Chapter 893

893.55(4)(f) (f) Notwithstanding the limits on noneconomic damages under this subsection, damages recoverable against health care providers and an employee of a health care provider, acting within the scope of his or her employment and providing health care services, for wrongful death are subject to the limit under s. 895.04 (4). If damages in excess of the limit under s. 895.04 (4) are found, the court shall make any reduction required under s. 895.045 and shall award the lesser of the reduced amount or the limit under s. 895.04 (4).

893.55(5) (5) Every award of damages under ch. 655 shall specify the sum of money, if any, awarded for each of the following for each claimant for the period from the date of injury to the date of award and for the period after the date of award, without regard to the limit under sub. (4) (d):

893.55(5)(a) (a) Pain, suffering and noneconomic effects of disability.

893.55(5)(b) (b) Loss of consortium, society and companionship or loss of love and affection.

893.55(5)(c) (c) Loss of earnings or earning capacity.

893.55(5)(d) (d) Each element of medical expenses.

893.55(5)(e) (e) Other economic injuries and damages.

893.55(6) (6) Damages recoverable under this section against health care providers and an employee of a health care provider, acting within the scope of his or her employment and providing health care services, are subject to the provisions of s. 895.045.

893.55(7) (7) Evidence of any compensation for bodily injury received from sources other than the defendant to compensate the claimant for the injury is admissible in an action to recover damages for medical malpractice. This section does not limit the substantive or procedural rights of persons who have claims based upon subrogation.

893.55 History History: 1979 c. 323; 1985 a. 340; 1995 a. 10; 2003 a. 111; 2005 a. 183; 2007 a. 96.

893.55 Note Judicial Council Committee’s Note, 1979: This section has been created to precisely set out the time periods within which an action to recover damages for medical malpractice must be commenced. The time provisions apply to any health care provider in Wisconsin.

893.55 Note Sub. (1) [now sub. (1m)] contains the general time limitations for commencing a malpractice action. The subsection requires that such an action be commenced not later than 3 years from the event constituting the malpractice or not more than one year from the time the malpractice is discovered by the patient or should have been discovered by the patient. The patient has either the 3-year general time period or the one-year time period from the date of discovery, whichever is later. Subsection (1) further provides that in no event may a malpractice action be commenced later than 6 [5] years from the time of the alleged act or omission.

893.55 Note Subs. (2) and (3) provide 2 exceptions to the one-, three-, and six-year time limitations contained in subsection (1) [now sub. (1m)]. Subsection (2) provides that when a health care provider becomes aware of an act or omission constituting possible malpractice and intentionally conceals the act or omission from the patient, the patient has one year from the time he or she discovers the concealment or should have discovered the concealment to commence a malpractice action.

893.55 Note Sub. (3) gives a patient one year from the time of discovery of a foreign object left in the patient’s body or the time in which discovery should have occurred to commence a malpractice action. The subsection also contains a definition of a foreign object similar to the definition recently enacted by the state of California. [Bill 326-A]

893.55 Annotation The “continuum of negligent treatment” doctrine is not limited to a single negligent actor. Robinson v. Mount Sinai Medical Center, 137 Wis. 2d 1, 402 N.W.2d 711 (1987).

893.55 Annotation While an unsubstantiated lay belief of an injury is not sufficient for discovery under sub. (1) (b) [now sub. (1m) (b)], if the plaintiff has information that constitutes a basis for an objective belief of the injury and its cause, whether or not that belief resulted from “official” diagnosis from an expert, the injury and its cause are discovered. Clark v. Erdmann, 161 Wis. 2d 428, 468 N.W.2d 18 (1991).

893.55 Annotation A podiatrist is a “health care provider” under this section. Clark v. Erdmann, 161 Wis. 2d 428, 468 N.W.2d 18 (1991).

893.55 Annotation A physician’s intentional improper sexual touching of a patient was subject to s. 893.57 governing intentional torts, not this section governing medical malpractice. Deborah S.S. v. Yogesh N.G., 175 Wis. 2d 436, 499 N.W.2d 272 (Ct. App. 1993).

