Wisconsin Medical Malpractice Laws

A look at the Wisconsin medical malpractice statute of limitations, the state's cap on medical malpractice damages, and more.

By , J.D.

Before you decide to file a medical malpractice lawsuit in Wisconsin, be prepared for the complexity of these kinds of cases. Stacks of medical records need to be analyzed, and expert witness testimony (for both sides) is often essential. On top of that, a number of state laws need to be understood and complied with. In this article, we'll take a look at:

  • the lawsuit-filing deadline set by the Wisconsin statute of limitations for medical malpractice cases
  • how expert witnesses are used in Wisconsin medical malpractice lawsuits, and
  • Wisconsin's damages cap in medical malpractice cases, which can limit how much compensation an injured patient can receive even if their case is successful.

Wisconsin Medical Malpractice Statute of Limitations

A statute of limitations is a law that puts a firm limit on how much time can pass before you must file a lawsuit over some type of injury or loss.

Wisconsin's statute of limitations for filing a medical malpractice lawsuit can be found at Wisconsin Statutes section 893.55. This rule specifies that the case must be filed:

  • "three years from the date of the injury," or
  • "one year from the date the injury was discovered or, in the exercise of reasonable diligence should have been discovered"

When Does the "Clock" Start Running Under the Statute of Limitations?

An injured patient can file a medical malpractice lawsuit until the later of the two occurrences detailed above.

If you're arguing that you didn't discover you were harmed by the defendant's medical error within three years after it happened, keep in mind that as the plaintiff, you have the burden of proving that you did not know about that harm—and could not reasonably have been expected to discover it—earlier.

Wisconsin's Controversial "Statute of Repose" In Medical Malpractice Cases

When you're relying on the discovery rule to file a medical malpractice lawsuit more than three years after the medical error happened, keep in mind that Wisconsin sets an outside filing deadline of five years after the alleged malpractice, no matter when you learned about your injury.

However, Wisconsin courts have found that this five-year "statute of repose" might be unconstitutional in some situations, so be sure to talk to an attorney if you have questions about how the deadline applies to your case.

Special Rules Related to Wisconsin's Medical Malpractice Statute of Limitations

In addition to the lawsuit-filing rules we've discussed so far, here are a few more to keep in mind.

The five-year deadline set by the "statute of repose" does not apply:

  • in cases where a foreign object was accidentally left in a patient (after surgery, for example) or
  • a health care provider concealed the occurrence of the malpractice.

In these two situations, the patient may file the lawsuit within a year after discovering the injury (or after it should have been discovered).

Finally, when an injured patient was a young child at the time of the alleged malpractice, Wisconsin Statutes section 893.56 says that a parent or guardian may file the lawsuit within the standard time limit or before the child's tenth birthday (whichever is later).

What Happens If I Miss the Statute of Limitations Deadline In Wisconsin?

If you file a medical malpractice lawsuit after Wisconsin's deadline has passed, the defendant (the health care provider you're trying to sue) will surely ask the court to dismiss the case as time-barred. If the court grants that request (as it almost certainly will), you'll have lost any right to a legal remedy for your harm. That's why it's crucial to pay attention to (and comply with) the medical malpractice statute of limitations.

Mandatory Mediation in Wisconsin

If you plan to file a medical malpractice lawsuit (or you've already filed), Wisconsin requires that you participate in mediation with the health care provider(s) you intend to sue, in an attempt to reach a settlement before the legal case goes forward.

You must request mediation:

  • within 15 days after you've filed your lawsuit, or
  • before you file (in which case the "clock" for the statute of limitations is paused until 30 days after the mediation period is over).

The mediation will take place before a neutral three-person panel of mediators. Although it's an informal process (without calling witnesses or producing evidence beyond your medical records), you can have a lawyer represent you.

Generally, the law allows 90 days for the mediation process. If you haven't reached a settlement by the end of that time, you may move ahead with your lawsuit.

Learn more about Wisconsin's Medical Mediation Panels (from the Wisconsin Court System).

Proving Medical Malpractice in Wisconsin

There is no Wisconsin statute that sets out the requirements for proving your allegations in a medical malpractice case. Typically, however, you must:

  • establish that you had a provider-patient relationship with the defendant
  • set out the appropriate medical standard of care for the circumstances in which you were being treated or diagnosed (roughly, that means the skill and attention that a similarly-trained, local health care provider would have used)
  • show exactly how the defendant fell below that accepted medical standard of care with you, and
  • show a connection between the defendant's sub-standard care and quantifiable harm that you suffered.

The most important (and most contentious) issues in these cases typically revolve around whether the defendant failed to meet the appropriate standard of care. In Wisconsin (as in every state) an expert medical witness is typically required to prove these elements.

Expert Witnesses In Wisconsin Medical Malpractice Lawsuits

Wisconsin Statutes section 907.02 says that a qualified expert may testify at a trial when "scientific knowledge" will "assist the trier of fact," meaning the expert's testimony will help the jury in deciding whether medical malpractice occurred. (However, if it's revealed that the expert agreed to be paid for the testimony based on the outcome of the case, that testimony won't be admitted as evidence in the case.)

Expert testimony probably won't be required if the medical malpractice lawsuit hinges on "routine" issues within the jury's common knowledge (for example, if surgery was performed on the wrong body part).

Wisconsin's Medical Malpractice Damages Cap

Like many states, Wisconsin has a law that places a "cap" on the amount of compensation a plaintiff can receive in a medical malpractice case. The controversial impact of laws like this is that, even when a plaintiff establishes the defendant's liability for malpractice, there is a limit on the actual amount of compensation "damages" the jury can award, regardless of the plaintiff's actual losses.

Wisconsin lawmakers have put a $750,000 cap on noneconomic damages medical malpractice cases. The cap—which can be found at Wisconsin Statutes section 893.55(4)—applies to each occurrence of medical malpractice (no matter how many defendants were involved).

What Are Noneconomic Damages In a Medical Malpractice Case?

Noneconomic damages include compensation for things like:

These damages are said to be more "subjective" from plaintiff to plaintiff, and they're not so easy to capture with a dollar amount.

Remember that Wisconsin does not cap economic damages in medical malpractice cases. Economic damages typically include:

  • payment for past and future medical care made necessary by the malpractice
  • reimbursement of lost wages and other income-related losses, and
  • compensation for future impact on the injured patient's ability to earn a living because of the malpractice.

Getting Help With a Wisconsin Medical Malpractice Lawsuit

This article provides a brief summary of some of the Wisconsin laws that any medical malpractice plaintiff needs to have in mind. If you've got questions about how the state's laws will affect your potential situation, an experienced Wisconsin medical malpractice attorney will have the answers.

It's the complexity of these kinds of cases, combined with the fight you can expect from the health care provider (and their malpractice insurance company) that make medical malpractice lawsuits uniquely challenging. But putting your case in the hands of an experienced legal professional is the surest way to guarantee the best result. Learn more about hiring and working with a medical malpractice lawyer. You can also use the tools on this page to connect with a lawyer in your area.

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