoke the tolling provision provided by WS §893.16(1).  Since the term is not defined in the statute, the Wisconsin Supreme Court provided this working definition:

We hold, for purposes of § 893.16(1)’s tolling provision, that a ‘mental illness’ is a mental condition that renders a person functionally unable to understand or appreciate the situation giving rise to the legal claim so that the person can assert legal rights or functionally unable to understand legal rights and appreciate the need to assert them[1].  Storm v. Legion Insurance Company, 265 Wis.2d 169, 201-202 (2003).

In order for WS §893.16(1) to toll the applicable statute of limitations, the mental illness must have existed when the cause of action accrues. WS §893.16(3).  Also, the statute makes it clear that WS §893.16(1) “does not shorten a period of limitation otherwise prescribed.” WS §893.16(2).

Mandatory Mediation

The statutorily required mandatory mediation under both WS §655.44 and WS §655.445 tolls the applicable statute of limitations.  WS §655.44(4) and WS §655.445(2), respectively.  In addition, the Wisconsin Supreme Court ruled that the tolling provision in connection with mandatory mediation tolls the five-year statute of repose in WS §893.55(1)(b).  Landis v. Physicians Insurance Company of Wisconsin, Inc., 245 Wis.2d 1, 6 (2001).

Final Thoughts

The application of Wisconsin’s medical malpractice statute of limitations is extremely nuanced, technical, and fact-driven.  This is especially true when the statute of repose is also implicated (see next Section of this article).  The rules governing this area of the law can be overwhelmingly complex and confusing for anyone other than an experienced Wisconsin medical malpractice attorney.  In order for potential plaintiffs to ensure the preservation of their right to prosecute their medical malpractice claim, it is advisable to contact a Wisconsin attorney who specializes in medical malpractice law at the earliest possible opportunity.

III. Statute of Repose—Absolute Bar to Recovery

Introduction

Statutes of repose are procedurally related to statutes of limitations.  Both types of statutes involve the countdown towards a deadline by which time a specified action must be performed.  If the deadline is not met, they can both bar any further prosecution of a case without regard to the actual substantive merits of the claim.

Although they can be thought of as being related, there are critical differences between them.  The manner in which the running of each statute is triggered represents a subtle but very significant difference between the two types of statutes.  A statute of limitations is generally triggered when the cause of action accrues, i.e., when all essential elements are present and a claim becomes legally actionable.

In contrast, a statute of repose is triggered upon the occurrence of a specified event regardless of whether the cause of action has accrued.  In medical malpractice cases, that event is usually, but not always, the medical procedure that is alleged to have caused the subsequent injury.  The statute of repose begins to run as of the date of the procedure or other triggering event regardless of whether the cause of action has accrued.  Whereas, the corresponding statute of limitations typically does not begin to run until the plaintiff knows about the injury or deemed to know and all other elements of a viable cause of action exist.

Additionally, unlike a statute of limitations, a statute of repose can run and bar a right of action before it even exists.  A statute of repose serves as an absolute bar to recovery.  Once it runs, it extinguishes the claim entirely even if the claim is not yet time-barred by the applicable statute of limitations.  The statute of repose controls in that scenario.

While statutes of limitations are widely known and even understood by much of the general public, the same does not hold true with respect to statutes of repose.  In fact, even many practicing lawyers do not fully appreciate the critical differences between the two.  This is likely due to the fact that statutes of repose are relatively rare.  Every cause of action in every state is governed by an applicable statute of limitations, but relatively few causes of action are also covered by a statute of repose.

Statute of Repose in Wisconsin

Wisconsin has a five-year statute of repose that runs from the date of the occurrence of the act or omission that forms the basis of the medical malpractice claim. WS §893.55(1m)(b).  It is important to note that the Wisconsin Supreme Court ruled that the five-year statute of repose applies only to actions brought under the Discovery Rule in paragraph (b) of WS §893.55(1m).  Storm v. Legion Insurance Company, 265 Wis.2d 169, 182 (2003).  It does not apply to the standard three-year so-called injury accrual statute of limitations contained in paragraph (a).  Id.  As a true statute of repose, the expiration of the five-year repose period serves to bar medical malpractice actions even if the plaintiff has not yet discovered the latent injury.  Id.

The Wisconsin Supreme Court explained the primary difference between a statute of limitations and a statute of repose as follows:

A statute of limitations usually establishes the time frame within which a claim must be initiated after a cause of action actually accrues. A statute of repose, by contrast, limits the time period within which an action may be brought based on the date of the act or omission. Statutes of repose thus bear no relation to the accrual of a cause of action and can toll before an injury is discovered or even before an injury has occurred.

Immunities and Limitations on Liability

Sovereign Immunity

Introduction

Sovereign immunity is the legal doctrine that holds the government is immune from lawsuits or other legal actions except when and to the extent it consents to them.  The doctrine traces its origins back to English common law where the king made the laws, so the king could do no wrong.  As a result, there could be no valid claim against a government entity.  The doctrine crossed the ocean and found its way to the United States in the early 1800s, and it was soon adopted in some form in nearly every state.  Today, most states have either limited or eliminated, to some extent, sovereign immunity by judicial action or statute.

