Chapter 655

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.

655.23(4)(b)2. 2. Except as provided in par. (c), on and after July 1, 1997, health care liability insurance may provide either occurrence or claims-made coverage. The limits of liability shall be as follows:

655.23(4)(b)2.a. a. For occurrence coverage, at least $1,000,000 for each occurrence and $3,000,000 for all occurrences in any one policy year for occurrences on or after July 1, 1997.

655.23(4)(b)2.b. b. For claims-made coverage, at least $1,000,000 for each claim arising from an occurrence on or after July 1, 1997, and $3,000,000 for all claims in any one reporting year for claims made on or after July 1, 1997.

655.23(4)(c) (c)

655.23(4)(c)1. 1. Except as provided in subd. 2., self-insurance 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, $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, and $1,000,000 for each occurrence and $3,000,000 for all occurrences in any one policy year for occurrences on or after July 1, 1997.

655.23(4)(c)2. 2. Notwithstanding subd. 1., in the discretion of a self-insured health care provider, self-insurance may be in an amount that is less than $1,000,000 but not less than $600,000 for each occurrence on or after July 1, 1997, and before July 1, 1999, and less than $1,000,000 but not less than $800,000 for each occurrence on or after July 1, 1999, and before July 1, 2001.

655.23(4)(d) (d) The commissioner may promulgate such rules as the commissioner considers necessary for the application of the liability limits under par. (b) to reporting years following termination of claims-made coverage, including rules that provide for the use of actuarial equivalents.

655.23(5) (5) While health care liability insurance, self-insurance or a cash or surety bond under sub. (3) (d) remains in force, the health care provider, the health care provider’s estate and those conducting the health care provider’s business, including the health care provider’s health care liability insurance carrier, are liable for malpractice for no more than the limits expressed in sub. (4) or the maximum liability limit for which the health care provider is insured, whichever is higher, if the health care provider has met the requirements of this chapter.

655.23(5m) (5m) The limits set forth in sub. (4) shall apply to any joint liability of a physician or nurse anesthetist and his or her corporation, partnership, or other organization or enterprise under s. 655.002 (1) (d), (e), or (em).

655.23(6) (6) Any person who violates this section or s. 655.27 (3) (a) is subject to s. 601.64. For purposes of s. 601.64 (3) (c), each week of delay in compliance with this section or s. 655.27 (3) (a) constitutes a new violation.

655.23(7) (7) Each health care provider shall comply with this section and with s. 655.27 (3) (a) before exercising any rights or privileges conferred by his or her health care provider’s license. The commissioner shall notify the board that issued the license of a health care provider that has not complied with this section or with s. 655.27 (3) (a). The board that issued the license may suspend, or refuse to issue or to renew the license of any health care provider violating this section or s. 655.27 (3) (a).

655.23(8) (8) No health care provider who retires or ceases operation after July 24, 1975, shall be eligible for the protection provided under this chapter unless proof of financial responsibility for all claims arising out of acts of malpractice occurring after July 24, 1975, is provided to the commissioner in the form prescribed by the commissioner.

655.23 History History: 1975 c. 37, 79, 199; 1977 c. 131; 1983 a. 158; 1985 a. 340; 1989 a. 56 s. 259; 1989 a. 187 ss. 14 to 19, 29; 1989 a. 332; 1991 a. 214; 1993 a. 473; 1997 a. 11; 2005 a. 36; 2013 a. 20; 2015 a. 55.

655.23 Annotation An insurer is liable under sub. (5) up to its policy limits. Wisconsin Patients Compensation Fund v. St. Paul Fire & Marine Insurance Co., 116 Wis. 2d 537, 342 N.W.2d 693 (1984).

655.23 Annotation That a self-insurance plan could have or should have been approved is irrelevant. Under sub. (3) (a), the plan must actually be approved for a provider to be qualified as a self-insurer. Wisconsin Patients Compensation Fund v. St. Mary’s Hospital of Milwaukee, 209 Wis. 2d 17, 561 N.W.2d 797 (Ct. App. 1997), 95-3294.

655.23 Annotation Any liability of a person who is not a health care provider under this chapter, while doing a provider’s business, together with the liability of the health care provider itself, is limited to the amount of primary coverage mandated by sub. (4). Since the Wisconsin Patients Compensation Fund is obligated to pay any amounts above this limit, the fund does not have subrogation rights against a non-provider, or his or her insurer. Patients Compensation Fund v. Lutheran Hospital-LaCrosse, Inc., 223 Wis. 2d 439, 588 N.W.2d 35 (1999), 96-1344.

655.23 Annotation Pursuant to Lutheran Hospital, 223 Wis. 2d 439 (1999), any liability for a nurse’s negligence belongs to the responsible health care provider and its insurer. The provider’s insurer may not seek contribution from the nurse, and thus it may not seek it from the employer who provided the nurse’s services to the provider through a staffing agreement, or the employer’s insurer. Rogers v. Saunders, 2008 WI App 53, 309 Wis. 2d 238, 750 N.W.2d 477, 07-0306.

655.23 Annotation This section is not preempted by federal law. Ophthalmic Mutual Insurance Co. v. Muisser, 143 F.3d 1062 (1998).

655.24 655.24 Insurance policy forms.

655.24(1) (1) No insurer may enter into or issue any policy of health care liability insurance until its policy form has been submitted to and approved by the commissioner under s. 631.20 (1) (a). The filing of a policy form by any insurer with the commissioner for approval shall constitute, on the part of the insurer, a conclusive and unqualified acceptance of all provisions of this chapter, and an agreement by it to be bound hereby as to any policy issued by it to any health care provider.

655.24(1m) (1m) Notwithstanding sub. (1), the issuance of a policy of health care liability insurance by an insurer to a health care provider constitutes, on the part of the insurer, a conclusive and unqualified acceptance of all of the provisions of this chapter, and an agreement by it to be bound under the provisions of this chapter as to any policy issued by it to a health care provider.

655.24(2) (2) Every policy issued under this chapter shall be deemed conclusively to provide all of the following:

655.24(2)(a) (a) That the insurer agrees to pay in full all of the following:

655.24(2)(a)1. 1. Attorney fees and other costs incurred in the settlement or defense of any claims.

655.24(2)(a)2. 2. Any settlement, arbitration award or judgment imposed against the insured under this chapter up to the limits expressed in s. 655.23 (4), or the maximum liability limit for which the health care provider is insured, whichever is greater.

655.24(2)(a)3. 3. Any portion or all of the interest, as determined by the board of governors, on an amount recovered against the insured under this chapter for which the insured is liable under s. 807.01 (4), 814.04 (4) or 815.05 (8).

655.24(2)(b) (b) That any termination of the policy by cancellation or nonrenewal is not effective as to patients claiming against those covered by the policy unless the insured has been notified as provided in sub. (3) and s. 631.36, except that an insurer may cancel a health care provider’s policy under s. 631.36 (2) if the health care provider is no longer licensed to practice medicine or nursing.

655.24(3) (3) A notice of cancellation or nonrenewal that is required under sub. (2) (b) issued to a health care provider who is a natural person must inform the health care provider that his or her license to practice medicine or nursing may be suspended or not renewed if the health care provider has no insurance or insufficient insurance. The insurer shall retain a copy of each notice issued under sub. (2) (b) for not less than 10 years from the date of mailing or delivery of the notice and shall furnish a copy to the commissioner upon request.

655.24(4) (4) The insurer shall, upon termination of a policy of health care liability insurance issued under this chapter by cancellation or nonrenewal, notify the commissioner of the termination.