2021 Wisconsin Statutes & Annotations
Chapter 893 - Limitations of commencement of actions and proceedings; procedure for claims against governmental units.
893.55 - Medical malpractice; limitation of actions; limitation of damages; itemization of damages.
893.55 Medical malpractice; limitation of actions; limitation of damages; itemization of damages.
(a) The objective of the treatment of this section is to ensure affordable and accessible health care for all of the citizens of Wisconsin while providing adequate compensation to the victims of medical malpractice. Achieving this objective requires a balancing of many interests. Based upon documentary evidence, testimony received at legislative hearings, and other relevant information, the legislature finds that a limitation on the amount of noneconomic damages recoverable by a claimant or plaintiff for acts or omissions of a health care provider, together with mandatory liability coverage for health care providers and mandatory participation in the injured patients and families compensation fund by health care providers, while compensating victims of medical malpractice in appropriate circumstances by the availability of unlimited economic damages, ensures that these objectives are achieved. Establishing a limitation on noneconomic damage awards accomplishes the objective by doing all of the following:
1. Protecting access to health care services across the state and across medical specialties by limiting the disincentives for physicians to practice medicine in Wisconsin, such as the unavailability of professional liability insurance coverage, the high cost of insurance premiums, large fund assessments, and unpredictable or large noneconomic damage awards, as recognized by a 2003 U.S. congress joint economic committee report, a 2003 federal department of health and human services study, and a 2004 office of the commissioner of insurance report.
2. Helping contain health care costs by limiting the incentive to practice defensive medicine, which increases the cost of patient care, as recognized by a 2002 federal department of health and human services study, a 2003 U.S. congress joint economic committee report, a 2003 federal government accounting office study, and a 2005 office of the commissioner of insurance report.
3. Helping contain health care costs by providing more predictability in noneconomic damage awards, allowing insurers to set insurance premiums that better reflect such insurers' financial risk, as recognized by a 2003 federal department of health and human services study.
4. Helping contain health care costs by providing more predictability in noneconomic damage awards in order to protect the financial integrity of the fund and allow the fund's board of governors to approve reasonable assessments for health care providers, as recognized by a 2005 legislative fiscal bureau memo, a 2001 legislative audit bureau report, and a 2005 office of commissioner of insurance report.
(b) The legislature further finds that the limitation of $750,000 represents an appropriate balance between providing reasonable compensation for noneconomic damages associated with medical malpractice and ensuring affordable and accessible health care. This finding is based on actuarial studies provided to the legislature, the experiences of other states with and without limitations on noneconomic damages associated with medical malpractice, the testimony of experts, and other documentary evidence presented to the legislature.
(c) Based on actuarial studies, documentary evidence, testimony, and the experiences of other states, the legislature concludes there is a dollar figure so low as to deprive the injured victim of reasonable noneconomic damages, and there is a dollar figure at which the cap number is so high that it fails to accomplish the goals of affordable and accessible health care. The legislature concludes that the number chosen is neither too high nor too low to accomplish the goals of affordable and accessible health care, is a reasonable and rational response to the current medical liability situation, and is reasonably and rationally supported by the legislative record.
(1m) Except as provided by subs. (2) and (3), an action to recover damages for injury arising from any treatment or operation performed by, or from any omission by, a person who is a health care provider, regardless of the theory on which the action is based, shall be commenced within the later of:
(a) Three years from the date of the injury, or
(b) One year from the date the injury was discovered or, in the exercise of reasonable diligence should have been discovered, except that an action may not be commenced under this paragraph more than 5 years from the date of the act or omission.
(2) If a health care provider conceals from a patient a prior act or omission of the provider which has resulted in injury to the patient, an action shall be commenced within one year from the date the patient discovers the concealment or, in the exercise of reasonable diligence, should have discovered the concealment or within the time limitation provided by sub. (1m), whichever is later.
(3) When a foreign object which has no therapeutic or diagnostic purpose or effect has been left in a patient's body, an action shall be commenced within one year after the patient is aware or, in the exercise of reasonable care, should have been aware of the presence of the object or within the time limitation provided by sub. (1m), whichever is later.
(a) In this subsection, “noneconomic damages" means moneys intended to compensate for pain and suffering; humiliation; embarrassment; worry; mental distress; noneconomic effects of disability including loss of enjoyment of the normal activities, benefits and pleasures of life and loss of mental or physical health, well-being or bodily functions; loss of consortium, society and companionship; or loss of love and affection.
