The diagnosis of a non-malignant asbestos-related lung pathology does not trigger the statute of limitations with respect to a later-diagnosed, distinct malignant asbestos-related condition. Because the malignancy could not have been predicted when an earlier action relating to the non-malignant condition was dismissed on the merits, the doctrine of claims preclusion was not applied to bar the plaintiff's action. Sopha v. Owens-Corning Fiberglass Corp., 230 Wis. 2d 212
, 601 N.W.2d 627
Even though a plaintiff might plead and testify to having suffered emotional distress on account of a lawyer's malpractice, that fact does not convert the claim into one seeking redress for injuries to the person. The underlying injuries in a legal malpractice claim are to rights and interests of a plaintiff that go beyond, or at least are different from, injuries to his or her person under this section. Hicks v. Nunnery, 2002 WI App 87
, 253 Wis. 2d 721
, 643 N.W.2d 809
Knowing that a particular product caused an injury, an injured party cannot extend the accrual date for a cause of action against the product's manufacturer due to the subsequent discovery of possible connections between that product and another manufacturer's product in causing the injury. Baldwin v. Badger Mining Corp., 2003 WI App 95
, 264 Wis. 2d 301
, 663 N.W.2d 382
Claims of negligent supervision made against an Archdiocese for injuries caused by sexual assaults by priests are derivative of the underlying sexual molestations by the priests. As claims for injuries resulting from sexual assault accrue by the time of the last incident of sexual assault, the derivative claims accrued, as a matter of law, by the time of the last incident of sexual assault. John Doe v. Archdiocese of Milwaukee, 2007 WI 95
, 303 Wis. 2d 34
, 734 N.W.2d 827
A derivative claim for damages due to wrongful death is controlled by the specific statute of limitations for medical malpractice, s. 893.55, rather than the general wrongful death statute of limitations, s. 893.54, and accrues on the same date as the medical negligence action on which it is based—the date of injury, not the date of death. Estate of Genrich v. OHIC Insurance Co., 2009 WI 67
, 318 Wis. 2d 553
, 769 N.W.2d 481
When an action to recover damages for injuries to the person is commenced as a counterclaim pursuant to s. 893.14, the statute of limitations established by this section applies. Donaldson v. West Bend Mutual Insurance Co., 2009 WI App 134
, 321 Wis. 2d 244
, 773 N.W.2d 470
The discovery rule continues to apply to wrongful death claims in the only way in which it reasonably can: by permitting those claims to accrue on the date the injury is discovered or with reasonable diligence should be discovered by the wrongful death beneficiary, whichever occurs first. Christ v. Exxon Mobil Corp., 2015 WI 58
, 362 Wis. 2d 668
, 866 N.W.2d 602
See also the notes to s. 893.53
for additional treatments of 42 USC 1983.
Medical malpractice; limitation of actions; limitation of damages; itemization of damages. 893.55(1d)(a)
The objective of the treatment of this section is to ensure affordable and accessible health care for all of the citizens of Wisconsin while providing adequate compensation to the victims of medical malpractice. Achieving this objective requires a balancing of many interests. Based upon documentary evidence, testimony received at legislative hearings, and other relevant information, the legislature finds that a limitation on the amount of noneconomic damages recoverable by a claimant or plaintiff for acts or omissions of a health care provider, together with mandatory liability coverage for health care providers and mandatory participation in the injured patients and families compensation fund by health care providers, while compensating victims of medical malpractice in appropriate circumstances by the availability of unlimited economic damages, ensures that these objectives are achieved. Establishing a limitation on noneconomic damage awards accomplishes the objective by doing all of the following:
Protecting access to health care services across the state and across medical specialties by limiting the disincentives for physicians to practice medicine in Wisconsin, such as the unavailability of professional liability insurance coverage, the high cost of insurance premiums, large fund assessments, and unpredictable or large noneconomic damage awards, as recognized by a 2003 U.S. congress joint economic committee report, a 2003 federal department of health and human services study, and a 2004 office of the commissioner of insurance report.
Helping contain health care costs by limiting the incentive to practice defensive medicine, which increases the cost of patient care, as recognized by a 2002 federal department of health and human services study, a 2003 U.S. congress joint economic committee report, a 2003 federal government accounting office study, and a 2005 office of the commissioner of insurance report.
Helping contain health care costs by providing more predictability in noneconomic damage awards, allowing insurers to set insurance premiums that better reflect such insurers' financial risk, as recognized by a 2003 federal department of health and human services study.
