Chapter 146

146.34(5)(f)2. 2. On its own motion conduct a hearing to determine whether the giving of consent under par. (a) 1. or performance under par. (a) 2. shall be prohibited.

146.34(5)(g) (g) If the court on its own motion conducts a hearing under par. (f) 2., the court shall provide personal service of notice of the hearing to all parties and may request submission of relevant evidence.

146.34(5)(h) (h) Any person aggrieved by a final judgment or final order of the court under par. (e) or (f) may appeal within the time period specified in s. 808.04 (3) or (4).

146.34 History History: 1985 a. 50; 1995 a. 77; 1997 a. 188; 1999 a. 32, 162; 2001 a. 38; 2005 a. 387; 2005 a. 443 s. 265; 2021 a. 131.

146.343 146.343 Donation of newborn umbilical cord blood.

146.343(1) (1) In this section, “hospital” has the meaning given in s. 50.33 (2).

146.343(2) (2) Notwithstanding s. 146.33, the principal prenatal health care provider of a woman who is known to be pregnant shall, before the woman’s 35th week of pregnancy, offer her information on options to donate, to an accepting and accredited cord blood bank, blood bank, blood center, or plasma center, blood extracted from the umbilical cord of her newborn child, if the donation may be made without monetary expense for the collection or storage to the woman, to any 3rd-party payor of health care coverage for the woman, or to the hospital in which delivery occurs.

146.343(4) (4) No person may be held civilly liable for failure to comply, or for complying, with sub. (2).

146.343 History History: 2005 a. 56; 2021 a. 239.

146.345 146.345 Sale of human organs prohibited.

146.345(1) (1) In this section:

146.345(1)(a) (a) “Human organ” means a human kidney, liver, heart, lung, pancreas, bone marrow, cornea, eye, bone or skin or any other human organ specified by the department by rule. “Human organ” does not mean human whole blood, blood plasma, a blood product or a blood derivative or human semen.

146.345(1)(b) (b) “Human organ transplantation” means the medical procedure by which transfer of a human organ is made from the body of a person to the body of another person.

146.345(1)(c) (c) “Valuable consideration” does not include reasonable payment associated with the removal, transportation, implantation, processing, preservation, quality control or storage of a human organ or an expense of travel, housing or lost wages incurred by a human organ donor in connection with donation of the human organ.

146.345(2) (2) No person may knowingly and for valuable consideration acquire, receive or otherwise transfer any human organ for use in human organ transplantation.

146.345(3) (3) Any person who violates this section is guilty of a Class H felony, except that, notwithstanding the maximum fine specified in s. 939.50 (3) (h), the person may be fined not more than $50,000.

146.345 History History: 1987 a. 97; 1997 a. 283; 2001 a. 109.

146.348 146.348 Reimbursement in cancer clinical trial programs.

146.348(1) (1) In this section:

146.348(1)(a) (a) “Cancer clinical trial” means a research study that tests a new cancer treatment regimen on patients, including chemotherapy and other new treatments.

146.348(1)(b) (b) “Inducement” means paying a person money, including a lump sum or salary payment, to participate in a cancer clinical trial.

146.348(1)(c) (c) “Patient-subject” means a person participating in a cancer clinical trial.

146.348(2) (2) All sponsors of cancer clinical trials shall provide potential patient-subjects at the time of the informed consent process the following information:

146.348(2)(a) (a) Whether reimbursement for travel and ancillary costs may be available to patient-subjects.

146.348(2)(b) (b) That coverage of the travel and ancillary costs is done to eliminate financial barriers to enrollment in order to retain patient-subjects in the cancer clinical trial.

146.348(2)(c) (c) Whether family members, friends, or chaperones who attend the cancer clinical trial treatments to support the patient-subject may be eligible for reimbursement of their travel and ancillary costs.

146.348(3) (3) 

146.348(3)(a) (a) Reimbursement of travel, ancillary costs, and other direct patient-incurred expenses related to cancer clinical trial participation will not be considered an undue inducement to participate in a cancer clinical trial.

146.348(3)(b) (b) Reimbursement for travel and ancillary costs may not be considered coercive or as exerting undue influence to participate in a cancer clinical trial, but rather shall be considered a means to create parity in cancer clinical trial access and remove a barrier to participation for financially burdened patient-subjects.

