655.002 History
History: 1987 a. 27;
1991 a. 214.
655.002 Annotation
In an action governed by ch. 655 no claim may be brought by adult children for the loss of society and companionship of an adult parent; s. 895.04 is inapplicable to ch. 655 actions. Dziadosz v. Zirneski, 177 W (2d) 59, 501 NW (2d) 828 (Ct. App. 1993).
655.002 Annotation
In an action governed by ch. 655, no recovery may be had by a parent for the loss of society and companionship of an adult child. Wells Estate v. Mt. Sinai Medical Center, 183 W (2d) 666, 515 NW (2d) 705 (1994).
655.002 Annotation
Chapter 655 does not control all actions against HMO's. It applies only to negligent medical acts or decisions made in the course of rendering medical care. A bad faith tort action may be prosecuted against an HMO that has denied a request for coverage without a legal basis. McEvoy v. Group Health Cooperative, 213 W (2d) 507, 570 NW (2d) 397 (1997).
655.003
655.003
Exemptions for public employes and facilities and volunteers. Except as provided in
s. 655.002 (1) (c), this chapter does not apply to a health care provider that is any of the following:
655.003(1)
(1) A physician or a nurse anesthetist who is a state, county or municipal employe, or federal employe or contractor covered under the federal tort claims act, as amended, and who is acting within the scope of his or her employment or contractual duties.
655.003(2)
(2) A facility that is exempt under
s. 50.39 (3) or operated by any governmental agency.
655.003(3)
(3) A physician or a nurse anesthetist who provides professional services under the conditions described in
s. 146.89, with respect to those professional services provided by the physician or nurse anesthetist for which he or she is covered by
s. 165.25 and considered an agent of the department, as provided in
s. 165.25 (6) (b).
655.003 History
History: 1989 a. 187,
206;
1991 a. 214.
655.004
655.004
Rule-making authority. The director of state courts, department and commissioner may promulgate such rules under
ch. 227 as are necessary to enable them to perform their responsibilities under this chapter.
655.004 History
History: 1975 c. 37; Sup. Ct. Order, 88 W (2d) xiii (1979);
1987 a. 27; Stats. 1987 s. 655.004;
1989 a. 187 s.
28.
655.005
655.005
Health care provider employes. 655.005(1)
(1) Any person listed in
s. 655.007 having a claim or a derivative claim against a health care provider or an employe of the health care provider, for damages for bodily injury or death due to acts or omissions of the employe of the health care provider acting within the scope of his or her employment and providing health care services, is subject to this chapter.
655.005(2)
(2) The fund shall provide coverage, under
s. 655.27, for claims against the health care provider or the employe of the health care provider due to the acts or omissions of the employe acting within the scope of his or her employment and providing health care services. This subsection does not apply to any of the following:
655.005(2)(a)
(a) An employe of a health care provider if the employe is a physician or a nurse anesthetist or is a health care practitioner who is not providing health care services under the direction and supervision of a physician or nurse anesthetist.
655.005(2)(b)
(b) A service corporation organized under
s. 180.1903 by health care professionals, as defined under
s. 180.1901 (1m), if the board of governors determines that it is not the primary purpose of the service corporation to provide the medical services of physicians or nurse anesthetists. The board of governors may not determine under this paragraph that it is not the primary purpose of a service corporation to provide the medical services of physicians or nurse anesthetists unless more than 50% of the shareholders of the service corporation are neither physicians nor nurse anesthetists.
655.006(1)(a)(a) On and after July 24, 1975, every patient, every patient's representative and every health care provider shall be conclusively presumed to have accepted to be bound by this chapter.
655.006(1)(b)
(b) Except as otherwise specifically provided in this chapter, this subsection also applies to minors.
655.006(2)
(2) This chapter does not apply to injuries or death occurring, or services rendered, prior to July 24, 1975.
655.006 History
History: 1975 c. 37;
1987 a. 27; Stats. 1987 s. 655.006.
655.007
655.007
Patients' claims. On and after July 24, 1975, any patient or the patient's representative having a claim or any spouse, parent, minor sibling or child of the patient having a derivative claim for injury or death on account of malpractice is subject to this chapter.
655.007 Annotation
This chapter was inapplicable to third-party claim based on contract where no bodily injury was alleged. Northwest General Hospital v. Yee, 115 W (2d) 59, 339 NW (2d) 583 (1983).