Helping contain health care costs by providing more predictability in noneconomic damage awards in order to protect the financial integrity of the fund and allow the fund's board of governors to approve reasonable assessments for health care providers, as recognized by a 2005 legislative fiscal bureau memo, a 2001 legislative audit bureau report, and a 2005 office of commissioner of insurance report.
The legislature further finds that the limitation of $750,000 represents an appropriate balance between providing reasonable compensation for noneconomic damages associated with medical malpractice and ensuring affordable and accessible health care. This finding is based on actuarial studies provided to the legislature, the experiences of other states with and without limitations on noneconomic damages associated with medical malpractice, the testimony of experts, and other documentary evidence presented to the legislature.
Based on actuarial studies, documentary evidence, testimony, and the experiences of other states, the legislature concludes there is a dollar figure so low as to deprive the injured victim of reasonable noneconomic damages, and there is a dollar figure at which the cap number is so high that it fails to accomplish the goals of affordable and accessible health care. The legislature concludes that the number chosen is neither too high nor too low to accomplish the goals of affordable and accessible health care, is a reasonable and rational response to the current medical liability situation, and is reasonably and rationally supported by the legislative record.
Except as provided by subs. (2)
, an action to recover damages for injury arising from any treatment or operation performed by, or from any omission by, a person who is a health care provider, regardless of the theory on which the action is based, shall be commenced within the later of:
One year from the date the injury was discovered or, in the exercise of reasonable diligence should have been discovered, except that an action may not be commenced under this paragraph more than 5 years from the date of the act or omission.
If a health care provider conceals from a patient a prior act or omission of the provider which has resulted in injury to the patient, an action shall be commenced within one year from the date the patient discovers the concealment or, in the exercise of reasonable diligence, should have discovered the concealment or within the time limitation provided by sub. (1m)
, whichever is later.
When a foreign object which has no therapeutic or diagnostic purpose or effect has been left in a patient's body, an action shall be commenced within one year after the patient is aware or, in the exercise of reasonable care, should have been aware of the presence of the object or within the time limitation provided by sub. (1m)
, whichever is later.
In this subsection, “noneconomic damages" means moneys intended to compensate for pain and suffering; humiliation; embarrassment; worry; mental distress; noneconomic effects of disability including loss of enjoyment of the normal activities, benefits and pleasures of life and loss of mental or physical health, well-being or bodily functions; loss of consortium, society and companionship; or loss of love and affection.
The total noneconomic damages recoverable for bodily injury, including any action or proceeding based on contribution or indemnification and any action for a claim by a person other than the injured person for noneconomic damages recoverable for bodily injury, may not exceed the limit under par. (d)
for each occurrence on or after April 6, 2006, from all health care providers and all employees of health care providers acting within the scope of their employment and providing health care services who are found negligent and from the injured patients and families compensation fund.
A court in an action tried without a jury shall make a finding as to noneconomic damages without regard to the limit under par. (d)
. If noneconomic damages in excess of the limit are found, the court shall make any reduction required under s. 895.045
and shall award as noneconomic damages the lesser of the reduced amount or the limit. If an action is before a jury, the jury shall make a finding as to noneconomic damages without regard to the limit under par. (d)
. If the jury finds that noneconomic damages exceed the limit, the jury shall make any reduction required under s. 895.045
and the court shall award as noneconomic damages the lesser of the reduced amount or the limit.
The limit on total noneconomic damages for each occurrence under par. (b)
on or after April 6, 2006, shall be $750,000.
The board of governors created under s. 619.04 (3)
shall submit a report to the legislature as provided under s. 13.172 (2)
by January 1 of every odd numbered year of any recommended changes to the limits on noneconomic damages established in subd. 1.
The report shall include the reasons why the changes are necessary to meet the intent of the legislative findings under sub. (1d)
Economic damages recovered under ch. 655
for bodily injury or death, including any action or proceeding based on contribution or indemnification, shall be determined for the period during which the damages are expected to accrue, taking into account the estimated life expectancy of the person, then reduced to present value, taking into account the effects of inflation.
Notwithstanding the limits on noneconomic damages under this subsection, damages recoverable against health care providers and an employee of a health care provider, acting within the scope of his or her employment and providing health care services, for wrongful death are subject to the limit under s. 895.04 (4)
. If damages in excess of the limit under s. 895.04 (4)
are found, the court shall make any reduction required under s. 895.045
and shall award the lesser of the reduced amount or the limit under s. 895.04 (4)
Every award of damages under ch. 655
shall specify the sum of money, if any, awarded for each of the following for each claimant for the period from the date of injury to the date of award and for the period after the date of award, without regard to the limit under sub. (4) (d)
Pain, suffering and noneconomic effects of disability.
