Chapter 655

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 History History: 1987 a. 27; 1991 a. 214; 2005 a. 36, 51; 2009 a. 165.

655.002 Annotation In 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 Annotation In 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 Annotation This 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 Annotation When 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.

655.003 655.003 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).

655.003 History History: 1989 a. 187, 206; 1991 a. 214; 2013 a. 241.

655.004 655.004 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 History History: 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-reference Cross-reference: See also ch. DC 1, Wis. adm. code.

655.005 655.005 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(2t) (2t) Subsection (2) does not affect the liability of a health care provider described in s. 655.002 (1) (d), (e), (em), or (f) for the acts of its employees.

655.005 History History: 1985 a. 340; 1987 a. 27; Stats. 1987 s. 655.005; 1989 a. 187; 1991 a. 214; 1993 a. 473; 1995 a. 167; 2001 a. 52; 2005 a. 36.

655.005 Annotation Although 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 Annotation This 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.

655.006 655.006 Remedy.

655.006(1) (1) 

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 History History: 1975 c. 37; 1987 a. 27; Stats. 1987 s. 655.006.

655.007 655.007 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 History History: 1975 c. 37, 199; 1983 a. 253; 1997 a. 89.

655.007 Annotation This 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 Annotation In 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 Annotation Section 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 Annotation 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. of Wisconsin, 2005 WI 14, 278 Wis. 2d 82, 692 N.W.2d 558, 01-2710.

655.007 Annotation Under ss. 895.01 (1) (o) and 895.04 (2), a wrongful death claim does not survive the death of the claimant. In a non-medical malpractice wrongful death case, under s. 895.04 (2) a new cause of action is available to the next claimant in the statutory hierarchy. In a medical malpractice wrongful death case, eligible claimants under s. this section are not subject to a statutory hierarchy like claimants under s. 895.04 (2). However, in a medical malpractice wrongful death case, adult children of the deceased are not listed as eligible claimants and are not eligible because of the exclusivity of this section, as interpreted in Czapinski, 2000 WI 80. Lornson v. Siddiqui, 2007 WI 92, 302 Wis. 2d 519, 735 N.W.2d 55, 05-2315.

655.007 Annotation The plaintiff’s claim that the hospital staff failed to adequately search his wife upon her return to an inpatient psychiatric unit when she carried in a gun and ammunition she used to kill herself alleged negligence in the performance of custodial care, not medical malpractice governed by this chapter. While the decision to place the patient on the unit involved medical decisions made in the course of rendering professional medical care, the search itself was a matter of custodial care. The staff’s search was not the result of special orders nor did it involve the exercise of professional medical judgment. Snyder v. Waukesha Memorial Hospital, Inc., 2009 WI App 86, 320 Wis. 2d 259, 768 N.W.2d 271, 08-1611.

655.007 Annotation A tortfeasor’s insurer’s subrogation claim against the injured party’s doctor asserting that the doctor rendered unnecessary medical treatment for which the insurer was responsible amounts to an action for medical malpractice, which is governed by this chapter. Neither the tortfeasor nor the insurer are patients or patient’s representatives under this section and thus do not have standing to bring a malpractice claim. The application of this chapter to bar the insurer’s subrogation claim does not violate equal protection guarantees. Konkel v. Acuity, 2009 WI App 132, 321 Wis. 2d 306, 775 N.W.2d 258, 08-2156.

655.007 Annotation This chapter applies only to negligent medical acts or decisions made in the course of rendering professional medical care. To hold otherwise would exceed the bounds of the chapter and grant seeming immunity from non-ch. 655 suits to those with a medical degree. Plaintiff’s claims arose from the discriminatory provision of medical care. This chapter does not apply when the provider engages in discriminatory acts on the basis of a patient’s disability. Rose v. Cahee, 727 F. Supp. 2d 728 (2010).

655.009 655.009 Actions against health care providers. An action to recover damages on account of malpractice shall comply with the following:

655.009(1) (1) Complaint. The complaint in such action shall not specify the amount of money to which the plaintiff supposes to be entitled.

655.009(2) (2) Medical expense payments. The court or jury, whichever is applicable, shall determine the amounts of medical expense payments previously incurred and for future medical expense payments.

655.009(3) (3) Venue. Venue in a court action under this chapter is in the county where the claimant resides if the claimant is a resident of this state, or in a county specified in s. 801.50 (2) (a) or (c) if the claimant is not a resident of this state.

