655.001(13)
(13) "Respondent" means the person alleged to have been negligent in a request for mediation filed under
s. 655.44 or
655.445.
655.001 Annotation
Medical malpractice panels: The Wisconsin approach. Kravat. 61 MLR 55.
655.001 Annotation
A summary of the new statutes governing medical malpractice. Saichek. WBB Oct. 1986.
655.001 Annotation
Recent developments in Wisconsin medical malpractice law. 1974 WLR 891.
655.001 Annotation
Testing the constitutionality of medical malpractice legislation: The Wisconsin medical malpractice act of 1975. 1977 WLR 838. See also: State ex rel. Strykowski v. Wilkie,
81 Wis. 2d 491.
655.002(1)(1)
Mandatory participation. Except as provided in
s. 655.003, this chapter applies to all of the following:
655.002(1)(a)
(a) A physician or a nurse anesthetist for whom this state is a principal place of practice and who practices his or her profession in this state more than 240 hours in a fiscal year.
655.002(1)(b)
(b) A physician or a nurse anesthetist for whom Michigan is a principal place of practice, if all of the following apply:
655.002(1)(b)1.
1. The physician or nurse anesthetist is a resident of this state.
655.002(1)(b)2.
2. The physician or nurse anesthetist practices his or her profession in this state or in Michigan or a combination of both more than 240 hours in a fiscal year.
655.002(1)(b)3.
3. The physician or nurse anesthetist performs more procedures in a Michigan hospital than in any other hospital. In this subdivision, "Michigan hospital" means a hospital located in Michigan that is an affiliate of a corporation organized under the laws of this state that maintains its principal office and a hospital in this state.
655.002(1)(c)
(c) A physician or nurse anesthetist who is exempt under
s. 655.003 (1) or
(3), but who practices his or her profession outside the scope of the exemption and who fulfills the requirements under
par. (a) in relation to that practice outside the scope of the exemption. For a physician or a nurse anesthetist who is subject to this chapter under this paragraph, this chapter applies only to claims arising out of practice that is outside the scope of the exemption under
s. 655.003 (1) or
(3).
655.002(1)(d)
(d) A partnership comprised of physicians or nurse anesthetists and organized and operated in this state for the primary purpose of providing the medical services of physicians or nurse anesthetists.
655.002(1)(e)
(e) A corporation organized and operated in this state for the primary purpose of providing the medical services of physicians or nurse anesthetists.
655.002(1)(f)
(f) A cooperative sickness care association organized under
ss. 185.981 to
185.985 that operates a nonprofit sickness care plan in this state and that directly provides services through salaried employees in its own facility.
655.002(1)(g)
(g) An ambulatory surgery center that operates in this state.
655.002(1)(i)
(i) An entity operated in this state that is an affiliate of a hospital and that provides diagnosis or treatment of, or care for, patients of the hospital.
655.002(1)(j)
(j) A nursing home, as defined in
s. 50.01 (3), whose operations are combined as a single entity with a hospital described in
par. (h), whether or not the nursing home operations are physically separate from the hospital operations.
655.002(2)
(2) Optional participation. All of the following may elect, in the manner designated by the commissioner by rule under
s. 655.004, to be subject to this chapter:
655.002(2)(a)
(a) A physician or nurse anesthetist for whom this state is a principal place of practice but who practices his or her profession fewer than 241 hours in a fiscal year, for a fiscal year, or a portion of a fiscal year, during which he or she practices his or her profession.
655.002(2)(b)
(b) Except as provided in
sub. (1) (b), a physician or nurse anesthetist for whom this state is not a principal place of practice, for a fiscal year, or a portion of a fiscal year, during which he or she practices his or her profession in this state. For a health care provider who elects to be subject to this chapter under this paragraph, this chapter applies only to claims arising out of practice that is in this state and that is outside the scope of an exemption under
s. 655.003 (1) or
(3).
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 loss of society and companionship of an adult parent; s. 895.04 is inapplicable to ch. 655 actions. Dziadosz v. Zirneski,
177 Wis. 2d 59,
501 N.W.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 Wis. 2d 666,
515 N.W.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 Wis. 2d 507,
570 N.W.2d 397 (1997).
655.003
655.003
Exemptions for public employees 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 employee, or federal employee 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 Wis. 2d xiii (1979);
1987 a. 27; Stats. 1987 s. 655.004;
1989 a. 187 s.
28.
655.004 Cross-reference
Cross Reference: See also ch.
DC 1, Wis. adm. code.
655.005
655.005
Health care provider employees. 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 employee of the health care provider, for damages for bodily injury or death due to acts or omissions of the employee 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 employee of the health care provider due to the acts or omissions of the employee 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 employee of a health care provider if the employee is a physician or a nurse anesthetist or is a health care practitioner who is providing health care services that are not in collaboration with a physician under
s. 441.15 (2) (b) or 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 a 3rd-party claim based on contract in which no bodily injury was alleged. Northwest General Hospital v. Yee,
115 Wis. 2d 59,
339 N.W.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 Wis. 2d 98,
565 N.W.2d 164 (Ct. App. 1997).
655.007 Annotation
Section 893.55 (4) (f) makes the limits on damages applicable to medical malpractice death cases, but does not incorporate classification of wrongful death claimants entitled to bring such actions, which is controlled by this section. As such, adult children do not have standing to bring such an action. The exclusion of adult children does not violate equal protection. Czapinski v. St. Francis Hospital, Inc. 2000 WI 80,
236 Wis. 2d 316,
613 N.W.2d 120 655.009
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 Wis. 2d 505,
538 N.W.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 Wis. 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 employee 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
The statutory cap on the recovery of noneconomic damages in medical malpractice cases is constitutional. Guzman v. St. Francis Hospital, Inc. 2001 WI App 21,
240 Wis. 2d 559,
623 N.W.2d 776.
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 employees 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.