Sovereign Immunity in Wisconsin

Governmental Bodies

By statute, Wisconsin provides governmental bodies and public officials with broad immunity from many types of legal action.  WS §893.80.  However, medical malpractice claims against governmental bodies are provided for in WS §893.80(1m).  Governmental bodies include volunteer fire companies, political corporations, governmental subdivisions, and their agencies. WS §893.80(1b)(a).

There is a general requirement that written notice of claim be provided within 120 days after the happening of the event giving rise to the claim. WS §893.80(1d)(a).  But the notice of claim requirement is inapplicable to medical malpractice claims under WS §893.80(1m).  In fact, WS §893.80(1m) expressly states that medical malpractice claims against government bodies are governed by the standard statute of limitations that applies to medical malpractice actions in general.  Accordingly, there are no special filing requirements or time limitations to comply with when bringing a medical malpractice action against a government body.

The amount recoverable against a governmental body is limited to $50,000. WS §893.80(3).  In addition, punitive damages are not allowed or recoverable against a governmental body.  Id.

State Employees

Although state employees have broad immunity for various types of actions, they are subject to medical malpractice claims. WS §893.82(5m).  For purposes of the statute, state employees include:

1. A volunteer healthcare provider who furnishes specified types of services under the statute.
2. A practitioner who provides certain specified volunteer services under the statute.
3. A physician who provides certain services on behalf of governmental bodies specified under the statute.  WS §893.82(2)(d)

As with claims against governmental bodies, there is a general requirement that written notice of claim be provided within 120 days after the happening of the event giving rise to the claim. WS §893.82(3).  But again the notice of claim requirement is inapplicable to medical malpractice claims under WS §893.82(5m).  In fact, WS §893.82(5m) expressly states that medical malpractice claims against state employees are governed by the standard statute of limitations that applies to medical malpractice actions in general.  Accordingly, there are no special filing requirements or time limitations to comply with when bringing a medical malpractice action against a state employee.

The amount recoverable against a state employee is limited to $250,000. WS §893.82(6).  In addition, punitive damages are not allowed or recoverable against a state employee.  Id.

Good Samaritan Law

Introduction

The general rule in the United States holds that an individual is under no legal duty to provide assistance to someone in need during an emergency.  While there may, for some, be a moral obligation to aid others in emergency situations, there is no corresponding legal duty to do so.  It is a different story if an individual is responsible for creating the emergency situation from which a victim needs saving or an individual is under a pre-existing duty to save others from a specific situation (on-duty lifeguard has a duty to recuse swimmers under his or her watch).

In response, states have enacted Good Samaritan laws.  While they do not impose a legal duty to help others, they do eliminate a potential barrier for some in coming to the aid of others during an emergency.  Good Samaritan laws are designed to provide immunity from civil liability for individuals who voluntarily render assistance to those in need during an emergency situation.  As a public policy matter, society does not want concerns about potential civil liability stopping individuals from helping others in need of emergency assistance.

Good Samaritan Law in Wisconsin

Wisconsin has enacted a general Good Samaritan law that is codified in WS §895.48.  The statute provides immunity from civil liability for acts or omissions in rendering “emergency care at the scene of any emergency or accident in good faith….”  WS §895.48(1).  Under Wisconsin’s Good Samaritan law, both medical and nonmedical would-be Good Samaritans may qualify for immunity from civil liability while rendering emergency care.

The Wisconsin Supreme Court observed: “The purpose of the statute is to encourage individuals to provide emergency care to an injured person by immunizing the caregivers from common-law liability if they fail to exercise reasonable care when rendering emergency care in good faith.”  Mueller v. McMillian Warner Insurance Company, 290 Wis.2d 571, 584 (2006). The Mueller Court analyzed the Good Samaritan statute as follows.

The statute sets forth three elements:

(1)   Emergency care must be rendered at the scene of the emergency;

(2)   The care rendered must be emergency care; and

(3)   Any emergency care must be rendered in good faith.

If all three elements are met, the alleged tortfeasor “shall be immune from civil liability for his or her acts or omissions in rendering such emergency care.”  If any element is not met, the alleged tortfeasor is not entitled to immunity under the Good Samaritan statute. [emphasis in original] Id. at 582.

The phrase ‘scene of any emergency’ is not defined in the statute, so the Supreme Court defined it as follows: “‘Scene of any emergency’ is sufficiently broad to include … not only the place where the incident or injury occurred but also the place to which the plaintiff was moved.  As the circuit court stated, the ‘scene of any emergency’ may follow the injured person.”  Id. at 584.

Similarly, the term ‘emergency care’ is not defined in the statute.  The Supreme Court filled the definitional void by instructing:

A working definition of “emergency care” … (as it applies to a layperson) therefore would be care rendered by a layperson in a sudden, unexpected happening, occurrence or situation that demands immediate action until professional medical attention is available.  “Care” includes the evaluation, intervention, assistance, and treatment of, or intervention on behalf of the injured person, or response to medical conditions caused by an accident, trauma, or sudden illness.  Id. at 586-587.

In providing a working definition of the term ‘emergency care,’ the Supreme Court cautioned that it “cannot define ‘emergency care’ with a bright-line rule because of the great variety of situations that may qualify as emergency care.”  Id. at 586.  Instead, the definition provided in Mueller was meant to serve as “a flexible, broad working definition … that is suitable for the present case and may be suitable for a multitude of other cases.”  Id.