655.009 History History: 1975 c. 37, 198, 199; 1983 a. 253; 1985 a. 340.

655.009 Annotation Discretionary changes of venue under s. 801.52 are applicable to actions under this chapter. Hoffman v. Memorial Hospital of Iowa County, 196 Wis. 2d 505, 538 N.W.2d 627 (Ct. App. 1995), 94-2490.

655.01 655.01 Forms. The director of state courts shall prepare and cause to be printed, and upon request furnish free of charge, such forms and materials as the director deems necessary to facilitate or promote the efficient administration of this chapter.

655.01 History History: 1975 c. 37, 199; Sup. Ct. Order, 88 Wis. 2d xiii (1979); 1989 a. 187 s. 28.

655.013 655.013 Attorney fees.

655.013(1) (1) With respect to any act of malpractice after July 24, 1975, for which a contingency fee arrangement has been entered into before June 14, 1986, 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 unless a new contingency fee arrangement is entered into that complies with subs. (1m) and (1t):

655.013(1)(a) (a) The determination shall not reflect amounts previously paid for medical expenses by the health care provider or the provider’s insurer.

655.013(1)(b) (b) The determination shall not reflect payments for future medical expense in excess of $25,000.

655.013(1m) (1m) Except as provided in sub. (1t), with respect to any act of malpractice for which a contingency fee arrangement is entered into on and after June 14, 1986, 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:

655.013(1m)(a) (a) Except as provided in par. (b), 33 1/3 percent of the first $1,000,000 recovered.

655.013(1m)(b) (b) Twenty-five percent of the first $1,000,000 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.

655.013(1m)(c) (c) Twenty percent of any amount in excess of $1,000,000 recovered.

655.013(1t) (1t) A court may approve attorney fees in excess of the limitations under sub. (1m) upon a showing of exceptional circumstances, including an appeal.

655.013(2) (2) An attorney shall offer to charge any client in a malpractice proceeding or action on a per diem or per hour basis. Any such agreement shall be made at the time of the employment of the attorney. An attorney’s fee on a per diem or per hour basis is not subject to the limitations under sub. (1) or (1m).

655.013 History History: 1975 c. 37, 199; 1985 a. 340.

655.015 655.015 Future medical expenses. If a settlement or judgment under this chapter resulting from an act or omission that occurred on or after May 25, 1995, provides for future medical expense payments in excess of $100,000, that portion of future medical expense payments in excess of an amount equal to $100,000 plus an amount sufficient to pay the costs of collection attributable to the future medical expense payments, including attorney fees reduced to present value, shall be paid into the fund. The commissioner shall develop by rule a system for managing and disbursing those moneys through payments for these expenses, which shall include a provision for the creation of a separate accounting for each claimant’s payments and for crediting each claimant’s account with a proportionate share of any interest earned by the fund, based on that account’s proportionate share of the fund. The commissioner shall promulgate a rule specifying the criteria that shall be used to determine the medical expenses related to the settlement or judgment, taking into consideration developments in the provision of health care. The payments shall be made under the system until either the account is exhausted or the patient dies.

655.015 History History: 1975 c. 37; 1977 c. 29; 1979 c. 34, 154; 1983 a. 158; 1985 a. 340; 1991 a. 214; 1995 a. 10.

655.015 Cross-reference Cross-reference: See also s. Ins 17.26, Wis. adm. code.

655.016 655.016 Claim by minor sibling for loss of society and companionship. Subject to s. 655.017, a sibling of a person who dies as a result of malpractice has a cause of action for damages for loss of society and companionship if the sibling was a minor at the time of the deceased sibling’s death. This section does not affect any other claim available under this chapter.

655.016 History History: 1997 a. 89.

655.017 655.017 Limitation on noneconomic damages. The amount of noneconomic damages recoverable by a claimant or plaintiff under this chapter for acts or omissions of a health care provider if the act or omission occurs on or after April 6, 2006, and for acts or omissions of an employee of a health care provider, acting within the scope of his or her employment and providing health care services, for acts or omissions occurring on or after April 6, 2006, is subject to the limits under s. 893.55 (4) (d) and (f).

655.017 History History: 1985 a. 340; 1995 a. 10; 2005 a. 183.

655.017 Annotation 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. of Wisconsin, 2005 WI 14, 278 Wis. 2d 82, 692 N.W.2d 558, 01-2710.

655.017 Annotation Non-Economic-Damage Award Caps in Wisconsin: Why Ferdon Was (Almost) Right and the Law Is Wrong. Stutz. 2009 WLR 105.

