Chapter 655

655.27(5)(a)3. 3. If, after reviewing the facts upon which the claim or action is based, it appears reasonably probable that damages paid will exceed the limits in s. 655.23 (4), the fund may appear and actively defend itself when named as a party in an action against a health care provider, or an employee of a health care provider, that has coverage under the fund. In such action, the fund may retain counsel and pay out of the fund attorney fees and expenses including court costs incurred in defending the fund. The attorney or law firm retained to defend the fund shall not be retained or employed by the board of governors to perform legal services for the board of governors other than those directly connected with the fund. Any judgment affecting the fund may be appealed as provided by law. The fund may not be required to file any undertaking in any judicial action, proceeding or appeal.

655.27(5)(b) (b) It shall be the responsibility of the insurer or self-insurer providing insurance or self-insurance for a health care provider who is also covered by the fund to provide an adequate defense of the fund on any claim filed that may potentially affect the fund with respect to such insurance contract or self-insurance contract. The insurer or self-insurer shall act in good faith and in a fiduciary relationship with respect to any claim affecting the fund. No settlement exceeding an amount which could require payment by the fund may be agreed to unless approved by the board of governors.

655.27(5)(c) (c) It shall be the responsibility of any health care provider with a cash or surety bond in effect under s. 655.23 (3) (d) to provide an adequate defense of the fund on any malpractice claim filed or any claim filed under sub. (1m) that may potentially affect the fund. The health care provider shall act in good faith and in a fiduciary relationship with respect to any claim affecting the fund. No settlement exceeding an amount which could require payment by the fund may be agreed to unless approved by the board of governors.

655.27(5)(d) (d) A person who has recovered a final judgment or a settlement approved by the board of governors against a health care provider, or an employee of a health care provider, that has coverage under the fund may file a claim with the board of governors to recover that portion of such judgment or settlement which is in excess of the limits in s. 655.23 (4) or the maximum liability limit for which the health care provider is insured, whichever limit is greater. In the event the fund incurs liability for future payments exceeding $1,000,000 to any person under a single claim as the result of a settlement or judgment that is entered into or rendered under this chapter for an act or omission that occurred on or after May 25, 1995, the fund shall pay, after deducting the reasonable costs of collection attributable to the remaining liability, including attorney fees reduced to present value, the full medical expenses each year, plus an amount not to exceed $500,000 per year that will pay the remaining liability over the person’s anticipated lifetime, or until the liability is paid in full. If the remaining liability is not paid before the person dies, the fund may pay the remaining liability in a lump sum. Payments shall be made from money collected and paid into the fund under sub. (3) and from interest earned thereon. For claims subject to a periodic payment made under this paragraph, payments shall be made until the claim has been paid in full, except as provided in s. 655.015. Periodic payments made under this paragraph include direct or indirect payment or commitment of moneys to or on behalf of any person under a single claim by any funding mechanism. No interest may be paid by the fund on the unpaid portion of any claim filed under this paragraph, except as provided under s. 807.01 (4), 814.04 (4) or 815.05 (8).

655.27(5)(e) (e) Claims filed against the fund shall be paid in the order received within 90 days after filing unless appealed by the fund. If the amounts in the fund are not sufficient to pay all of the claims, claims received after the funds are exhausted shall be paid from the appropriation under s. 20.145 (2) (a).

655.27(6) (6) Purpose and integrity of fund. The fund is established to curb the rising costs of health care by financing part of the liability incurred by health care providers as a result of medical malpractice claims and to ensure that proper claims are satisfied. The fund, including any net worth of the fund, is held in irrevocable trust for the sole benefit of health care providers participating in the fund and proper claimants. Moneys in the fund may not be used for any other purpose of the state.

655.27(7) (7) Actions against insurers, self-insurers or providers. The board of governors may bring an action against an insurer, self-insurer or health care provider for failure to act in good faith or breach of fiduciary responsibility under sub. (5) (b) or (c).

655.27 History History: 1975 c. 37, 79, 199; 1977 c. 29, 131; 1979 c. 34, 194; 1981 c. 20; 1983 a. 27, 158; 1985 a. 340; 1987 a. 27, 186, 247, 399; 1989 a. 102, 187, 332; 1991 a. 214, 315; 1993 a. 473; 1995 a. 10; 2001 a. 65; 2003 a. 111; 2005 a. 36, 410; 2007 a. 20; 2015 a. 90; 2019 a. 66; 2021 a. 114, 267.

