JR1 AB1: Bill Text

January 2011 Special Session

2011 - 2012 LEGISLATURE

Assembly BILL 1

January 4, 2011 - Introduced by Committee on Assembly Organization, by request of Governor Scott Walker, Representative J. Ott, and Senator Zipperer. Referred to Committee on Judiciary and Ethics.

AB1,2,4 An Act to repeal 146.38 (3) (d) and 146.38 (3) (e); to renumber and amend 146.38 (1) (b), 895.043 (3), 907.01 and 907.02; to amend 146.38 (1m), 146.38 (2), 146.38 (3) (intro.), 146.38 (3) (a), (b) and (c), 230.85 (3) (b), 802.10 (7), 809.103 (2) (a), 814.04 (intro.), 814.29 (3) (a), 907.03, 940.08 (1), 940.24 (1) and 940.295 (3) (a) 3.; and to create 146.38 (1) (b) 1., 146.38 (1) (b) 2., 146.38 (1) (b) 3., 146.38 (1) (b) 4., 146.38 (1) (bm), 146.38 (2m), 146.38 (3m), 146.38 (3t), 146.38 (6), 153.05 (3m), 893.555, 895.043 (3) (a), 895.043 (3) (b), 895.043 (6), 895.044, 895.045 (3), 895.046, 895.047, 904.16, 907.01 (3), 907.02 (1) (a), (b) and (c), 907.02 (2), 940.08 (3), 940.24 (3) and 940.295 (3) (am) of the statutes; relating to: limiting noneconomic damages awarded in actions against long-term care providers; actions against manufacturers, distributors, sellers, and promoters of certain products; confidentiality of health care services reviews; use as evidence of information regarding health care providers; reporting of quality indicators identifying individual hospitals; homicide or injury by negligent handling of a dangerous weapon, explosives, or fire; criminal abuse of individuals at risk; criminal abuse and neglect of patients and residents; evidence of lay and expert witnesses; damages for frivolous claims; and punitive damage awards.

Analysis by the Legislative Reference Bureau

This bill makes several changes to current law regarding civil actions for negligence in long-term care facilities product liability, actions in strict liability, punitive damage awards, and awards for defending a frivolous lawsuit. The bill also makes changes regarding the confidentially and use of reviews and evaluations of health care providers and regarding criminal liability for certain acts or omissions by health care providers.

Actions against manufacturers, distributors, sellers, and promoters of a product

In Thomas v. Mallett, 2005 WI 129, the Wisconsin Supreme Court held that a manufacturer of white lead carbonate, which was used as a pigment in paint, could be held liable for the injuries caused to a child who had ingested paint that contained the white lead carbonate and who could prove certain elements, even if the child could not prove that a particular manufacturer produced the white lead carbonate that he ingested. The court applied the risk-contribution theory, established in Collins v. Eli Lilly, 116 Wis. 2d 166 (1984), saying that all of the manufacturers' white lead carbonate were basically the same, the manufacturers created the risk of injury, and the manufacturers were in a better position than the child to absorb the cost of the injury.

This bill provides that a manufacturer, distributor, seller, or promoter of a product generally may be held liable for damages only if the injured party proves, in addition to the causation, damages, and other elements of the claim, that the specific product that caused the injury was manufactured, distributed, sold, or promoted by the defendant. The bill also provides that if an injured party cannot prove that the defendant manufactured, distributed, sold, or promoted the specific product that caused the injury, the defendant may be held liable if, in addition to proving the other elements of the claim, the injured party names as defendants in the action those manufacturers of a product who, collectively, during the relevant production period, manufactured at least 80 percent of all products sold in this state that are chemically identical to the specific product that allegedly caused the claimant's injury or harm and proves all of the following:

1. That no other lawful process exists for the injured party to seek redress for the injury or harm.

2. That the injury could only be caused by a product that is chemically identical to the specific product that allegedly caused the injury.

3. That the defendant manufactured, distributed, sold, or promoted a product that was chemically identical to the specific product that allegedly caused the injury during the time period in which that specific product was manufactured, distributed, sold, or promoted.

The bill limits liability to products that were manufactured, distributed, sold, or promoted within 25 years before the date the injured party's cause of action accrues.