Medical practitioners are subject to an additional requirement in order to be covered by the Good Samaritan statute.  Basically, to receive immunity under the statute, they cannot be acting within the scope of their employment as healthcare professionals. WS §895.48(1g) provides that immunity is not extended to healthcare professionals rendering: “emergency care for compensation and within the scope of their usual and customary employment or practice at a hospital or other institution equipped with hospital facilities, at the scene of any emergency or accident, enroute to a hospital or other institution equipped with hospital facilities, or at a physician’s office.”

Additional Immunities and Limitations on Liability

There are numerous statutes providing some form of immunity or limitation on liability for various healthcare practitioners, emergency personnel, healthcare related entities, and specific scenarios scattered throughout the Wisconsin Statutes.  Many of the statutes medical malpractice plaintiffs are most likely to encounter are contained Chapter 895 of the Wisconsin Statutes.

Mandatory Mediation

By statute, a plaintiff and all defendants in a medical malpractice dispute are required to participate in mediation.  WS §655.43.  The plaintiff must request mediation either before filing suit in court under WS §655.42 or file a request for mediation within 15 days after the date of filing an action in court under WS §655.445.  The Wisconsin Supreme Court explained that the “interplay between §§ 655.44 and 655.445 demonstrates that claimants have a choice on how to proceed when attempting to resolve a dispute.”  Landis v. Physicians Insurance Company of Wisconsin, Inc., 245 Wis.2d 1, 12 (2001).  The legislative intent for the mediation requirement is to provide parties to a medical malpractice dispute “with an informal, inexpensive and expedient means for resolving disputes without litigation….” WS §655.42.

The request for mediation must be in writing and include the following information:

1. The plaintiff’s name and city, village or town, county and state of residence.
2. The name of the patient.
3. The name and address of the health care provider alleged to have been negligent in treating the patient.
4. The condition or disease for which the health care provider was treating the patient when the alleged negligence occurred and the dates of treatment.
5. A brief description of the injury alleged to have been caused by the health care provider’s negligence.  WS §655.44(2)

The filing of a request for mediation by the plaintiff triggers aA physician who provides certain services mandatory mediation period under either of the two foregoing statutes that lasts for 90 days if the request is personally delivered to the director of state courts or, if mailed, 93 days from the date of mailing the request for mediation.  WS §655.465(7).  If the mediation is requested prior to filing an action in court, the plaintiff is prohibited from filing an action during the mandatory mediation period. WS §655.44(5).

During the mandatory mediation period and for 30 days after the last day of the period, any applicable statute of limitations is tolled on the date the director of state court receives the request for mediation if delivered in person or on the date of mailing if sent by registered mail. WS §655.44(4).  In addition, the Wisconsin Supreme Court held that the applicable five-year statute of repose is also tolled during that same period by WS §655.44(4).  Landis, 245 Wis.2d at 6.

The mediation may not be conducted with a stenographic record or any other transcript.  WS §655.58(1).  No physical examinations or production of records may be ordered, and no witnesses may be subpoenaed. WS §655.58(2).  Expert witnesses, opinions, or reports are barred from being submitted in mediation. WS §655.58(3).  Any party to the mediation may be represented by a lawyer. WS §655.58(5).

Required Elements of a Medical Malpractice Complaint

Under Wisconsin law, a medical malpractice complaint must contain the following:

1. A short and plain statement of the claim, identifying the transaction or occurrence or series of transactions or occurrences out of which the claim arises and showing that the pleader is entitled to relief.
2. A demand for judgment for the relief the plaintiff seeks.  WS §802.02(1)

Each allegation of the complaint must be “simple, concise, and direct.  No technical forms of pleading or motions are required.” WS §802.02(5)(a).  The plaintiff may set forth two or more statements of a claim alternatively or hypothetically, either in one claim or in separate claims. WS §802.02(5)(b).  The plaintiff may state as many separate claims as he or she has regardless of consistency.  Id.

The complaint must contain a caption setting forth the name of the court, the venue, the title of the action, the file number, and a designation as a complaint. WS §802.04(1).  The caption in the complaint must also include:

the standardized description of the case classification type and associated code number as approved by the director of state courts, and the title of the action shall include the names and addresses of all the parties, indicating the representative capacity, if any, in which they sue or are sued and, in actions by or against a corporation, the corporate existence and its domestic or foreign status shall be indicated.  Id.

All allegations of claim must “be made in numbered paragraphs, the contents of each of which shall be limited as far as practicable to a statement of a single set of circumstances….” WS §802.04(2).  Each claim founded upon a separate transaction or occurrence must be stated in a separate claim “whenever a separation facilitates the clear presentation of the matters set forth.”  Id.

Relief may be demanded in the alternative or of several different types. WS §802.02(1m)(a).  With respect to medical malpractice complaints, WS §655.009(1) states: “The complaint in such action shall not specify the amount of money to which the plaintiff supposes to be entitled.”

According to the Wisconsin Supreme Court, “Wisconsin is a notice pleading state.”  Liebovich v. Minnesota Insurance Company, 751 N.W.2d 764, 776 (2008).  The Supreme Court instructed:

We have explained that under the notice pleading requirements set forth by §802.02(1)(a) and (6), a complaint must simply contain a short and plain statement of the claim, identifying the transaction or occurrence or series of transactions or occurrences out of which the claim arises and showing that the pleader is entitled to relief and that such claims be liberally construed so as to do substantial justice. [internal citations and quotation marks omitted] Id.