893.55 Annotation A blood bank is not a “health care provider.” Doe v. American National Red Cross, 176 Wis. 2d 610, 500 N.W.2d 264 (1993).

893.55 Annotation Parents who did not obtain a medical opinion until more than three years after their child’s death did not exercise reasonable diligence as required by the discovery rule under sub. (1) (b) [now sub. (1m) (b)]. Awve v. Physicians Insurance Co. of Wisconsin, 181 Wis. 2d 815, 512 N.W.2d 216 (Ct. App. 1994).

893.55 Annotation Minors may bring separate actions for loss of companionship when malpractice causes a parent’s death, including when the decedent is survived by a spouse. Jelinek v. St. Paul Fire & Casualty Insurance Co., 182 Wis. 2d 1, 512 N.W.2d 764 (1994).

893.55 Annotation When continuous negligent treatment occurs, the statute begins to run from the date of last negligent conduct. The amount of time that passes between each allegedly negligent act is a primary factor in determining whether there has been a continuum of negligent care. Westphal v. E.I. du Pont de Nemours & Co., 192 Wis. 2d 347, 531 N.W.2d 386 (Ct. App. 1995).

893.55 Annotation Punitive damages in malpractice actions are not authorized by sub. (5) (e). Lund v. Kokemoore, 195 Wis. 2d 727, 537 N.W.2d 21 (Ct. App. 1995), 95-0453.

893.55 Annotation Dentists are health care providers under this section. Ritt v. Dental Care Associates, S.C., 199 Wis. 2d 48, 543 N.W.2d 852 (Ct. App. 1995), 94-3344.

893.55 Annotation Once a person discovers or should have discovered an injury, nothing, including a misleading legal opinion, can cause the injury to become “undiscovered.” Claypool v. Levin, 209 Wis. 2d 284, 562 N.W.2d 584 (1997), 94-2457.

893.55 Annotation The date of injury under sub. (1) (a) [now sub. (1m) (a)] from a failed tubal ligation was the date on which the plaintiff became pregnant. Fojut v. Stafl, 212 Wis. 2d 827, 569 N.W.2d 737 (Ct. App. 1997), 96-1676.

893.55 Annotation This section applies to persons who are licensed by a state examining board and are involved in the diagnosis, treatment, or care of patients. Chiropractors fall within this definition. Arenz v. Bronston, 224 Wis. 2d 507, 592 N.W.2d 295 (Ct. App. 1999), 98-1357.

893.55 Annotation Optometrists are health care providers under this section. The coverage of this section is not restricted to those included under s. 655.002, but applies to all who provide medical care and are required to be licensed. Webb v. Ocularra Holding, Inc., 2000 WI App 25, 232 Wis. 2d 495, 606 N.W.2d 552, 99-0979.

893.55 Annotation Sub. (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 s. 655.007. As such, adult children do not have standing to bring such an action. The exclusion of adult children does not violate the guarantee of equal protection. Czapinski v. St. Francis Hospital, Inc., 2000 WI 80, 236 Wis. 2d 316, 613 N.W.2d 120, 98-2437.

893.55 Annotation Sub. (1) (b) [now sub. (1m) (b)] does not violate article I, section 9, of the Wisconsin Constitution, the right to remedy clause, nor does it offend equal protection or procedural due process principles. Aicher v. Wisconsin Patients Compensation Fund, 2000 WI 98, 237 Wis. 2d 99, 613 N.W.2d 849, 98-2955.

893.55 Annotation A misdiagnosis, in and of itself, is not, and cannot be, an actionable injury. The injury arises when the misdiagnosis causes a greater harm than existed at the time of the misdiagnosis. The misdiagnosis may or may not result in the injury, and the injury may occur concurrently or there may be a delay between the misdiagnosis and the injury. Paul v. Skemp, 2001 WI 42, 242 Wis. 2d 507, 625 N.W.2d 860, 99-1810.