Loss of consortium, society and companionship or loss of love and affection.
Damages recoverable under this section against health care providers and an employee of a health care provider, acting within the scope of his or her employment and providing health care services, are subject to the provisions of s. 895.045
Evidence of any compensation for bodily injury received from sources other than the defendant to compensate the claimant for the injury is admissible in an action to recover damages for medical malpractice. This section does not limit the substantive or procedural rights of persons who have claims based upon subrogation.
Judicial Council Committee's Note, 1979: This section has been created to precisely set out the time periods within which an action to recover damages for medical malpractice must be commenced. The time provisions apply to any health care provider in Wisconsin.
Sub. (1) [now sub. (1m)] contains the general time limitations for commencing a malpractice action. The subsection requires that such an action be commenced not later than 3 years from the event constituting the malpractice or not more than one year from the time the malpractice is discovered by the patient or should have been discovered by the patient. The patient has either the 3-year general time period or the one-year time period from the date of discovery, whichever is later. Subsection (1) further provides that in no event may a malpractice action be commenced later than 6  years from the time of the alleged act or omission.
Subs. (2) and (3) provide 2 exceptions to the one-, three-, and six-year time limitations contained in subsection (1) [now sub. (1m)]. Subsection (2) provides that when a health care provider becomes aware of an act or omission constituting possible malpractice and intentionally conceals the act or omission from the patient, the patient has one year from the time he or she discovers the concealment or should have discovered the concealment to commence a malpractice action.
Sub. (3) gives a patient one year from the time of discovery of a foreign object left in the patient's body or the time in which discovery should have occurred to commence a malpractice action. The subsection also contains a definition of a foreign object similar to the definition recently enacted by the state of California. [Bill 326-A]
The “continuum of negligent treatment" doctrine is not limited to a single negligent actor. Robinson v. Mt. Sinai Medical Center, 137 Wis. 2d 1
, 402 N.W.2d 711
While an unsubstantiated lay belief of an injury is not sufficient for discovery under sub. (1) (b) [now sub. (1m) (b)], if the plaintiff has information that constitutes a basis for an objective belief of the injury and its cause, whether or not that belief resulted from “official" diagnosis from an expert, the injury and its cause are discovered. Clark v. Erdmann, 161 Wis. 2d 428
, 468 N.W.2d 18
A physician's intentional improper sexual touching of a patient was subject to s. 893.57 governing intentional torts, not this section governing medical malpractice. Deborah S.S. v. Yogesh N.G., 175 Wis. 2d 436
, 499 N.W.2d 272
(Ct. App. 1993).
Parents who did not obtain a medical opinion until more than three years after their child's death did not exercise reasonable diligence as required by the discovery rule under sub. (1) (b) [now sub. (1m) (b)]. Awve v. Physicians Ins. Co., 181 Wis. 2d 815
, 512 N.W.2d 216
(Ct. App. 1994).
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 Wis. 2d 1
, 512 N.W.2d 764
When continuous negligent treatment occurs, the statute begins to run from the date of last negligent conduct. The amount of time that passes between each allegedly negligent act is a primary factor in determining whether there has been a continuum of negligent care. Westphal v. E.I. du Pont de Nemours, 192 Wis. 2d 347
, 531 N.W.2d 361
(Ct. App. 1995).