146.348(3)(c) (c) Government, industry, public charities, private foundations and other nonprofit organizations, associations, corporations and other business entities, individuals, and any other legal or commercial entities may offer financial support to patient-subjects, or the family, friends, or chaperones of patient-subjects, to cover ancillary costs through their support of a reimbursement entity or program.

146.348(4) (4) 

146.348(4)(a) (a) Language informing patient-subjects that reimbursement entities or programs that cover travel, ancillary costs, and other direct patient-incurred expenses may be available must be submitted for review to the relevant federally designated institutional review board in conjunction with the review of a proposed cancer clinical trial and included in the informed consent form approved by the institutional review board.

146.348(4)(b) (b) A reimbursement entity or program must disclose the nature of the ancillary support and general guidelines on financial eligibility to interested patient-subjects and employ a reimbursement process that conforms to federal law and guidance.

146.348 History History: 2019 a. 150.

146.35 146.35 Female genital mutilation prohibited.

146.35(1) (1) In this section, “infibulate” means to clasp together with buckles or stitches.

146.35(2) (2) Except as provided in sub. (3), no person may circumcise, excise or infibulate the labia majora, labia minora or clitoris of a female minor.

146.35(3) (3) Subsection (2) does not apply if the circumcision, excision or infibulation is performed by a physician, as defined in s. 448.01 (5), and is necessary for the health of the female minor or is necessary to correct an anatomical abnormality.

146.35(4) (4) None of the following may be asserted as a defense to prosecution for a violation of sub. (2):

146.35(4)(a) (a) Consent by the female minor or by a parent of the female minor to the circumcision, excision or infibulation.

146.35(4)(b) (b) The circumcision, excision or infibulation is required as a matter of custom or ritual.

146.35(5) (5) Whoever violates sub. (2) is guilty of a Class H felony.

146.35 History History: 1995 a. 365; 1997 a. 283; 2001 a. 109.

146.37 146.37 Health care services review; civil immunity.

146.37(1) (1) In this section:

146.37(1)(a) (a) “Health care provider” includes an ambulance service provider, as defined in s. 256.01 (3), and an emergency medical services practitioner, as defined in s. 256.01 (5), and an emergency medical responder, as defined in s. 256.01 (4p).

146.37(1)(b) (b) “Medical director” has the meaning specified in s. 256.01 (11).

146.37(1g) (1g) Except as provided in s. 153.76, no person acting in good faith who participates in the review or evaluation of the services of health care providers or facilities or the charges for such services conducted in connection with any program organized and operated to help improve the quality of health care, to avoid improper utilization of the services of health care providers or facilities or to determine the reasonable charges for such services, or who participates in the obtaining of health care information under subch. I of ch. 153, is liable for any civil damages as a result of any act or omission by such person in the course of such review or evaluation. Acts and omissions to which this subsection applies include, but are not limited to, acts or omissions by peer review committees or hospital governing bodies in censuring, reprimanding, limiting or revoking hospital staff privileges or notifying the medical examining board or podiatry affiliated credentialing board under s. 50.36 or taking any other disciplinary action against a health care provider or facility and acts or omissions by a medical director in reviewing the performance of emergency medical services practitioners, as defined in s. 256.01 (5), or ambulance service providers.

146.37(1m) (1m) The good faith of any person specified in subs. (1g) and (3) shall be presumed in any civil action. Any person who asserts that such a person has not acted in good faith has the burden of proving that assertion by clear and convincing evidence.

146.37(2) (2) In determining whether a member of the reviewing or evaluating organization or the medical director has acted in good faith under sub. (1g), the court shall consider whether the member or medical director has sought to prevent the health care provider or facility and its counsel from examining the documents and records used in the review or evaluation, from presenting witnesses, establishing pertinent facts and circumstances, questioning or refuting testimony and evidence, confronting and cross-examining adverse witnesses or from receiving a copy of the final report or recommendation of the reviewing organization or medical director.