655.27 Cross-reference Cross-reference: See also ss. Ins 17.27, 17.28, 17.29, and 17.40, Wis. adm. code.

655.27 Annotation The Wisconsin Patients Compensation Fund has the authority to sue an insurer that refuses to contribute to the settlement of a claim against its insured. Wisconsin Patients Compensation Fund v. Wisconsin Health Care Liability Insurance Plan, 200 Wis. 2d 599, 547 N.W.2d 578 (1996), 95-0865.

655.27 Annotation The denial of a postverdict motion to add the Wisconsin Patients Compensation Fund to an action where an excess verdict was returned was appropriate. Granting the motion would have denied the fund’s right under sub. (5) to appear and actively defend itself in the action. Goff v. Seldera, 202 Wis. 2d 601, 550 N.W.2d 144 (Ct. App. 1996), 95-0135.

655.27 Annotation Sub. (4) (b) does not provide an “explicit and unequivocal” exemption to the open records law. Any denial of an open records request under this section must state with “sufficient specificity” a public policy reason for refusing to release the requested records. Chvala v. Bubolz, 204 Wis. 2d 82, 552 N.W.2d 892 (Ct. App. 1996), 95-3120.

655.27 Annotation When a hospital’s violation of the federal Emergency Medical Treatment and Active Labor Act for failure to provide treatment results from a negligent medical act or a decision made in rendering care, the Wisconsin Patients Compensation Fund has an obligation to provide excess coverage. When the hospital’s violation results from an economic decision, the fund has no duty to provide coverage. Burks v. St. Joseph’s Hospital, 227 Wis. 2d 811, 596 N.W.2d 391 (1999), 97-0466.

655.27 Annotation A medical malpractice plaintiff is required to name the Wisconsin Patients Compensation Fund as a party but may do so after the period prescribed in s. 893.55 has passed so long as the health care providers are sued before the statute of limitations has run. Anderson v. Sauk Prairie Memorial Hospital, 2000 WI App 108, 235 Wis. 2d 249, 612 N.W.2d 369, 99-2052.

655.27 Annotation The requirement in sub. (5) (b) that the primary insurer provide the Wisconsin Patient’s Compensation Fund an adequate defense does not require that the insurer’s attorneys must assume an attorney-client relationship with the fund. Wisconsin Patients Compensation Fund v. Physicians Insurance Co. of Wisconsin, 2000 WI App 248, 239 Wis. 2d 360, 620 N.W.2d 457, 99-1322.

655.27 Annotation Under s. 895.045 (1), the liability of each person found to be less than 51 percent causally negligent is limited to the percentage of the total causal negligence attributed to that person. Thus insurers of doctors less than 51 percent causally negligent can be liable for no more than their insureds. Estate of Capistrant v. Froedtert Memorial Lutheran Hospital, Inc., 2003 WI App 213, 267 Wis. 2d 455, 671 N.W.2d 400, 03-0014.

655.27 Annotation Health care providers have a constitutionally protected property interest in the Injured Patients and Families Compensation Fund. Sub. (6) defines the fund as an irrevocable trust, and the structure and purpose of the fund satisfy all the elements necessary to establish a formal trust. Because the health care providers are specifically named as beneficiaries of the trust, they have equitable title to the assets of the fund. The transfer of $200 million from the fund to another fund was an unconstitutional taking of private property without just compensation. Wisconsin Medical Society, Inc. v. Morgan, 2010 WI 94, 328 Wis. 2d 469; 787 N.W.2d 22, 09-0728.

655.275 655.275 Injured patients and families compensation fund peer review council.

655.275(1) (1) Definition. In this section, “council” means the injured patients and families compensation fund peer review council.

655.275(2) (2) Appointment. The board of governors shall appoint the members of the council. Section 15.09, except s. 15.09 (4) and (8), does not apply to the council. The board of governors shall designate the chairperson, who shall be a physician, the vice chairperson, and the secretary of the council and the terms to be served by council members. The council shall consist of 5 or 7 persons, not more than 3 of whom are physicians who are licensed and in good standing to practice medicine in this state and one of whom is a nurse anesthetist who is licensed and in good standing to practice nursing in this state. The chairperson or another peer review council member designated by the chairperson shall serve as an ex officio nonvoting member of the medical examining board and may attend meetings of the medical examining board, as appropriate.

655.275(3) (3) Meetings. The council shall meet at the call of the chairperson of the board of governors or the chairperson of the council. The council shall meet at the location determined by the person calling the meeting.