(b) The total noneconomic damages recoverable for bodily injury, including any action or proceeding based on contribution or indemnification and any action for a claim by a person other than the injured person for noneconomic damages recoverable for bodily injury, may not exceed the limit under par. (d) for each occurrence on or after April 6, 2006, from all health care providers and all employees of health care providers acting within the scope of their employment and providing health care services who are found negligent and from the injured patients and families compensation fund.
(c) A court in an action tried without a jury shall make a finding as to noneconomic damages without regard to the limit under par. (d). If noneconomic damages in excess of the limit are found, the court shall make any reduction required under s. 895.045 and shall award as noneconomic damages the lesser of the reduced amount or the limit. If an action is before a jury, the jury shall make a finding as to noneconomic damages without regard to the limit under par. (d). If the jury finds that noneconomic damages exceed the limit, the jury shall make any reduction required under s. 895.045 and the court shall award as noneconomic damages the lesser of the reduced amount or the limit.
1. The limit on total noneconomic damages for each occurrence under par. (b) on or after April 6, 2006, shall be $750,000.
2. The board of governors created under s. 619.04 (3) shall submit a report to the legislature as provided under s. 13.172 (2) by January 1 of every odd numbered year of any recommended changes to the limits on noneconomic damages established in subd. 1. The report shall include the reasons why the changes are necessary to meet the intent of the legislative findings under sub. (1d).
(e) Economic damages recovered under ch. 655 for bodily injury or death, including any action or proceeding based on contribution or indemnification, shall be determined for the period during which the damages are expected to accrue, taking into account the estimated life expectancy of the person, then reduced to present value, taking into account the effects of inflation.
(f) Notwithstanding the limits on noneconomic damages under this subsection, damages recoverable against health care providers and an employee of a health care provider, acting within the scope of his or her employment and providing health care services, for wrongful death are subject to the limit under s. 895.04 (4). If damages in excess of the limit under s. 895.04 (4) are found, the court shall make any reduction required under s. 895.045 and shall award the lesser of the reduced amount or the limit under s. 895.04 (4).
(5) Every award of damages under ch. 655 shall specify the sum of money, if any, awarded for each of the following for each claimant for the period from the date of injury to the date of award and for the period after the date of award, without regard to the limit under sub. (4) (d):
(a) Pain, suffering and noneconomic effects of disability.
(b) Loss of consortium, society and companionship or loss of love and affection.
(c) Loss of earnings or earning capacity.
(d) Each element of medical expenses.
(e) Other economic injuries and damages.
(6) Damages recoverable under this section against health care providers and an employee of a health care provider, acting within the scope of his or her employment and providing health care services, are subject to the provisions of s. 895.045.
(7) Evidence of any compensation for bodily injury received from sources other than the defendant to compensate the claimant for the injury is admissible in an action to recover damages for medical malpractice. This section does not limit the substantive or procedural rights of persons who have claims based upon subrogation.
History: 1979 c. 323; 1985 a. 340; 1995 a. 10; 2003 a. 111; 2005 a. 183; 2007 a. 96.
Judicial Council Committee's Note, 1979: This section has been created to precisely set out the time periods within which an action to recover damages for medical malpractice must be commenced. The time provisions apply to any health care provider in Wisconsin.
Sub. (1) [now sub. (1m)] contains the general time limitations for commencing a malpractice action. The subsection requires that such an action be commenced not later than 3 years from the event constituting the malpractice or not more than one year from the time the malpractice is discovered by the patient or should have been discovered by the patient. The patient has either the 3-year general time period or the one-year time period from the date of discovery, whichever is later. Subsection (1) further provides that in no event may a malpractice action be commenced later than 6  years from the time of the alleged act or omission.
Subs. (2) and (3) provide 2 exceptions to the one-, three-, and six-year time limitations contained in subsection (1) [now sub. (1m)]. Subsection (2) provides that when a health care provider becomes aware of an act or omission constituting possible malpractice and intentionally conceals the act or omission from the patient, the patient has one year from the time he or she discovers the concealment or should have discovered the concealment to commence a malpractice action.
Sub. (3) gives a patient one year from the time of discovery of a foreign object left in the patient's body or the time in which discovery should have occurred to commence a malpractice action. The subsection also contains a definition of a foreign object similar to the definition recently enacted by the state of California. [Bill 326-A]
The “continuum of negligent treatment" doctrine is not limited to a single negligent actor. Robinson v. Mt. Sinai Medical Center, 137 Wis. 2d 1, 402 N.W.2d 711 (1987).