Once a person discovers or should have discovered an injury, nothing, including a misleading legal opinion, can cause the injury to become “undiscovered." Claypool v. Levin, 209 Wis. 2d 284
, 562 N.W.2d 584
The date of injury under sub. (1) (a) [now sub. (1m) (a)] from a failed tubal ligation was the date on which the plaintiff became pregnant. Fojut v. Stafl, 212 Wis. 2d 827
, 569 N.W.2d 737
(Ct. App. 1997), 96-1676
This section applies to persons who are licensed by a state examining board and are involved in the diagnosis, treatment, or care of patients. Chiropractors fall within this definition. Arenz v. Bronston, 224 Wis. 2d 507
, 592 N.W.2d 295
(Ct. App. 1999), 98-1357
Optometrists are health care providers under this section. The coverage of this section is not restricted to those included under s. 655.002, but applies to all who provide medical care and are required to be licensed. Webb v. Ocularra, Inc., 2000 WI App 25
, 232 Wis. 2d 495
, 606 N.W.2d 552
Sub. (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 s. 655.007. As such, adult children do not have standing to bring such an action. The exclusion of adult children does not violate the guarantee of equal protection. Czapinski v. St. Francis Hospital, Inc., 2000 WI 80
, 236 Wis. 2d 316
, 613 N.W.2d 120
A misdiagnosis, in and of itself, is not, and cannot be, an actionable injury. The injury arises when the misdiagnosis causes a greater harm than existed at the time of the misdiagnosis. The misdiagnosis may or may not result in the injury, and the injury may occur concurrently or there may be a delay between the misdiagnosis and the injury. Paul v. Skemp, 2001 WI 42
, 242 Wis. 2d 507
, 625 N.W.2d 860
The limitation periods under sub. (1) (a) and (b) [now sub. (1m) (a) and (b)] are both tolled by the filing of a request for mediation under s. 655.44 (4). Landis v. Physicians Insurance Co. of Wisconsin, 2001 WI 86
, 245 Wis. 2d 1
, 628 N.W.2d 893
Wrongful death claims caused by medical malpractice are subject to the statute of limitations concerning medical malpractice in sub. (1) [now sub. (1m)]. Estate of Hegarty v. Beauchaine, 2001 WI App 300
, 249 Wis. 2d 142
, 638 N.W.2d 355
Under sub. (1) (b) [now sub. (1m) (b)], the five-year repose period applies only to actions brought pursuant to the discovery rule in sub. (1) (b) [now sub. (1m) (b)]. Sub. (1) (b) [now sub. (1m) (b)] is an alternative limitations period to that in sub. (1) (a) [now sub. (1m) (a)]. Storm v. Legion Insurance Co., 2003 WI 120
, 265 Wis. 2d 169
, 665 N.W.2d 353
Section 893.16 tolls the period of limitations in sub. (1) (a) [now sub. (1m) (a)] for medical malpractice actions involving qualified claimants, extending the three-year limitations period up to five additional years. Storm v. Legion Insurance Co., 2003 WI 120
, 265 Wis. 2d 169
, 665 N.W.2d 353
For purposes of determining when a cause accrues for negligently prescribing medication, a physician's duty to monitor a patient after a final visit does not continue through some vague and indefinite period during which prescriptions may or may not be filled. Any claim of an omission is for an omission that occurred in the distinct time frame the doctor either intentionally or unintentionally did not require follow-up when giving the prescription or seeing the patient. Wiegert v. Goldberg, 2004 WI App 28
, 269 Wis. 2d 695
, 676 N.W.2d 522
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
First-year medical residents who have their M.D. degrees but are not yet licensed are not health care providers under this section and not subject to the limitations on the recovery of noneconomic damages in subs. (4) and (5). Phelps v. Physicians Insurance Co. of Wisconsin, 2005 WI 85
, 282 Wis. 2d 69
, 698 N.W.2d 643
Sub. (7) explicitly allows evidence of collateral source payments to be introduced in medical malpractice actions. If evidence of collateral source payments from sources including Medicare, other state or federal government programs, medical insurance or write-offs, and discounted or free medical services is presented to the fact-finder, the parties must be allowed to furnish the jury with evidence of any potential obligations of subrogation or reimbursement. The circuit court must instruct the fact-finder that it must not reduce the reasonable value of medical services on the basis of the collateral source payments. Lagerstrom v. Myrtle Werth Hospital-Mayo Health System, 2005 WI 124
, 285 Wis. 2d 1
, 700 N.W.2d 201
This section does not apply to a negligence claim alleging injury to a developmentally disabled child caused by a health care provider. The legislature has not provided a statute of limitations for claims against health care providers alleging injury to a developmentally disabled child. Haferman v. St. Clare Healthcare Foundation, Inc., 2005 WI 171
, 286 Wis. 2d 621
, 707 N.W.2d 853
The jury award of noneconomic damages for pre-death pain and suffering, and the jury award for pre-death loss of society and companionship are governed by the cap set forth in the medical malpractice statutes, this section, and not the wrongful death statute, s. 895.04. Bartholomew v. Wisconsin Patients Compensation Fund, 2006 WI 91