655.275(4) (4) Reports. The council shall submit to the chairperson of the board of governors, upon request of the chairperson but not more often than annually, a report on the operation of the council.

655.275(5) (5) Duties.

655.275(5)(a) (a) The council shall review, within one year of the date of first payment on the claim, each claim that is paid by the fund or from the appropriation under s. 20.145 (2) (a), by a mandatory health care liability risk-sharing plan established under s. 619.04, by a private health care liability insurer, or by a self-insurer for damages arising out of the rendering of medical care by a health care provider or an employee of the health care provider and shall make recommendations to all of the following:

655.275(5)(a)1. 1. The commissioner and the board of governors regarding any adjustments to be made, under s. 655.27 (3) (a) 2m., to fund fees assessed against the health care provider, based on the paid claim.

655.275(5)(a)2. 2. The commissioner and the board of governors regarding any adjustments to be made, under s. 619.04 (5) (b), to premiums assessed against a physician under a mandatory health care liability risk-sharing plan established under s. 619.04, based on the paid claim.

655.275(5)(a)3. 3. A private health care liability insurer regarding adjustments to premiums assessed against a physician covered by private insurance, based on the paid claim, if requested by the private insurer.

655.275(5)(b) (b) In developing recommendations under par. (a), the council may consult with any person and shall consult with the following:

655.275(5)(b)1. 1. If a claim was paid for damages arising out of the rendering of care by a physician, with at least one physician from the area of medical specialty of the physician who rendered the care and with at least one physician from the area of medical specialty of the medical procedure involved, if the specialty area of the procedure is different than the specialty area of the physician who rendered the care.

655.275(5)(b)2. 2. If a claim was paid for damages arising out of the rendering of care by a nurse anesthetist, with at least one nurse anesthetist.

655.275(6) (6) Fees. Fees sufficient to cover the council’s costs, including costs of administration, shall be collected under s. 655.27 (3) (am).

655.275(7) (7) Notice of recommendation. The council shall notify the affected health care provider, in writing, of its recommendations to the commissioner, the board of governors or a private insurer made under sub. (5). The notice shall inform the health care provider that the health care provider may submit written comments on the council’s recommendations to the commissioner, the board of governors or the private insurer within a reasonable period of time specified in the notice.

655.275(8) (8) Patient records. The council may obtain any information relating to any claim it reviews under this section that is in the possession of the commissioner or the board of governors. The council shall keep patient health care records confidential as required by s. 146.82.

655.275(9) (9) Immunity. Members of the council and persons consulting with the council under sub. (5) (b) are immune from civil liability for acts or omissions while performing their duties under this section.

655.275(10) (10) Members’ and consultants’ expenses. Notwithstanding s. 15.09 (6), any person serving on the council and any person consulting with the council under sub. (5) (b) shall be paid at a rate established by the commissioner by rule.

655.275 History History: 1985 a. 340; 1989 a. 187; 1991 a. 214, 315; 1999 a. 9; 2003 a. 111; 2007 a. 20, 108; 2019 a. 66; 2021 a. 114; 2021 a. 239 s. 74.

655.275 Cross-reference Cross-reference: See also s. Ins 17.285 and 17.30, Wis. adm. code.

subch. VI of ch. 655 SUBCHAPTER VI

MEDIATION SYSTEM

655.42 655.42 Establishment of mediation system.

655.42(1) (1) Legislative intent. The legislature intends that the mediation system provide the persons under sub. (2) with an informal, inexpensive and expedient means for resolving disputes without litigation and intends that the director of state courts administer the mediation system accordingly.

655.42(2) (2) Mediation system. The director of state courts shall establish a mediation system complying with this subchapter not later than September 1, 1986. The mediation system shall consist of mediation panels that assist in the resolution of disputes, regarding medical malpractice, between patients, their representatives, spouses, parents or children and health care providers.

655.42 History History: 1985 a. 340; 1989 a. 187 s. 28.

655.43 655.43 Mediation requirement. The claimant and all respondents named in a request for mediation filed under s. 655.44 or 655.445 shall participate in mediation under this subchapter.

655.43 History History: 1985 a. 340.

655.44 655.44 Request for mediation prior to court action.

655.44(1) (1) Request and fee. Beginning September 1, 1986, any person listed in s. 655.007 having a claim or a derivative claim under this chapter for bodily injury or death because of a tort or breach of contract based on professional services rendered or that should have been rendered by a health care provider may file a request for mediation and shall pay the fee under s. 655.54.