Strict liability

This bill establishes the criteria to determine if a product manufacturer, distributor, or seller is liable to a person injured by the manufactured product based on a claim of strict liability. Currently, a person injured by a manufactured product has three avenues to determine if the manufacturer, distributor, or seller is liable for the person's injury. The claimant may sue under a breach-of-warranty theory, under the common law negligence theory, and under the theory of strict liability. The doctrine of strict liability, as adopted in this state, applies to manufacturers, distributors, and sellers. That doctrine relieves the injured person from proving specific acts of negligence and protects that person from contractual defenses. However, the person must prove that the product was in a defective condition and unreasonably dangerous, the defective condition existed when it left the seller, the defect caused the injury, the seller was in the business of selling the product, and the product was one that the seller expected to and did reach the consumer without substantial change.

Under this bill, a manufacturer is liable for damages caused by the manufacturer's product based on a claim of strict liability if the injured claimant proves that the product was defective, the defective condition made the product unreasonably dangerous, the defective condition existed at the time the product left the control of the manufacturer, the product reached the user or consumer without substantial change, and the defective condition caused the claimant's injuries. The bill specifies when a manufactured product is defective.

Under the bill, a distributor or seller is not liable for the claimant's damages based on a claim of strict liability unless the manufacturer would be liable for the damages and any of the following applies:

1. The distributor or seller contractually assumed one of the manufacturer's duties to manufacture, design, or provide warnings or instructions regarding the product.

2. Neither the manufacturer nor its insurer is subject to service of process within this state.

3. A court determines that the claimant would not be able to enforce a judgment against the manufacturer or its insurer.

The bill requires the dismissal of the distributor or seller as a defendant in an action if the manufacturer or its insurer submits itself to the jurisdiction of the court in which the suit is pending.

Under the bill, if a defendant proves that the injured person, at the time of his or her injury from a manufactured product, had a blood alcohol concentration of 0.08 or more or was under the influence of any controlled substance or controlled substance analog to the extent that he or she could not operate a motor vehicle safely, that proof creates a rebuttable presumption that the intoxication or drug use was the cause of the person's injury. The bill also creates a rebuttable presumption that the manufactured product is not defective if the product complied with relevant standards, conditions, or specifications under federal or state law. In addition, the bill reduces the manufacturer's, seller's, or distributor's liability by the percentage of causal responsibility for the claimant's damages caused by the claimant's misuse, alteration, or modification of the product.

The bill requires the court to dismiss a claimant's action if the damage was caused by an inherent characteristic of the manufactured product that would be recognized by an ordinary person who uses or consumes the product. The bill relieves a distributor or seller of liability if the distributor or seller receives the product in a sealed container and has no opportunity to test or inspect the product, unless the distributor or seller is liable under another theory.

Under the bill, evidence of remedial measures taken after the sale of the manufactured product is not admissible in an action for damages caused by the product based on a claim of strict liability for the purpose of showing a manufacturing defect, a design defect, or the need for a warning or instruction, but may be admitted to show that a reasonable alternative design existed at the time of the sale of the product. The bill limits a defendant's liability for damage caused by a manufactured product to those products manufactured within 15 years before the claim accrues unless the manufacturer specifies that the product will last longer or unless the action is based on a claim for damages caused by a latent disease.

Under the bill, in product liability cases, to determine the causal responsibility for the injury, the fact finder must determine what percentage of that causal responsibility is the result of the contributory negligence of the injured party, the defective condition of the product, and the contributory negligence of any third person. The bill provides that, if the injured party's percentage of total causal responsibility for the injury is greater than the percentage resulting from the defective condition of the product, the injured party may not recover from the manufacturer or any other person responsible for placing the product in the stream of commerce. If the injured party does have the right to recover, the injured party's damages are diminished by the injured party's percentage of causal responsibility for the injury. Under the bill, after determining the percentage of causal responsibility for the injury that is the result of the defective condition of the product, the fact finder must determine the percentage of causal responsibility of each product defendant for the defective condition of the product. The judge, under the bill, multiplies this percentage by the percentage of causal responsibility for the injury that is the result of the defective condition of the product to determine an individual product defendant's percentage of responsibility for the damages to the injured party.