While an unsubstantiated lay belief of an injury is not sufficient for discovery under sub. (1) (b) [now sub. (1m) (b)], if the plaintiff has information that constitutes a basis for an objective belief of the injury and its cause, whether or not that belief resulted from “official" diagnosis from an expert, the injury and its cause are discovered. Clark v. Erdmann, 161 Wis. 2d 428, 468 N.W.2d 18 (1991).
A podiatrist is a “health care provider" under s. 893.55. Clark v. Erdmann, 161 Wis. 2d 428, 468 N.W.2d 18 (1991).
A physician's intentional improper sexual touching of a patient was subject to s. 893.57 governing intentional torts, not s. 893.55 governing medical malpractice. Deborah S.S. v. Yogesh N.G., 175 Wis. 2d 436, 499 N.W.2d 272 (Ct. App. 1993).
A blood bank is not a “health care provider." Doe v. American National Red Cross, 176 Wis. 2d 610, 500 N.W.2d 264 (1993).
Parents who did not obtain a medical opinion until more than 3 years after their child's death did not exercise reasonable diligence as required by the discovery rule under sub. (1) (b) [now sub. (1m) (b)]. Awve v. Physicians Ins. Co., 181 Wis. 2d 815, 512 N.W.2d 216 (Ct. App. 1994).
Minors may bring separate actions for loss of companionship when malpractice causes a parent's death, including when the decedent is survived by a spouse. Jelinik v. St. Paul Fire & Casualty Ins. Co., 182 Wis. 2d 1, 512 N.W.2d 764 (1994).
When continuous negligent treatment occurs, the statute begins to run from the date of last negligent conduct. The amount of time that passes between each allegedly negligent act is a primary factor in determining whether there has been a continuum of negligent care. Westphal v. E.I. du Pont de Nemours, 192 Wis. 2d 347, 531 N.W.2d 361 (Ct. App. 1995).
Punitive damages in malpractice actions are not authorized by sub. (5) (e). Lund v. Kokemoor, 195 Wis. 2d 727, 537 N.W.2d 21 (Ct. App. 1995), 95-0453.
Dentists are health care providers under this section. Ritt v. Dental Care Associates, S.C., 199 Wis. 2d 48, 543 N.W.2d 852 (Ct. App. 1995), 94-3344.
Once a person discovers or should have discovered an injury, nothing, including a misleading legal opinion, can cause the injury to become “undiscovered." Claypool v. Levin, 209 Wis. 2d 284, 562 N.W.2d 584 (1997), 94-2457.
The date of injury under sub. (1) (a) [now sub. (1m) (a)] from a failed tubal ligation was the date on which the plaintiff became pregnant. Fojut v. Stafl, 212 Wis. 2d 827, 569 N.W.2d 737 (Ct. App. 1997), 96-1676.
This section applies to persons who are licensed by a state examining board and are involved in the diagnosis, treatment, or care of patients. Chiropractors fall within this definition. Arenz v. Bronston, 224 Wis. 2d 507, 592 N.W.2d 295 (Ct. App. 1999), 98-1357.
Optometrists are health care providers under this section. The coverage of this section is not restricted to those included under s. 655.002, but applies to all who provide medical care and are required to be licensed. Webb v. Ocularra, Inc., 2000 WI App 25, 232 Wis. 2d 495, 606 N.W.2d 552, 99-0979.
Sub. (4) (f) makes the limits on damages applicable to medical malpractice death cases, but does not incorporate classification of wrongful death claimants entitled to bring such actions, which is controlled by s. 655.007. As such, adult children do not have standing to bring such an action. The exclusion of adult children does not violate the guarantee of equal protection. Czapinski v. St. Francis Hospital, Inc., 2000 WI 80, 236 Wis. 2d 316, 613 N.W.2d 120, 98-2437.
Sub. (1) (b) [now sub. (1m) (b)] does not violate Art. I, s. 9, of the state constitution, the right to remedy clause, nor does it offend equal protection or procedural due process principles. Aicher v. Wisconsin Patients Compensation Fund, 2000 WI 98, 237 Wis. 2d 99, 613 N.W.2d 849, 98-2955.
