Medical Malpractice in Wisconsin

Medical professionals are tasked with keeping people healthy and safe. While most strive to do their best, some are negligent to the point of harming patients. Victims of malpractice often deal with life-threatening injuries that sometimes lead to death. Along with the physical toll, victims can suffer from financial and emotional pain, as well. Those who have been harmed by a healthcare professional can file a medical malpractice claim in Wisconsin.

Who Is Liable for Medical Malpractice in Wisconsin?

Victims of medical malpractice can make claims against health care providers and medical facilities. These include:

• Physicians
• Surgeons
• Nurses
• Anesthesiologists
• Dentists
• Hospitals
• Clinics
• Medical groups
• Nursing homes

The Good Samaritan Rule

The Good Samaritan rule is in place in Wisconsin. This rule protects medical professionals from liability if they offer emergency care outside of a medical setting. For instance, if a doctor drives by a car accident and stops to render care, he or she cannot be held liable for medical malpractice based on actions at the scene, even if the recipient of the care is injured. The exception is if the provider has a doctor-patient relationship with the person who receives the aid.

Wisconsin Statute of Limitations

The statute of limitations states that victims of malpractice must file a claim within three years of the incident that caused the injury. However, the state has a discovery rule in place. This rule extends the time to file in cases when the injury was not immediately discovered. Claimants have one year to file a claim after the injury was discovered. The clock starts ticking when the injury should have reasonably been discovered. However, if the claim is not filed within five years of the incident that caused the injury, the statute will pass.

The state also sets a statute for incidents when a foreign object was left in the patient’s body or when a provider fraudulently concealed the malpractice. This allows patients to file a claim one year after discovering the object or fraud. Again, the clock starts ticking when the object or fraud should have been reasonably discovered. Fast action is critical in cases of malpractice.

Proving Medical Malpractice

Malpractice and negligence are not the same things. While providers are negligent when they commit medical malpractice, a provider can also be negligent without committing malpractice. Successful malpractice claims must meet four criteria. Claims that do not meet all the criteria are dismissed from court.

1. Provider-patient Relationship

A provider-patient relationship must be in place to prove malpractice. The victim must have been a patient of the provider at the time of the malpractice. This absolves people who provide medical advice in casual settings. For example, if a doctor provides poor medical advice to an acquaintance while buying milk at the grocery store, he or she cannot be held liable for malpractice since the doctor and patient have not entered into a relationship.

2. Breach of Standard of Care

Patients are also tasked with proving the standard of care was breached. The standard refers to the care that medical professionals with the same training and experience would provide in a similar situation. For instance, physicians monitor fetal heartbeats during delivery. If a physician failed to monitor the fetal heartbeat during delivery, he or she would have breached the standard of care.

3. Causation

The claimant also must prove causation by showing that the breach directly resulted in his or her injuries. Using the previous example, assume that a doctor failed to monitor the fetal heartbeat during delivery. Because of that, the physician did not realize the baby was deprived of oxygen. The baby was born with cerebral palsy because of the lack of oxygen. The claimant would submit evidence that proved that the doctor’s negligence directly caused the birth injury.

4. Damages

The breach must have harmed the patient to be considered medical malpractice. Damages can be economic, such as medical bills, as well as non-economic.

Types of Medical Malpractice

Malpractice comes in many different forms. If a healthcare professional has harmed someone due to negligence, it is malpractice. While there are different types of malpractice, most fall into one of these categories.

Diagnosis Errors

Outcomes improve when patients undergo treatment immediately. Failing to diagnose a problem can cause a condition to worsen, putting the patient at risk. Misdiagnosis is another concern. If a patient receives the wrong diagnosis, the correct treatment may be delayed, or the patient may receive a treatment that he or she does not need.

Medication Errors

Medication errors harm patients and can even be fatal. Common medication errors include prescribing the wrong medication or the incorrect dose. Failing to identify a harmful drug interaction is another example. Pharmacists might even fill the wrong prescription.

Anesthesia Errors

Anesthesiologists must provide patients with instructions before the procedure. They also must review patients’ medical records, provide the correct amount of anesthesia, and monitor patients throughout the procedure. A medical error during this process can be life-altering. The patient could end up with brain damage or another serious injury. Death is also possible.

Surgical Errors

Patients understand that they assume some risk when undergoing a surgical procedure. Skilled medical teams manage the risk by providing proper care. Unfortunately, medical malpractice does occur during surgery. The surgeon could puncture an organ, damage nerves, or leave instruments in the body. Negligent post-op care is also a concern with surgery. Failing to care for patients after surgery could lead to infection. These are just some examples of surgical errors. Patients who have suffered from surgical errors are encouraged to contact an attorney.

Birth Injuries

Medical professionals monitor both the baby and the mother during pregnancy and birth. Proper prenatal care and delivery keep the mother and baby healthy. If a mother or child suffers a birth injury, it could be a result of medical malpractice. Common birth injuries include neurological errors and death.

