Before you decide to file a medical malpractice lawsuit in Wisconsin, be aware that these cases are notoriously complex. Voluminous medical records need to be analyzed, and expert witness testimony (for both sides) is often essential. In this article, we'll take a look at the Wisconsin statute of limitations for medical malpractice lawsuits, how expert witnesses are utilized, and the current (precarious) state of Wisconsin's damages cap, which can affect your situation even if your case is successful.
First, as a quick refresher for those who aren’t fluent in "legalese," 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 a medical malpractice lawsuit can be found at Wisconsin Statutes section 893.55. This rule specifies that the case must be filed within "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," whichever is later.
Keep in mind that if you are arguing that you did not discover right away that you were harmed by the defendant’s medical error, as the plaintiff you have the burden of proving that you did not know -- and could not reasonably have been expected to know -- about the wrongdoing until you actually did.
There is a larger catch-all filing deadline for medical malpractice lawsuits in Wisconsin, which says that these kinds of cases can’t be filed if more than five years have passed since the alleged malpractice occurred. However, the fairness of this part of the statute has been called into question by Wisconsin courts, so talk to an attorney if you have questions about how the deadline applies to your case.
There are also special rules for cases where a foreign object was accidentally left in a patient (after surgery, for example), and where a health care provider concealed the occurrence of the malpractice. In those situations, the filing deadline is one year from the date the injury is discovered or, in the exercise of reasonable diligence, should have been discovered.
If Wisconsin’s statute of limitations deadline has passed, and you try to file your lawsuit anyway, 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 the dismissal (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.
There is no Wisconsin statute that sets out the proof requirements in a lawsuit alleging harm resulting from medical malpractice. But typically, the plaintiff (that's the injured patient or the patient's representative) must:
The most important (and most contentious) issues in these cases typically revolve around whether the standard of care was breached. And in Wisconsin (as in every state) an expert medical witness is typically required to prove these elements.
Wisconsin Statutes section 907.02 says that when "scientific knowledge" will "assist the trier of fact" -- the jury in a medical malpractice lawsuit, for example -- a qualified expert may offer his or her opinion, as long the witness has applied reliable principles and scientific methodology to the facts of the case.
If the medical malpractice lawsuit hinges on "routine" issues within the jury's common knowledge (surgery performed on the wrong body part, for example), expert testimony probably won't be required.
Finally, if it is revealed that the expert is testifying under an agreement to be paid only if the plaintiff gets a favorable outcome, the expert's testimony will be inadmissible.
Like many states, Wisconsin has a statute on the books that places a limit or "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 where a plaintiff establishes the defendant’s liability for malpractice, there is a limit on the actual amount of damages the jury can award, regardless of the plaintiff’s specific losses.
Wisconsin lawmakers have put a $750,000 per-occurrence cap on non-economic damages in medical malpractice cases. For the details, check out Wisconsin Stat. section 893.55.
Non-economic damages include compensation for things like pain and suffering, emotional distress, and loss of enjoyment of life. Non-economic damages are said to be more “subjective” from plaintiff to plaintiff, and they’re not so easy to capture with a dollar amount.
Wisconsin does not cap economic damages in medical malpractice cases. Economic damages typically consist of payment for past and future medical care, reimbursement of lost income, compensation for lost earning capacity, and other financial losses that can be attributed to the defendant’s malpractice.
Editor's note: In July 2017, a Wisconsin appeals court ruled that the state's $750,000 cap on non-economic damages is "unconstitutional on its face." The decision is almost certain to be appealed to the Wisconsin Supreme Court, which could issue a definitive ruling on the issue, so stay tuned.
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.