In Wisconsin, an injured patient in a medical malpractice case (the plaintiff) may not need to jump through as many procedural "hoops" as plaintiffs in other states, but there are still some thorny issues to contend with. For starters, one of your first concerns should be the state's filing deadline for medical malpractice cases and how it applies to your situation. In addition, you should know about Wisconsin's mandatory mediation requirements in medical malpractice cases. And if you want a successful outcome in your case (whether through settlement or a court award after trial), it helps to understand the different elements of "medical negligence"—what you’ll need to prove in order to hold a health care provider liable for harm caused by the provision of sub-standard medical care. Since the assistance of a medical expert is usually crucial to winning a medical malpractice case, it also helps to get familiar with Wisconsin's expert witness rules. Read on for the details.
Wisconsin's Medical Malpractice Statute of Limitations
A statute of limitations is a law that puts a strict limit on the amount of time a potential plaintiff has to file a lawsuit in the state's civil court system. The statute of limitations deadline depends on the kind of case you want to file in Wisconsin. Here we'll cover the main points of the statute of limitations for medical malpractice cases, including scenarios that could extend (or otherwise alter) the filing deadline in Wisconsin.
The Standard Filing Deadline
Wisconsin Statutes section 893.55 sets the timeline for filing "an action to recover damages for injury arising from any treatment or operation performed by, or from any omission by" a health care provider—that means most situations where a licensed hospital or licensed health care professional made a negligent error in providing care (or failing to provide care) to a patient.
Specifically, the law says that these cases must be filed in the state's courts by the later of:
- three years after the underlying medical error (in other words, the date of the health care provider's negligent action or negligent failure to act), or
- one year after the injured patient discovers (or "in the exercise of reasonable diligence" should have discovered) the error.
However, there's not much leeway for discovering a treatment error that wasn't readily apparent, because the law also says that most medical malpractice lawsuits may not be filed more than five years after the medical error, regardless of when the patient learned about it.
Special Exceptions to the Filing Deadline in Wisconsin
The five-year outside filing deadline doesn't apply in medical malpractice cases when:
- a foreign object ("with no therapeutic or diagnostic purpose or effect," such as a surgical sponge) was left in a patient's body, or
- the defendant health care provider took steps to conceal the medical error.
In these cases, the patient may file the lawsuit within one year after discovering the negligence (or after it should have been discovered with reasonable diligence), even if more than five years have passed since the mistake.
Another exception applies when the injured patient was a young child. In that situation, Wisconsin Statutes section 893.56 says that a parent or guardian may file a medical malpractice lawsuit before the child turns ten (or before the expiration of the usual three-year/one-year filing period, if that comes later).
A medical malpractice case is difficult to win, and filing rules and potential exceptions can be tricky, so it's best to talk to an attorney for the details on how the deadline will be determined in your case.
What if You Miss the Filing Deadline?
If you try to file your Wisconsin medical malpractice lawsuit any time after the applicable statute of limitations deadline has passed, the health care provider you're trying to sue (the defendant) will almost certainly ask the court to dismiss your case. Unless an exception to the deadline applies, the court will almost certainly grant the dismissal. If that happens, you've lost your right to any legal remedy for a health care provider's mistake, no matter how egregious the medical error or how much pain and suffering it caused.
If the statute of limitations deadline is approaching, it's common practice for an attorney to file the lawsuit simply to make sure the client's rights and options are preserved, while the two sides discuss settling the medical malpractice case out of court.
No "Certificate of Merit" Requirement in Wisconsin
In most states, thanks to controversial tort reform efforts, when injured patients want to sue a health care provider for medical malpractice, they must provide some kind of proof to support their claims—typically in the form of a "certificate of merit" or "affidavit of merit" from a medical expert—when they file their lawsuit or soon thereafter. However, Wisconsin doesn't have a requirement like this. So before you file a medical malpractice lawsuit in the state, you (or your lawyer) won't have to find (and pay for) an expert to review your case and offer an opinion about the validity of your claims.