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

893.55 Annotation Wrongful death claims caused by medical malpractice are subject to the statute of limitations concerning medical malpractice in sub. (1) [now sub. (1m)]. Estate of Hegarty v. Beauchaine, 2001 WI App 300, 249 Wis. 2d 142, 638 N.W.2d 355, 00-2144.

893.55 Annotation Under sub. (1) (b) [now sub. (1m) (b)], the five-year repose period applies only to actions brought pursuant to the discovery rule in sub. (1) (b) [now sub. (1m) (b)]. Sub. (1) (b) [now sub. (1m) (b)] is an alternative limitations period to that in sub. (1) (a) [now sub. (1m) (a)]. Storm v. Legion Insurance Co., 2003 WI 120, 265 Wis. 2d 169, 665 N.W.2d 353, 01-1139.

893.55 Annotation Section 893.16 tolls the period of limitations in sub. (1) (a) [now sub. (1m) (a)] for medical malpractice actions involving qualified claimants, extending the three-year limitations period up to five additional years. Storm v. Legion Insurance Co., 2003 WI 120, 265 Wis. 2d 169, 665 N.W.2d 353, 01-1139.

893.55 Annotation For purposes of determining when a cause accrues for negligently prescribing medication, a physician’s duty to monitor a patient after a final visit does not continue through some vague and indefinite period during which prescriptions may or may not be filled. Any claim of an omission is for an omission that occurred in the distinct time frame the doctor either intentionally or unintentionally did not require follow-up when giving the prescription or seeing the patient. Wiegert v. Goldberg, 2004 WI App 28, 269 Wis. 2d 695, 676 N.W.2d 522, 03-0891.

893.55 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.

893.55 Annotation First-year medical residents who have their M.D. degrees but are not yet licensed are not health care providers under this section and not subject to the limitations on the recovery of noneconomic damages in subs. (4) and (5). Phelps v. Physicians Insurance Co. of Wisconsin, 2005 WI 85, 282 Wis. 2d 69, 698 N.W.2d 643, 03-0580.

893.55 Annotation Sub. (7) explicitly allows evidence of collateral source payments to be introduced in medical malpractice actions. If evidence of collateral source payments from sources including Medicare, other state or federal government programs, medical insurance or write-offs, and discounted or free medical services is presented to the fact-finder, the parties must be allowed to furnish the jury with evidence of any potential obligations of subrogation or reimbursement. The circuit court must instruct the fact-finder that it must not reduce the reasonable value of medical services on the basis of the collateral source payments. Lagerstrom v. Myrtle Werth Hospital-Mayo Health System, 2005 WI 124, 285 Wis. 2d 1, 700 N.W.2d 201, 03-2027.

893.55 Annotation This section does not apply to a negligence claim alleging injury to a developmentally disabled child caused by a health care provider. The legislature has not provided a statute of limitations for claims against health care providers alleging injury to a developmentally disabled child. Haferman v. St. Clare Healthcare Foundation, Inc., 2005 WI 171, 286 Wis. 2d 621, 707 N.W.2d 853, 03-1307.

893.55 Annotation The jury award of noneconomic damages for pre-death pain and suffering, and the jury award for pre-death loss of society and companionship are governed by the cap set forth in the medical malpractice statutes, this section, and not the wrongful death statute, s. 895.04. Bartholomew v. Wisconsin Patients Compensation Fund, 2006 WI 91, 293 Wis. 2d 38, 717 N.W.2d 216, 04-2592.

893.55 Annotation When the applicability of sub. (7) to one of the physicians whose negligence caused the patient’s injuries and death is unknown, the fact that the other causally negligent physician was an undisputed ch. 655 health care provider dictates the application of sub. (7). Estate of Hegarty v. Beauchaine, 2006 WI App 248, 297 Wis. 2d 70, 727 N.W.2d 857, 04-3252.

