Wisconsin Medical Malpractice Laws

Data compiled by MalpracticeSearch shows that there were 52 medical malpractice settlements in Wisconsin in 2022. Based on raw numbers, the Badger State ranked 38th out of 59 jurisdictions in medical malpractice payments, but on a per capita basis, it ranked 52nd.

Fluctuations in medical malpractice claims may impact a state’s malpractice laws. A rise in claims could lead to legal reviews or reforms aimed at achieving a more equitable settlement or stringent rules. On the other hand, fewer claims can indicate more efficient legislation or better medical procedures in the state, resulting in legal stability. 

While lawmaking is exclusively the role of the government, it’s important that every Wisconsinite is aware of legislation that defines their rights and obligations in various situations, such as if they or a loved one falls victim to medical malpractice.

This article provides a starting point for understanding Wisconsin’s medical malpractice laws. The discussion includes what you need to know if you suffer an injury as a result of medical malpractice, including the individuals you may sue and how much you may receive in damages.

What Qualifies as Medical Malpractice in Wisconsin?

In Wisconsin, medical malpractice occurs when a healthcare provider’s action falls below the established standard of care, causing harm to a patient.

Medical malpractice is a specific form of professional negligence. However, not every negligent act by a medical professional or facility can be considered malpractice. It must be established that the negligent act directly caused the injury that a patient has suffered. In order for a healthcare provider’s actions to be classified as medical malpractice, the plaintiff must prove that the defendant caused them damage or worsened their current conditions. 

Some of the medical malpractice lawsuits in Wisconsin arise from birth injuries, surgical errors, misdiagnosis, and improper medicine administration. 

Medical malpractice claims in Wisconsin commonly involve the following:

• Prescription errors: Giving a patient the wrong medication, causing harm or death.

• Surgical or procedural mistakes: Errors made during an operation that lead to injury or fatality.

• Childbirth injury: Harm caused to a mother or a baby during childbirth.

• Delayed diagnosis: A diagnosis that has taken too long, causing delayed treatment, injury, or death.

• Misdiagnosis: Improper diagnosis or course of treatment.

Who Can You Sue for Medical Malpractice in Wisconsin?

Victims of medical malpractice in Wisconsin have the legal right to sue the medical professional or healthcare provider who committed a mistake or carried out their jobs carelessly, resulting in injuries. The term medical professional applies to the following:

• Nurse.

• Therapist.

• Optometrist.

• Dentist.

• Pharmacist.

• Midwife.

• Psychologist.

• Social worker.

Healthcare providers that can also be held accountable include institutions or facilities, such as:

• Hospitals.

• Home health agencies.

• Nursing homes.

• Adult family home hospices.

• Community-based residential facilities.

• Residential care apartment complexes.

Exemptions

In Wisconsin, not everyone involved in medical misconduct lawsuits may be sued because there are parties that may be legally immune from liability. There are potential defendants who may not be subject to legal action, particularly if they do not meet the legal definition of a healthcare provider in the state. 

The exempted healthcare personnel or establishments, as outlined in Wisconsin State Legislature Section 655.003, are the following:

• Doctors or nurse anesthetists performing their duties within the parameters of their employment as federal, state, county, or municipal employees or contractors under the Federal Tort Claims Act. 

• Physicians or nurses meeting particular criteria or those providing professional services as agents of the departments under certain conditions.

• Healthcare facilities exempt under specific government regulations. 

Good Samaritan Law

The state has a Good Samaritan Law, as outlined in Section 895.48. This legislation seeks to provide immunity from civil liability to those who offer support or assistance in times of need, such as doctors or nurses who perform medical services as voluntary acts. Under the Good Samaritan Law, they are protected from any responsibility or legal repercussions, as long as their actions are proven not to be deliberate or egregiously negligent. 

Medical Malpractice Liability Insurance Requirements

Similar to other states, Wisconsin requires liability insurance for healthcare providers, as defined in Section 655.23. According to this law, all doctors and nurse anesthetists must carry medical malpractice coverage at certain levels: $1 million per incident and $3 million annually. 

