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:
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:
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.
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.
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 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).
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.
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:
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).
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," 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).
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).
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:
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.