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:
SB1, s. 1 1Section 1. 146.38 (1) (b) of the statutes is renumbered 146.38 (1) (b) (intro.)
2and amended to read:
SB1,9,63 146.38 (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:
SB1, s. 2 7Section 2. 146.38 (1) (b) 1. of the statutes is created to read:
SB1,9,88 146.38 (1) (b) 1. A person specified in s. 146.81 (1) (a) to (hp), (r), or (s).
SB1, s. 3
1Section 3. 146.38 (1) (b) 2. of the statutes is created to read:
SB1,10,32 146.38 (1) (b) 2. A facility, association, or business entity, as specified in s.
3146.81 (1) (i) to (q).
SB1, s. 4 4Section 4. 146.38 (1) (b) 3. of the statutes is created to read:
SB1,10,65 146.38 (1) (b) 3. A person working under the supervision of or in collaboration
6with a person specified in subd. 1.
SB1, s. 5 7Section 5. 146.38 (1) (b) 4. of the statutes is created to read:
SB1,10,98 146.38 (1) (b) 4. A parent, subsidiary, or affiliate organization of a facility,
9association, or business entity, as specified in subd. 2.
SB1, s. 6 10Section 6. 146.38 (1) (bm) of the statutes is created to read:
SB1,10,1511 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.
SB1, s. 7 16Section 7. 146.38 (1m) of the statutes is amended to read:
SB1,10,2017 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).
SB1, s. 8 21Section 8. 146.38 (2) of the statutes is amended to read:
SB1,11,1422 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.
SB1, s. 9 15Section 9. 146.38 (2m) of the statutes is created to read:
SB1,11,1716 146.38 (2m) An incident or occurrence report may not be used in any civil or
17criminal action against a health care provider.
SB1, s. 10 18Section 10. 146.38 (3) (intro.) of the statutes is amended to read:
SB1,11,2319 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:
SB1, s. 11 24Section 11. 146.38 (3) (a), (b) and (c) of the statutes are amended to read:
SB1,12,2
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;
SB1,12,43 (b) To any person with the consent of the health care provider or facility whose
4services are being reviewed or evaluated;
SB1,12,85 (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;
SB1, s. 12 9Section 12. 146.38 (3) (d) of the statutes is repealed.
SB1, s. 13 10Section 13. 146.38 (3) (e) of the statutes is repealed.
SB1, s. 14 11Section 14. 146.38 (3m) of the statutes is created to read:
SB1,12,1712 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.
SB1,12,2118 (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:
SB1,12,2222 1. The employer of a health care provider, as defined in sub. (1) (b) 1. and 3.
SB1,12,2423 2. The parent, subsidiary, or affiliate organization of a health care provider, as
24defined in sub. (1) (b) 2.
SB1,13,2
13. The parent, subsidiary, or affiliate organization of the employer of a health
2care provider, as defined in sub. (1) (b) 1. and 3.
SB1, s. 15 3Section 15. 146.38 (3t) of the statutes is created to read:
SB1,13,74 146.38 (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.
SB1, s. 16 8Section 16. 146.38 (6) of the statutes is created to read:
SB1,13,139 146.38 (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).
SB1, s. 17 14Section 17. 153.05 (3m) of the statutes is created to read:
SB1,13,1715 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.
SB1, s. 18 18Section 18. 230.85 (3) (b) of the statutes is amended to read:
SB1,14,519 230.85 (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.
SB1, s. 19 6Section 19. 802.10 (7) of the statutes is amended to read:
SB1,14,87 802.10 (7) Sanctions. Violations of a scheduling or pretrial order are subject
8to ss. 802.05, 804.12 and, 805.03, and 895.044.
SB1, s. 20 9Section 20. 809.103 (2) (a) of the statutes is amended to read:
SB1,14,1010 809.103 (2) (a) Is frivolous, as determined under s. 802.05 (2) or 895.044.
SB1, s. 21 11Section 21. 814.04 (intro.) of the statutes is amended to read:
SB1,14,16 12814.04 Items of costs. (intro.) Except as provided in ss. 93.20, 100.195 (5m)
13(b), 100.30 (5m), 106.50 (6) (i) and (6m) (a), 111.397 (2) (a), 115.80 (9), 281.36 (2) (b)
141., 767.553 (4) (d), 769.313, 802.05, 814.245, 895.035 (4), 895.044, 895.443 (3),
15895.444 (2), 895.445 (3), 895.446 (3), 895.506, 943.212 (2) (b), 943.245 (2) (d), 943.51
16(2) (b), and 995.10 (3), when allowed costs shall be as follows:
SB1, s. 22 17Section 22. 814.29 (3) (a) of the statutes is amended to read:
SB1,14,2418 814.29 (3) (a) A request for leave to commence or defend an action, proceeding,
19writ of error or appeal without being required to pay fees or costs or to give security
20for costs constitutes consent of the affiant and counsel for the affiant that if the
21judgment is in favor of the affiant the court may order the opposing party to first pay
22the amount of unpaid fees and costs, including attorney fees under ss. 802.05 and,
23804.12 (1) (c), and 895.044 and under 42 USC 1988 and to pay the balance to the
24plaintiff.