Mandatory Mediation in Wisconsin Medical Malpractice Cases
Wisconsin does require a different kind of procedural step to get through before you can move forward with a medical malpractice case: participating in mediation with the health care provider you want to sue. You must submit a request for mediation (to the Wisconsin Director of State Courts) either before you file your lawsuit or within 15 days after you file. If you request mediation beforehand, the filing deadline in Wisconsin's medical malpractice statute of limitations will be paused until 30 days after the end of the mediation period (which is generally 90 days).
A panel of three neutral mediators will meet with you and the health care provider to help you try to reach a settlement. Although the mediators will review your medical records, they won't hear testimony from witnesses (including medical experts). The mediation process is informal compared to a court hearing, but you will be able to have a lawyer there to represent you. If you don't agree to a settlement by the end of the mediation period (usually 90 days), you may then take the next steps to pursue your lawsuit in court. Because mediation is confidential, nothing that is said during mediation may be admitted in a subsequent trial. (Details about the state's mediation requirements are in Wisconsin Statutes sections 655.43 through 655.58.)
What a Medical Malpractice Plaintiff Must Prove in Wisconsin
Not every unfavorable outcome or misstep in a course of treatment will give rise to a viable medical malpractice lawsuit—in fact, most won’t. There is no specific Wisconsin statute that spells out the elements that an injured patient must prove in order to hold a health care provider liable for malpractice, but court cases have pretty clearly set out these requirements over the years.
If you’re filing a medical malpractice lawsuit in Wisconsin, as the plaintiff, you have the burden of proving:
- that you and the defendant (the health care provider you're suing) had a provider-patient relationship
- what the appropriate “standard of care” was under the circumstances (that is, the skill and attention that a similarly trained health care provider, in the same medical community as the defendant, would have provided to you)
- how the provider’s conduct (including decisions, actions, and/or failure to act) fell below that accepted medical standard of care and amounted to negligence, and
- that the defendant's negligence caused you harm that can be measured.
For medical malpractice lawsuits in Wisconsin, as in every state, proving complex elements like the "standard of care" and deviation from that standard will almost always require the testimony of a qualified medical expert.
Expert Witnesses in Wisconsin Medical Malpractice Cases
The most relevant rules on expert witness testimony in a Wisconsin medical malpractice lawsuit are set out in Wisconsin Statutes section 907.02. This law says that when "scientific knowledge" will "assist the trier of fact"—that is, the jury in a medical malpractice lawsuit, who is trying to determine whether a health care provider’s error amounted to negligence—a qualified expert witness may offer an opinion, as long as:
- the expert’s testimony is based on sufficient facts or data
- the testimony is the product of reliable principles and methods, and
- the witness has applied the principles and methods reliably to the facts of the case.
It's important to note that expert testimony isn't usually a requirement in Wisconsin if the medical malpractice lawsuit hinges on "routine" treatment issues that are within the jury's common knowledge.
Finally, an expert’s testimony can’t be admitted in a medical malpractice trial if the expert "is entitled to receive any compensation contingent on the outcome" of the trial—in other words, if the expert will be paid only if the case goes in favor of the person who hired that expert.
Wisconsin Law Caps Damages in Medical Malpractice Cases
Like many other states, Wisconsin law places limits (known as "caps") on the compensation ("damages") injured patients can be awarded in medical malpractice cases. As with many other states with similar damages caps, the limits apply only to noneconomic damages, a category that includes money for pain and suffering, mental distress, humiliation, loss of enjoyment of life, and other more subjective effects of the malpractice. Wisconsin Statutes section 893.55(4) sets the cap on noneconomic damages in a medical malpractice case at $750,000.
It's important to note that this cap doesn't apply to economic damages, such as compensation for the costs of medical treatment (past and future), lost wages, and lost earning capacity. That means there's no limit on the amount of economic damages a Wisconsin medical malpractice plaintiff can seek or receive.
Getting Help With Your Medical Malpractice Claim
The complexity of the laws governing medical malpractice claims is one reason these cases can be so challenging for injured patients. That's why, if you want to improve your chances of winning a medical malpractice lawsuit, it's important to choose a medical malpractice lawyer who's a good fit for you. An experienced Wisconsin medical malpractice attorney should be able to evaluate your situation, find the right expert for your case, and help you navigate the legal complications involved in these lawsuits. And if you're worried about the expense, see the results of our survey on how much medical malpractice attorneys charge.