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 used, and 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.
If you are arguing that you did not 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.
Also keep in mind that when you are relying on the discovery rule to file a medical malpractice lawsuit more than three years after the medical error happened, Wisconsin law 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.
There are also a few special rules. 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, the five-year outside deadline does not apply; instead, the patient may file the lawsuit within a year after discovering the injury (or after it should have been discovered). Also, 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).
If you file a 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, unless one of the limited exceptions applies), 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.
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). You can either send your request by registered mail to the Wisconsin Director of State Courts or deliver it in person.
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 may 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. (You can find details on the mandatory mediation process in Wisconsin Statutes sections 655.42 and following.)
There is no Wisconsin statute that sets out the requirements for proving your allegations in a medical malpractice case. Typically, however, you must:
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.
Wisconsin Statutes section 907.02 says that a qualified expert may testify at a trial when "scientific knowledge" will "assist the trier of fact" (for instance, the jury in a medical malpractice lawsuit), as long the witness has applied "reliable principles" and scientific methodology to the facts of the case. (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).
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 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 is in Wisconsin Statutes section 893.55(4)) applies to each occurrence of medical malpractice (no matter how many defendants were involved).
Noneconomic damages include compensation for things like pain and suffering, emotional distress, and loss of enjoyment of life. These 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 include payment for past and future medical care, reimbursement of lost income, compensation for lost earning capacity in the future, and other financial losses that can be attributed to the defendant's malpractice.
The Wisconsin Supreme Court has held that the $750,000 cap does not violate the state's constitution (Mayo v. Wisconsin Injured Patients and Families Compensation Fund, 914 N.W.2d 678 (Wis. 2018)).
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.