655.017 Annotation Tort Reform: It’s Not About Victims...It’s About Lawyers. Scoptur. Wis. Law. June 1995.

655.019 655.019 Information needed to set fees. The department shall provide the director of state courts, the commissioner and the board of governors with information on hospital bed capacity and occupancy rates as needed to set fees under s. 655.27 (3) or 655.61.

655.019 History History: 1985 a. 340; 1989 a. 187 s. 28; 1991 a. 214.

subch. III of ch. 655 SUBCHAPTER III

INSURANCE PROVISIONS

655.23 655.23 Limitations of liability; proof of financial responsibility.

655.23(3) (3) 

655.23(3)(a) (a) Except as provided in par. (d), 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. Qualification as a self-insurer is subject to conditions established by the commissioner and is valid only when approved by the commissioner. The commissioner may establish conditions that permit a self-insurer to self-insure for claims that are against employees who are health care practitioners and that are not covered by the fund. An approved self-insurance plan may provide coverage for all affiliated health care providers under a controlling legal entity.

655.23 Cross-reference Cross-reference: See also s. Ins 17.50, Wis. adm. code.

655.23(3)(am) (am) For purposes of par. (a) only, a foreign insurer that is a risk retention group and that has not been issued a certificate of authority under s. 618.12 is authorized to do business in this state if the risk retention group is registered with the commissioner, is approved by the commissioner to provide health care liability insurance coverage under this chapter, and has and maintains a risk-based capital ratio of at least 300 percent as determined under the risk-based capital instructions adopted by the National Association of Insurance Commissioners.

655.23(3)(b) (b) Each insurance company issuing health care liability insurance that meets the requirements of sub. (4) to any health care provider shall, at the times prescribed by the commissioner, file with the commissioner in a form prescribed by the commissioner a certificate of insurance on behalf of the health care provider upon original issuance and each renewal.

655.23(3)(c) (c) Each self-insured health care provider furnishing coverage that meets the requirements of sub. (4) shall, at the times and in the form prescribed by the commissioner, file with the commissioner a certificate of self-insurance and a separate certificate of insurance for each additional health care provider covered by the self-insured plan.

655.23(3)(d) (d) If a cash or surety bond furnished by a health care provider for the purpose of insuring and keeping insured the health care provider’s liability was approved by the commissioner before April 25, 1990, par. (a) does not apply to the health care provider while the cash or surety bond remains in effect. A cash or surety bond remains in effect unless the commissioner, at the request of the health care provider or the surety, approves its cancellation.

655.23(4) (4) 

655.23(4)(a) (a) A cash or surety bond under sub. (3) (d) shall be in amounts of at least $200,000 for each occurrence and $600,000 for all occurrences in any one policy year for occurrences before July 1, 1987, $300,000 for each occurrence and $900,000 for all occurrences in any one policy year for occurrences on or after July 1, 1987, and before July 1, 1988, and $400,000 for each occurrence and $1,000,000 for all occurrences in any one policy year for occurrences on or after July 1, 1988.

655.23(4)(b) (b)

655.23(4)(b)1. 1. Except as provided in par. (c), before July 1, 1997, health care liability insurance may have provided either occurrence or claims-made coverage. The limits of liability shall have been as follows:

655.23(4)(b)1.a. a. For occurrence coverage, at least $200,000 for each occurrence and $600,000 for all occurrences in any one policy year for occurrences before July 1, 1987, $300,000 for each occurrence and $900,000 for all occurrences in any one policy year for occurrences on or after July 1, 1987, and before July 1, 1988, and $400,000 for each occurrence and $1,000,000 for all occurrences in any one policy year for occurrences on or after July 1, 1988, and before July 1, 1997.

655.23(4)(b)1.b. b. For claims-made coverage, at least $200,000 for each claim arising from an occurrence before July 1, 1987, regardless of when the claim is made, and $600,000 for all claims in any one reporting year for claims made before July 1, 1987, $300,000 for each claim arising from an occurrence on or after July 1, 1987, and before July 1, 1988, regardless of when the claim is made, and $900,000 for all claims in any one reporting year for claims made on or after July 1, 1987, and before July 1, 1988, and $400,000 for each claim arising from an occurrence on or after July 1, 1988, and before July 1, 1997, regardless of when the claim is made, and $1,000,000 for all claims in any one reporting year for claims made on or after July 1, 1988, and before July 1, 1997.