However, the Wisconsin Supreme Court cautioned that “a complaint cannot be completely devoid of factual allegations.  The notice pleading rule, while intended to eliminate many technical requirements of pleading, nevertheless requires the plaintiff to set forth a statement of circumstances, occurrences and events in support of the claim presented.” [internal quotation marks omitted] John Doe v. Archdiocese of Milwaukee, 284 Wis.2d 307, 329 (2005).  The Court added: “In short, we will dismiss a complaint if, under the guise of notice pleading, the complaint before us requires the court to indulge in too much speculation leaving too much to the imagination of the court.  It is not enough for the plaintiff to contend that the requisite facts will be supplied by the discovery process.” [internal citations and quotation marks omitted] Id.  The Supreme Court further advised that “the substantive law of the case … drives what facts must be pled.”  Data Key Partners v. Permira Advisers LLC, 849 N.W.2d 693, 696 (2014).

It should be noted that, as the Dissent in Data Key Partners observed, the Wisconsin Supreme Court’s ruling in the case seems to establish a “heightened pleading standard” akin to the requirements in a fact pleading system.  Id. at 709.  Again, as the Dissent pointed out, notice pleading ordinarily requires the complaint simply to provide “fair notice to the defendants of the claims upon which relief can be granted” without providing the specific facts to support the particular legal theory upon which relief is sought.  Id. at 711.  After Data Key Partners, it would appear to be advisable for plaintiffs to plead more facts and with greater specificity than they customarily would in a traditional notice pleading system.

Fact pleading is the other (less common) system of pleading.  For example, Oregon is a fact (or code) pleading state.  Davis v. Tyee Industries, Inc., 668 P.2d 1186, 1193 (Or. 1983).  According to the Oregon Supreme Court, “Oregon has been a code pleading state since statehood.  The general rule has been that a pleading must contain factual allegations which, if proved, establish the right to the relief sought.  This rule has been carried forward in the Oregon Rules of Civil Procedure” in Rule 18(A).  Id. at 1191-1192.  Essentially, fact pleading requires the plaintiff to allege specific facts that support his or her claim and not simply recite the generic elements of a cause of action in general terms.

The Federal Rules of Civil Procedure used in the Federal court system require notice pleading, which accounts for it being the more widely used pleading system in the country.

VII. Expert Medical Witnesses

Introduction

The general rule under medical malpractice law holds that expert witnesses are nearly always required.  The medical issues and related facts are generally far too complex for nonmedical professionals to understand without the aid of expert medical witnesses.  As a general rule of law, expert witnesses are needed to (1) establish the applicable standard of care, (2) help educate the judge and jury (or in furtherance of settlement negotiations) about what the defendant healthcare practitioner should have done or refrained from doing under the specific circumstances in the case, and (3) whether the defendant’s conduct breached the recognized standard of care for the profession or specialization.  Additionally, expert witnesses are needed to help determine whether the defendant’s medical negligence caused the plaintiff’s injury.

According to the Wisconsin Supreme Court, the requirement of expert testimony is an extraordinary one.  White v. Leeder, 149 Wis.2d 948, 960 (1989).  Generally, expert testimony is only required when “unusually complex or esoteric” issues are at issue because such testimony serves to assist the trier of fact.  Id.  Expert testimony is not required or needed “to assist the trier of fact concerning matters of common knowledge or those within the realm of ordinary experience.”  Racine County v. Oracular Milwaukee, Inc., 781 N.W.2d 88, 97 (2010).  “In fact, if the court or jury is able to draw its own conclusions without the aid of expert testimony,” the admission of any expert testimony is both unnecessary and improper.  Id.  However, in “medical malpractice actions, Wisconsin law generally requires the plaintiff to introduce expert testimony as to the standard of care and the defendant’s departure from it.”  Olfe v. Gordon, 93 Wis.2d 173, 180 (1980).

Who Qualifies as An Expert Medical Witness

The starting point in the determination of whether a prospective expert medical witness is qualified to provide expert testimony in a medical malpractice case is WS §907.02(1).  The statute provides that a prospective expert witness may qualify to provide expert opinion testimony “by knowledge, skill, experience, training, or education….”  Id.  If qualified, the expert witness may testify “in the form of an opinion or otherwise.”  Id.

Under Wisconsin law, whether an expert is deemed qualified to provide expert testimony focuses narrowly on each specific issue or question upon which the expert is offering testimony.  Martindale v. Ripp, 246 Wis.2d 67, 96 (2001).  That is, upon a determination that a prospective expert witness is qualified to provide expert testimony, he or she is deemed qualified for a specific issue or question, not an entire practice area or specialty.  The Wisconsin Supreme Court clearly articulated this principle in Martindale as follows: “A witness must be qualified to answer the question put to him.  [A] witness eminently capable on one subject may not be sufficiently qualified to give helpful testimony on another, albeit related, issue in the case.” [internal citations and quotation marks omitted] Id. at 99.

