655.58 Mediation procedure. SUBCHAPTER VII
MEDIATION FUND
Ch. 655 Cross-referenceCross-reference: See definitions in ss. 600.03 and 628.02. Ch. 655 Cross-referenceCross-reference: See also ch. Ins 17, Wis. adm. code. GENERAL PROVISIONS
655.001655.001 Definitions. In this chapter: 655.001(4)(4) “Department” means the department of health services. 655.001(6)(6) “Fiscal year” means the period beginning on July 1 and ending on the following June 30. 655.001(7)(7) “Fund” means the injured patients and families compensation fund under s. 655.27. 655.001(7m)(7m) “Graduate medical education program” means a program approved by the medical examining board that provides postgraduate medical education and training for a person who possesses a diploma from a medical or osteopathic college or who has the equivalent education and experience from a foreign medical school recognized by the Education Commission for Foreign Medical Graduates. 655.001(7t)(7t) “Health care practitioner” means a health care professional, as defined in s. 180.1901 (1m), who is an employee of a health care provider described in s. 655.002 (1) (d), (e), (em), or (f) and who has the authority to provide health care services that are not in collaboration with a physician under s. 441.15 (2) (b) or under the direction and supervision of a physician or nurse anesthetist. 655.001(8)(8) “Health care provider” means a person to whom this chapter applies under s. 655.002 (1) or a person who elects to be subject to this chapter under s. 655.002 (2). 655.001(8c)(8c) “Insurer” includes a foreign insurer that is a risk retention group that issues health care liability insurance under this chapter. 655.001(9)(9) “Nurse anesthetist” means a nurse who is licensed under ch. 441 or who holds a multistate license, as defined in s. 441.51 (2) (h), issued in a party state, as defined in s. 441.51 (2) (k), and who is certified as a nurse anesthetist by the American association of nurse anesthetists. 655.001(10)(10) “Patient” means an individual who received or should have received health care services from a health care provider or from an employee of a health care provider acting within the scope of his or her employment. 655.001(10m)(10m) “Physician” means a medical or osteopathic physician licensed under ch. 448. 655.001(11)(11) “Principal place of practice” means any of the following: 655.001(11)(a)(a) The state in which a health care provider furnishes health care services to more than 50 percent of his or her patients in a fiscal year. 655.001(11)(b)(b) The state in which a health care provider derives more than 50 percent of his or her income in a fiscal year from the practice of his or her profession. 655.001(12)(12) “Representative” means the personal representative, spouse, parent, guardian, attorney or other legal agent of a patient. 655.001(13)(13) “Respondent” means the person alleged to have been negligent in a request for mediation filed under s. 655.44 or 655.445. 655.001(14)(14) “Self-insurance plan” means a plan approved by the commissioner to self-insure health care providers against medical malpractice claims in accordance with this chapter. A “self-insurance plan” may provide coverage to a single health care provider or affiliated health care providers. 655.001 AnnotationThis chapter is a constitutionally valid enactment. State ex rel. Strykowski v. Wilkie, 81 Wis. 2d 491, 261 N.W.2d 434 (1978). 655.001 AnnotationMedical Malpractice Panels: The Wisconsin Approach. Kravat. 61 MLR 55 (1977).
655.001 AnnotationTesting the Constitutionality of Medical Malpractice Legislation: The Wisconsin Medical Malpractice Act of 1975. Mathy. 1977 WLR 838.
