Chapter 655

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.

655.24 History History: 1975 c. 37; 1977 c. 131; 1985 a. 340; 1989 a. 187; 1991 a. 214; 1999 a. 9.

655.24 Cross-reference Cross-reference: See also s. Ins 17.35, Wis. adm. code.

655.24 Annotation Based on sub. (2) (a) 3. and applicable administrative rules, the Wisconsin Injured Patients and Families Compensation Fund’s obligation to cover the amount of the judgment in excess of the policy or statutory limit is not triggered until the primary insurer’s policy limits and supplemental payments, including interest, have been exhausted. Jandre v. Physicians Insurance Co. of Wisconsin, 2010 WI App 136, 330 Wis. 2d 50, 792 N.W.2d 558, 08-1972.

655.24 Annotation Affirmed on other grounds. 2012 WI 39, 340 Wis. 2d 31, 813 N.W.2d 627, 08-1972.

655.245 655.245 Insurance policy limitations.

655.245(1) (1) No policy of health care liability insurance may permit a health care provider to reject any settlement agreed upon between the claimant and the insurer.

655.245(2) (2) A policy of health care liability insurance may permit the insurer to make payments for medical expenses prior to any determination of fault. Such payments are not an admission of fault. Such payments may be deducted from any judgment or arbitration award, but shall not be repaid regardless of the judgment or award. Nothing in this subsection shall restrict the insurer’s right of comparative contribution or indemnity in accordance with the laws of this state.

655.245 History History: 1975 c. 37.

655.25 655.25 Availability and effectiveness for health care liability insurance. No policy of health care liability insurance written under the provisions of s. 619.04 may be canceled or nonrenewed except for nonpayment of premiums unless the health care provider’s license is revoked by the appropriate licensing board. A health care provider whose license is revoked shall be permitted to buy out in cases of a claims-made policy.

655.25 History History: 1975 c. 37; 1995 a. 85.

655.26 655.26 Reports on claims paid.

655.26(1) (1) In addition to any information required by the commissioner under s. 601.42, by the 15th day of each month, each insurer that writes health care liability insurance in this state and each self-insurer approved under s. 655.23 (3) (a) shall report the following information to the medical examining board and the board of governors on each claim paid during the previous month for damages arising out of the rendering of health care services:

655.26(1)(a) (a) The name and address of the policyholder or self-insured entity and the name and address of any individual on whose behalf the claim was paid.

655.26(1)(b) (b) The profession of the individual or the type of facility or entity on whose behalf the claim was paid.

655.26(1)(c) (c) The health care provider’s medical specialty, if the provider is a physician.

655.26(1)(d) (d) A description of the injury, including its cause and severity.

655.26(1)(e) (e) Whether the claim was paid as a result of a settlement, a patients compensation panel award or a court award.

655.26(1)(f) (f) The amount of the payment.

655.26(1)(g) (g) The number and amounts of any previous claims paid by the insurer or self-insurer for damages arising out of the rendering of health care services by the insured, the self-insurer or the employees of the insured or self-insurer. Only claims paid on or after July 20, 1985, are required to be reported under this paragraph.

655.26(1)(h) (h) Any additional information requested by the medical examining board or the board of governors.

655.26(2) (2) By the 15th day of each month, the board of governors shall report the information specified in sub. (1) to the medical examining board for each claim paid by the fund or from the appropriation under s. 20.145 (2) (a) during the previous month for damages arising out of the rendering of health care services by a health care provider or an employee of a health care provider.

655.26(3) (3) If more than one payment will be made on a claim, the first report filed under sub. (1) or (2) after the first payment is made on the claim shall include the total amount of the award or settlement and the projected schedule and amounts of payments.

655.26(4) (4) Any person who in good faith provides information to the medical examining board or the board of governors under this section is immune from civil liability for his or her acts or omissions in providing such information.

655.26 History History: 1985 a. 29, 340; 1989 a. 187; 1991 a. 214; 2007 a. 20.

655.26 Cross-reference Cross-reference: See also s. Ins 17.275, Wis. adm. code.

subch. IV of ch. 655 SUBCHAPTER IV

INJURED PATIENTS AND FAMILIES
COMPENSATION FUND

655.27 655.27 Injured patients and families compensation fund.

655.27(1) (1) Fund. There is created an injured patients and families compensation fund for the purpose of paying that portion of a medical malpractice claim which is in excess of the limits expressed in s. 655.23 (4) or the maximum liability limit for which the health care provider is insured, whichever limit is greater, paying future medical expense payments under s. 655.015, and paying claims under sub. (1m). The fund shall provide occurrence coverage for claims against health care providers that have complied with this chapter, and against employees of those health care providers, and for reasonable and necessary expenses incurred in payment of claims and fund administrative expenses. The coverage provided by the fund shall begin July 1, 1975. The fund shall not be liable for damages for injury or death caused by an intentional crime, as defined under s. 939.12, committed by a health care provider or an employee of a health care provider, whether or not the criminal conduct is the basis for a medical malpractice claim.