It is the role of the trial court to determine whether a prospective expert witness is qualified to provide expert testimony with respect to a particular issue or question.  Id. at 96.  The trial court’s “determination is unquestionably entitled to substantial deference….”  Id.

Admissibility of Expert Testimony

Introduction

Trial courts must decide whether to admit expert opinion testimony about scientific principles and discoveries.  Simply put, courts must guard against allowing so-called junk science into evidence.  To achieve that objective, most states[2] follow, to some extent, one of two general standards that have their origins in federal court cases, viz., the Frye and Daubert standards.

Under the Frye standard, expert testimony that is based upon a new scientific principle or discovery is admissible only if the principle or discovery is “sufficiently established to have gained general acceptance in the particular field in which it belongs.”  Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923).

In comparison, the Daubert standard requires the trial court to serve as a gatekeeper regarding the admissibility of all expert testimony, not just testimony based upon a new scientific principle.  The court must make a determination whether the proposed testimony is both reliable and relevant by analyzing (1) whether the reasoning or methodology upon which the testimony is based is scientifically valid and (2) whether that reasoning or methodology can properly be applied to the facts in the case.  Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

Admissibility of Expert Testimony in Wisconsin: Reliability Standard

As with the determination of whether a prospective expert witness is qualified to provide testimony, WS §907.02 is also the starting point for the admissibility analysis of expert witness testimony.  It states:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if the testimony is based upon sufficient facts or data, the testimony is the product of reliable principles and methods, and the witness has applied the principles and methods reliably to the facts of the case.

As the Wisconsin Supreme Court observed, the admissibility standard in Wisconsin for expert witness testimony is essentially a reliability standard.  Seifert v. Balink, 888 N.W.2d 816, 828-829 (2017).  The governing statute, WS §907.02(1), was amended in 2011 “to mirror Federal Rule of Evidence 702, which codifies Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993), and its progeny.”  Id. at 829.  Prior to the 2011 amendment to the state statute, “Wisconsin case law applied the ‘relevancy test’ to the admission of expert evidence: Expert evidence was admissible if the witness was qualified, the evidence assisted the trier of fact, and the evidence was relevant.”  Id.

According to the Wisconsin Supreme Court, the “reliability standard entails a preliminary assessment of whether the reasoning or methodology is scientifically valid.  Reliability depends solely on principles and methodology, not on the conclusions that they generate.” [internal citations and quotation marks omitted] Id. at 831.

In Seifert, the Wisconsin Supreme Court noted that the present case was the Court’s “first occasion to apply” the amended statute.  Id. at 830.  But the Court explained:

We do not write on a blank slate.  Wisconsin Stat. § 907.02(1) mirrors Federal Rule of Evidence 702 … and we may look for guidance and assistance in interpreting and applying § 907.02(1) to the Daubert case and its progeny, to the advisory Committee Notes to Federal Rule of Evidence 702, and to federal and state cases interpreting the text of Rule 702 or an analogous state law.  Id.

Like federal courts under the rules set forth in Daubert and its progeny, Wisconsin trial courts are required to serve as gatekeepers with respect to the admission of expert witness testimony.  Id.  “This gatekeeping obligation ‘assign[s] to the trial court the task of ensuring that a scientific expert is qualified’ and that his or her ‘testimony both rests on a reliable foundation and is relevant to the task at hand.’”  Id. (quoting Daubert, 509 U.S. at 597).

To satisfy the admissibility analysis, the trial court must conclude that the proffered testimony is reliable by a preponderance of the evidence.  Id. at 831.  But the Wisconsin Supreme Court instructed that the trial court is “a gatekeeper, not a fact finder.  When credible, qualified experts disagree, a litigant is entitled to have the jury, not the trial court, decide which expert to believe.”  Id.

The Wisconsin Supreme Court approvingly cited the list of factors enumerated in Daubert to help guide the reliability analysis of trial courts:

1. Whether the methodology can and has been tested;
2. Whether the technique has been subjected to peer review and publication;
3. The known or potential rate of error of the methodology; and
4. Whether the technique has been generally accepted in the scientific community.  Id. at 831.

Similarly, the Wisconsin Supreme Court also cited the five factors added by the Federal Rules Advisory Committee to assist trial courts in guiding decisions about reliability.  Id. at 832.

1. Whether experts are proposing to testify about matters growing naturally and directly out of research they have conducted independent of the litigation, or whether they have developed their opinions expressly for purposes of testifying;
2. Whether the expert has unjustifiably extrapolated from an accepted premise to an unfounded conclusion;
3. Whether the expert has adequately accounted for obvious alternative explanations;
4. Whether the expert is being as careful as he would be in his regular professional work outside his paid litigation consulting; and
5. Whether the field of expertise claimed by the expert is known to reach reliable results for the type of opinion the expert would give. [internal citations and quotation marks omitted] Id.

The Seifert Court made it clear, however, that trial courts “may consider some, all, or none of the factors listed to determine whether the expert evidence is reliable.”  Id. at 833.  The Court advised that “[h]ow courts apply these factors necessarily varies case by case, expert by expert.  ‘Too much depends upon the particular circumstances of the particular case at issue’ to impose hard and fast rules.” Id. at 832 (quoting Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 150 (1999)).  Application of the reliability factors is a flexible inquiry.  Id. at 833.