A misdiagnosis, in and of itself, is not, and cannot be, an actionable injury. The injury arises when the misdiagnosis causes a greater harm than existed at the time of the misdiagnosis. The misdiagnosis may or may not result in the injury, and the injury may occur concurrently or there may be a delay between the misdiagnosis and the injury. Paul v. Skemp, 2001 WI 42, 242 Wis. 2d 507, 625 N.W.2d 860, 99-1810.
The limitation periods under sub. (1) (a) and (b) [now sub. (1m) (a) and (b)] are both tolled by the filing of a request for mediation under s. 655.44 (4). Landis v. Physicians Insurance Company of Wis. Inc., 2001 WI 86, 245 Wis. 2d 1, 628 N.W.2d 893, 00-0330.
Wrongful death claims caused by medical malpractice are subject to the statute of limitations concerning medical malpractice in sub. (1) [now sub. (1m)]. Estate of Hegarty v. Beauchaine, 2001 WI App 300, 249 Wis. 2d 142, 638 N.W.2d 355, 00-2144.
Under sub. (1) (b) [now sub. (1m) (b)], the 5-year repose period applies only to actions brought pursuant to the discovery rule in sub. (1) (b). Sub. (1) (b) is an alternative limitations period to that in sub. (1) (a) [now sub. (1m) (a)]. Storm v. Legion Insurance Co., 2003 WI 120, 265 Wis. 2d 169, 665 N.W.2d 353, 01-1139.
Section 893.16 tolls the period of limitations in sub. (1) (a) [now sub. (1m) (a)] for medical malpractice actions involving qualified claimants, extending the 3-year limitations period up to 5 additional years. Storm v. Legion Insurance Co., 2003 WI 120, 265 Wis. 2d 169, 665 N.W.2d 353, 01-1139.
For purposes of determining when a cause accrues for negligently prescribing medication, a physician's duty to monitor a patient after a final visit does not continue through some vague and indefinite period during which prescriptions may or may not be filled. Any claim of an omission is for an omission that occurred in the distinct time frame the doctor either intentionally or unintentionally did not require follow-up when giving the prescription or seeing the patient. Wiegert v. Goldberg, 2004 WI App 28, 269 Wis. 2d 695, 676 N.W.2d 522, 03-0891.
A mother who suffers the stillbirth of her infant as a result of medical malpractice has a personal injury claim involving negligent infliction of emotional distress, which includes the distress arising from the injuries and stillbirth of her daughter, in addition to her derivative claim for wrongful death of the infant. That the sources of the mother's emotional injuries cannot be segregated does not mean that there is a single claim of medical malpractice subject to the single cap for noneconomic damages. Pierce v. Physicians Insurance Co., 2005 WI 14, 278 Wis. 2d 82, 692 N.W.2d 558, 01-2710.
First-year medical residents who have their M.D. degrees but are not yet licensed are not health care providers under this section and not subject to the limitations on the recovery of noneconomic damages in subs. (4) and (5). Phelps v. Physicians Insurance Company of Wisconsin, Inc., 2005 WI 85, 282 Wis. 2d 69, 698 N.W.2d 643, 03-0580
Sub. (7) explicitly allows evidence of collateral source payments to be introduced in medical malpractice actions. If evidence of collateral source payments from sources including Medicare, other state or federal government programs, medical insurance or write-offs, and discounted or free medical services is presented to the fact-finder, the parties must be allowed to furnish the jury with evidence of any potential obligations of subrogation or reimbursement. The circuit court must instruct the fact-finder that it must not reduce the reasonable value of medical services on the basis of the collateral source payments. Lagerstrom v. Myrtle Werth Hospital-Mayo Health System, 2005 WI 124, 285 Wis. 2d 1, 700 N.W.2d 201, 03-2027.
This section does not apply to a negligence claim alleging injury to a developmentally disabled child caused by a health care provider. The legislature has not provided a statute of limitations for claims against health care providers alleging injury to a developmentally disabled child. Haferman v. St. Clare Healthcare Foundation, Inc., 2005 WI 171, 286 Wis. 2d 621, 707 N.W.2d 853, 03-1307.
The jury award of noneconomic damages for pre-death pain and suffering, and the jury award for pre-death loss of society and companionship are governed by the cap set forth in the medical malpractice statutes, this section, and not the wrongful death statute, s. 895.04. Bartholomew v. Wisconsin Patients Compensation Fund, 2006 WI 91, 293 Wis. 2d 38, 717 N.W.2d 216, 04-2592.