655.007 Annotation
In this section "child" refers to a minor child. An adult child cannot assert a claim based on medical malpractice committed against the adult child's parent. Ziulkowski v. Nierengarten, 210 W (2d) 98, 565 NW (2d) 164 (Ct. App. 1997).
655.009
655.009
Actions against health care providers. An action to recover damages on account of malpractice shall comply with the following:
655.009(1)
(1) Complaint. The complaint in such action shall not specify the amount of money to which the plaintiff supposes to be entitled.
655.009(2)
(2) Medical expense payments. The court or jury, whichever is applicable, shall determine the amounts of medical expense payments previously incurred and for future medical expense payments.
655.009(3)
(3) Venue. Venue in a court action under this chapter is in the county where the claimant resides if the claimant is a resident of this state, or in a county specified in
s. 801.50 (2) (a) or
(c) if the claimant is not a resident of this state.
655.009 Annotation
Discretionary changes of venue under s. 801.52 are applicable to actions under ch. 655. Hoffman v. Memorial Hospital of Iowa County, 196 W (2d) 505, 538 NW (2d) 627 (Ct. App. 1995).
655.01
655.01
Forms. The director of state courts shall prepare and cause to be printed, and upon request furnish free of charge, such forms and materials as the director deems necessary to facilitate or promote the efficient administration of this chapter.
655.01 History
History: 1975 c. 37,
199; Sup. Ct. Order, 88 W (2d) xiii (1979);
1989 a. 187 s.
28.
655.013(1)(1) With respect to any act of malpractice after July 24, 1975, for which a contingency fee arrangement has been entered into before June 14, 1986, the compensation determined on a contingency basis and payable to all attorneys acting for one or more plaintiffs or claimants is subject to the following unless a new contingency fee arrangement is entered into that complies with
subs. (1m) and
(1t):
655.013(1)(a)
(a) The determination shall not reflect amounts previously paid for medical expenses by the health care provider or the provider's insurer.
655.013(1)(b)
(b) The determination shall not reflect payments for future medical expense in excess of $25,000.
655.013(1m)
(1m) Except as provided in
sub. (1t), with respect to any act of malpractice for which a contingency fee arrangement is entered into on and after June 14, 1986, in addition to compensation for the reasonable costs of prosecution of the claim, the compensation determined on a contingency basis and payable to all attorneys acting for one or more plaintiffs or claimants is subject to the following limitations:
655.013(1m)(a)
(a) Except as provided in
par. (b), 33 1/3% of the first $1,000,000 recovered.
655.013(1m)(b)
(b) Twenty-five percent of the first $1,000,000 recovered if liability is stipulated within 180 days after the date of filing of the original complaint and not later than 60 days before the first day of trial.
655.013(1m)(c)
(c) Twenty percent of any amount in excess of $1,000,000 recovered.
655.013(1t)
(1t) A court may approve attorney fees in excess of the limitations under
sub. (1m) upon a showing of exceptional circumstances, including an appeal.
655.013(2)
(2) An attorney shall offer to charge any client in a malpractice proceeding or action on a per diem or per hour basis. Any such agreement shall be made at the time of the employment of the attorney. An attorney's fee on a per diem or per hour basis is not subject to the limitations under
sub. (1) or
(1m).
655.013 History
History: 1975 c. 37,
199;
1985 a. 340.
655.015
655.015
Future medical expenses. If a settlement or judgment under this chapter resulting from an act or omission that occurred on or after May 25, 1995, provides for future medical expense payments in excess of $100,000, that portion of future medical expense payments in excess of an amount equal to $100,000 plus an amount sufficient to pay the costs of collection attributable to the future medical expense payments, including attorney fees reduced to present value, shall be paid into the fund. The commissioner shall develop by rule a system for managing and disbursing those moneys through payments for these expenses, which shall include a provision for the creation of a separate accounting for each claimant's payments and for crediting each claimant's account with a proportionate share of any interest earned by the fund, based on that account's proportionate share of the fund. The commissioner shall promulgate a rule specifying the criteria that shall be used to determine the medical expenses related to the settlement or judgment, taking into consideration developments in the provision of health care. The payments shall be made under the system until either the account is exhausted or the patient dies.
655.016
655.016
Claim by minor sibling for loss of society and companionship. Subject to
s. 655.017, a sibling of a person who dies as a result of malpractice has a cause of action for damages for loss of society and companionship if the sibling was a minor at the time of the deceased sibling's death. This section does not affect any other claim available under this chapter.
