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
1Section
1. 146.38 (1) (b) of the statutes is renumbered 146.38 (1) (b) (intro.)
2and amended to read:
AB1,9,63
146.38
(1) (b) (intro.) "Health care provider"
includes an ambulance service
4provider, as defined in s. 256.01 (3), an emergency medical technician, as defined in
5s. 256.01 (5), and a first responder, as defined in s. 256.01 (9).
means any of the
6following:
AB1, s. 2
7Section
2. 146.38 (1) (b) 1. of the statutes is created to read:
AB1,9,88
146.38
(1) (b) 1. A person specified in s. 146.81 (1) (a) to (hp), (r), or (s).
AB1, s. 3
1Section
3. 146.38 (1) (b) 2. of the statutes is created to read:
AB1,10,32
146.38
(1) (b) 2. A facility, association, or business entity, as specified in s.
3146.81 (1) (i) to (q).
AB1, s. 4
4Section
4. 146.38 (1) (b) 3. of the statutes is created to read:
AB1,10,65
146.38
(1) (b) 3. A person working under the supervision of or in collaboration
6with a person specified in subd. 1.
AB1, s. 5
7Section
5. 146.38 (1) (b) 4. of the statutes is created to read:
AB1,10,98
146.38
(1) (b) 4. A parent, subsidiary, or affiliate organization of a facility,
9association, or business entity, as specified in subd. 2.
AB1, s. 6
10Section
6. 146.38 (1) (bm) of the statutes is created to read:
AB1,10,1511
146.38
(1) (bm) "Incident or occurrence report" means a written or oral
12statement that is made to notify a person, organization, or an evaluator who reviews
13or evaluates the services of health care providers or charges for such services of an
14incident, practice, or other situation that becomes the subject of such a review or
15evaluation.
AB1, s. 7
16Section
7. 146.38 (1m) of the statutes is amended to read:
AB1,10,2017
146.38
(1m) No person who participates in the review or evaluation of the
18services of health care providers
or facilities or charges for such services may disclose
19an incident or occurrence report or any information acquired in connection with such
20review or evaluation except as provided in sub. (3)
or (3m).
AB1, s. 8
21Section
8. 146.38 (2) of the statutes is amended to read:
AB1,11,1422
146.38
(2) All
persons, organizations
, or evaluators
reviewing or evaluating,
23whether from one or more entities, who review or evaluate the services of health care
24providers
in order to help improve the quality of health care, to avoid improper
25utilization of the services of health care providers, or to determine the reasonable
1charges for such services shall keep a record of their investigations, inquiries,
2proceedings and conclusions. No such record may be released to any person under
3s. 804.10 (4) or otherwise except as provided in sub. (3)
or (3m). No such record may
4be used in any civil
or criminal action
for personal injuries against the health care
5provider
or facility or any other health care provider; however,
except for incident or
6occurrence reports or records from other persons, organizations, or evaluators
7reviewing or evaluating health care providers, information, documents or records
8presented during the review or evaluation may not be construed as immune from
9discovery under s. 804.10 (4) or use in any civil
or criminal action merely because they
10were so presented. Any person who testifies during or participates in the review or
11evaluation may testify in any civil
or criminal action as to matters within his or her
12knowledge, but may not testify as to information obtained through his or her
13participation in the review or evaluation, nor as to any conclusion of such review or
14evaluation.
AB1, s. 9
15Section
9. 146.38 (2m) of the statutes is created to read:
AB1,11,1716
146.38
(2m) An incident or occurrence report may not be used in any civil or
17criminal action against a health care provider.
