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Wisconsin Medical Malpractice Law - An Overview

By Aaron Larson

Law Offices of Aaron Larson

July, 2004

Important Notice: The following overview of Wisconsin's medical malpractice laws is presented on an as-is basis. This information is believed accurate as of the date of authorship, but is not intended to provide a complete analysis of medical malpractice law and may not reflect subsequent changes in the law. For a full review of Wisconsin's medical malpractice law, or for a determination of how the law applies to a specific incident or injury, please consult a malpractice lawyer licensed to practice in the state of Wisconsin.

Contents

What Is Medical Malpractice

Medical malpractice, sometimes referred to as medical negligence, occurs when a health care provider violates the governing standard of care when providing treatment to a patient, causing the patient to suffer an injury. Medical malpractice can result from an action taken by the medical practitioner, or by the failure to take a medically appropriate action. Examples of medical malpractice include:

  • Misdiagnosis of, or failure to diagnose , a disease or medical condition;
  • Failure to provide appropriate treatment for a medical condition;
  • Unreasonable delay in treating a diagnosed medical condition;

Medical malpractice actions can be brought by the injured patient against any responsible licensed health care provider, including doctors, counselors, psychologists and psychotherapists.

Limits on Malpractice Damages

Wisconsin has established a $350,000.00 cap on noneconomic damages. This amount increases to $500,000.00 for cases involving the death of a minor.

Collateral Source Rule

Under a traditional collateral source rule, a defendant may not seek to reduce its liability by introducing evidence that the plaintiff has received compensation from other sources, such as the plaintiff's own insurance coverage. For medical malpractice cases in Wisconsin, evidence of payment from collateral sources is admissible at trial.

Rules for Expert Witnesses

Wisconsin does not impose special limits on the testimony of expert witnesses in medical malpractice cases.

Joint and Several Liability

Under a traditional rule of joint and several liability, where more than one defendant is found liable for the injury suffered by a plaintiff, each defendant is individually liable for the entire amount of the judgment, such that if one defendant is unable to pay the other defendant or defendants are liable for the entire amount of the judgment. Wisconsin has modified this rule such that, unless a defendant is more than 50% responsible for a plaintiff's injury or acted in concert with other defendants to cause the plaintiff's injury, each defendant is liable for damages in an amount proportionate to that defendant's fault for the plaintiff's injuries.

Statute of Limitations

Medical malpractice actions must be filed within three years of the date of the act or omission resulting in injury, or one year from the date the injury was or reasonably should have been discovered, whichever is later. However no medical malpractice action may be filed more than five years from the date of the act or omission underlying the claim. For medical malpractice cases involving minors, a lawsuit must be filed by the minor's tenth birthday or within the general medical malpractice limitations period, whichever is later.

Limits on Attorney Fees

Attorney fees are limited to 1/3 of the first $1 million, or 25% of the first $1 million if the defendant stipulates to liability within a specified timeframe. Attorney fees are limited to 25% for any recovery in excess of $1 million.

Additional Rules

Voluntary mediation may be requested prior to the commencement of court action, and tolls the statute of limitations until thirty days after the last day of the mediation period.

Why Use A Malpractice Lawyer

Medical malpractice law is a highly technical field of law, and malpractice lawsuits tend to be fiercely defended by well-funded defense firms.

Medical malpractice lawsuits can be exceptionally expensive to pursue, with costs often exceeding $100,000.00. Due to the technical skills involved in prosecuting a malpractice claim, the possibility that an inexperienced lawyer may not be sufficiently conversant with the medical issues, or might make a technical error which causes a case to be lost or dismissed, and the very high costs the malpractice law firm typically must advance, an injured patient is very well served by going with a specialist firm.

Even within the specialized practice of medical malpractice law, you will find that some lawyers have subspecialties of practice, for example focusing on surgical errors, misdiagnosis, or birth trauma cases.

Copyright © 2003-2011 Aaron Larson. All rights reserved. No portion of this article may be reproduced without the express written permission of the copyright holder. If you believe you may lawfully use a quotation, excerpt or paraphrase of this article under the Fair Use exception to copyright law, except as otherwise authorized by the author of the article, you must cite this article as a source for your work and include a link back to the original article from any online materials that incorporate or are derived from the content of this article.