655.016 History
History: 1997 a. 89.
655.017
655.017
Limitation on noneconomic damages. The amount of noneconomic damages recoverable by a claimant or plaintiff under this chapter for acts or omissions of a health care provider if the act or omission occurs on or after May 25, 1995, and for acts or omissions of an employe of a health care provider, acting within the scope of his or her employment and providing health care services, for acts or omissions occurring on or after May 25, 1995, is subject to the limits under
s. 893.55 (4) (d) and
(f).
655.017 History
History: 1985 a. 340;
1995 a. 10.
655.017 Annotation
After January 1, 1991, recovery for loss of society and companionship for death in a medical malpractice case is unlimited; minors may bring separate actions for loss of companionship when malpractice causes a parent's death, including when the decedent is survived by a spouse. Jelinik v. St. Paul Fire & Casualty Ins. Co. 182 W (2d) 1, 512 NW (2d) 764 (1994).
655.017 Annotation
Tort Reform: It's Not About Victims. . .It's About Lawyers. Scoptur. Wis. Law. June 1995.
655.019
655.019
Information needed to set fees. The department shall provide the director of state courts, the commissioner and the board of governors with information on hospital bed capacity and occupancy rates as needed to set fees under
s. 655.27 (3) or
655.61.
INSURANCE PROVISIONS
655.23
655.23
Limitations of liability; proof of financial responsibility. 655.23(3)(a)(a) Except as provided in
par. (d), every health care provider either shall insure and keep insured the health care provider's liability by a policy of health care liability insurance issued by an insurer authorized to do business in this state or shall qualify as a self-insurer. Qualification as a self-insurer is subject to conditions established by the commissioner and is valid only when approved by the commissioner. The commissioner may establish conditions that permit a self-insurer to self-insure for claims that are against employes who are health care practitioners and that are not covered by the fund.
655.23(3)(b)
(b) Each insurance company issuing health care liability insurance that meets the requirements of
sub. (4) to any health care provider shall, at the times prescribed by the commissioner, file with the commissioner in a form prescribed by the commissioner a certificate of insurance on behalf of the health care provider upon original issuance and each renewal.
655.23(3)(c)
(c) Each self-insured health care provider furnishing coverage that meets the requirements of
sub. (4) shall, at the times and in the form prescribed by the commissioner, file with the commissioner a certificate of self-insurance and a separate certificate of insurance for each additional health care provider covered by the self-insured plan.
655.23(3)(d)
(d) If a cash or surety bond furnished by a health care provider for the purpose of insuring and keeping insured the health care provider's liability was approved by the commissioner before April 25, 1990,
par. (a) does not apply to the health care provider while the cash or surety bond remains in effect. A cash or surety bond remains in effect unless the commissioner, at the request of the health care provider or the surety, approves its cancellation.
655.23(4)(a)(a) A cash or surety bond under
sub. (3) (d) shall be in amounts of at least $200,000 for each occurrence and $600,000 for all occurrences in any one policy year for occurrences before July 1, 1987, $300,000 for each occurrence and $900,000 for all occurrences in any one policy year for occurrences on or after July 1, 1987, and before July 1, 1988, and $400,000 for each occurrence and $1,000,000 for all occurrences in any one policy year for occurrences on or after July 1, 1988.
655.23(4)(b)1.1. Except as provided in
par. (c), before July 1, 1997, health care liability insurance may have provided either occurrence or claims-made coverage. The limits of liability shall have been as follows:
655.23(4)(b)1.a.
a. For occurrence coverage, at least $200,000 for each occurrence and $600,000 for all occurrences in any one policy year for occurrences before July 1, 1987, $300,000 for each occurrence and $900,000 for all occurrences in any one policy year for occurrences on or after July 1, 1987, and before July 1, 1988, and $400,000 for each occurrence and $1,000,000 for all occurrences in any one policy year for occurrences on or after July 1, 1988, and before July 1, 1997.
655.23(4)(b)1.b.
b. For claims-made coverage, at least $200,000 for each claim arising from an occurrence before July 1, 1987, regardless of when the claim is made, and $600,000 for all claims in any one reporting year for claims made before July 1, 1987, $300,000 for each claim arising from an occurrence on or after July 1, 1987, and before July 1, 1988, regardless of when the claim is made, and $900,000 for all claims in any one reporting year for claims made on or after July 1, 1987, and before July 1, 1988, and $400,000 for each claim arising from an occurrence on or after July 1, 1988, and before July 1, 1997, regardless of when the claim is made, and $1,000,000 for all claims in any one reporting year for claims made on or after July 1, 1988, and before July 1, 1997.