655.001 AnnotationA summary of the new statutes governing medical malpractice. Saichek. WBB Oct. 1986.
655.002(1)(1) Mandatory participation. Except as provided in s. 655.003, this chapter applies to all of the following: 655.002(1)(a)(a) A physician or a nurse anesthetist for whom this state is a principal place of practice and who practices his or her profession in this state more than 240 hours in a fiscal year. 655.002(1)(b)(b) A physician or a nurse anesthetist for whom Michigan is a principal place of practice, if all of the following apply: 655.002(1)(b)1.1. The physician or nurse anesthetist is a resident of this state. 655.002(1)(b)2.2. The physician or nurse anesthetist practices his or her profession in this state or in Michigan or a combination of both more than 240 hours in a fiscal year. 655.002(1)(b)3.3. The physician or nurse anesthetist performs more procedures in a Michigan hospital than in any other hospital. In this subdivision, “Michigan hospital” means a hospital located in Michigan that is an affiliate of a corporation organized under the laws of this state that maintains its principal office and a hospital in this state. 655.002(1)(c)(c) A physician or nurse anesthetist who is exempt under s. 655.003 (1) or (3), but who practices his or her profession outside the scope of the exemption and who fulfills the requirements under par. (a) in relation to that practice outside the scope of the exemption. For a physician or a nurse anesthetist who is subject to this chapter under this paragraph, this chapter applies only to claims arising out of practice that is outside the scope of the exemption under s. 655.003 (1) or (3). 655.002(1)(d)(d) A partnership comprised of physicians or nurse anesthetists and organized and operated in this state for the primary purpose of providing the medical services of physicians or nurse anesthetists. 655.002(1)(e)(e) A corporation organized and operated in this state for the primary purpose of providing the medical services of physicians or nurse anesthetists. 655.002(1)(em)(em) Any organization or enterprise not specified under par. (d) or (e) that is organized and operated in this state for the primary purpose of providing the medical services of physicians or nurse anesthetists. 655.002(1)(f)(f) A cooperative health care association organized under s. 185.981 that operates nonprofit health care plans in this state and that directly provides services through salaried employees in its own facility. 655.002(1)(g)(g) An ambulatory surgery center that operates in this state. 655.002(1)(i)(i) An entity operated in this state that is an affiliate of a hospital and that provides diagnosis or treatment of, or care for, patients of the hospital. 655.002(1)(j)(j) A nursing home, as defined in s. 50.01 (3), whose operations are combined as a single entity with a hospital described in par. (h), whether or not the nursing home operations are physically separate from the hospital operations. 655.002(2)(2) Optional participation. All of the following may elect, in the manner designated by the commissioner by rule under s. 655.004, to be subject to this chapter: 655.002(2)(a)(a) A physician or nurse anesthetist for whom this state is a principal place of practice but who practices his or her profession fewer than 241 hours in a fiscal year, for a fiscal year, or a portion of a fiscal year, during which he or she practices his or her profession. 655.002(2)(b)(b) Except as provided in sub. (1) (b), a physician or nurse anesthetist for whom this state is not a principal place of practice, for a fiscal year, or a portion of a fiscal year, during which he or she practices his or her profession in this state. For a health care provider who elects to be subject to this chapter under this paragraph, this chapter applies only to claims arising out of practice that is in this state and that is outside the scope of an exemption under s. 655.003 (1) or (3). 655.002(2)(c)(c) A graduate medical education program that operates in this state. For a graduate medical education program that elects to be subject to this chapter under this paragraph, this chapter applies only to claims arising out of practice that is in this state and that is outside the scope of an exemption under s. 655.003 (1) or (3). 655.002 AnnotationIn an action governed by this chapter, no claim may be brought by adult children for loss of society and companionship of an adult parent; s. 895.04 is inapplicable to actions under this chapter. Dziadosz v. Zirneski, 177 Wis. 2d 59, 501 N.W.2d 828 (Ct. App. 1993). 655.002 AnnotationIn an action governed by this chapter, no recovery may be had by a parent for the loss of society and companionship of an adult child. Estate of Wells v. Mount Sinai Medical Center, 183 Wis. 2d 667, 515 N.W.2d 705 (1994). 655.002 AnnotationThis chapter does not control all actions against health maintenance organizations (HMO). It applies only to negligent medical acts or decisions made in the course of rendering medical care. A bad faith tort action may be prosecuted against an HMO that has denied a request for coverage without a legal basis. McEvoy v. Group Health Cooperative of Eau Claire, 213 Wis. 2d 507, 570 N.W.2d 397 (1997), 96-0908. 655.002 AnnotationWhen applicable, this chapter constitutes the exclusive procedure and remedy for medical malpractice in this state. However, this chapter applies only to a specifically defined list of health care providers under this section. It is clear from the plain text of this section and the definition and regulation of service providers under ch. 50, from which this chapter derives its legal definitions, that hospitals, nursing homes, and community-based residential facilities (CBRFs) are different operations with different meanings. While this chapter covers hospitals and certain nursing homes, it unambiguously does not cover CBRFs, even ones that share common ownership with hospitals and nursing homes. Andruss v. Divine Savior Healthcare Inc., 2022 WI 27, 401 Wis. 2d 368, 973 N.W.2d 435, 20-0202. 