655.44(2) (2) Content of request. The request for mediation shall be in writing and shall include all of the following information:

655.44(2)(a) (a) The claimant’s name and city, village or town, county and state of residence.

655.44(2)(b) (b) The name of the patient.

655.44(2)(c) (c) The name and address of the health care provider alleged to have been negligent in treating the patient.

655.44(2)(d) (d) The condition or disease for which the health care provider was treating the patient when the alleged negligence occurred and the dates of treatment.

655.44(2)(e) (e) A brief description of the injury alleged to have been caused by the health care provider’s negligence.

655.44(3) (3) Delivery or registered mail. The request for mediation shall be delivered in person or sent by registered mail to the director of state courts.

655.44(4) (4) Statute of limitations. Any applicable statute of limitations is tolled on the date the director of state courts receives the request for mediation if delivered in person or on the date of mailing if sent by registered mail. The statute remains tolled until 30 days after the last day of the mediation period under s. 655.465 (7).

655.44(5) (5) No court action commenced before mediation. Except as provided in s. 655.445, no court action may be commenced unless a request for mediation has been filed under this section and until the expiration of the mediation period under s. 655.465 (7).

655.44(6) (6) Notice of court action to director of state courts. A claimant who files a request for mediation under this section and who commences a court action after the expiration of the mediation period under s. 655.465 (7) shall send notice of the court action by 1st class mail to the director of state courts.

655.44 History History: 1985 a. 340; 1989 a. 187 s. 28.

655.44 Annotation A request for mediation of a claim naming only one doctor did not toll the statute of limitations applicable to claims against doctors not named in the mediation request. Dipple v. Wisconsin Patients Compensation Fund, 161 Wis. 2d 854, 468 N.W.2d 789 (Ct. App. 1991).

655.44 Annotation When a care provider was deceased, it was sufficient to name the deceased provider in the mediation request rather than a legal entity, such as the estate or the provider’s insurer. In that case, the tolling of the statute of limitations under sub. (4) was effective against an insurer and the Wisconsin Patients Compensation Fund. Failure to name the fund as a party to an action brought against the insurer within the 30-day period under sub. (4) barred the claim against the fund. Geiger v. Wisconsin Health Care Liability Insurance Plan, 196 Wis. 2d 474, 538 N.W.2d 830 (Ct. App. 1995), 95-0692.

655.44 Annotation The limitation periods under s. 893.55 (1) (a) and (b) [now s. 893.55 (1m) (a) and (b)] are both tolled by the filing of a request for mediation under sub. (4). Landis v. Physicians Insurance Co. of Wisconsin, 2001 WI 86, 245 Wis. 2d 1, 628 N.W.2d 893, 00-0330.

655.44 Annotation Sub. (5) does not mandate dismissal for filing an action before the expiration of the statutory mediation period. When a plaintiff fails to comply with sub. (5), the circuit court retains discretion to determine the appropriate sanction. Ocasio v. Froedtert Memorial Lutheran Hospital, 2002 WI 89, 254 Wis. 2d 367, 646 N.W.2d 381, 00-3056.

655.44 Annotation Nothing in the language of either this section or s. 655.445 precluded the application of this section to a mediation request filed under s. 655.445 when an action was filed but became a nullity due to failure to complete service. Young v. Aurora Medical Center of Washington County, Inc., 2004 WI App 71, 272 Wis. 2d 300, 679 N.W.2d 549, 03-0224.

655.44 Annotation Delivery of a mediation request by regular mail is not determinative of the validity of the request. Geisel v. Odulio, 807 F. Supp. 500 (1992).

655.44 Annotation Failure to name the Wisconsin Patients Compensation Fund in a mediation request did not exempt the fund from the tolling of the statute of limitations under sub. (4). Geisel v. Odulio, 807 F. Supp. 500 (1992).

655.445 655.445 Request for mediation in conjunction with court action.

655.445(1) (1) Commencing action, request and fee. Beginning September 1, 1986, any person listed in s. 655.007 having a claim or a derivative claim under this chapter for bodily injury or death because of a tort or breach of contract based on professional services rendered or that should have been rendered by a health care provider shall, within 15 days after the date of filing an action in court, file a request for mediation. The request shall be prepared and delivered in person or sent by registered mail to the director of state courts, in the form and manner required under s. 655.44 (2) and (3), together with a notice that a court action has been commenced and the fee under s. 655.54 shall be paid.