146.37(3) (3) This section applies to any person acting in good faith who participates in the review or evaluation of the services of a psychiatrist, or facilities or charges for services of a psychiatrist, conducted in connection with any organization, association or program organized or operated to help improve the quality of psychiatric services, avoid improper utilization of psychiatric services or determine reasonable charges for psychiatric services. This immunity includes, but is not limited to, acts such as censuring, reprimanding or taking other disciplinary action against a psychiatrist for unethical or improper conduct.

146.37 History History: 1975 c. 187; 1979 c. 221; 1981 c. 323; 1983 a. 27; 1985 a. 29 s. 3202 (27); 1985 a. 340; 1987 a. 27, 399; 1989 a. 102; 1997 a. 175; 1999 a. 56; 2007 a. 130; 2009 a. 113, 274; 2011 a. 260 s. 81; 2017 a. 12.

146.37 Annotation Anyone who has the good faith belief that they are participating in a valid peer review procedure of a health care provider is entitled to the presumption of good faith under sub. (1g) and is immune from liability unless the presumption is overcome. Limjoco v. Schenck, 169 Wis. 2d 703, 486 N.W.2d 567 (Ct. App. 1992).

146.37 Annotation When a third party becomes an integral part of the ongoing medical services review, its actions are eligible for immunity from civil liability under this section. It would defeat the purpose of this section if the participation of an outside entity enlisted by a reviewing committee to perform an assessment of the abilities of a physician to perform effectively while on call is not eligible for immunity simply because the outside entity is not part of a formal “peer review program.” Rechsteiner v. Hazelden, 2008 WI 97, 313 Wis. 2d 542, 753 N.W.2d 496, 06-1521.

146.37 Annotation When a third party’s diagnosis of the condition of the doctor subject to review was indistinguishable from the employing hospital’s review, evaluation, and analysis of the doctor’s ability to perform as an on-call surgeon, the diagnosis was the essence of the peer review process initiated by the hospital. Even if the diagnosis was negligent, it was immune because it was central to the peer review process. However, this case does not mean that the peer review statute will immunize medical negligence in all situations, irrespective of the circumstances. Rechsteiner v. Hazelden, 2008 WI 97, 313 Wis. 2d 542, 753 N.W.2d 496, 06-1521.

146.37 Annotation A person reviewing a peer can be found to have acted in bad faith even if procedural rights under sub. (2) were not denied, but whether procedural rights were denied is a factor that must be considered in a determination of “good faith.” Qasem v. Kozarek, 716 F.2d 1172 (1983).

146.38 146.38 Health care services review; confidentiality of information.

146.38(1) (1) In this section:

146.38(1)(a) (a) “Evaluator” means a medical director or a registered nurse who coordinates review of an emergency medical services program of a health care provider.

146.38(1)(b) (b) “Health care provider” means any of the following:

146.38(1)(b)1. 1. A person specified in s. 146.81 (1) (a) to (hp), (r), or (s).

146.38(1)(b)2. 2. A facility, association, or business entity, as specified in s. 146.81 (1) (i) to (q) and including a residential care apartment complex, as defined in s. 50.01 (6d).

146.38(1)(b)3. 3. A person working under the supervision of or in collaboration with a person specified in subd. 1.

146.38(1)(b)4. 4. A parent, subsidiary, or affiliate organization of a facility, association, or business entity, as specified in subd. 2.

146.38(1)(bm) (bm) “Incident or occurrence report” means a written or oral statement that is made to notify a person, organization, or an evaluator who reviews or evaluates the services of health care providers or charges for such services of an incident, practice, or other situation that becomes the subject of such a review or evaluation.

146.38(1)(c) (c) “Medical director” has the meaning specified in s. 256.01 (11).

146.38(1m) (1m) No person who participates in the review or evaluation of the services of health care providers or charges for such services may disclose an incident or occurrence report or any information acquired in connection with such review or evaluation except as provided in sub. (3) or (3m).

146.38(2) (2) All persons, organizations, or evaluators, whether from one or more entities, who review or evaluate the services of health care providers in order to help improve the quality of health care, to avoid improper utilization of the services of health care providers, or to determine the reasonable charges for such services shall keep a record of their investigations, inquiries, proceedings and conclusions. No such record may be released to any person under s. 804.10 (4) or otherwise except as provided in sub. (3) or (3m). No such record may be used in any civil or criminal action against the health care provider or any other health care provider; however, except for incident or occurrence reports or records from other persons, organizations, or evaluators reviewing or evaluating health care providers, information, documents or records presented during the review or evaluation may not be construed as immune from discovery under s. 804.10 (4) or use in any civil or criminal action merely because they were so presented. Any person who testifies during or participates in the review or evaluation may testify in any civil or criminal action as to matters within his or her knowledge, but may not testify as to information obtained through his or her participation in the review or evaluation, nor as to any conclusion of such review or evaluation.

