655.001(6)
(6) "Fiscal year" means the period beginning on July 1 and ending on the following June 30.
655.001(7)
(7) "Fund" means the injured patients and families compensation fund under
s. 655.27.
655.001(7m)
(7m) "Graduate medical education program" means a program approved by the medical examining board that provides postgraduate medical education and training for a person who possesses a diploma from a medical or osteopathic college or who has the equivalent education and experience from a foreign medical school recognized by the Education Commission for Foreign Medical Graduates.
655.001(7t)
(7t) "Health care practitioner" means a health care professional, as defined in
s. 180.1901 (1m), who is an employee of a health care provider described in
s. 655.002 (1) (d),
(e),
(em), or
(f) and who has the authority to provide 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.
655.001(8)
(8) "Health care provider" means a person to whom this chapter applies under
s. 655.002 (1) or a person who elects to be subject to this chapter under
s. 655.002 (2).
655.001(9)
(9) "Nurse anesthetist" means a nurse licensed under
ch. 441 or in a party state, as defined in
s. 441.50 (2) (j), who is certified as a nurse anesthetist by the American association of nurse anesthetists.
655.001(10)
(10) "Patient" means an individual who received or should have received health care services from a health care provider or from an employee of a health care provider acting within the scope of his or her employment.
655.001(10m)
(10m) "Physician" means a medical or osteopathic physician licensed under
ch. 448.
655.001(11)
(11) "Principal place of practice" means any of the following:
655.001(11)(a)
(a) The state in which a health care provider furnishes health care services to more than 50% of his or her patients in a fiscal year.
655.001(11)(b)
(b) The state in which a health care provider derives more than 50% of his or her income in a fiscal year from the practice of his or her profession.
655.001(12)
(12) "Representative" means the personal representative, spouse, parent, guardian, attorney or other legal agent of a patient.
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 893.
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,
261 N.W.2d 434 (1978).
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)(em)
(em) Any organization or enterprise not specified under
par. (d) or
(e) that is 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(2)(c)
(c) A graduate medical education program that operates in this state. For a graduate medical education program that 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 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),
96-0908.
655.002 Annotation
Whether a parent's claim for negligent infliction of emotional distress resulting from medical malpractice is barred by ch. 655 is discussed. Finnegan v. Wisconsin Patients Compensation Fund, 2003 WI 98,
263 Wis. 2d 574,
666 N.W.2d 797,
01-2911.
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),
95-1708.
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,
98-2437 655.007 Annotation
A mother who suffers the stillbirth of her infant as a result of medical malpractice has a personal injury claim involving negligent infliction of emotional distress, which includes the distress arising from the injuries and stillbirth of her daughter, in addition to her derivative claim for wrongful death of the infant. That the sources of the mother's emotional injuries cannot be segregated does not mean that there is a single claim of medical malpractice subject to the single cap for noneconomic damages. Pierce v. Physicians Insurance Co. 2005 WI 14,
278 Wis. 2d 82,
692 N.W.2d 558,
01-2710.
655.007 Annotation
Under s. 895.01 (1) (o) and sub. (2), a wrongful death claim does not survive the death of the claimant. In a non-medical malpractice wrongful death case, under sub. (2) a new cause of action is available to the next claimant in the statutory hierarchy. In a medical malpractice wrongful death case, eligible claimants under s. 655.007 are not subject to a statutory hierarchy like claimants under sub. (2). However, in a medical malpractice wrongful death case, adult children of the deceased are not listed as eligible claimants and are not eligible because of the exclusivity of s. 655.007, as interpreted in Czapinski. Lornson v. Siddiqui, 2007 WI 92,
302 Wis. 2d 519,
735 N.W.2d 55,
05-2315.
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),
94-2490.
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).