AB1, s. 10
18Section
10. 146.38 (3) (intro.) of the statutes is amended to read:
AB1,11,2319
146.38
(3) (intro.) Information acquired in connection with the review and
20evaluation of health care services shall be disclosed and records of such review and
21evaluation shall be released, with the identity of any patient whose treatment is
22reviewed being withheld
unless the patient has granted permission to disclose
23identity except as permitted under s. 146.82, in the following circumstances:
AB1, s. 11
24Section
11. 146.38 (3) (a), (b) and (c) of the statutes are amended to read:
AB1,12,2
1146.38
(3) (a) To the health care provider
or facility whose services are being
2reviewed or evaluated, upon the request of such provider
or facility;
AB1,12,43
(b) To any person with the consent of the health care provider
or facility whose
4services are being reviewed or evaluated;
AB1,12,85
(c) To the person requesting the review or evaluation, for use solely for the
6purpose of improving the quality of health care, avoiding the improper utilization of
7the services of health care providers
and facilities, and determining the reasonable
8charges for such services;
AB1, s. 12
9Section
12. 146.38 (3) (d) of the statutes is repealed.
AB1, s. 13
10Section
13. 146.38 (3) (e) of the statutes is repealed.
AB1, s. 14
11Section
14. 146.38 (3m) of the statutes is created to read:
AB1,12,1712
146.38
(3m) (a) Information acquired in connection with the review and
13evaluation of health care services may be disclosed, and records of such review and
14evaluation may be released, in statistical form with the consent of the person
15authorizing or with the authority to authorize the review or evaluation. Information
16disclosed or records released under this subsection shall not reveal the identity of any
17patient except as permitted under s. 146.82.
AB1,12,2118
(b) Information acquired in connection with the review or evaluation of health
19care services may be disclosed, and the records of such a review or evaluation
20released, to any of the following persons, with the consent of the person authorizing
21or with the authority to authorize the review or evaluation:
AB1,12,2222
1. The employer of a health care provider, as defined in sub. (1) (b) 1. and 3.
AB1,12,2423
2. The parent, subsidiary, or affiliate organization of a health care provider, as
24defined in sub. (1) (b) 2.
AB1,13,2
13. The parent, subsidiary, or affiliate organization of the employer of a health
2care provider, as defined in sub. (1) (b) 1. and 3.
AB1, s. 15
3Section
15. 146.38 (3t) of the statutes is created to read:
AB1,13,74
146.38
(3t) A record described under sub. (2) or an incident or occurrence report
5disclosed either under sub. (3) or (3m) or in violation of this section remains
6confidential and may not be used in any civil or criminal action against the health
7care provider or any other health care provider.
AB1, s. 16
8Section
16. 146.38 (6) of the statutes is created to read:
AB1,13,139
146.38
(6) Health care provider specific information acquired by an
10administrative agency in order to help improve the quality of health care, to avoid
11the improper utilization of services of health care providers, or to determine the
12reasonable charges for health care services is exempt from inspection, copying, or
13receipt under s. 19.35 (1).
AB1, s. 17
14Section
17. 153.05 (3m) of the statutes is created to read:
AB1,13,1715
153.05
(3m) The entity under contract under sub. (2m) (a) may report quality
16indicators identifying individual hospitals based on data the entity collects under
17this subchapter.
AB1, s. 18
18Section
18. 230.85 (3) (b) of the statutes is amended to read:
AB1,14,519
230.85
(3) (b) If, after hearing, the division of equal rights finds that the
20respondent did not engage in or threaten a retaliatory action it shall order the
21complaint dismissed. The division of equal rights shall order the employee's
22appointing authority to insert a copy of the findings and orders into the employee's
23personnel file and, if the respondent is a natural person, order the respondent's
24appointing authority to insert such a copy into the respondent's personnel file. If the
25division of equal rights finds by unanimous vote that the employee filed a frivolous
1complaint it may order payment of the respondent's reasonable actual attorney fees
2and actual costs. Payment may be assessed against either the employee or the
3employee's attorney, or assessed so that the employee and the employee's attorney
4each pay a portion. To find a complaint frivolous the division of equal rights must
5find that s. 802.05 (2)
or 895.044 has been violated.
AB1, s. 19
6Section
19. 802.10 (7) of the statutes is amended to read:
AB1,14,87
802.10
(7) Sanctions. Violations of a scheduling or pretrial order are subject
8to ss. 802.05, 804.12
and, 805.03
, and 895.044.
AB1, s. 20
9Section
20. 809.103 (2) (a) of the statutes is amended to read:
AB1,14,1010
809.103
(2) (a) Is frivolous, as determined under s. 802.05 (2)
or 895.044.