Finally, WS §907.02(2) provides an important limitation on the admissibility of expert witness testimony.  Under that subsection of the statute, “the testimony of an expert witness may not be admitted if the expert witness is entitled to receive any compensation contingent on the outcome of any claim or case with respect to which the testimony is being offered.”

Expert Medical Witnesses: Experience-Based, Non-Scientific Testimony

In medical malpractice cases, expert witness testimony is often based upon the witness’ experience alone or experience coupled with other knowledge, skill, training, or education, rather than scientific principles or methodology.  Id. at 835.  Medicine is a field that is based on specialized knowledge, as distinguished from scientific knowledge, so “experience is the predominant, if not sole, basis for a great deal of reliable expert testimony.”  Id. (quoting Federal Rule of Evidence 702 Advisory Committee Note (2000)).  Such experience-based, non-scientific expert testimony may still pass the reliability standard.  Id. at 833.  The Wisconsin Supreme Court approvingly cited the following general guidance for evaluating experience-based testimony provided by the Federal Advisory Committee Note to the 2000 Amendment to Rule 702.  Id. at 834.

If the witness is relying solely or primarily on experience, then the witness must explain how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts.

The Wisconsin Supreme Court cited the following guidance for trial courts to bear in mind when dealing with medical malpractice cases: “A trial court should admit medical expert testimony if physicians would accept it as useful and reliable.  In other words, expert medical opinion testimony is reliable if the knowledge underlying it ‘has a reliable basis in the knowledge and experience of the [relevant] discipline.” [internal citations and quotation marks omitted]  Id. at 836.  The Supreme Court further instructed:

The case law teaches that Daubert’s role of ensuring that the courtroom door remains closed to junk science is not served by excluding medical expert testimony that is supported by extensive relevant medical experience.  Such exclusion is rarely justified in cases involving medical experts.

Instead of exclusion, the appropriate means of attacking shaky but admissible experience-based medical expert testimony is by vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof. [internal citations and quotation marks omitted] Id. at 837-838.

In Seifert, the Wisconsin Supreme Court announced the standard of review for trial courts’ gatekeeping determination of admissibility under WS §907.02(1).  Id. at 838.  According to the Court, “[w]e examine the circuit court’s rulings both independently as a question of law and also under the erroneous exercise of discretion standard.”  Id.  The Court then provided a detailed roadmap for appellate review of a trial court’s admissibility determination.  Id. at 838-839.

Once satisfied that the circuit court applied the appropriate legal framework, an appellate court reviews whether the circuit court properly exercised its discretion in determining which factors should be considered in assessing reliability, and in applying the reliability standard to determine whether to admit or exclude evidence under Wis. Stat. § 907.02(1).

Once the circuit court selects the factors to be considered in assessing reliability, the circuit court measures the expert evidence against these factors. The circuit court also determines whether the witness faithfully and properly applied the reliability principles and methodology to the facts of the case.

In other words, a circuit court has discretion in determining the reliability of the expert’s principles, methods, and the application of the principles and methods to the facts of the case.

A trial court’s decision on admissibility or exclusion of expert evidence is an erroneous exercise of discretion when a decision rests upon a clearly erroneous finding of fact, an erroneous conclusion of law, or an improper application of law to fact. [internal citations omitted] Id.

VIII. Comparative Negligence

Wisconsin: Comparative Negligence with 51% Bar Rule

By statute, Wisconsin uses modified comparative negligence with a 51% bar rule.  WS §895.045(1). WS §893.55(6) expressly states that the contributory negligence statute is applicable to medical malpractice actions. WS §895.045(1) provides that a plaintiff’s contributory negligence:

does not bar recovery in an action by any person or the person’s legal representative to recover damages for negligence resulting in death or in injury to person or property, if that negligence was not greater than the negligence of the person against whom recovery is sought, but any damages allowed shall be diminished in the proportion to the amount of negligence attributed to the person recovering….  Id.

Notice that the plaintiff may recover damages so long as his or her proportionate share of negligence is not greater than the defendant’s.  That is, the plaintiff may still recover even if the allocation of negligence is all the way up to 50/50 between the plaintiff and the defendant.

Modified comparative negligence is a fault and damages allocation system.  Under this system, fault is determined and apportioned among the plaintiff and all defendants, and how much compensation the plaintiff can recover is limited by his or her relative share of fault for causing the injury.  As a result, the plaintiff’s recovery is limited by his or her assigned percentage of fault. WS §895.045(1) states that “any damages allowed shall be diminished in the proportion to the amount of negligence attributed to the person recovering….”

The 51% bar rule means that if the plaintiff’s allocated percentage of fault is 51% or greater he or she is completely barred from recovering any damages.  For example, assume a plaintiff is determined to be 50% at fault, and the damage award is $100,000.  The amount to which the plaintiff is entitled is $50,000 because the plaintiff’s allocated percentage share of fault, i.e., 50% or $50,000, is deducted from the damage award.  If the plaintiff were determined to be 51% at fault, he or she would not be entitled to any recovery because Wisconsin imposes the 51% bar rule.