For each physician and nurse, the insurance company is required to provide the Injured Patients and Families Compensation Fund with a certificate of coverage. These certificates must be provided no later than 45 days after the policy’s inception. However, an earlier submission is recommended.

What Is the Statute of Limitations in Wisconsin for Medical Malpractice Cases?

According to Section 893.55, a patient injured by medical malpractice may file a case against the negligent healthcare provider within three years from when the malpractice occurred. However, if the victim discovers the injury long after the malpractice happened, they have one year from the discovery date to sue the liable party. 

Furthermore, the state does not allow plaintiffs to initiate a legal action more than five years from the date of the incident, irrespective of when the patient discovered the injury. However, this five-year deadline is not always applicable if the following situations apply:

• If the medical professional tries to conceal an error or leaves a foreign object within the patient’s body, the latter may file a claim even if more than five years have passed since the alleged malpractice. They have up to one year to file a lawsuit after they have discovered the negligence.

• If the injured patient is a child, their parents or guardians are permitted to initiate legal action against the negligent healthcare provider before the child turns 10 or within the three-year or one-year time frame, per Section 893.56.

What Do You Need to Prove in a Wisconsin Medical Malpractice Case?

Plaintiffs in medical malpractice cases in Wisconsin must establish four elements in order to hold the defendants responsible for their actions and recover damages. These four elements are:

• Duty of care: The healthcare provider or professional owed a duty of care to the patient.

• Breach of duty: There must be evidence that the defendant failed to adhere to the accepted standard of care. 

• Causation: The plaintiff must prove that the negligence or breach of duty directly caused the patient’s injury. 

• Damages: There must be losses and injuries the victim has incurred. These include physical harm, disability, missed wages, or lost income. The court will determine the amount of monetary damages by assessing these losses. 

Typically, in Wisconsin, one may establish medical negligence without the need for a “certificate of merit” from a medical expert, unlike in other states. Therefore, a case will proceed without the help of an expert. A certificate of merit is necessary only when cases are extremely complex and is rarely required before they reach a jury. A medical expert as a witness for a medical malpractice lawsuit is not commonly required if the issue can easily be understood by an average juror.

When medical malpractice victims fail to sue the negligent parties or entities within the applicable deadline, the court may have to dismiss the case. Therefore, no damages can be recovered, regardless of the severity of the injury or losses incurred. This is the reason why hiring a medical malpractice lawyer is crucial when facing this kind of unfortunate and complicated event.

“I’m Sorry” Law

Wisconsin is one of the 42 states that seek to protect physicians or healthcare professionals through the apology or “I’m Sorry” law. This law allows medical professionals to show compassion or express sympathy to a patient who has been hurt without their words being used against them in a medical malpractice lawsuit. 

The “I’m Sorry” law promotes honest and compassionate communication between the two parties without risk that the healthcare provider’s apology or displays of empathy may be interpreted as liability or fault admission. Wisconsin is one of the states that offers full protection of the apology laws, which means healthcare providers may express their remorse to the injured party without the fear of using their entire apology as evidence in court. 

How Much Can You Sue for Medical Malpractice in Wisconsin?

Medical malpractice settlements average about $200,000 and can even go as high as $1 million. Still, the amount you can sue for will depend on the level of harm you suffered. 

In a medical negligence lawsuit, it is essential to determine the appropriate value of your claim to obtain a just outcome. Medical malpractice lawyers in Wisconsin play a crucial role in determining damages in medical negligence lawsuits. These attorneys are skilled at evaluating the range of losses suffered by the plaintiff. They also help maximize the chances for victims to receive fair recompense.

Types of Damages

The injured victims in a medical malpractice case who win the case are entitled to an award or a sum of money to compensate for their injuries and losses:

• Economic damages: These are measurable losses, such as medical expenses, prescription fees, nursing costs, physical therapy costs, and missed wages. 

• Non-economic damages: These cover less quantifiable losses, including pain and suffering, embarrassment, loss of enjoyment of normal activities, loss of companionship, and mental distress. The non-economic damages cap is $750,000, and $500,000 if the malpractice results in a minor’s death.