893.55 Annotation When negligent acts of malpractice are continuous and the cause of action is not complete until the last date on which the malpractice occurs, the entire course of negligent malpractice is within the court’s jurisdiction. A plaintiff must show four elements for this “continuum of negligent treatment” doctrine to apply: 1) a continuum of care; 2) a continuum of negligent care; 3) the care is related to a single condition; and 4) the precipitating factor in the continuum is the original negligent act. Forbes v. Stoeckl, 2007 WI App 151, 303 Wis. 2d 425, 735 N.W.2d 536, 06-1654.

893.55 Annotation The five-year limit in sub. (1) (b) [now sub. (1m) (b)] applies only to claims brought under the “discovery rule” of sub. (1) (b) [now sub. (1m) (b)] and not to claims brought under the “injury rule of accrual” in sub. (1) (a) [now sub. (1m) (a)]. The continuum of negligent treatment doctrine modifies the three-year limit of sub. (1) (a) [now sub. (1m) (a)] and is unaffected by sub. (1) (b) [now sub. (1m) (b)], which comes into play only when a plaintiff claims that, because of a delayed discovery of an injury, the plaintiff is entitled to file an action beyond the three-year time limit in sub. (1) (a) [now sub. (1m) (a)]. Forbes v. Stoeckl, 2007 WI App 151, 303 Wis. 2d 425, 735 N.W.2d 536, 06-1654.

893.55 Annotation Neither Fojut, 212 Wis. 2d 827 (1997), or Paul, 2001 WI 42, concludes that an injury must be untreatable or irreversible to trigger the limitations period imposed by sub. (1m) (a). The determination of a “physical injurious change” (when the negligent act or omission causes a greater harm than that which existed at the time of the negligent act or omission) is the appropriate benchmark for establishing the date of injury. A later injury from the same tortious act does not restart the running of the statute of limitations. Estate of Genrich v. OHIC Insurance Co., 2009 WI 67, 318 Wis. 2d 553, 769 N.W.2d 481, 07-0541.

893.55 Annotation Because an unlicensed first-year resident physician was a borrowed employee of the hospital where the resident allegedly performed negligent acts, the relation of employer and employee existed between the resident and hospital, and accordingly, the resident was an employee of a health care provider within the meaning of ch. 655 and sub. (4). Phelps v. Physicians Insurance Co. of Wisconsin, 2009 WI 74, 319 Wis. 2d 1, 768 N.W.2d 615, 06-2599.

893.55 Annotation A fact finder cannot reasonably infer concealment under sub. (2) when a defendant has no contact with the plaintiff after an alleged negligent act or omission. Pagoudis v. Korkos, 2010 WI App 83, 326 Wis. 2d 234, 784 N.W.2d 740, 09-2965.

893.55 Annotation Evidence of collateral source payments is admissible under sub. (7) only if the evidence is relevant. In a medical malpractice action, evidence of collateral source payments is relevant if it is probative of any fact that is of consequence to the determination of damages. Weborg v. Jenny, 2012 WI 67, 341 Wis. 2d 668, 816 N.W.2d 191, 10-0258.

893.55 Annotation In a medical malpractice claim based on unnecessary and improper treatment of inappropriate touching, the “physical injurious change,” for purposes of determining the date of injury under sub. (1m) (a), occurs at the time of the touching. The fact that the patient may not have known at the time that the touching was inappropriate does not change this fact. Doe v. Mayo Clinic Health System-Eau Claire Clinic, Inc., 2016 WI 48, 369 Wis. 2d 351, 880 N.W.2d 681, 14-1177.

893.55 Annotation The $750,000 cap on noneconomic damages in medical malpractice judgments and settlements under sub. (4) (d) 1. is constitutional based on equal protection and due process grounds. Mayo v. Wisconsin Injured Patients & Families Compensation Fund, 2018 WI 78, 383 Wis. 2d 1, 914 N.W.2d 678, 14-2812.