655.003655.003 Exemptions for public employees and facilities and volunteers. Except as provided in s. 655.002 (1) (c), this chapter does not apply to a health care provider that is any of the following: 655.003(1)(1) A physician or a nurse anesthetist who is a state, county or municipal employee, or federal employee or contractor covered under the federal tort claims act, as amended, and who is acting within the scope of his or her employment or contractual duties. 655.003(2)(2) A facility that is exempt under s. 50.39 (3) or operated by any governmental agency. 655.003(3)(3) Except for a physician or nurse anesthetist who meets the criteria under s. 146.89 (5) (a), a physician or a nurse anesthetist who provides professional services under the conditions described in s. 146.89, with respect to those professional services provided by the physician or nurse anesthetist for which he or she is covered by s. 165.25 and considered an agent of the department, as provided in s. 165.25 (6) (b). 655.004655.004 Rule-making authority. The director of state courts, department and commissioner may promulgate such rules under ch. 227 as are necessary to enable them to perform their responsibilities under this chapter. 655.004 HistoryHistory: 1975 c. 37; Sup. Ct. Order, 88 Wis. 2d xiii (1979); 1987 a. 27; Stats. 1987 s. 655.004; 1989 a. 187 s. 28. 655.004 Cross-referenceCross-reference: See also ch. DC 1, Wis. adm. code. 655.005655.005 Health care provider employees. 655.005(1)(1) Any person listed in s. 655.007 having a claim or a derivative claim against a health care provider or an employee of the health care provider, for damages for bodily injury or death due to acts or omissions of the employee of the health care provider acting within the scope of his or her employment and providing health care services, is subject to this chapter. 655.005(2)(2) The fund shall provide coverage, under s. 655.27, for claims against the health care provider or the employee of the health care provider due to the acts or omissions of the employee acting within the scope of his or her employment and providing health care services. This subsection does not apply to any of the following: 655.005(2)(a)(a) An employee of a health care provider if the employee is a physician or a nurse anesthetist or is a health care practitioner who is providing health care services that are not in collaboration with a physician under s. 441.15 (2) (b) or under the direction and supervision of a physician or nurse anesthetist. 655.005(2)(b)(b) A service corporation organized under s. 180.1903 by health care professionals, as defined under s. 180.1901 (1m), if the board of governors determines that it is not the primary purpose of the service corporation to provide the medical services of physicians or nurse anesthetists. The board of governors may not determine under this paragraph that it is not the primary purpose of a service corporation to provide the medical services of physicians or nurse anesthetists unless more than 50 percent of the shareholders of the service corporation are neither physicians nor nurse anesthetists. 655.005 AnnotationAlthough not a health care provider, because an unlicensed first-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 this chapter and s. 893.55 (4). Phelps v. Physicians Insurance Co. of Wisconsin, 2009 WI 74, 319 Wis. 2d 1, 768 N.W.2d 615, 06-2599. 655.005 AnnotationThis chapter does not permit claims other than those listed in sub. (1) and s. 655.007. Because this chapter exclusively governs all claims arising out of medical malpractice against health care providers and their employees, and because the legislature did not include bystander claims in sub. (1) or s. 655.007, negligent infliction of emotional distress claims arising out of medical malpractice are not actionable under Wisconsin law. Phelps v. Physicians Insurance Co. of Wisconsin, 2009 WI 74, 319 Wis. 2d 1, 768 N.W.2d 615, 06-2599. 655.006(1)(a)(a) On and after July 24, 1975, every patient, every patient’s representative and every health care provider shall be conclusively presumed to have accepted to be bound by this chapter. 655.006(1)(b)(b) Except as otherwise specifically provided in this chapter, this subsection also applies to minors. 655.006(2)(2) This chapter does not apply to injuries or death occurring, or services rendered, prior to July 24, 1975. 655.006 HistoryHistory: 1975 c. 37; 1987 a. 27; Stats. 1987 s. 655.006. 655.007655.007 Patients’ claims. On and after July 24, 1975, any patient or the patient’s representative having a claim or any spouse, parent, minor sibling or child of the patient having a derivative claim for injury or death on account of malpractice is subject to this chapter. 655.007 AnnotationThis chapter was inapplicable to a third-party claim based on contract in which no bodily injury was alleged. Northwest General Hospital v. Yee, 115 Wis. 2d 59, 339 N.W.2d 583 (1983). 655.007 AnnotationIn this section, “child” refers to a minor child. An adult child cannot assert a claim based on medical malpractice committed against the adult child’s parent. Ziulkowski v. Nierengarten, 210 Wis. 2d 98, 565 N.W.2d 164 (Ct. App. 1997), 95-1708. 655.007 AnnotationSection 893.55 (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 this section. As such, adult children do not have standing to bring such an action. The exclusion of adult children does not violate equal protection. Czapinski v. St. Francis Hospital, Inc., 2000 WI 80, 236 Wis. 2d 316, 613 N.W.2d 120, 98-2437 655.007 AnnotationA 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. of Wisconsin, 2005 WI 14, 278 Wis. 2d 82, 692 N.W.2d 558, 01-2710.
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