655.445(2) (2) Scheduling. All time periods under s. 802.10 (3) are tolled on the date of filing the court action. The time periods remain tolled until the expiration of the mediation period under s. 655.465 (7).

655.445(3) (3) No court proceedings before mediation. For actions filed under sub. (1), no discovery may be made and no trial, pretrial conference or scheduling conference may be held until the expiration of the mediation period under s. 655.465 (7).

655.445 History History: 1985 a. 340; 1989 a. 187 s. 28; Sup. Ct. Order No. 95-04, 191 Wis. 2d xxi (1995).

655.445 Annotation The 15-day time limit for filing a request for mediation after commencement of court action is directory rather than mandatory. Eby v. Kozarek, 153 Wis. 2d 75, 450 N.W.2d 249 (1990).

655.445 Annotation Mailing is not the equivalent of filing. Mailing is to send postal matter. Filing entails delivery to the intended recipient. Hoffman v. Rankin, 2002 WI App 189, 256 Wis. 2d 678, 649 N.W.2d 350, 01-3202.

655.445 Annotation Nothing in the language of either this section or s. 655.44 precluded the application of s. 655.44 to a mediation request filed under this section when an action was filed but became a nullity due to failure to complete service. Young v. Aurora Medical Center of Washington County, Inc., 2004 WI App 71, 272 Wis. 2d 300, 679 N.W.2d 549, 03-0224.

655.45 655.45 Reports to licensing bodies.

655.45(1) (1) For the quarter beginning on July 1, 1986, and for each quarter thereafter, the director of state courts shall file reports complying with sub. (2) with the medical examining board, the physical therapy examining board, the podiatry affiliated credentialing board, the board of nursing and the department, respectively, regarding health care providers licensed by the respective bodies.

655.45(1m) (1m) For the quarter beginning on July 1, 1995, and for each quarter thereafter, the director of state courts shall file reports complying with sub. (2) with the dietitians affiliated credentialing board regarding health care providers certified by the dietitians affiliated credentialing board.

655.45(2) (2) The reports under subs. (1) and (1m) shall set forth all of the following:

655.45(2)(a) (a) The names of all health care providers who are named as defendants in court actions of which the director of state courts receives notice under s. 655.44 (6) or 655.445 (1) during the quarter.

655.45(2)(b) (b) Whether any court action of which the director of state courts received notice under s. 655.44 (6) or 655.445 (1) was disposed of by settlement, compromise, stipulation agreement, dismissal default or judgment during the quarter and the amount of the settlement or award to the claimant, if any, to the extent the director of state courts has any of the information under this paragraph.

655.45 History History: 1985 a. 340; 1989 a. 187 s. 28; 1993 a. 107, 443; 1997 a. 75, 175; 2009 a. 113, 149; 2011 a. 258.

655.455 655.455 Notice to health care providers and fund. The director of state courts shall serve notice of a request for mediation upon all health care providers named in the request, at the respective addresses provided in the request, and upon the fund, by registered mail within 7 days after the director of state courts receives the request if delivered in person or within 10 days after the date of mailing of the request to the director of state courts if sent by registered mail.

655.455 History History: 1985 a. 340; 1989 a. 187 s. 28; 2001 a. 65.

655.465 655.465 Mediation panels; mediation period.

655.465(1) (1) Mediation panel for dispute. The director of state courts shall appoint the members of a mediation panel under sub. (2) and send notice to the claimant and all respondents by registered mail. The notice shall inform the claimant and all respondents of the names of the persons appointed to the mediation panel and the date, time and place of the mediation session. The director of state courts may change the date, time or place of the mediation session as necessary to accommodate the parties, subject to the requirement that the mediation session be held before the expiration of the mediation period under sub. (7).

655.465(2) (2) Appointment of mediators. Each mediation panel shall consist of the following members appointed by the director of state courts:

655.465(2)(a) (a) One public member who is neither an attorney nor a health care provider and who is selected from a list of public member mediators prepared every 2 years, or more frequently upon request of the director of state courts, by the governor or, if any person resigns or is unable to serve as a public member mediator, from a list of alternates prepared by the director of state courts.

655.465(2)(b) (b) One attorney who is licensed to practice law in this state.

655.465(2)(c) (c) One health care provider as follows:

655.465(2)(c)1. 1. Except as provided in subds. 4. and 5., if all respondents named in the request for mediation are physicians, a physician who is licensed to practice in this state and who is selected from a list prepared by a statewide organization of physicians designated by the director of state courts.