893.55 Annotation A medical malpractice claim accrues under sub. (1m) (a) when a misdiagnosis causes an “injurious change,” or a “greater harm,” to the plaintiff. When a medical malpractice claim is based on a misdiagnosis or failure to diagnose, the greater harm is the development of the problem into a more serious condition that poses a greater danger to the plaintiff or worsened prognosis. Winzer v. Hartmann, 2021 WI App 68, 399 Wis. 2d 555, 966 N.W.2d 101, 19-1540.

893.55 Annotation The Constitutionality of Wisconsin’s Noneconomic Damage Limitation. Peacy. 72 MLR 235 (1989).

893.55 Annotation Wisconsin’s Caps on Noneconomic Damages in Medical Malpractice Cases: Where Wisconsin Stands (and Should Stand) on “Tort Reform.” Kenitz. 89 MLR 601 (2006).

893.55 Annotation Bartholomew: The Wisconsin Supreme Court’s Latest Foray into the Medical-Malpractice Thicket. Spencer. 2007 WLR 1121.

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

893.555 893.555 Limitation of damages; long-term care providers.

893.555(1) (1) In this section:

893.555(1)(a) (a) “Long-term care provider” means any of the following:

893.555(1)(a)1. 1. An adult family home, as defined in s. 50.01 (1).

893.555(1)(a)2. 2. A residential care apartment complex, as defined in s. 50.01 (6d).

893.555(1)(a)3. 3. A community-based residential facility, as defined in s. 50.01 (1g).

893.555(1)(a)4. 4. A home health agency, as defined in s. 50.01 (1r).

893.555(1)(a)5. 5. A nursing home, as defined in s. 50.01 (3).

893.555(1)(a)6. 6. A hospice, as defined in s. 50.90 (1).

893.555(1)(b) (b) “Noneconomic damages” has the meaning given in s. 893.55 (4) (a).

893.555(2) (2) Except as provided in sub. (3), an action to recover damages for injury arising from any treatment or operation performed by, or from any omission by, a long-term care provider, regardless of the theory on which the action is based, shall be commenced within the later of:

893.555(2)(a) (a) Three years from the date of the injury.

893.555(2)(b) (b) One year from the date the injury was discovered or, in the exercise of reasonable diligence should have been discovered, except that an action may not be commenced under this paragraph more than 5 years from the date of the act or omission.

893.555(3) (3) If a long-term care provider conceals from a patient a prior act or omission of the provider that has resulted in injury to the patient, an action shall be commenced within one year from the date the patient discovers the concealment or, in the exercise of reasonable diligence, should have discovered the concealment or within the time limitation provided by sub. (2), whichever is later.

893.555(4) (4) The total noneconomic damages recoverable for bodily injury arising from care or treatment performed, or from any omission, by a long-term care provider, including any action or proceeding based on contribution or indemnification and any action for a claim by a person other than the injured person for noneconomic damages recoverable for bodily injury, may not exceed the limit under s. 893.55 (4) (d) for each occurrence on or after February 1, 2011, from all long-term care providers and all employees of long-term care providers acting within the scope of their employment and providing long-term care services who are found negligent.

893.555(5) (5) A court in an action tried without a jury shall make a finding as to noneconomic damages without regard to the limit under s. 893.55 (4) (d). If noneconomic damages in excess of the limit are found, the court shall make any reduction required under s. 895.045 and shall award as noneconomic damages the lesser of the reduced amount or the limit. If an action is before a jury, the jury shall make a finding as to noneconomic damages without regard to the limit under s. 893.55 (4) (d). If the jury finds that noneconomic damages exceed the limit, the jury shall make any reduction required under s. 895.045 and the court shall award as noneconomic damages the lesser of the reduced amount or the limit.

893.555(6) (6) Notwithstanding the limits on noneconomic damages under this section, damages recoverable against a long-term care provider, and an employee of a long-term care provider acting within the scope of his or her employment and providing long-term care services, for wrongful death are subject to the limit under s. 895.04 (4). If damages in excess of the limit under s. 895.04 (4) are found, the court shall make any reduction required under s. 895.045 and shall award the lesser of the reduced amount or the limit under s. 895.04 (4).

