146.34(5)(a)(a) A relative of the prospective donor or the district attorney or corporation counsel of the county of residence of the prospective donor may file a petition with the court assigned to exercise jurisdiction under
chs. 48 and
938 for an order to prohibit either of the following:
146.34(5)(a)2.
2. If consent under
sub. (3) or
(4) has been given, the performance of the bone marrow transplant for which consent to donate bone marrow has been given.
146.34(5)(am)
(am) Any party filing a petition for an order to prohibit performance under
par. (a) 2. shall file and serve the petition within 3 days after consent has been given under
sub. (3) or
(4).
146.34(5)(b)
(b) Any party filing a petition under
par. (a) shall at the same time file with the court a statement of a physician or psychologist who has recently examined the prospective donor and which avers, if made by a physician, to a reasonable degree of medical certainty or, if made by a psychologist, to a reasonable degree of professional certainty, that the removal of bone marrow presents medical or psychological risks to the prospective donor or to the prospective recipient which outweigh all benefits to the prospective donor or to the prospective recipient.
146.34(5)(c)
(c) Any party filing a petition under
par. (a) and a statement under
par. (b) shall, at the time of filing, provide personal service of notice of the filing and a copy of the statement to the parent, guardian or legal custodian of the prospective donor and, if the prospective donor is a minor who has attained 12 years of age, to the minor.
146.34(5)(d)
(d) Following the filing of a petition under
par. (a) and a statement under
par. (b), the judge shall appoint a guardian ad litem under
s. 48.235 for the prospective donor.
146.34(5)(e)
(e) If a request for hearing is filed by the prospective donor under
sub. (4) or by the parent, guardian or legal custodian within 7 days following the personal service of notice under
par. (c), the court shall conduct a hearing to determine whether the giving of consent under
par. (a) 1. or performance under
par. (a) 2. shall be prohibited and providing the prospective donor under
sub. (4) and the parent, guardian or legal custodian opportunity to rebut the statement under
par. (b).
146.34(5)(f)
(f) If no request for hearing is filed by the prospective donor under
sub. (4) or by the parent, guardian or legal custodian within the time limit specified under
par. (e), the court may do one of the following:
146.34(5)(f)2.
2. On its own motion conduct a hearing to determine whether the giving of consent under
par. (a) 1. or performance under
par. (a) 2. shall be prohibited.
146.34(5)(g)
(g) If the court on its own motion conducts a hearing under
par. (f) 2., the court shall provide personal service of notice of the hearing to all parties and may request submission of relevant evidence.
146.34(5)(h)
(h) Any person aggrieved by a final judgment or final order of the court under
par. (e) or
(f) may appeal within the time period specified in
s. 808.04 (3) or
(4).
146.343
146.343
Donation of newborn umbilical cord blood. 146.343(1)(c)
(c) "Nurse-midwife" means an individual who is licensed to engage in the practice of nurse-midwifery under
s. 441.15 (3) (a).
146.343(2)
(2) Notwithstanding
s. 146.33, the principal prenatal health care provider of a woman who is known to be pregnant shall, before the woman's 35th week of pregnancy, offer her information on options to donate, to an accepting and accredited cord blood bank, blood bank, blood center, or plasma center, blood extracted from the umbilical cord of her newborn child, if the donation may be made without monetary expense for the collection or storage to the woman, to any 3rd-party payor of health care coverage for the woman, or to the hospital in which delivery occurs.
146.343(4)
(4) No person may be held civilly liable for failure to comply, or for complying, with
sub. (2).
146.343 History
History: 2005 a. 56.
146.345
146.345
Sale of human organs prohibited. 146.345(1)(a)
(a) "Human organ" means a human kidney, liver, heart, lung, pancreas, bone marrow, cornea, eye, bone or skin or any other human organ specified by the department by rule. "Human organ" does not mean human whole blood, blood plasma, a blood product or a blood derivative or human semen.
146.345(1)(b)
(b) "Human organ transplantation" means the medical procedure by which transfer of a human organ is made from the body of a person to the body of another person.
146.345(1)(c)
(c) "Valuable consideration" does not include reasonable payment associated with the removal, transportation, implantation, processing, preservation, quality control or storage of a human organ or an expense of travel, housing or lost wages incurred by a human organ donor in connection with donation of the human organ.
146.345(2)
(2) No person may knowingly and for valuable consideration acquire, receive or otherwise transfer any human organ for use in human organ transplantation.
146.345(3)
(3) Any person who violates this section is guilty of a Class H felony, except that, notwithstanding the maximum fine specified in
s. 939.50 (3) (h), the person may be fined not more than $50,000.
146.35
146.35
Female genital mutilation prohibited. 146.35(1)
(1) In this section, "infibulate" means to clasp together with buckles or stitches.
146.35(2)
(2) Except as provided in
sub. (3), no person may circumcise, excise or infibulate the labia majora, labia minora or clitoris of a female minor.