, 293 Wis. 2d 38
, 717 N.W.2d 216
When the applicability of sub. (7) to one of the physicians whose negligence caused the patient's injuries and death is unknown, the fact that the other causally negligent physician was an undisputed ch. 655 health care provider dictates the application of sub. (7). Hegarty v. Beauchaine, 2006 WI App 248
, 297 Wis. 2d 70
, 727 N.W.2d 857
When negligent acts of malpractice are continuous and the cause of action is not complete until the last date on which the malpractice occurred, the entire course of negligent malpractice is within the court's jurisdiction. A plaintiff must show four elements to for this “continuum of negligent treatment" doctrine to apply: 1) a continuum of care; 2) a continuum of negligent care; 3) the care is related to a single condition; and 4) the precipitating factor in the continuum is the original negligent act. Forbes v. Stoeckl, 2007 WI App 151
, 303 Wis. 2d 425
, 735 N.W.2d 536
The five-year limit in sub. (1) (b) [now sub. (1m) (b)] applies only to claims brought under the “discovery rule" of sub. (1) (b) [now sub. (1m) (b)] and not to claims brought under the “injury rule of accrual" in sub. (1) (a) [now sub. (1m) (a)]. The continuum of negligent treatment doctrine modifies the three-year limit of sub. (1) (a) [now sub. (1m) (a)] and is unaffected by sub. (1) (b) [now sub. (1m) (b)], which comes into play only when a plaintiff claims that, because of a delayed discovery of an injury, he or she is entitled to file an action beyond the three-year time limit in sub. (1) (a) [now sub. (1m) (a)]. Forbes v. Stoeckl, 2007 WI App 151
, 303 Wis. 2d 425
, 735 N.W.2d 536
concludes that an injury must be untreatable or irreversible to trigger the limitations period imposed by sub. (1m) (a). The determination of a “physical injurious change" (when the negligent act or omission causes a greater harm than that which existed at the time of the negligent act or omission) is the appropriate benchmark for establishing the date of injury. A later injury from the same tortious act does not restart the running of the statute of limitations. Estate of Genrich v. OHIC Insurance Co., 2009 WI 67
, 318 Wis. 2d 553
, 769 N.W.2d 481
Because an unlicensed first-year resident physician was a borrowed employee of the hospital where the resident allegedly performed negligent acts, the relation of employer and employee existed between the resident and hospital, and accordingly, the resident was an employee of a health care provider within the meaning of ch. 655 and sub. (4). Phelps v. Physicians Insurance Co. of Wisconsin, 2009 WI 74
, 319 Wis. 2d 1
, 768 N.W.2d 615
A fact finder cannot reasonably infer concealment under sub. (2) when a defendant has no contact with the plaintiff after an alleged negligent act or omission. Pagoudis v. Korkos, 2010 WI App 83
, 326 Wis. 2d 234
, 784 N.W.2d 740
Evidence of collateral source payments is admissible under sub. (7) only if the evidence is relevant. In a medical malpractice action, evidence of collateral source payments is relevant if it is probative of any fact that is of consequence to the determination of damages. Weborg v. Jenny, 2012 WI 67
, 341 Wis. 2d 668
, 816 N.W.2d 191
In a medical malpractice claim based on unnecessary and improper treatment of inappropriate touching, the “physical injurious change," for purposes of determining the date of injury under sub. (1m) (a), occurs at the time of the touching. The fact that the patient may not have known at the time that the touching was inappropriate does not change this fact. John Doe 56 v. Mayo Clinic Health System-Eau Claire Clinic, Inc., 2016 WI 48
, 369 Wis. 2d 351
, 880 N.W.2d 681
The $750,000 cap on noneconomic damages in medical malpractice judgments and settlements under sub. (4) (d) 1. is constitutional based on equal protection and due process grounds. Mayo v. Wisconsin Injured Patients & Families Compensation Fund, 2018 WI 78
, 383 Wis. 2d 1
, 914 N.W.2d 678
A medical malpractice claim accrues under sub. (1m) (a) when a misdiagnosis causes an “injurious change," or a “greater harm," to the plaintiff. When a medical malpractice claim is based on a misdiagnosis or failure to diagnose, the greater harm is the development of the problem into a more serious condition that poses a greater danger to the plaintiff or worsened prognosis. Winzer v. Hartmann, 2021 WI App 68
, 399 Wis. 2d 555
, 966 N.W.2d 101
Constitutionality of Wisconsin's Noneconomic Damage Limitation. 72 MLR 235 (1989).
Wisconsin's Caps on Noneconomic Damages in Medical Malpractice Cases: Where Wisconsin Stands (and Should Stand) on “Tort Reform." Kenitz. 89 MLR 601 (2005).
Bartholomew: The Wisconsin Supreme Court's Latest Foray into the Medical-Malpractice Thicket. Spencer. 2007 WLR 1121.
Tort Reform: It's Not About Victims ... It's About Lawyers. Scoptur. Wis. Law. June 1995.
Limitation of damages; long-term care providers.