February 27, 2006 - Introduced by Representatives Gielow, J. Fitzgerald,
Wasserman, Ainsworth, Albers, Ballweg, Benedict, Davis, Fields, F. Lasee,
Freese, Gottlieb, Gronemus, Gunderson, Hahn, Honadel, Hubler,
Hundertmark, Kerkman, Krawczyk, Kreibich, LeMahieu, Loeffelholz,
Lothian, McCormick, Meyer, Montgomery, Musser, Nerison, Newcomer,
Nischke, Ott, Pettis, Pridemore, Shilling, Seidel, Sheridan, Stone,
Strachota, Suder, Towns, Underheim, Van Roy, Vos, Vruwink, Vukmir, Ward

and Ziegelbauer, cosponsored by Senators S. Fitzgerald, Brown, Cowles,
Darling, Grothman, Harsdorf, Kapanke, Kedzie, A. Lasee, Leibham, Olsen,
Roessler
and Zien. Referred to Committee on Insurance.
AB1073,1,4 1An Act to renumber 893.55 (1); to renumber and amend 893.55 (4) (d); to
2amend
655.017, 893.55 (2), 893.55 (3) and 893.55 (4) (b); and to create 893.55
3(1d) and 893.55 (4) (d) 2. of the statutes; relating to: recovery of noneconomic
4damages 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
Wisconsin Constitution.
This bill creates a limit on noneconomic damages for each occurrence of medical
malpractice of $750,000. 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:
AB1073, s. 1 1Section 1. 655.017 of the statutes is amended to read:
AB1073,2,9 2655.017 Limitation on noneconomic damages. The amount of
3noneconomic damages recoverable by a claimant or plaintiff under this chapter for
4acts 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
6omissions of an employee of a health care provider, acting within the scope of his or
7her employment and providing health care services, for acts or omissions occurring
8on or after May 25, 1995 the effective date of this section .... [revisor inserts date],
9is subject to the limits under s. 893.55 (4) (d) and (f).
AB1073, s. 2 10Section 2. 893.55 (1) of the statutes is renumbered 893.55 (1m).
AB1073, s. 3 11Section 3. 893.55 (1d) of the statutes is created to read:
AB1073,3,312 893.55 (1d) (a) The objective of the treatment of this section is to ensure
13affordable and accessible health care for all of the citizens of Wisconsin while
14providing adequate compensation to the victims of medical malpractice. Achieving
15this objective requires a balancing of many interests. Based upon documentary
16evidence, testimony received at legislative hearings, and other relevant information,
17the legislature finds that a limitation on the amount of noneconomic damages
18recoverable by a claimant or plaintiff for acts or omissions of a health care provider,
19together with mandatory liability coverage for health care providers and mandatory
20participation in the injured patients and families compensation fund by health care
21providers, while compensating victims of medical malpractice in appropriate