Under the bill, a product defendant whose responsibility for the damages to the injured party is 51 percent or more is jointly and severally liable for all of those damages. The liability of a product defendant whose responsibility for the damages to the injured party is less than 51 percent is limited to that product defendant's percentage of responsibility for the damages. The bill also allows the injured party to recovery from the product defendants even when the injured party's causal responsibility for the injury is greater than an individual product defendant's responsibility for the damages to the injured party.

Limits on noneconomic damages

Under current law, a person, or certain people related to the person, who is injured by the medical malpractice of a health care provider may sue for economic damages and for noneconomic damages. Noneconomic damages are intended to compensate for pain and suffering, loss of companionship, mental distress, and loss of enjoyment of life.

Current law limits noneconomic damages to $750,000 per occurrence of medical malpractice. Current law also limits damages for loss of society and companionship to certain relatives recoverable in a wrongful death action against a health care provider to $500,000 in the case of a deceased minor and $350,000 in the case of a deceased adult.

Under current law, a person, or certain people related to the person, who is injured by the medical malpractice of a health care provider may bring an action against a health care provider no later than three years from the date the injury occurred, or within one year that the injury was discovered or should have been discovered, except that if a health care provider conceals an act or omission that results in an injury, within one year from the date the concealment was discovered or should have been discovered. If the injury or concealment is discovered after the three-year limit has expired, the person may still bring suit for up to five years after the health care provider's act or omission.

This bill applies the same limit to noneconomic damages that are awarded for an injury or a wrongful death that is caused by the negligence of a long-term care provider, such as a nursing home, hospice, or assisted living facility. The bill applies the same statute of limitations to actions against a long-term care provider.

Punitive damages

Under current law, a person injured by a negligent person can recover the damages resulting from the injury. Damages include economic damages, such as the injured person's medical costs, and noneconomic damages, such as compensation or pain and suffering. In addition, under current law, as interpreted by the Wisconsin Supreme Court, in Wischer v. Mitsubishi, 2005 WI 26, 279 Wis. 2d 4 (2005), the plaintiff may recover punitive damages if he or she can prove that the defendant acted maliciously toward the plaintiff or in an intentional disregard of the rights of the plaintiff.

This bill changes the proof that the plaintiff must provide to recover punitive damages. Under the bill, the plaintiff must prove that the defendant either acted with intent to cause injury to a particular person or persons or that the defendant knew that the action of the defendant that resulted in injury to one or more persons was practically certain to result in injury to one or more persons. The bill also provides that a voluntarily produced intoxicated or drugged condition is not a defense to liability for punitive damages if, but for the intoxicated or drugged state of the actor, the actor would have known that his or her action was practically certain to result in injury to one or more persons.

Damages for frivolous claims

Under current law, every document submitted to a court in a civil case must be signed by a party or, if the party has an attorney, by the attorney. Current law provides that the person, by signing the document, is certifying that the document is not presented for any improper purpose, such as to harass or cause unnecessary delay, that the claims made in the document are warranted by existing law or a nonfrivolous argument for the extension, modification, or reversal of the law, that the allegations presented in the document are likely to have evidentiary support, and that any factual denials in the document are warranted by evidence or, if so identified, are reasonably based on a lack of information or belief. Currently, if the court determines that any of these certifications are not true, the court may impose an appropriate sanction on the responsible attorney or party. Under current law, the sanction must be limited to what is sufficient to deter repetition of the conduct, and may include payment of the reasonable attorney fees or other expenses resulting from the improper conduct. A court may not impose monetary sanctions upon a represented party for making a claim that is not based on existing law or a nonfrivolous argument for the extension, modification, or reversal of the law, and before the court imposes any monetary sanctions, the court must issue an order to show cause regarding the dismissal or settlement of the claim.

Under this bill, in civil actions, a party or his or her attorney may be liable for costs and fees for beginning, using, or continuing an action if that is done solely for the purpose of harassing or maliciously injuring another and the party or attorney knew that there was no reasonable basis in law for the conduct or no good faith argument for an extension, modification, or reversal of the law. The bill allows a party to an action to ask the court by motion to determine if another party has violated these provisions, and if, by clear and convincing evidence, the court so finds, the court must do one of the following:

1. If the offending party withdraws or corrects the improper conduct within 21 days or a time set by the court, decide whether to award the moving party the actual costs incurred as a result of the conduct, including reasonable attorney fees, taking into consideration the offending party's mitigating conduct.