146.38(2m) (2m) An incident or occurrence report may not be used in any civil or criminal action against a health care provider.

146.38(3) (3) Information acquired in connection with the review and evaluation of health care services shall be disclosed and records of such review and evaluation shall be released, with the identity of any patient whose treatment is reviewed being withheld except as permitted under s. 146.82, in the following circumstances:

146.38(3)(a) (a) To the health care provider whose services are being reviewed or evaluated, upon the request of such provider;

146.38(3)(b) (b) To any person with the consent of the health care provider whose services are being reviewed or evaluated;

146.38(3)(c) (c) To the person requesting the review or evaluation, for use solely for the purpose of improving the quality of health care, avoiding the improper utilization of the services of health care providers, and determining the reasonable charges for such services;

146.38(3)(dm) (dm) With regard to an action under s. 895.441, to a court of record after issuance of a subpoena; and

146.38(3)(f) (f) To the appropriate examining or licensing board or agency, when the organization or evaluator conducting the review or evaluation determines that such action is advisable.

146.38(3m) (3m) 

146.38(3m)(a) (a) Information acquired in connection with the review and evaluation of health care services may be disclosed, and records of such review and evaluation may be released, in statistical form with the consent of the person authorizing or with the authority to authorize the review or evaluation. Information disclosed or records released under this subsection shall not reveal the identity of any patient except as permitted under s. 146.82.

146.38(3m)(b) (b) Information acquired in connection with the review or evaluation of health care services may be disclosed, and the records of such a review or evaluation released, to any of the following persons, with the consent of the person authorizing or with the authority to authorize the review or evaluation:

146.38(3m)(b)1. 1. The employer of a health care provider, as defined in sub. (1) (b) 1. and 3.

146.38(3m)(b)2. 2. The parent, subsidiary, or affiliate organization of a health care provider, as defined in sub. (1) (b) 2.

146.38(3m)(b)3. 3. The parent, subsidiary, or affiliate organization of the employer of a health care provider, as defined in sub. (1) (b) 1. and 3.

146.38(3t) (3t) A record described under sub. (2) or an incident or occurrence report disclosed either under sub. (3) or (3m) or in violation of this section remains confidential and may not be used in any civil or criminal action against the health care provider or any other health care provider.

146.38(4) (4) Any person who discloses information or releases a record in violation of this section, other than through a good faith mistake, is civilly liable therefor to any person harmed by the disclosure or release.

146.38(5) (5) This section does not apply to s. 256.25.

146.38(6) (6) Health care provider specific information acquired by an administrative agency in order to help improve the quality of health care, to avoid the improper utilization of services of health care providers, or to determine the reasonable charges for health care services is exempt from inspection, copying, or receipt under s. 19.35 (1).

146.38 History History: 1975 c. 187; 1979 c. 89; 1983 a. 27; 1989 a. 102; 1991 a. 217; 1999 a. 56; 2005 a. 155, 315; 2007 a. 130; 2011 a. 2, 32; 2013 a. 165 s. 114; 2013 a. 166.

146.38 Annotation The conclusions of a hospital governing body, based on records and conclusions of peer review committees, were not privileged under this section. State ex rel. Good Samaritan Medical Center-Deaconess Hospital Campus v. Maroney, 123 Wis. 2d 89, 365 N.W.2d 887 (Ct. App. 1985).

146.38 Annotation Outlining the methodology for determining privileged records under sub. (2). Franzen v. Children’s Hospital of Wisconsin, Inc., 169 Wis. 2d 366, 485 N.W.2d 603 (Ct. App. 1992).

146.38 Annotation Discussing the methodology for determining privileged communications under sub. (1m). Mallon v. Campbell, 178 Wis. 2d 278, 504 N.W.2d 357 (Ct. App. 1993).