Apportionment of Fault with Multiple Defendants

Determination of the allocation of fault and recoverable damages becomes more complicated when multiple defendants are involved.  When there are multiple defendants, there are two different ways in which the degree of fault comparison can be applied.  Each approach can lead to vastly different results.  The “individual comparison” approach compares the plaintiff’s proportion of fault against each defendant individually, and the plaintiff may recover damages against only the defendants whose individual proportion of fault is greater than the plaintiff’s.  For example, in a scenario where the plaintiff is deemed to be 40% at fault and two defendants are each apportioned 30% of the fault, the plaintiff is barred from any recovery.  Under the individual comparison approach, the plaintiff’s share of fault for the injury is greater than either defendant individually.

On the other hand, the “combined comparison” approach permits the plaintiff to recover as long as his or her apportioned share of negligence is equal to or less than the combined negligence of all the defendants against whom recovery is sought.  In the above example, the plaintiff would be entitled to recover damages from both defendants since his or her apportioned share of negligence is less than the combined share of the two defendants.  Clearly, there is a stark contrast in the results of the two approaches with plaintiffs obviously favoring the combined comparison approach.

Unfortunately for plaintiffs pursuing medical malpractice claims, Wisconsin follows the “individual comparison” approach. WS §895.045(1).  The statute reads: “The negligence of the plaintiff shall be measured separately against the negligence of each person found to be causally negligent.”  This language makes it clear that the allocated share of negligence comparison is performed by comparing the plaintiff’s share of negligence with each defendant on an individual basis.  Under Wisconsin law, the plaintiff in the foregoing example would not be entitled to any recovery since the plaintiff’s share of negligence is greater than each of the defendants’ share on an individual comparison basis (40% versus 30% for each of the defendants).

Limitation on Noneconomic Damages

As of the date of this article, Wisconsin does not have an enforceable cap on noneconomic damages with respect to medical malpractice cases.  Wisconsin does have a statute providing for a $750,000 cap on noneconomic damages in medical malpractice cases contained in WS §893.44; however, on July 5, 2017, the Wisconsin District 1 Court of Appeals held that the statute is facially unconstitutional.  Mayo v. Wisconsin Injured Patients and Families Compensation Fund, Appeal No. 2014AP2812 (Wis. Ct. App. Jul. 5, 2017).

It is significant that the Mayo Court concluded that the statute is facially unconstitutional as opposed to unconstitutional as applied to the specific plaintiff in the case.  The Wisconsin Supreme Court explained the difference between a ruling of facial and as applied unconstitutionality as follows: “If a court holds a statute unconstitutional on its face, the state may not enforce it under any circumstances, unless an appropriate court narrows its application; in contrast, when a court holds a statute unconstitutional as applied to particular facts, the state may enforce the statute in different circumstances.”  Olson v. Town of Cottage Grove, 749 N.W.2d 211, 233 n.9 (Wis. 2008) (quoting Michael C. Dorf, Facial Challenges to State and Federal Statutes, 46 Stan. L.Rev. 235, 236 (1994)).  Accordingly, since the Mayo Court held that the noneconomic damage cap statute is unconstitutional on its face, it cannot be enforced against any plaintiff.

The facts in the Mayo case are as follows.  Ascaris Mayo visited the emergency room complaining of abdominal pain and a high fever.  Although the doctors diagnosed her as suffering from an infection, she was sent home and never informed of the diagnosis or the available treatment—antibiotics.  As her condition worsened, she visited a different emergency room the following day, where she was diagnosed with a septic infection caused by the previously untreated infection.  She eventually became comatose, and all four of her extremities had to be amputated.

She and her husband filed medical malpractice actions against the original doctors and hospital.  The jury awarded her $15 million in noneconomic damages and her husband $1.5 million for his loss of the society and companionship of his wife.  The defendant Fund (Wisconsin Injured Patients and Families Compensation Fund) moved to reduce the damage awards to the statutory cap of $750,000.

The Mayo case represents the second time a statutory cap on noneconomic damages was held unconstitutional on its face.  The Wisconsin Supreme Court held that the predecessor statute to WS §893.44 was unconstitutional in Ferdon v. Wisconsin Patients Compensation Fund, 284 Wis.2d 573, 675 (2005).  In an extremely detailed 103-page opinion, the Supreme Court concluded that the statute “violates the equal protection guarantees of the Wisconsin Constitution.”  Id.

In Mayo, the Court of Appeals stated: “The same factual analysis the supreme court applied in Ferdon applies here, with the dollar amount of the cap being the single distinction.”  Mayo at 12.  The Court of Appeals went on to recite the Supreme Court’s reasoning in reaching its conclusion in Ferdon.  At that point, the Court of Appeals announced: “All of the conclusions reached by the supreme court in Ferdon continue to hold true today.  The record before us does not support a finding that the legislative objectives articulated in WIS. STAT. §893.55 are promoted in any way because the amount of the noneconomic damages cap is $750,000.”  Id. at 13.

As of the date of this article, there is no cap on noneconomic damages in medical malpractice cases.  This could change if the Mayo case is appealed to the Wisconsin Supreme Court, or the state legislature attempts for a third time to enact a damage cap that can pass constitutional muster.  However, until either (or both) of those possibilities takes place, the Mayo decision remains the final word on the issue of noneconomic damage caps in medical malpractice cases in Wisconsin.

Limitations on Attorney Fees

Contingent Fee Arrangement

Attorney fees are typically paid on a contingency basis in medical malpractice cases.  That means the attorney’s entire legal fee is paid as a percentage of any settlement amount or jury award.  If there is no recovery, then the attorney does not receive any payment as a legal fee.  Contingent fee arrangements enable all injured parties to have the benefit of legal representation in pursuing their legal claim regardless of their financial resources.  Most people simply cannot afford to hire an attorney on an hourly fee basis to pursue their claim, so they would be left with either just giving up on their claim or attempting to represent themselves, with the likelihood of recovering any damages only slightly higher than the former option.  Contingent fee arrangements empower the injured to take on healthcare practitioners, institutions, and insurance companies as equals.

This type of fee arrangement is permitted in every state as well as the federal court system subject to the basic ethical requirement that the fee amount is reasonable and not excessive.  Most jurisdictions impose a limit on the fee percentage somewhere between 10% to 50% of the amount recovered, depending on one or more of the following factors: (1) the type of claim, (2) the stage of the case in which it is ultimately resolved, and (3) the amount recovered.

It should be noted that costs and expenses are separate from an attorney’s legal fee.  Some examples of costs and expenses include, but are certainly not limited to, medical records, police reports, filing fees, trial exhibits, expert witness fees, and depositions.  Some attorneys will deduct these amounts from the final recovery while others will charge the client as they are incurred.

Limitations on Attorney Fees in Wisconsin

Contingency fee arrangements in medical malpractice cases are subject to the limitations detailed in WS §655.013.  The statute reads, in pertinent part: “in addition to compensation for the reasonable costs of prosecution of the claim, the compensation determined on a contingency basis and payable to all attorneys acting for one or more plaintiffs or claimants is subject to the following limitations:”

1. Subject to paragraph 2 below, 33^1/3 percent of the first $1 million recovered.
2. 25 percent of the first $1 million recovered if liability is stipulated within 180 days after the date of filing of the original complaint and not later than 60 days before the first day of trial.
3. 20 percent of any amount in excess of $1 million. WS §655.013(1m)

Under the statute, a court may approve attorney fees in excess of the limitations set forth in WS §655.013(1m) “upon a showing of exceptional circumstances, including an appeal.” WS §655.013(1t).

The statute requires attorneys engaged by a client to represent the client in a medical malpractice case to offer the client the option of charging a per diem or per hour rate.  If the client agrees, the agreement “shall be made at the time of the employment of the attorney.” WS §655.013(2).  Agreements based upon a per diem or hourly rate for legal services are not subject to the limitations on contingent attorney fees set forth in WS §655.013.  Id.

Patient Compensation Fund

Introduction

In general, a patient compensation fund is a state administered fund established and maintained for the purpose of compensating patients and/or their families for medical errors or omissions that occurred in the course of their treatment with a healthcare provider or entity that participates in the fund.  A patient compensation fund functions largely like standard, commercial professional liability insurance in that the group of insureds all contribute a surcharge to the fund, which in turn makes payouts to patients with valid claims.  The fund typically works in conjunction with healthcare providers’ primary professional liability insurance policy by operating as an excess professional liability insurance carrier, paying damage amounts in excess of the primary insurance policy limits.

Wisconsin Injured Patients and Families Compensation Fund

Wisconsin has enacted legislation creating a fund named the Injured Patients and Families Compensation Fund.  WS §655.27(1).  The statute states:

There is created an injured patients and families compensation fund for the purpose of paying that portion of a medical malpractice claim which is in excess of the limits expressed in s. 655.23 (4) or the maximum liability limit for which the health care provider is insured, whichever limit is greater, paying future medical expense payments under s. 655.015….

The Wisconsin Supreme Court described the purpose and functioning of the Fund as follows:

Chapter 655 was enacted by the legislature during the perceived medical malpractice crisis of the 1970s.  Chapter 655 created the Fund to curb the rising costs of health care by financing part of the liability incurred by health care providers as a result of medical malpractice claims.

Under the statutory scheme, health care providers must maintain a particular amount of liability insurance to protect themselves from medical malpractice claims….

In addition to maintaining the mandatory amount of primary insurance coverage, health care providers must pay yearly assessments to the Fund.  In return, the Fund essentially serves as an excess liability insurance carrier for health care providers.  When a malpractice claim against a health care provider succeeds, the Fund pays the part of the claim which is in excess of either the amount of primary insurance coverage required by the statute or the amount of primary insurance coverage actually carried by the health care provider, whichever is greater. [internal citations omitted] Patients Compensation Fund v. Lutheran Hospital-Lacrosse, Inc., 223 Wis.2d 439, 452-453 (1999).

Under the statutory scheme, “every health care provider either shall insure and keep insured the health care provider’s liability by a policy of health care liability insurance issued by an insurer authorized to do business in this state or shall qualify as a self-insurer.” WS §655.23(3)(a).  The statute also sets forth the required minimum health care liability insurance coverage amounts, which are adjusted periodically. WS §655.23(4).

XII. Website Disclaimer

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[1] The Storm Court devoted five pages (202-207) to refining its definition of mental illness.

[2] In fact, only Nevada, North Dakota, and Virginia do not follow either the Frye or Daubert standard.  For a state-by-state comparison, see https://www.theexpertinstitute.com/daubert-v-frye-a-state-by-state-comparison/.