1circumstances by the availability of unlimited economic damages, ensures that these
2objectives are achieved. Establishing a limitation on noneconomic damage awards
3accomplishes the objective by doing all of the following:
AB1073,3,10 41. Protecting access to health care services across the state and across medical
5specialties by limiting the disincentives for physicians to practice medicine in
6Wisconsin, such as the unavailability of professional liability insurance coverage,
7the high cost of insurance premiums, large fund assessments, and unpredictable or
8large noneconomic damage awards, as recognized by a 2003 U.S. congress joint
9economic committee report, a 2003 federal department of health and human services
10study, and a 2004 office of the commissioner of insurance report.
AB1073,3,15 112. Helping contain health care costs by limiting the incentive to practice
12defensive medicine, which increases the cost of patient care, as recognized by a 2002
13federal department of health and human services study, a 2003 U.S. congress joint
14economic committee report, a 2003 federal government accounting office study, and
15a 2005 office of the commissioner of insurance report.
AB1073,3,19 163. Helping contain health care costs by providing more predictability in
17noneconomic damage awards, allowing insurers to set insurance premiums that
18better reflect such insurers' financial risk, as recognized by a 2003 federal
19department of health and human services.
AB1073,3,25 204. Helping contain health care costs by providing more predictability in
21noneconomic damage awards in order to protect the financial integrity of the fund
22and allow the fund's board of governors to approve reasonable assessments for health
23care providers, as recognized by a 2005 legislative fiscal bureau memo, a 2001
24legislative audit bureau report, and a 2005 office of commissioner of insurance
25report.
AB1073,4,7
1(b) The legislature further finds that the limitation of $750,000 represents an
2appropriate balance between providing reasonable compensation for noneconomic
3damages associated with medical malpractice and ensuring affordable and
4accessible health care. This finding is based on actuarial studies provided to the
5legislature, the experiences of other states with and without limitations on
6noneconomic damages associated with medical malpractice, the testimony of
7experts, and other documentary evidence presented to the legislature.
AB1073,4,168 (c) Based on actuarial studies, documentary evidence, testimony, and the
9experiences of other states, the legislature concludes there is a dollar figure so low
10as to deprive the injured victim of reasonable noneconomic damages, and there is a
11dollar figure at which the cap number is so high that it fails to accomplish the goals
12of affordable and accessible health care. The legislature concludes that the number
13chosen is neither too high nor too low to accomplish the goals of affordable and
14accessible health care, is a reasonable and rationale response to the current medical
15liability situation, and is reasonably and rationally supported by the legislative
16record.
AB1073, s. 4 17Section 4. 893.55 (2) of the statutes is amended to read:
AB1073,4,2218 893.55 (2) If a health care provider conceals from a patient a prior act or
19omission of the provider which has resulted in injury to the patient, an action shall
20be commenced within one year from the date the patient discovers the concealment
21or, in the exercise of reasonable diligence, should have discovered the concealment
22or within the time limitation provided by sub. (1) (1m), whichever is later.
AB1073, s. 5 23Section 5. 893.55 (3) of the statutes is amended to read:
AB1073,5,324 893.55 (3) When a foreign object which has no therapeutic or diagnostic
25purpose or effect has been left in a patient's body, an action shall be commenced

1within one year after the patient is aware or, in the exercise of reasonable care,
2should have been aware of the presence of the object or within the time limitation
3provided by sub. (1) (1m), whichever is later.
AB1073, s. 6 4Section 6. 893.55 (4) (b) of the statutes is amended to read:
AB1073,5,135 893.55 (4) (b) The total noneconomic damages recoverable for bodily injury or
6death
, including any action or proceeding based on contribution or indemnification
7and any action for a claim by a person other than the injured person for noneconomic
8damages recoverable for bodily injury
, may not exceed the limit under par. (d) for
9each occurrence on or after May 25, 1995 the effective date of this paragraph ....
10[revisor inserts date]
, from all health care providers and all employees of health care
11providers acting within the scope of their employment and providing health care
12services who are found negligent and from the injured patients and families
13compensation fund.
AB1073, s. 7 14Section 7. 893.55 (4) (d) of the statutes is renumbered 893.55 (4) (d) 1. and
15amended to read:
AB1073,5,2116 893.55 (4) (d) 1. The limit on total noneconomic damages for each occurrence
17under par. (b) on or after May 25, 1995 the effective date of this paragraph .... [revisor
18inserts date]
, shall be $350,000 and shall be adjusted by the director of state courts
19to reflect changes in the consumer price index for all urban consumers, U.S. city
20average, as determined by the U.S. department of labor, at least annually thereafter,
21with the adjusted limit to apply to awards subsequent to such adjustments
$750,000.
AB1073, s. 8 22Section 8. 893.55 (4) (d) 2. of the statutes is created to read:
AB1073,6,223 893.55 (4) (d) 2. The board of governors created under s. 619.04 (3) shall submit
24a report to the legislature as provided under s. 13.172 (2) by January 1 of every odd
25numbered year of any recommended changes to the limits on noneconomic damages

1established in subd. 1. The report shall include the reasons why the changes are
2necessary to meet the intent of the legislative findings under sub. (1d).
AB1073,6,33 (End)
Loading...
Loading...