655.23(4)(b)2.
2. Except as provided in
par. (c), on and after July 1, 1997, health care liability insurance may provide either occurrence or claims-made coverage. The limits of liability shall be as follows:
655.23(4)(b)2.a.
a. For occurrence coverage, at least $1,000,000 for each occurrence and $3,000,000 for all occurrences in any one policy year for occurrences on or after July 1, 1997.
655.23(4)(b)2.b.
b. For claims-made coverage, at least $1,000,000 for each claim arising from an occurrence on or after July 1, 1997, and $3,000,000 for all claims in any one reporting year for claims made on or after July 1, 1997.
655.23(4)(c)1.1. Except as provided in
subd. 2., self-insurance shall be in amounts of at least $200,000 for each occurrence and $600,000 for all occurrences in any one policy year for occurrences before July 1, 1987, $300,000 for each occurrence and $900,000 for all occurrences in any one policy year for occurrences on or after July 1, 1987, and before July 1, 1988, $400,000 for each occurrence and $1,000,000 for all occurrences in any one policy year for occurrences on or after July 1, 1988, and before July 1, 1997, and $1,000,000 for each occurrence and $3,000,000 for all occurrences in any one policy year for occurrences on or after July 1, 1997.
655.23(4)(c)2.
2. Notwithstanding
subd. 1., in the discretion of a self-insured health care provider, self-insurance may be in an amount that is less than $1,000,000 but not less than $600,000 for each occurrence on or after July 1, 1997, and before July 1, 1999, and less than $1,000,000 but not less than $800,000 for each occurrence on or after July 1, 1999, and before July 1, 2001.
655.23(4)(d)
(d) The commissioner may promulgate such rules as the commissioner considers necessary for the application of the liability limits under
par. (b) to reporting years following termination of claims-made coverage, including rules that provide for the use of actuarial equivalents.
655.23(5)
(5) While health care liability insurance, self-insurance or a cash or surety bond under
sub. (3) (d) remains in force, the health care provider, the health care provider's estate and those conducting the health care provider's business, including the health care provider's health care liability insurance carrier, are liable for malpractice for no more than the limits expressed in
sub. (4) or the maximum liability limit for which the health care provider is insured, whichever is higher, if the health care provider has met the requirements of this chapter.
655.23(5m)
(5m) The limits set forth in
sub. (4) shall apply to any joint liability of a physician or nurse anesthetist and his or her corporation or partnership under
s. 655.002 (1) (d) or
(e).
655.23(7)
(7) Each health care provider shall comply with this section and with
s. 655.27 (3) (a) before exercising any rights or privileges conferred by his or her health care provider's license. The commissioner shall notify the board that issued the license of a health care provider that has not complied with this section or with
s. 655.27 (3) (a). The board that issued the license may suspend, or refuse to issue or to renew the license of any health care provider violating this section or
s. 655.27 (3) (a).
655.23(8)
(8) No health care provider who retires or ceases operation after July 24, 1975, shall be eligible for the protection provided under this chapter unless proof of financial responsibility for all claims arising out of acts of malpractice occurring after July 24, 1975, is provided to the commissioner in the form prescribed by the commissioner.
655.23 Annotation
Insurer is liable under (5) up to policy limits. Patients Fund v. St. Paul Ins. Co. 116 W (2d) 537, 342 NW (2d) 693 (1984).
655.23 Annotation
That a self-insurance plan could have or should have been approved is irrelevant. Under sub. (3) (a) the plan must actually be approved for a provider to be qualified as a self-insurer. Patients Compensation Fund v. St. Mary's Hospital, 209 W (2d) 17, 561 NW (2d) 797 (Ct. App. 1997).
655.23 Annotation
Under sub. (5) "those conducting the health care provider's business" comprise a class of persons broader than, but inclusive of, the provider's employes, including nurses. For liability purposes those conducting the provider's business are treated as a unit and do not have personal exposure. Patients Compensation Fund v. Lutheran Hospital, 216 W (2d) 49, 573 NW (2d) 572 (Ct. App. 1997).
655.23 Annotation
This section is not preempted by federal law. Opthalmic Mutual Insurance Co. v. Muisser, 143 F 3d 1062 (1998).
655.24
655.24
Insurance policy forms.
