Medical malpractice cases involve allegations that a health care provider violated the governing standard of care while treating a patient, resulting in an injury to the patient. The harm from medical malpractice can result from either an action taken by the health care provider, or by omission, the failure to take a medically appropriate action.
A medical malpractice case may be pursued by an injured patient against any licensed health care provider, including a medical doctor, nurse, physical therapist, and mental health care professional.
Medical malpractice actions are normally based upon the theory of negligence, alleging that a medical professional violated a duty of care to a patient, resulting in an injury to the patient. Examples of medical malpractice include,
Failure to diagnose a medical condition or disease,
Misdiagnosis of a medical condition or disease,
Failure to provide medically appropriate treatment,
An unreasonable delay in the start of treatment for a diagnosed medical condition or disease;
Mistakes in the prescription or dosing of medication.
Medical malpractice cases may also result from the assertion that a patient did not give informed consent for a medical procedure, with the patient alleging that the procedure involved a material risk that was not properly disclosed by the physician, and that the patient would not have agreed to the procedure had the patient been aware of the risk. The proper performance of a medical procedure is not a defense to an informed consent action. While an informed consent case can potentially be based on an allegation of battery, in general the allegation will be that the outcome of the medical treatment was different than it would have been had the patient been able to make an informed choice.
Informed consent claims can also arise based upon changes to a course of treatment or surgery made after consent was given. In some contexts obtaining the patient's consent is not necessary, For example, in trauma care or cases involving a patient with a mental health problem it may not be possible to obtain consent prior to the commencement of medical treatment, or consent must be obtained from a third party such as a guardian, spouse or parent.
Damages in medical malpractice cases normally take the form of economic damages such as wage loss, the cost of medical care, and other out-of-pocket expenses, and non-economic damages for pain and suffering resulting from the injury. In rare cases, the level of misconduct may rise to the level that a victim of malpractice can recover punitive damages against the defendant.
Wisconsin caps non-economic (pain and suffering) damages in medical malpractice cases at $750,000, regardless of the severity of the patient's injury. In wrongful death cases, non-economic damages are capped at $500,000 for minors and $350,000 for adults. Punitive damages are capped at twice the amount of any compensatory damages awarded to the plaintiff or $200,000, whichever amount is greater.
Joint and Several Liability
When more than one defendant is sued, under joint and several liability each defendant may be required to pay the full amount of the verdict. This policy helps ensure that a malpractice victim will be fully compensated even if one of the defendants has insufficient funds or insurance. Wisconsin follows a rule of modified several liability, pursuant to which any defendant whose causal negligence for the plaintiff's injury is determined to be less than fifty-one percent responsible is liable only for that percentage of the causal negligence attributed to that person. However, for a defendant whose share of the causal negligence is determined to be fifty-one percent or more, that defendant is jointly and severally liable for the damages awarded. If two or more parties are acting in accordance with a common plan or scheme, then those parties are jointly and severally liable with each other for the their share of the damages. However, if punitive damages are awarded, rules of joint liability do not apply and parties are severally liable only for their proportionate share of the punitive damages award.
The Collateral Source Rule
Under the traditional collateral source rule, payments received by the malpractice victim from third parties such as medical insurance companies would not be considered in the calculation of damages. Wisconsin has eliminated the collateral source rule for cases involving medical malpractice or negligence in the provision of long-term care.
The statute of limitations limits the amount of time a person alleging medical malpractice has to file a lawsuit against health care providers. In Wisconsin, the statute of limitations runs for three years from the date of the injury underlying the malpractice claim, or one year from the date it was or reasonably should have been discovered, but not more than five years from the alleged act or omission underlying the claim. For a foreign object left within a patient's body, the statute of limitations is one year from the date of its reasonable discovery or three years from the date of the act, whichever is later. For minors under the age of ten, a malpractice action must be brought within the standard statute of limitations or by the time the minor reaches the age of ten, whichever is later.
Additional rules affecting malpractice litigation in the State of Wisconsin include:
Limits on Attorney Fees
Wisconsin limits attorney fees in medical malpractice cases to one third of the first $1 million recovered, and twenty percent of any further recovery. However, if liability is stipulated by the defendants within 180 days after the filing of the complaint and not later than 60 days before the first day of trial, attorney fees are limited to twenty-five percent of the first $1 million, and twenty percent of any further recovery.
Alternative Dispute Resolution
In Wisconsin, the claimant in a medical malpractice case may request mediation. If mediation occurs, except as specified by statute, no communication made relating to a dispute in mediation or presented during mediation by a mediator or a party is admissible as evidence, or subject to discovery or compulsory process, in any future judicial or administrative proceeding. Exceptions to that bar exist in relation to the introduction of a settlement agreement reached through mediation, where all parties have stipulated in writing that the mediator may investigate the parties, to a mediator's report of abuse to a child or unborn child, or where a judge determines that the exclusion of the evidence would cause manifest injustice that outweighs the importance of maintaining confidentiality. Also, no evidence is inadmissible during further proceedings merely because it was presented in the course of mediation.
Certificate of Merit Rules
A certificate of merit is a document created by a medical expert, attesting that the expert has reviewed the facts of the case and finds there to be merit to the malpractice plaintiff's claim.
If you believe that you have been injured by medical malpractice, a lawyer can help you by reviewing the facts and medical records of your case to determine if you have a viable case under the laws of your state. Medical malpractice cases are complex, and are very costly to litigate. Medical malpractice lawyers working on contingency fees will advance the cost of litigation, recovering those costs from the eventual verdict or settlement. A malpractice lawyer should be aware of changes in the law, and can help you avoid missing a filing deadline for your case.