2. If the offending party does not timely withdraw or correct the improper conduct, award the moving party the actual costs incurred as a result of the conduct, including reasonable attorney fees.

Under the bill, if an award of costs for violating these provisions is affirmed on appeal, the appellate court is required to send the action to the lower court to award the damages necessary to compensate the successful party for the actual reasonable attorney fees incurred in the appeal. In addition, if the appellate court finds that a party has committed a violation of one of these provisions in an appeal, the appellate court must, after completion of the appeal, send the action back to the lower court to award the damages necessary to compensate the offended party for the actual reasonable attorney fees incurred in the appeal.

Confidentiality of health care services reviews

Current law provides that a person who participates in a review or evaluation of services provided by a health care provider or facility, or of charges for such services (a review), generally may not disclose information acquired in connection with the review. Further, the records that a reviewer or evaluator creates of investigations, inquiries, proceedings, and conclusions conducted for the review (review records) generally may not be released. Under current law, review records may not be used in a civil action for personal injuries against the health care provider or health care facility.

Current law contains several exceptions to confidentiality of review records and information acquired in connection with a review, which require disclosure of such records and information under the following circumstances: to a health care provider or facility whose services are reviewed, or to any person with the consent of that provider or facility; to the person who requested the review, for use only for the purpose of improving the quality of health care, avoiding improper utilization of health care services, and determining reasonable charges for services; to a court upon issuance of a subpoena in a criminal action; to an examining or licensing board or agency, when the organization or evaluator conducting the review determines that such action is advisable; and in a report in statistical format.

This bill makes the following changes to confidentiality provisions for health care service reviews:

1. The bill repeals the exception to confidentiality that requires release of review records and information acquired in connection with a review upon issuance of a subpoena in a criminal action.

2. The bill provides that review records may not be used in any civil or criminal action against any health care provider.

3. The bill provides that a person who participates in a review may not disclose any incident or occurrence report that is made to notify a reviewer of an incident, practice, or other situation that becomes the subject of a review. Further the bill prohibits using such an incident or occurrence report in any civil or criminal action against a health care provider.

4. The bill specifies that the confidentiality provisions related to review records apply regardless of whether the review is conducted by representatives from one or more organizations.

5. The bill provides that the confidentially provisions for review records apply only if the review for which the records were created was conducted for one of the following purposes: to help improve the quality of health care, to avoid improper utilization of the services of health care providers, or to determine reasonable charges for such services.

6. Instead of requiring that review records and information acquired in connection with a review be disclosed in statistical form, the bill allows that such information and review records may be disclosed in statistical form. The bill also allows information acquired in connection with a review to be disclosed to a health care provider's employer or parent, subsidiary or affiliated organization or to the parent, subsidiary, or affiliated organization of a health care provider's employer.

7. The bill requires that any record or incident or occurrence report that is disclosed to another, properly or improperly, remains confidential and may not be used in a civil or criminal action against any health care provider.

8. The bill includes as health care providers, for purposes of the confidentiality provisions, all of the following: individual health care providers; facilities, organizations, and business entities that are health care providers; persons working under the supervision of or in collaboration with an individual health care provider; and parents, subsidiaries, or affiliate organizations of facilities, organizations, and business entities that are health care providers.

Use of health care reports or employee statements

This bill prohibits the use as evidence in a civil or criminal action of any health care provider reports that are required by the Department of Regulation and Licensing (DRL) or by the division within the Department of Health Services (DHS) that conducts health care provider quality assurance reviews. The bill also prohibits the use as evidence in a civil or criminal action of any statements of, or records of interviews with, employees of a health care provider related to the regulation of a health care provider and obtained by DRL or by the division within DHS that conducts health care provider quality assurance reviews. The bill makes an exception from these prohibitions for the use of the records, statements, or interviews in an administrative proceeding conducted by DRL or by the division within DHS that conducts health care provider quality assurance reviews.

Reporting of hospital quality indicators

Current law requires the Department of Administration to contract with a certain entity to collect health care information from hospitals and ambulatory surgery centers. This entity analyzes and disseminates that health care information in a language understandable to laypersons. Among other health care information, the entity must report hospital quality indicators, but the report cannot identify the individual hospital with the quality indicators. This bill allows the entity to report quality indicators identifying individual hospitals.