When the applicability of sub. (7) to one of the physicians whose negligence caused the patient's injuries and death is unknown, the fact that the other causally negligent physician was an undisputed ch. 655 health care provider dictates the application of sub. (7). Hegarty v. Beauchaine, 2006 WI App 248, 297 Wis. 2d 70, 727 N.W.2d 857, 04-3252.
When negligent acts of malpractice are continuous and the cause of action is not complete until the last date on which the malpractice occurred, the entire course of negligent malpractice is within the court's jurisdiction. A plaintiff must show 4 elements to for this “continuum of negligent treatment" doctrine to apply: 1) a continuum of care; 2) a continuum of negligent care; 3) the care is related to a single condition; and 4) the precipitating factor in the continuum is the original negligent act. Forbes v. Stoeckl, 2007 WI App 151, 303 Wis. 2d 425, 735 N.W.2d 536, 06-1654.
The 5-year limit in sub. (1) (b) [now sub. (1m) (b)] applies only to claims brought under the “discovery rule" of sub. (1) (b) and not to claims brought under the “injury rule of accrual" in sub. (1) (a) [now sub. (1m) (a)]. The continuum of negligent treatment doctrine modifies the 3-year limit of sub. (1) (a) and is unaffected by sub. (1) (b), which comes into play only when a plaintiff claims that, because of a delayed discovery of an injury, he or she is entitled to file an action beyond the 3-year time limit in sub. (1) (a). Forbes v. Stoeckl, 2007 WI App 151, 303 Wis. 2d 425, 735 N.W.2d 536, 06-1654.
Neither Fojut or Paul concludes that an injury must be untreatable or irreversible to trigger the limitations period imposed by sub. (1m) (a). The determination of a “physical injurious change" (when the negligent act or omission causes a greater harm than that which existed at the time of the negligent act or omission) is the appropriate benchmark for establishing the date of injury. A later injury from the same tortious act does not restart the running of the statute of limitations. Estate of Genrich v. OHIC Insurance Co., 2009 WI 67, 318 Wis. 2d 553, 769 N.W.2d 481, 07-0541.
Because an unlicensed 1st-year resident physician was a borrowed employee of the hospital where the resident allegedly performed negligent acts, the relation of employer and employee existed between the resident and hospital, and accordingly, the resident was an employee of a health care provider within the meaning of ch. 655 and sub. (4). Phelps v. Physicians Insurance Company of Wisconsin, Inc., 2009 WI 74, 319 Wis. 2d 1, 768 N.W.2d 615, 06-2599.
A fact finder cannot reasonably infer concealment under sub. (2) when a defendant has no contact with the plaintiff after an alleged negligent act or omission. Pagoudis v. Korkos, 2010 WI App 83, 326 Wis. 2d 234, 784 N.W.2d 740, 09-2965.
Evidence of collateral source payments is admissible under sub. (7) only if the evidence is relevant. In a medical malpractice action, evidence of collateral source payments is relevant if it is probative of any fact that is of consequence to the determination of damages. Weborg v. Jenny, 2012 WI 67, 341 Wis. 2d 668, 816 N.W.2d 191, 10-0258.
In a medical malpractice claim based on unnecessary and improper treatment of inappropriate touching, the “physical injurious change," for purposes of determining the date of injury under sub. (1m) (a), occurs at the time of the touching. The fact that the patient may not have known at the time that the touching was inappropriate does not change this fact. John Doe 56 v. Mayo Clinic Health System-Eau Claire Clinic, Inc., 2016 WI 48, 369 Wis. 2d 351, 880 N.W.2d 681, 14-1177.
The $750,000 cap on noneconomic damages in medical malpractice judgments and settlements under sub. (4) (d) 1. is constitutional based on equal protection and due process grounds. Mayo v. Wisconsin Injured Patients and Families Compensation Fund, 2018 WI 78, 383 Wis. 2d 1, 914 N.W.2d 678, 14-2812.
Constitutionality of Wisconsin's Noneconomic Damage Limitation. 72 MLR 235 (1989).
Wisconsin's Caps on Noneconomic Damages in Medical Malpractice Cases: Where Wisconsin Stands (and Should Stand) on “Tort Reform." Kenitz. 89 MLR 601 (2005).
Bartholomew: The Wisconsin Supreme Court's Latest Foray into the Medical-Malpractice Thicket. Spencer. 2007 WLR 1121.
Tort Reform: It's Not About Victims ... It's About Lawyers. Scoptur. Wis. Law. June 1995.