SB1, s. 23 25Section 23. 893.555 of the statutes is created to read:
SB1,15,2
1893.555 Limitation of damages; long-term care providers. (1) In this
2section:
SB1,15,33 (a) "Long-term care provider" means any of the following:
SB1,15,44 1. An adult family home, as defined in s. 50.01 (1).
SB1,15,55 2. A residential care apartment complex, as defined in s. 50.01 (1d).
SB1,15,66 3. A community-based residential facility, as defined in s. 50.01 (1g).
SB1,15,77 4. A home health agency, as defined in s. 50.01 (1r).
SB1,15,88 5. A nursing home, as defined in s. 50.01 (3).
SB1,15,99 6. A hospice, as defined in s. 50.90 (1).
SB1,15,1010 (b) "Noneconomic damages" has the meaning given in s. 893.55 (4) (a).
SB1,15,14 11(2) Except as provided in sub. (3), an action to recover damages for injury
12arising from any treatment or operation performed by, or from any omission by, a
13long-term care provider, regardless of the theory on which the action is based, shall
14be commenced within the later of:
SB1,15,15 15(a) Three years from the date of the injury .
SB1,15,1916 (b) One year from the date the injury was discovered or, in the exercise of
17reasonable diligence should have been discovered, except that an action may not be
18commenced under this paragraph more than 5 years from the date of the act or
19omission.
SB1,15,24 20(3) If a long-term care provider conceals from a patient a prior act or omission
21of the provider that has resulted in injury to the patient, an action shall be
22commenced within one year from the date the patient discovers the concealment or,
23in the exercise of reasonable diligence, should have discovered the concealment or
24within the time limitation provided by sub. (2), whichever is later.
SB1,16,9
1(4) The total noneconomic damages recoverable for bodily injury arising from
2care or treatment performed, or from any omission, by a long-term care provider,
3including any action or proceeding based on contribution or indemnification and any
4action for a claim by a person other than the injured person for noneconomic damages
5recoverable for bodily injury, may not exceed the limit under s. 893.55 (4) (d) for each
6occurrence on or after the effective date of this subsection .... [LRB inserts date], from
7all long-term care providers and all employees of long-term care providers acting
8within the scope of their employment and providing long-term care services who are
9found negligent.
SB1,16,18 10(5) A court in an action tried without a jury shall make a finding as to
11noneconomic damages without regard to the limit under s. 893.55 (4) (d). If
12noneconomic damages in excess of the limit are found, the court shall make any
13reduction required under s. 895.045 and shall award as noneconomic damages the
14lesser of the reduced amount or the limit. If an action is before a jury, the jury shall
15make a finding as to noneconomic damages without regard to the limit under s.
16893.55 (4) (d). If the jury finds that noneconomic damages exceed the limit, the jury
17shall make any reduction required under s. 895.045 and the court shall award as
18noneconomic damages the lesser of the reduced amount or the limit.
SB1,16,25 19(6) Notwithstanding the limits on noneconomic damages under this section,
20damages recoverable against a long-term care provider, and an employee of a
21long-term care provider acting within the scope of his or her employment and
22providing long-term care services, for wrongful death are subject to the limit under
23s. 895.04 (4). If damages in excess of the limit under s. 895.04 (4) are found, the court
24shall make any reduction required under s. 895.045 and shall award the lesser of the
25reduced amount or the limit under s. 895.04 (4).
SB1,17,4
1(7) Damages recoverable under this section against a long-term care provider,
2and an employee of a long-term care provider acting within the scope of his or her
3employment and providing long-term care services, are subject to the provisions of
4s. 895.045.
SB1,17,9 5(8) Evidence of any compensation for bodily injury received from sources other
6than the defendant to compensate the claimant for the injury is admissible in an
7action to recover damages for negligence by a long-term care provider. This section
8does not limit the substantive or procedural rights of persons who have claims based
9upon subrogation.
SB1, s. 24 10Section 24. 895.043 (3) of the statutes is renumbered 895.043 (3) (intro.) and
11amended to read:
SB1,17,1512 895.043 (3) Standard of conduct. (intro.) The plaintiff may receive punitive
13damages if evidence is submitted showing that the defendant acted maliciously
14toward the plaintiff or in an intentional disregard of the rights of the plaintiff.
did
15any of the following:
SB1, s. 25 16Section 25. 895.043 (3) (a) of the statutes is created to read:
SB1,17,1817 895.043 (3) (a) Acted with the intent to cause injury to a particular person or
18persons.
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