SB393,1,4 1An Act to renumber 893.55 (1); to renumber and amend 893.55 (4) (b) and
2893.55 (4) (d); to amend 655.017, 893.55 (2) and 893.55 (3); and to create
3893.55 (1d) and 893.55 (4) (d) 2. of the statutes; relating to: recovery of
4noneconomic damages 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 $550,000 for persons under the age of 18, and $450,000 for persons age
18 and over. 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:
SB393, s. 1 1Section 1. 655.017 of the statutes is amended to read:
SB393,2,9 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).
SB393, s. 2 10Section 2. 893.55 (1) of the statutes is renumbered 893.55 (1m).
SB393, s. 3 11Section 3. 893.55 (1d) of the statutes is created to read:
SB393,2,1312 893.55 (1d) (a) In this subsection, "fund" means the injured patients and
13families compensation fund under s. 655.27.
SB393,2,1514 (b) The legislature finds the following related to the limitation on noneconomic
15damages in sub. (4) (d):
SB393,2,1716 1. Affordable and accessible health care benefits patients and the public in
17general.
SB393,2,1918 2. A cap on noneconomic damages is one factor necessary to maintain
19affordability and accessibility.
SB393,3,220 3. A cap on noneconomic damages, together with mandatory liability insurance
21coverage for health care providers, mandatory participation in the fund by health

1care providers, and unlimited economic damage awards, ensures adequate
2compensation for victims of medical malpractice.
SB393,3,43 (c) The legislature further finds that a medical liability system should promote
4the following objectives:
SB393,3,65 1. Provide adequate compensation to victims of medical malpractice through
6economic and noneconomic damages.
SB393,3,137 2. Protect access to health care services across the state and across medical
8specialities by limiting disincentives for physicians to practice medicine in Wisconsin
9such as the unavailability of professional liability insurance coverage, high cost of
10insurance premiums, large fund assessments, or unpredictable or large noneconomic
11damage awards as recognized by a 2003 U.S. congress joint economic committee
12report, a 2003 federal department of health and human services study, and a 2004
13office of the commissioner of insurance report.
SB393,3,1714 3. Help contain health care costs by limiting the incentive to practice defensive
15medicine, which increases the cost of patient care as recognized by a 2002 federal
16department of health and human services study and a 2003 U.S. congress joint
17economic committee report.
SB393,3,2218 4. Help contain health care costs by providing more predictability in
19noneconomic damage awards allowing insurers to set insurance premiums that
20better reflect their financial risk as recognized by a 2003 U.S. federal department of
21health and human services study, a 2003 government accounting office study, and a
222005 office of the commissioner of insurance report.
SB393,4,323 5. Help contain health care costs by providing more predictability in
24noneconomic damage awards in order to protect the financial integrity of the fund
25and allow the fund's board of governors to approve reasonable assessments for health

1care providers as recognized by a 2005 legislative fiscal bureau memo, a 2001
2legislative audit bureau report, and a 2005 office of commissioner of insurance
3report.
SB393, s. 4 4Section 4. 893.55 (2) of the statutes is amended to read:
SB393,4,95 893.55 (2) If a health care provider conceals from a patient a prior act or
6omission of the provider which has resulted in injury to the patient, an action shall
7be commenced within one year from the date the patient discovers the concealment
8or, in the exercise of reasonable diligence, should have discovered the concealment
9or within the time limitation provided by sub. (1) (1m), whichever is later.
SB393, s. 5 10Section 5. 893.55 (3) of the statutes is amended to read:
SB393,4,1511 893.55 (3) When a foreign object which has no therapeutic or diagnostic
12purpose or effect has been left in a patient's body, an action shall be commenced
13within one year after the patient is aware or, in the exercise of reasonable care,
14should have been aware of the presence of the object or within the time limitation
15provided by sub. (1) (1m), whichever is later.
SB393, s. 6 16Section 6. 893.55 (4) (b) of the statutes is renumbered 893.55 (4) (b) 2. and
17amended to read:
SB393,5,218 893.55 (4) (b) 2. The total noneconomic damages recoverable for bodily injury
19or death, including any action or proceeding based on contribution or
20indemnification and any action for a claim by a person other than the injured person
21for noneconomic damages resulting in bodily injury
, may not exceed the limit under
22par. (d) for each occurrence on or after May 25, 1995 the effective date of this
23paragraph .... [revisor inserts date]
, from all health care providers and all employees
24of health care providers acting within the scope of their employment and providing

1health care services who are found negligent and from the injured patients and
2families compensation fund.
SB393, s. 7 3Section 7. 893.55 (4) (d) of the statutes is renumbered 893.55 (4) (d) 1. and
4amended to read:
SB393,5,125 893.55 (4) (d) 1. The limit on total noneconomic damages for each occurrence
6under par. (b) on or after May 25, 1995 the effective date of this paragraph .... [revisor
7inserts date]
, shall be $350,000 and shall be adjusted by the director of state courts
8to reflect changes in the consumer price index for all urban consumers, U.S. city
9average, as determined by the U.S. department of labor, at least annually thereafter,
10with the adjusted limit to apply to awards subsequent to such adjustments
$550,000
11for a person who is under the age of 18 at the time of the injury, and shall be $450,000
12for a person who is age 18 or over at the time of the injury
.
SB393, s. 8 13Section 8. 893.55 (4) (d) 2. of the statutes is created to read:
SB393,5,1814 893.55 (4) (d) 2. The board of governors created under s. 619.04 (3) shall submit
15a report to the legislature as provided under s. 13.172 (2) by January 1 of every odd
16numbered year of any recommended changes to the limits on noneconomic damages
17established in subd. 1. The report shall include the reasons why the changes are
18necessary to meet the intent of the legislative findings under sub. (1d).
SB393,5,1919 (End)
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