Chapter 655

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.

655.465(2)(c)2. 2. Except as provided in subds. 4. and 5., if none of the respondents named in the request for mediation is a physician, a health care provider who is licensed to practice in this state in the same health care field as the respondent and who is selected from a list prepared by the department or the examining board or affiliated credentialing board that regulates health care providers in that health care field.

655.465(2)(c)3. 3. Except as provided in subds. 4. and 5., if more than one respondent is named in the request for mediation at least one of whom is a physician and at least one of whom is not, a health care provider who is licensed to practice in this state and who is selected from the list under subd. 1. or 2., as determined by the director of state courts.

655.465(2)(c)4. 4. If the director of state courts determines that a list under subd. 1. or 2. is inadequate to permit the selection of an appropriate health care provider, a health care provider who is licensed to practice in this state and who is selected from an additional list prepared by the director of state courts.

655.465(2)(c)5. 5. If the director of state courts determines that lists under subds. 1. or 2. and 4. are inadequate to permit the selection of an appropriate health care provider for a particular dispute, a health care provider who is licensed to practice in this state and who is selected by the director of state courts.

655.465(3) (3) Filling vacancies. If a person appointed to a mediation panel under sub. (1) resigns from or is unable to serve on the mediation panel, the director of state courts shall appoint a replacement selected in the same manner as the predecessor appointee.

655.465(4) (4) Conflict of interest. No person may serve on a mediation panel if the person has a professional or personal interest in the dispute.

655.465(5) (5) Compensation. Each mediator shall be compensated $150 plus actual and necessary expenses for each day of mediation conducted. Compensation and expenses shall be paid out of the appropriation under s. 20.680 (2) (qm) upon such authorizations as the director of state courts may prescribe.

655.465(6) (6) Immunity and presumption of good faith.

655.465(6)(a) (a) A mediator is immune from civil liability for any good faith act or omission within the scope of the mediator’s performance of his or her powers and duties under this subchapter.

655.465(6)(b) (b) It is presumed that every act or omission under par. (a) is a good faith act or omission. This presumption may be overcome only by clear and convincing evidence.

655.465(7) (7) Mediation period. The period for mediation shall expire 90 days after the director of state courts receives a request for mediation if delivered in person or within 93 days after the date of mailing of the request to the director of state courts if sent by registered mail, or within a longer period agreed to by the claimant and all respondents and specified by them in writing for purposes of applying ss. 655.44 (4) and (5) and 655.445 (3).

655.465 History History: 1985 a. 340; 1989 a. 187 s. 28; 1989 a. 359; 1993 a. 107.

655.465 Annotation A claimant’s failure to participate in mediation within the 90-day period under sub. (7) does not require dismissal. The court may determine an appropriate sanction. Schulz v. Nienhuis, 152 Wis. 2d 434, 448 N.W.2d 655 (1989).

655.465 Annotation If a party wishes to reschedule a mediation session for a time outside the 90-day statutory period, the party must obtain a written agreement to do so. If a respondent requests a rescheduling without providing a mutually agreed upon date within the 90 days and no written agreement is obtained, the mediation period does not terminate until the rescheduled mediation session is completed. Seaquist v. Physicians Insurance Co. of Wisconsin, 192 Wis. 2d 530, 531 N.W.2d 437 (Ct. App. 1995).

655.465 Annotation Completion of mediation within the period under sub. (7) is not a jurisdictional prerequisite for maintenance of a medical malpractice suit. Bertorello v. St. Joseph’s Hospital of Marshfield, 685 F. Supp. 192 (1988).

655.54 655.54 Filing fee. Requests for mediation filed with the director of state courts are subject to a filing fee of $11. The filing fee shall be paid into the mediation fund under s. 655.68.

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

655.58 655.58 Mediation procedure.

655.58(1) (1) No record. Mediation shall be conducted without a stenographic record or any other transcript.

655.58(2) (2) No exams, subpoenas, oaths. No physical examinations or production of records may be ordered, no witnesses may be subpoenaed and no oaths may be administered in mediation, whether by a mediation panel or member thereof or as a result of application to a court by any person.

655.58(3) (3) No expert witnesses; panel consultants permitted.

655.58(3)(a) (a) Except as provided in par. (b), no expert witnesses, opinions or reports may be submitted or otherwise used in mediation.

655.58(3)(b) (b) The mediation panel or any member thereof may consult with any expert, and upon authorization of the director of state courts may compensate the expert from the appropriation under s. 20.680 (2) (qm).

655.58(4) (4) Patient records confidential except to parties. All patient health care records in the possession of a mediation panel shall be kept confidential by all members of the mediation panel and all other persons participating in mediation. Every person participating in mediation shall make available to one another and all members of the mediation panel all patient health care records of the patient named in the request for mediation that are in the person’s possession.

655.58(5) (5) Counsel permitted. Any person participating in mediation may be represented by counsel authorized to act for his or her respective client.

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

655.61 655.61 Funding.

655.61(1) (1) The mediation fund created under s. 655.68 shall be financed from fees charged to health care providers. The director of state courts shall, by February 1 annually, determine the revenues needed for the operation of the mediation system during the succeeding fiscal year and inform the board of governors of that amount. The director of state courts shall also inform the board of governors of the number of requests for mediation involving each type of health care provider set out in s. 655.002 for the most recent fiscal year for which statistics are available. The board of governors shall set fees to charge health care providers at a level sufficient to provide the necessary revenue.

655.61(1m) (1m) Notwithstanding sub. (1), the board of governors may exempt any type of health care provider set out in s. 655.002 from payment of the annual fee based on a low number of requests for mediation involving that type of health care provider.

655.61(2) (2) The annual fees under sub. (1) shall be collected in a manner prescribed by rule of the commissioner. The commissioner shall pay all money collected under sub. (1) into the mediation fund created under s. 655.68.

655.61(3) (3) If the fees under sub. (1) for any particular fiscal year are not established by the board of governors or approved by the joint committee on finance under s. 655.27 (3) (bt) before June 2 of that fiscal year, the commissioner may elect to collect fees as established for the previous fiscal year. If the commissioner so elects and the fees for that fiscal year are subsequently established by the board of governors or approved by the joint committee on finance under s. 655.27 (3) (bt), the balance for the fiscal year shall be collected or refunded, except that the commissioner may elect not to collect or refund minimal amounts.

655.61 History History: 1985 a. 340; 1989 a. 187; 1991 a. 214; 2015 a. 90.

655.61 Cross-reference Cross-reference: See also s. Ins 17.01, Wis. adm. code.

subch. VII of ch. 655 SUBCHAPTER VII

MEDIATION FUND

655.68 655.68 Mediation fund.