Wis. Stat. § 893.55
Wis. Stat. § 893.55
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 (1987). 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 (1991). A podiatrist is a "health care provider" under this section. Clark v. Erdmann, 161 Wis. 2d 428, 468 N.W.2d 18 (1991). 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). A blood bank is not a "health care provider." Doe v. American National Red Cross, 176 Wis. 2d 610, 500 N.W.2d 264 (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 (1994). 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). Punitive damages in malpractice actions are not authorized by sub. (5) (e). Lund v. Kokemoor, 195 Wis. 2d 727, 537 N.W.2d 21 (Ct. App. 1995), 95-0453. Dentists are health care providers under this section. Ritt v. Dental Care Associates, S.C., 199 Wis. 2d 48, 543 N.W.2d 852 (Ct. App. 1995), 94-3344. 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 (1997), 94-2457. 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, 99-0979. 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, 98-2437. Sub. (1) (b) [now sub. (1m) (b)] does not violate article I, section 9, of the Wisconsin Constitution, the right to remedy clause, nor does it offend equal protection or procedural due process principles. Aicher v. Wisconsin Patients Compensation Fund, 2000 WI 98, 237 Wis. 2d 99, 613 N.W.2d 849, 98-2955. 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, 99-1810. 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, 00-0330. 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, 00-2144. 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, 01-1139. 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, 01-1139. 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, 03-0891. 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, 01-2710. 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, 03-0580 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, 03-2027. 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, 03-1307. 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, 04-2592. 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, 04-3252. 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, 06-1654. 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, 06-1654. Neither Fojut or Paul 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, 07-0541. 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, 06-2599. 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, 09-2965. 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, 10-0258. 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, 14-1177. 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, 14-2812. 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.