146.35(3)
(3) Subsection (2) does not apply if the circumcision, excision or infibulation is performed by a physician, as defined in
s. 448.01 (5), and is necessary for the health of the female minor or is necessary to correct an anatomical abnormality.
146.35(4)
(4) None of the following may be asserted as a defense to prosecution for a violation of
sub. (2):
146.35(4)(a)
(a) Consent by the female minor or by a parent of the female minor to the circumcision, excision or infibulation.
146.35(4)(b)
(b) The circumcision, excision or infibulation is required as a matter of custom or ritual.
146.35(5)
(5) Whoever violates
sub. (2) is guilty of a Class H felony.
146.37
146.37
Health care services review; civil immunity. 146.37(1)(a)
(a) "Health care provider" includes an ambulance service provider, as defined in
s. 256.01 (3), and an emergency medical technician, as defined in
s. 256.01 (5), and a first responder, as defined in
s. 256.01 (9).
146.37(1g)
(1g) Except as provided in
s. 153.85, no person acting in good faith who participates in the review or evaluation of the services of health care providers or facilities or the charges for such services conducted in connection with any program organized and operated to help improve the quality of health care, to avoid improper utilization of the services of health care providers or facilities or to determine the reasonable charges for such services, or who participates in the obtaining of health care information under
ch. 153, is liable for any civil damages as a result of any act or omission by such person in the course of such review or evaluation. Acts and omissions to which this subsection applies include, but are not limited to, acts or omissions by peer review committees or hospital governing bodies in censuring, reprimanding, limiting or revoking hospital staff privileges or notifying the medical examining board or podiatrists affiliated credentialing board under
s. 50.36 or taking any other disciplinary action against a health care provider or facility and acts or omissions by a medical director in reviewing the performance of emergency medical technicians or ambulance service providers.
146.37(1m)
(1m) The good faith of any person specified in
subs. (1g) and
(3) shall be presumed in any civil action. Any person who asserts that such a person has not acted in good faith has the burden of proving that assertion by clear and convincing evidence.
146.37(2)
(2) In determining whether a member of the reviewing or evaluating organization or the medical director has acted in good faith under
sub. (1g), the court shall consider whether the member or medical director has sought to prevent the health care provider or facility and its counsel from examining the documents and records used in the review or evaluation, from presenting witnesses, establishing pertinent facts and circumstances, questioning or refuting testimony and evidence, confronting and cross-examining adverse witnesses or from receiving a copy of the final report or recommendation of the reviewing organization or medical director.
146.37(3)
(3) This section applies to any person acting in good faith who participates in the review or evaluation of the services of a psychiatrist, or facilities or charges for services of a psychiatrist, conducted in connection with any organization, association or program organized or operated to help improve the quality of psychiatric services, avoid improper utilization of psychiatric services or determine reasonable charges for psychiatric services. This immunity includes, but is not limited to, acts such as censuring, reprimanding or taking other disciplinary action against a psychiatrist for unethical or improper conduct.
146.37 Annotation
Anyone who has the good faith belief that they are participating in a valid peer review procedure of a health care provider is entitled to the presumption of good faith under sub. (1g) and is immune from liability unless the presumption is overcome. Limjoco v. Schenck,
169 Wis. 2d 703,
486 N.W.2d 567 (Ct. App. 1992).
146.37 Annotation
When a 3rd party becomes an integral part of the ongoing medical services review, its actions are eligible for immunity from civil liability under this section. It would defeat the purpose of this section if the participation of an outside entity enlisted by a reviewing committee to perform an assessment of the abilities of a physician to perform effectively while on call is not eligible for immunity simply because the outside entity is not part of a formal "peer review program." Rechsteiner v. Hazelden, 2008 WI 97 ___ Wis. 2d ___, ___ N.W.2d ___,
06-1521.
146.37 Annotation
When a 3rd party's diagnosis of the condition of the doctor subject to review was indistinguishable from the employing hospital's review, evaluation, and analysis of the doctor's ability to perform as an on-call surgeon, the diagnosis was the essence of the peer review process initiated by the hospital. Even if the diagnosis was negligent, it was immune because it was central to the peer review process. However, this case does not mean that the peer review statute will immunize medical negligence in all situations, irrespective of the circumstances. Rechsteiner v. Hazelden, 2008 WI 97 ___ Wis. 2d ___, ___ N.W.2d ___,
06-1521.
146.37 Annotation
A person reviewing a peer can be found to have acted in bad faith even if procedural rights under sub. (2) were not denied, but whether procedural rights were denied is a factor that must be considered in a determination of "good faith." Qasem v. Kozarek,
716 F.2d 1172 (1983).
146.38
146.38
Health care services review; confidentiality of information. 146.38(1)(a)
(a) "Evaluator" means a medical director or a registered nurse who coordinates review of an emergency medical services program of a health care provider.
146.38(1)(b)
(b) "Health care provider" includes an ambulance service provider, as defined in
s. 256.01 (3), an emergency medical technician, as defined in
s. 256.01 (5), and a first responder, as defined in
s. 256.01 (9).