In Wisconsin, medical malpractice claims are not permitted to include punitive damages — payments made by the defendant as a form of punishment and not awarded to the plaintiff. 

Negligence System

Wisconsin has amended comparative fault laws, similar to those in 32 other states. The negligence system followed by the state assigns each side in a medical malpractice lawsuit a certain percentage of the blame. The damages awarded to the plaintiff are reduced by the portion of the fault assigned to them. 

Wisconsin is also one of the 22 states that implement the 51% bar rule, which limits the damages recovery for plaintiffs who have been proven to share 50% or less of the fault. This means that the plaintiff will not be able to recover damages if the court finds that the injured bears more than half of the blame.

Methods of Obtaining Compensation

Wisconsin promotes pretrial arbitration to shorten the duration of a case and reduce associated expenses. 

In pretrial arbitration, the claimant is required to pay a fee and request mediation before filing a lawsuit. This stops the clock on how long an individual can file a lawsuit. Unless the dispute is settled during mediation, court action cannot start until after the mediation is over. 

The mediation process lasts for 90 days following the date of the claimant’s request or for an extended period of time if agreed upon by both parties. If the mediation does not work, the case proceeds to litigation. To start legal action in court, the plaintiff must file a complaint naming the defendant(s) and detailing the negligence.

If the amount of damages involved is $1 million or more, the physician-funded Injured Patients and Families Compensation Fund (“the Fund”) will be named the defendant. It will have its own legal team to handle the lawsuit.

The Fund was established in Wisconsin in 1975. It eases the financial burden on healthcare providers by helping cover patient damages, demonstrating the state’s support for medical professionals. The fund has grown to more than $1 billion in assets and paid more than 680 claims since its creation.

How Much Does It Cost to Pursue a Medical Malpractice Case in Wisconsin?

In Wisconsin, the cost of bringing a medical malpractice lawsuit can differ greatly depending on a number of factors, such as:

• Attorney’s fees: Some medical malpractice lawyers work on a contingency fee basis, in which the client is charged based on the percentage of their recovered compensation. This fee may range from 25% to 40% of the total damages. 

• Expert witness fees: These are expenses for the hired medical expert to serve as a witness in court. The cost may differ based on the expert’s professional standard fee or expertise. 

Preparing and building a medical malpractice case usually requires a huge amount of money. The costs range from $50,000 to $100,000 (plus legal fees) and include expert opinions, evidence collection, and other legal requirements. 

Resources for Medical Malpractice Victims in  Wisconsin

Legal Action of Wisconsin

Legal Action of Wisconsin is a nonprofit group that serves low-income individuals in different areas, including Lafayette, Sauk, Jefferson, Iowa, Rock, and Dane Counties. It has volunteer lawyers who handle various civil matters. Attorneys who volunteer in this program may be eligible for continuing legal education classes and malpractice insurance provided by the association for pro bono cases they accept. 

Contact Information
Address: 744 Williamson Street, Suite 200, Madison, WI 53703
Phone: (608) 256-3304
Email: kgm@legalaction.org

The University of Wisconsin Law School Pro Bono Program

The Pro Bono Program, established by the University of Wisconsin-Madison, is composed of law students who offer legal aid to underrepresented community members. Students in this program are supervised by lawyers and supported by program staff who have been placed in different organizations, including legal assistance groups, in-house programs, and private and nonprofit law firms. 

Contact Information
Address: 975 Bascom Mall, Room 1348 Madison, WI 53706
Phone: (608) 890-3754
Email: probonodirector@law.wisc.edu

Wisconsin Free Legal Answers

Free Legal Answers is a virtual legal aid clinic that serves eligible users on the platform. On its website, users may ask questions about civil legal matters without any charge. Questions posted will be answered by the volunteer attorneys licensed in Wisconsin through the virtual clinic. Some of the topics the lawyers address are civil rights, health, and disability. The American Bar Association’s Standing Committee on Pro Bono and Public Service is the organization behind Wisconsin Free Legal Answers.