893.555(7) (7) Damages recoverable under this section against a long-term care provider, and an employee of a long-term care provider acting within the scope of his or her employment and providing long-term care services, are subject to the provisions of s. 895.045.

893.555(8) (8) Evidence of any compensation for bodily injury received from sources other than the defendant to compensate the claimant for the injury is admissible in an action to recover damages for negligence by a long-term care provider. This section does not limit the substantive or procedural rights of persons who have claims based upon subrogation.

893.555 History History: 2011 a. 2; 2013 a. 165 s. 114.

893.56 893.56 Health care providers; minors actions. Any person under the age of 18, who is not under disability by reason of insanity, developmental disability or imprisonment, shall bring an action to recover damages for injuries to the person arising from any treatment or operation performed by, or for any omission by a health care provider within the time limitation under s. 893.55 or by the time that person reaches the age of 10 years, whichever is later. That action shall be brought by the parent, guardian or other person having custody of the minor within the time limit set forth in this section.

893.56 History History: 1977 c. 390; 1979 c. 323.

893.56 Note Judicial Council Committee’s Note, 1979: This section is previous s. 893.235 renumbered for more logical placement in restructured ch. 893. [Bill 326-A]

893.56 Annotation This section applies only to living minors. Awve v. Physicians Insurance Co. of Wisconsin, 181 Wis. 2d 815, 512 N.W.2d 216 (Ct. App. 1994).

893.56 Annotation This section does not violate article I, section 9, of the Wisconsin Constitution, the right to remedy clause, nor does it offend equal protection or procedural due process principles. Aicher v. Wisconsin Patients Compensation Fund, 2000 WI 98, 237 Wis. 2d 99, 613 N.W.2d 849, 98-2955.

893.56 Annotation This section does not apply to a negligence claim alleging injury to a developmentally disabled child caused by a health care provider. The legislature has not provided a statute of limitations for claims against health care providers alleging injury to a developmentally disabled child. Haferman v. St. Clare Healthcare Foundation, Inc., 2005 WI 171, 286 Wis. 2d 621, 707 N.W.2d 853, 03-1307.

893.57 893.57 Intentional torts. An action to recover damages for libel, slander, assault, battery, invasion of privacy, false imprisonment or other intentional tort to the person shall be commenced within 3 years after the cause of action accrues or be barred.

893.57 History History: 1979 c. 323; 2009 a. 120.

893.57 Note Judicial Council Committee’s Note, 1979: This section is previous s. 893.21 (2) renumbered for more logical placement in restructured ch. 893. [Bill 326-A]

893.57 Annotation This section governs the intentional tort of bad faith by an insurer. Warmka v. Hartland Cicero Mutual Insurance Co., 136 Wis. 2d 31, 400 N.W.2d 923 (1987).

893.57 Annotation A cause of action does not accrue until the plaintiff knows the tortfeasor’s identity or reasonably should have discovered it. Spitler v. Dean, 148 Wis. 2d 630, 436 N.W.2d 308 (1989).

893.57 Annotation A physician’s intentional improper sexual touching of a patient was subject to this section governing intentional torts, not s. 893.55 governing medical malpractice. Deborah S.S. v. Yogesh N.G., 175 Wis. 2d 436, 499 N.W.2d 272 (Ct. App. 1993).

893.57 Annotation A claim involving excessive use of force in an arrest constitutes an intentional tort subject to this section. Kofler v. Florence, 216 Wis. 2d 41, 573 N.W.2d 568 (Ct. App. 1997), 97-1922.

893.57 Annotation This section is applicable to a breach of fiduciary duty claim. Beloit Liquidating Trust v. Grade, 2004 WI 39, 270 Wis. 2d 356, 677 N.W.2d 298, 02-2035.