146.38(1m)
(1m) No person who participates in the review or evaluation of the services of health care providers or facilities or charges for such services may disclose any information acquired in connection with such review or evaluation except as provided in
sub. (3).
146.38(2)
(2) All organizations or evaluators reviewing or evaluating the services of health care providers shall keep a record of their investigations, inquiries, proceedings and conclusions. No such record may be released to any person under
s. 804.10 (4) or otherwise except as provided in
sub. (3). No such record may be used in any civil action for personal injuries against the health care provider or facility; however, information, documents or records presented during the review or evaluation may not be construed as immune from discovery under
s. 804.10 (4) or use in any civil action merely because they were so presented. Any person who testifies during or participates in the review or evaluation may testify in any civil action as to matters within his or her knowledge, but may not testify as to information obtained through his or her participation in the review or evaluation, nor as to any conclusion of such review or evaluation.
146.38(3)
(3) Information acquired in connection with the review and evaluation of health care services shall be disclosed and records of such review and evaluation shall be released, with the identity of any patient whose treatment is reviewed being withheld unless the patient has granted permission to disclose identity, in the following circumstances:
146.38(3)(a)
(a) To the health care provider or facility whose services are being reviewed or evaluated, upon the request of such provider or facility;
146.38(3)(b)
(b) To any person with the consent of the health care provider or facility whose services are being reviewed or evaluated;
146.38(3)(c)
(c) To the person requesting the review or evaluation, for use solely for the purpose of improving the quality of health care, avoiding the improper utilization of the services of health care providers and facilities, and determining the reasonable charges for such services;
146.38(3)(d)
(d) In a report in statistical form. The report may identify any provider or facility to which the statistics relate;
146.38(3)(dm)
(dm) With regard to an action under
s. 895.441, to a court of record after issuance of a subpoena;
146.38(3)(e)
(e) With regard to any criminal matter, to a court of record, in accordance with
chs. 885 to
895 and
995 and after issuance of a subpoena; and
146.38(3)(f)
(f) To the appropriate examining or licensing board or agency, when the organization or evaluator conducting the review or evaluation determines that such action is advisable.
146.38(4)
(4) Any person who discloses information or releases a record in violation of this section, other than through a good faith mistake, is civilly liable therefor to any person harmed by the disclosure or release.
146.38 Annotation
The conclusions of a hospital governing body, based on records and conclusions of peer review committees, were not privileged under this section. Good Samaritan Hospital v. Moroney,
123 Wis. 2d 89,
365 N.W.2d 887 (Ct. App. 1984).
146.38 Annotation
The methodology for determining privileged records under sub. (2) is outlined. Franzen v. Children's Hospital,
169 Wis. 2d 366,
485 N.W.2d 603 (Ct. App. 1992).
146.38 Annotation
The methodology for determining privileged communications under sub. (1m) is discussed. Mallon v. Campbell,
178 Wis. 2d 278,
504 N.W.2d 357 (Ct. App. 1993).
146.38 Annotation
Because this section does not provide for the loss of confidentiality due to disclosure to third parties, no waiver exists under this section. Ollman v. Health Care Liability Ins. Co.
178 Wis. 2d 648,
505 N.W.2d 399 (Ct. App. 1993).
146.38 Annotation
Statistical data regarding a hospital's rates of infection for postoperative patients qualifies as a report in statistical form under sub. (3) (d) and was subject to discovery. A court need not conduct an in camera inspection to determine if material sought may be released when there is a request for information that on its face is clearly protected by this section. Braverman v. Columbia Hospital, Inc. 2001 WI App 106,
244 Wis. 2d 98,
629 N.W.2d 66,
00-0901.
146.38 Annotation
The department of health and family services is a person subject to restrictions under sub. (1m) regarding the release of information. Braverman v. Columbia Hospital, Inc. 2001 WI App 106,
244 Wis. 2d 98,
629 N.W.2d 66,
00-0901.
146.38 Annotation
Site reviews by associations to which local hospitals voluntarily submit for review in order to improve the quality of health care services constitutes peer review, the discovery of which is barred by this section. Hofflander v. St. Catherine's Hospital, Inc. 2003 WI 77,
262 Wis. 2d 539,
664 N.W.2d 545,
00-2467.
146.40
146.40
Instructional programs for nurse aides; reporting client abuse. 146.40(1)(ad)
(ad) "Client" means a person who receives services from an entity.
146.40(1)(aw)
(aw) "Feeding assistant" means an individual who has completed a state-approved training and testing program, as specified by the department by rule, to perform one nursing-related duty, as defined by the department by rule.
146.40(1)(bt)
(bt) "Intermediate care facility for persons with mental retardation" has the meaning given for "intermediate care facility for the mentally retarded" under
42 USC 1396d (d).
146.40(1)(c)
(c) "Licensed practical nurse" means a nurse who is licensed or has a temporary permit under
s. 441.10 or is licensed as a licensed practical/vocational nurse in a party state, as defined in
s. 441.50 (2) (j).
