LRB-4650/2
RPN:kjf:rs
2005 - 2006 LEGISLATURE
February 27, 2006 - Introduced by Representatives Gielow, Hahn, Hundertmark,
Kerkman, Kreibich, F. Lasee, Newcomer, Nischke, Ott, Towns and Vukmir,
cosponsored by Senators S. Fitzgerald, Kedzie, Leibham and Roessler.
Referred to Committee on Insurance.
AB1072,1,3
1An Act to amend 893.55 (7); and
to create 893.55 (8) of the statutes;
relating
2to: awards to persons suffering damages as the result of medical malpractice
3and evidence of compensation for those damages.
Analysis by the Legislative Reference Bureau
Under current law, as recently interpreted by the Supreme Court in
Lagerstrom
v. Myrtle Werth Hospital-Mayo Health System, 2005 WI 124 (2005), in a medical
malpractice case, evidence of payments made to compensate a person for injury or
death from persons other than the defendant (collateral source payments) are
allowed. The court also held that current law permitted the introduction of evidence
of the injured or dead person's obligations of subrogation or reimbursement resulting
from those collateral source payments for medical services. But, the court held that
the obligation evidence can only be used to determine the reasonable value of those
medical services, not to reduce the value of those medical services for the purpose of
determining the amount of the damage award for those medical services.
This bill allows the introduction of collateral source payments in a medical
malpractice case and the introduction of evidence of the injured person's obligations
of subrogation or reimbursement resulting from those collateral source payments.
The bill requires the finder of fact to determine the amount of collateral source
payments made to compensate the claimant for the injury resulting from the medical
malpractice and the amount that the claimant is obligated to reimburse the persons
who made the collateral source payments. The bill permits the finder of fact to
subtract some or all of the amount the claimant is obligated to reimburse the persons
who made the collateral source payments from the amount of those collateral source
payments and reduce the amount of damages awarded to the claimant by that
difference.
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:
AB1072, s. 1
1Section
1. 893.55 (7) of the statutes is amended to read:
AB1072,2,92
893.55
(7) Evidence of any compensation for bodily injury received from
3sources other than the defendant to compensate the claimant for the injury is
4admissible in an action to recover damages for medical malpractice.
Evidence of the
5injured or dead person's obligations of subrogation or reimbursement resulting from
6payments made by sources other than the defendant to compensate the claimant for
7the injury or death is admissible in an action to recover damages for medical
8malpractice. This section does not limit the substantive or procedural rights of
9persons who have claims based upon subrogation.
AB1072, s. 2
10Section
2. 893.55 (8) of the statutes is created to read:
AB1072,2,1211
893.55
(8) (a) If medical malpractice did occur, the finder of fact shall determine
12all of the following:
AB1072,2,1513
1. The amount that was provided from sources other than the defendant to
14compensate the claimant for the injury or death resulting from the medical
15malpractice.
AB1072,2,1716
2. The amount that the claimant is obligated to reimburse the sources under
17subd. 1. for the compensation provided by those sources under subd. 1.
AB1072,3,3
1(b) The finder of fact may subtract some or all the amount determined under
2par. (a) 2. from the amount determined under par. (a) 1. and reduce the amount of
3damages awarded to the claimant under ch. 655 by that difference.
AB1072,3,65
(1) This act first applies to medical malpractice acts or omissions occurring on
6the effective date of this subsection.