Crimes

Under current law, a person who causes the death of, or bodily harm to, an individual by negligent operation or handling of a dangerous weapon, explosives, or fire is guilty of a crime. A dangerous weapon includes any device or instrumentality, which in the manner it is used or intended to be used, is calculated or likely to produce death or great bodily harm. The bill provides that a health care provider is not guilty of the crimes of causing the death of, or bodily harm to, an individual by negligent operation or handling of a dangerous weapon, explosives, or fire, if the health care provider is acting within the scope of his or her practice or employment.

Also under current law, a person who is in charge of or employed by a residential care facility, an inpatient health care facility, a treatment facility, or a home health agency, who intentionally, recklessly, or negligently abuses or neglects a patient or a resident in one of those facilities or agencies is guilty of a crime. The penalties for the crime depend upon the degree of harm suffered by the patient or resident. Under the bill, a person who negligently abuses or neglects a patient or a resident is not guilty of a crime if the person is a health care provider acting in the scope of his or her practice or employment, and he or she commits an act or omission of mere inefficiency, unsatisfactory conduct, or failure in good performance as the result of inability, incapacity, inadvertency, ordinary negligence, or good faith error in judgment or discretion.

Expert and lay witness testimony

Under current law, if a witness is not testifying as an expert, the witness's testimony is limited to those opinions that are rationally based on the perception of the witness and helpful to a clear understanding of the witness's testimony or of a fact at issue in the case. This bill adds the additional limit that a nonexpert's testimony may not be based on scientific, technical, or other specialized knowledge of the witness.

Current law allows the testimony of an expert witness if that scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact at issue in the case. This bill limits the testimony of an expert witness to testimony that is based on sufficient facts or data, that is the product of reliable principles and methods, and that is based on the witness applying those principles and methods to the facts of the case. The bill also prohibits the testimony of an expert witness who is entitled to receive any compensation contingent on the outcome of the case.

Currently, the facts or data in a particular case on which an expert witness bases his or her opinion may be made known to the expert at or before the case hearing, but if those facts or data are reasonably relied upon by experts in the field in forming opinions about the subject, they do not need to be admissible into evidence in the case. This bill adds that facts or data that are otherwise inadmissible may not be disclosed to the jury unless the court determines that their value in assisting the jury to evaluate the expert's testimony outweighs their prejudicial effect.

For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.

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

AB1, s. 1 Section 1. 146.38 (1) (b) of the statutes is renumbered 146.38 (1) (b) (intro.) and amended to read:

AB1,9,6 146.38 (1) (b) (intro.) "Health care provider" includes an ambulance service provider, as defined in s. 256.01 (3), an emergency medical technician, as defined in s. 256.01 (5), and a first responder, as defined in s. 256.01 (9). means any of the following:

AB1, s. 2 Section 2. 146.38 (1) (b) 1. of the statutes is created to read:

AB1,9,8 146.38 (1) (b) 1. A person specified in s. 146.81 (1) (a) to (hp), (r), or (s).

AB1, s. 3 Section 3. 146.38 (1) (b) 2. of the statutes is created to read:

AB1,10,3 146.38 (1) (b) 2. A facility, association, or business entity, as specified in s. 146.81 (1) (i) to (q).

AB1, s. 4 Section 4. 146.38 (1) (b) 3. of the statutes is created to read:

AB1,10,6 146.38 (1) (b) 3. A person working under the supervision of or in collaboration with a person specified in subd. 1.

AB1, s. 5 Section 5. 146.38 (1) (b) 4. of the statutes is created to read:

AB1,10,9 146.38 (1) (b) 4. A parent, subsidiary, or affiliate organization of a facility, association, or business entity, as specified in subd. 2.

AB1, s. 6 Section 6. 146.38 (1) (bm) of the statutes is created to read:

AB1,10,15 146.38 (1) (bm) "Incident or occurrence report" means a written or oral statement that is made to notify a person, organization, or an evaluator who reviews or evaluates the services of health care providers or charges for such services of an incident, practice, or other situation that becomes the subject of such a review or evaluation.

AB1, s. 7 Section 7. 146.38 (1m) of the statutes is amended to read:

AB1,10,20 146.38 (1m) No person who participates in the review or evaluation of the services of health care providers or facilities 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).

AB1, s. 8 Section 8. 146.38 (2) of the statutes is amended to read: