SB244: Bill Text

Current law prohibits records given or disclosed to a regulatory agency and statements of, or records of interviews with, employees of a health care provider obtained by a regulatory agency (regulatory records) from being used as evidence in a civil or criminal action brought against a health care provider. A regulatory agency, in this instance, is either the Department of Regulation and Licensing (renamed the Department of Safety and Professional Services) or the division within the Department of Health Services that conducts quality assurance activities related to health care providers. The bill eliminates the prohibition against using regulatory records as evidence in a civil or criminal action.

punitive damages

Under current law, punitive damages may be assessed in a civil case if the defendant acted maliciously toward the plaintiff or in an intentional disregard of the rights of the plaintiff. Current law limits punitive damages to the greater of twice the amount of compensatory damages recovered by the plaintiff or $200,000 unless the defendant's actions included the operation of a vehicle while under the influence of an intoxicant to a degree that rendered the defendant incapable of the safe operation of that vehicle. The bill creates a new exception to the limitation on punitive damages sought from a nursing home, adult family home, residential care apartment complex, or community-based residential care facility when the defendant is an administrator, agent, director, employee, officer, or operator of a nursing home, adult family home, residential care apartment complex, or community-based residential care facility and the actions of the defendant take place in that facility.

Because this bill creates a new crime or revises a penalty for an existing crime, the Joint Review Committee on Criminal Penalties may be requested to prepare a report concerning the proposed penalty and the costs or savings that are likely to result if the bill is enacted.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

SB244, s. 1 Section 1. 50.057 of the statutes is created to read:

SB244,4,2 50.057 Arbitration agreements. (1) In this section:

SB244,4,9 (a) "Arbitration agreement" means any provision in a contract, covenant, or agreement between a resident or client, or a person acting on behalf of the resident or client, and a long-term care facility, which is made before the resident or client suffers injury or harm that compels arbitration between the parties, and which limits or waives the right of the resident to bring a civil action against the long-term care facility or limits the resident's or client's remedies in a civil action against the long-term care facility.

SB244,4,12 (b) "Long-term care facility" means an adult family home, a residential care apartment complex, a community-based residential facility, a nursing home, a home health agency, or a hospice, as defined in s. 50.90 (1).

SB244,4,13 (2) No long-term care facility may do any of the following:

SB244,4,16 (a) Require a prospective resident or client, or a person acting on behalf of the resident or client, to sign an arbitration agreement as a condition of admission to the long-term care facility.

SB244,4,18 (b) Retaliate against a resident or client or discharge a resident or client for failure to sign an arbitration agreement.

SB244,4,20 (c) Charge additional money to a resident or client for not signing an arbitration agreement.

SB244,5,5 (3) A long-term care facility, if it requests a resident or client to sign an arbitration agreement, shall provide the arbitration agreement as a separate document from any other admission agreement and shall make the arbitration agreement document another color and a larger type size than the admission agreement.

SB244,5,12 (4) A long-term care facility that requests a resident or client to sign an arbitration agreement shall allow the resident or client, or a person acting on behalf of the resident or client, to cancel the arbitration agreement within 30 days of signing the arbitration agreement and shall include language in the arbitration agreement stating that a resident, client, or person acting on behalf of the resident or client has a right to cancel the arbitration agreement within 30 days of signing the arbitration agreement.

SB244,5,14 (5) (a) Any person who is retaliated against in violation of sub. (2) (b) may commence an action in circuit court for damages incurred as a result of the violation.

SB244,5,16 (b) Violators of sub. (2) (b) may be fined not more than $1,000 or imprisoned for up to 6 months or both for each violation.

SB244, s. 2 Section 2. 146.38 (1m) of the statutes, as affected by 2011 Wisconsin Act 2, is amended to read:

SB244,5,25 146.38 (1m) No person who participates in the review or evaluation of the services of health care providers or charges for such services may disclose an incident or occurrence report or any information acquired in connection with such review or evaluation except as provided in sub. (3) or (3m) and except that a person who participates in the review or evaluation shall disclose an incident or occurrence report to a court of record with regard to any criminal matter, in accordance with chs. 885 to 895 and 995 and after issuance of a subpoena.

SB244, s. 3 Section 3. 146.38 (2) of the statutes, as affected by 2011 Wisconsin Act 2, is amended to read:

SB244,6,19 146.38 (2) All persons, organizations, or evaluators, whether from one or more entities, who review or evaluate the services of health care providers in order to help improve the quality of health care, to avoid improper utilization of the services of health care providers, or to determine the reasonable charges for such services shall keep a record of their investigations, inquiries, proceedings and conclusions. No such record may be released to any person under s. 804.10 (4) or otherwise except as provided in sub. (3) or (3m). No such record may be used in any civil or criminal action against the health care provider or any other health care provider; however, except for incident or occurrence reports or records from other persons, organizations, or evaluators reviewing or evaluating health care providers, information, documents, or records presented during the review or evaluation may not be construed as immune from discovery under s. 804.10 (4) or use in any civil or criminal action merely because they were so presented. Any person who testifies during or participates in the review or evaluation may testify in any civil or criminal action as to matters within his or her knowledge, but may not testify as to information obtained through his or her participation in the review or evaluation, nor as to any conclusion of such review or evaluation.

SB244, s. 4 Section 4. 146.38 (2m) of the statutes, as created by 2011 Wisconsin Act 2, is repealed.

SB244, s. 5 Section 5. 146.38 (3) (em) of the statutes is created to read:

SB244,6,24 146.38 (3) (em) With regard to any criminal matter, to a court of record, in accordance with chs. 885 to 895 and 995 and after issuance of a subpoena; and

SB244, s. 6 Section 6. 146.38 (3t) of the statutes, as created by 2011 Wisconsin Act 2, is amended to read:

SB244,7,6 146.38 (3t) A record described under sub. (2) or an incident or occurrence report disclosed either under sub. (3) or (3m) or in violation of this section remains confidential and may not be used in any civil or criminal action against the health care provider or any other health care provider.

SB244, s. 7 Section 7. 893.555 of the statutes, as created by 2011 Wisconsin Act 2, is repealed.

SB244, s. 8 Section 8. 895.043 (6) of the statutes, as created by 2011 Wisconsin Act 2, is renumbered 895.043 (6) (intro.) and amended to read:

SB244,7,14 895.043 (6) Limitation on damages. (intro.) Punitive damages received by the plaintiff may not exceed twice the amount of any compensatory damages recovered by the plaintiff or $200,000, whichever is greater. This subsection does not apply to a any of the following:

SB244,7,21 (a) A plaintiff seeking punitive damages from a defendant whose actions under sub. (3) included the operation of a vehicle, including a motor vehicle as defined under s. 340.01 (35), a snowmobile as defined under s. 340.01 (58a), an all-terrain vehicle as defined under s. 340.01 (2g), and a boat as defined under s. 30.50 (2), while under the influence of an intoxicant to a degree that rendered the defendant incapable of safe operation of the vehicle. In this subsection, "intoxicant" has the meaning given in s. 30.50 (4e).

SB244, s. 9 Section 9. 895.043 (6) (b) of the statutes is created to read:

SB244,8,2 895.043 (6) (b) A plaintiff seeking punitive damages from a faculty defined in s. 50.01 (1), (1d), (1g), or (3), 50.49 (1) (a), or 50.90 (1), for the actions of an administrator, agent, director, employee, officer, or operator of that facility whose actions under sub. (3) take place in that facility.

SB244, s. 10 Section 10. 904.16 of the statutes, as created by 2011 Wisconsin Act 2, is repealed.

SB244, s. 11 Section 11. Initial applicability.

SB244,8,8 (1) The renumbering and amendment of section 895.043 (6) of the statutes and the creation of section 895.043 (6) (b) of the statutes first apply to actions that are commenced on the effective date of this subsection.

SB244,8,9 (End)