2005 - 2006 LEGISLATURE
October 17, 2005 - Introduced by Representatives Gielow, Huebsch, Nischke,
Gard, Freese, Gottlieb, Gundrum, Hahn, Honadel, Hundertmark, Jensen,
Jeskewitz, Kerkman, Kestell, Kreibich, Lamb, Loeffelholz, McCormick,
Moulton, Mursau, Rhoades, Strachota, Van Roy, Vos, M. Williams,
Wieckert, Nerison, Underheim, Suder, Friske, Owens and Petrowski,
cosponsored by Senators S. Fitzgerald, Kapanke, Brown, Darling, Ellis,
Grothman, Kanavas, Kedzie, A. Lasee, Lazich, Leibham, Olsen, Reynolds,
Roessler, Schultz, Stepp and Zien. Referred to Committee on Insurance.
1An Act to renumber
893.55 (1); to renumber and amend
893.55 (4) (b) and 2
893.55 (4) (d); to amend
655.017, 893.55 (2) and 893.55 (3); and to create
893.55 (1d) and 893.55 (4) (d) 2. of the statutes; relating to: recovery of
4noneconomic damages in medical malpractice cases.
Analysis by the Legislative Reference Bureau
Under current law, if a defendant in a medical malpractice case is required to
pay noneconomic damages, such as for pain and suffering or for loss of society and
companionship, the amount of those damages are limited. The current limit on those
damages for each occurrence of medical malpractice is $445,755, and that limit is
adjusted annually for inflation. In Ferdon v. Wisconsin Patients Compensation
Fund, 2005 WI 125 (2005), the Wisconsin Supreme Court found that limit to be
unconstitutional because the limit violated the equal protection provision of the
This bill creates a limit on noneconomic damages for each occurrence of medical
malpractice of $550,000 for persons under the age of 18, and $450,000 for persons age
18 and over. The bill requires the board of governors that approves any fee changes
to the Injured Patients and Families Compensation Fund to report to the legislature
every two years any suggested changes to these noneconomic damage limits and the
reasons why the changes are necessary to meet the intent of the legislature.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB766, s. 1
655.017 of the statutes is amended to read:
2655.017 Limitation on noneconomic damages.
The amount of 3
noneconomic damages recoverable by a claimant or plaintiff under this chapter for 4
acts or omissions of a health care provider if the act or omission occurs on or after May
525, 1995 the effective date of this section .... [revisor inserts date]
, and for acts or 6
omissions of an employee of a health care provider, acting within the scope of his or 7
her employment and providing health care services, for acts or omissions occurring 8
on or after May 25, 1995 the effective date of this section .... [revisor inserts date]
is subject to the limits under s. 893.55 (4) (d) and (f).
AB766, s. 2
893.55 (1) of the statutes is renumbered 893.55 (1m).
AB766, s. 3
893.55 (1d) of the statutes is created to read:
(a) In this subsection, "fund" means the injured patients and 13
families compensation fund under s. 655.27.
(b) The legislature finds the following related to the limitation on noneconomic 15
damages in sub. (4) (d):
1. Affordable and accessible health care benefits patients and the public in 17
2. A cap on noneconomic damages is one factor necessary to maintain 19
affordability and accessibility.
3. A cap on noneconomic damages, together with mandatory liability insurance 21
coverage for health care providers, mandatory participation in the fund by health
care providers, and unlimited economic damage awards, ensures adequate 2
compensation for victims of medical malpractice.
(c) The legislature further finds that a medical liability system should promote 4
the following objectives:
1. Provide adequate compensation to victims of medical malpractice through 6
economic and noneconomic damages.
2. Protect access to health care services across the state and across medical 8
specialities by limiting disincentives for physicians to practice medicine in Wisconsin 9
such as the unavailability of professional liability insurance coverage, high cost of 10
insurance premiums, large fund assessments, or unpredictable or large noneconomic 11
damage awards as recognized by a 2003 U.S. congress joint economic committee 12
report, a 2003 federal department of health and human services study, and a 2004 13
office of the commissioner of insurance report.
3. Help contain health care costs by limiting the incentive to practice defensive 15
medicine, which increases the cost of patient care as recognized by a 2002 federal 16
department of health and human services study and a 2003 U.S. congress joint 17
economic committee report.
4. Help contain health care costs by providing more predictability in 19
noneconomic damage awards allowing insurers to set insurance premiums that 20
better reflect their financial risk as recognized by a 2003 U.S. federal department of 21
health and human services study, a 2003 government accounting office study, and a 22
2005 office of the commissioner of insurance report.
5. Help contain health care costs by providing more predictability in 24
noneconomic damage awards in order to protect the financial integrity of the fund 25
and allow the fund's board of governors to approve reasonable assessments for health
care providers as recognized by a 2005 legislative fiscal bureau memo, a 2001 2
legislative audit bureau report, and a 2005 office of commissioner of insurance 3
AB766, s. 4
893.55 (2) of the statutes is amended to read:
If a health care provider conceals from a patient a prior act or 6
omission of the provider which has resulted in injury to the patient, an action shall 7
be commenced within one year from the date the patient discovers the concealment 8
or, in the exercise of reasonable diligence, should have discovered the concealment 9
or within the time limitation provided by sub. (1)
, whichever is later.
AB766, s. 5
893.55 (3) of the statutes is amended to read:
When a foreign object which has no therapeutic or diagnostic 12
purpose or effect has been left in a patient's body, an action shall be commenced 13
within one year after the patient is aware or, in the exercise of reasonable care, 14
should have been aware of the presence of the object or within the time limitation 15
provided by sub. (1) (1m)
, whichever is later.
AB766, s. 6
893.55 (4) (b) of the statutes is renumbered 893.55 (4) (b) 2. and 17
amended to read:
(b) 2. The total noneconomic damages recoverable for bodily injury 19or death
, including any action or proceeding based on contribution or 20
indemnification and any action for a claim by a person other than the injured person
21for noneconomic damages resulting in bodily injury
, may not exceed the limit under 22
par. (d) for each occurrence on or after May 25, 1995
the effective date of this
23paragraph .... [revisor inserts date]
, from all health care providers and all employees 24
of health care providers acting within the scope of their employment and providing
health care services who are found negligent and from the injured patients and 2
families compensation fund.
AB766, s. 7
893.55 (4) (d) of the statutes is renumbered 893.55 (4) (d) 1. and 4
amended to read:
(d) 1. The limit on total noneconomic damages for each occurrence 6
under par. (b) on or after May 25, 1995 the effective date of this paragraph .... [revisor
, shall be $350,000 and shall be adjusted by the director of state courts
8to reflect changes in the consumer price index for all urban consumers, U.S. city
9average, as determined by the U.S. department of labor, at least annually thereafter,
10with the adjusted limit to apply to awards subsequent to such adjustments $550,000
11for a person who is under the age of 18 at the time of the injury, and shall be $450,000
12for a person who is age 18 or over at the time of the injury
AB766, s. 8
893.55 (4) (d) 2. of the statutes is created to read:
(d) 2. The board of governors created under s. 619.04 (3) shall submit 15
a report to the legislature as provided under s. 13.172 (2) by January 1 of every odd 16
numbered year of any recommended changes to the limits on noneconomic damages 17
established in subd. 1. The report shall include the reasons why the changes are 18
necessary to meet the intent of the legislative findings under sub. (1d).