Dental Errors

Many people do not realize that dentists can also commit malpractice. While most dentists meet the standard level of care, some are negligent. Common dental mistakes include unnecessary tooth extractions, failing to sterilize the equipment, and ignoring the signs of conditions such as periodontal disease and oral cancer. When medical negligence harms the patient, the patient can sue for malpractice.

Orthodontic Errors

Just like dentists, orthodontists can also be guilty of malpractice. Children and adults rely on the orthodontists to correct bite and jaw issues. Sometimes, orthodontists use the wrong process for putting on braces or fail to follow up with patients. These are just two examples that can harm the patient.

Damages and Damage Caps

Claimants can sue for economic and non-economic damages in Wisconsin. Economic damages refer to the financial impact of the injury. Medical bills, lost income, and reduced earning capacity are examples of economic damages. There is no damage cap for economic damages. As long as the plaintiff can prove he or she lost money, the full amount can be recovered.

Non-economic damages are more subjective in nature. These damages include pain, suffering and loss of enjoyment of life. Wisconsin has a cap in place for non-economic damages. Injured parties cannot be awarded more than $750,000 in non-economic damages. The previous cap was set at $350,000. The Wisconsin Supreme Court determined that it was unconstitutional in 2005.

The state also has a patient compensation fund. This fund pays plaintiffs when their award amount exceeds the defendant’s insurance limits. Patients who think that their claim may be more than what the provider can pay for have to enter into a lawsuit with the compensation fund to recover the damages. A medical malpractice attorney can help with this.

Proportionate Liability

Wisconsin follows the law of proportionate liability. Sometimes, both patients and providers are responsible for the injuries. For example, if a patient fails to disclose a previous medical condition, and the physician does not review the medical records, both are liable in the case of an injury related to those actions. The courts determine the degree of liability for each party. If the patient’s liability is 50 percent or less, he or she can sue for damages. The damages will be reduced based on liability. For instance, if the judgment is for $200,000 in damages, and the patient is 50 percent liable, he or she will only receive $100,000 in damages.

If the patient’s degree of fault is 51 percent or greater, he or she cannot recover damages. Those who are not sure if they are liable should consult with an attorney. After reviewing the evidence, the attorney will let them know if they have a valid claim against the provider.

The Apology Law

At one time, providers were afraid to apologize to injured patients because their words could be used against them in a court of law. Wisconsin changed that with a statute that states that apologies are not admissible in court. If a health care provider apologizes for a mistake or an undesired outcome, it cannot be submitted as evidence.

However, injured parties should tell their attorneys about the apology. Apologies are often admissions that mistakes were made. While the attorney cannot use the apology as evidence, it is a good starting point for investigating the personal injury case.

Expert Testimony Requirements

Expert witness testimony helps prove malpractice cases, and it is typically required when suing a practitioner. However, there is an exception to this rule. Routine medical care that is easy for a layperson to understand does not require expert testimony. However, some personal injury attorneys still use an expert to solidify the case.  Attorneys can not compensate experts.

An expert medical witness must have the skill, education, training, knowledge, or experience in the area. The witness must use a scientifically reliable method for developing an opinion. People who do not meet these criteria cannot be used as expert witnesses.

Filing a Medical Malpractice Lawsuit

A medical malpractice attorney begins the process by filing a claim with the clerk of court. The claim includes facts about the case and a request for damages.

Discovery Process

Once the claim is filed, the attorneys begin building their cases. They will gather information during the discovery process. This is typically the longest part of the process. It is also the most important.

Attorneys usually conduct depositions during the discovery process. The attorneys depose the plaintiff, defendant, and witnesses. All depositions are submitted under oath. The plaintiffs’ attorney is present during the claimant’s deposition and can object to questions. The attorney can also provide legal advice during the deposition.

Written interrogatories are also conducted during the discovery stage. Attorneys from both sides create a list of questions and send them to the opposing sides. The answers to the questions help the attorneys establish the facts of the case.

Both sides can also request the production of documents. For example, the defense attorney will submit a request for medical records.

The discovery process also includes a request for admission. First, the attorney will create a series of statements and send them to the other side. The other side will respond to each statement with a yes or no answer. For example, the malpractice attorney might create a statement that says, “The defense does not have any evidence that the claimant is liable for the injuries.” The answer gives the malpractice attorney insight into how the defense intends to argue the case.

Mediation Panels

Medical malpractice claims must go through mediation before going to court. Claimants have two options for requesting mediation. They can do so before filing a claim if they wish. They also have the option of requesting mediation within 15 days of filing a claim.

Those who request mediation before filing a claim benefit from having the statute of limitations paused. The clock stops ticking during the mediation process and begins again when the process is complete.

Those who request mediation after filing suit will get a stay in proceedings. This means the legal proceedings will not continue until the mediation is complete. Once the mediation is complete, the case will be reinstated if a settlement is not reached.

The mediation panel consists of a layperson, a licensed attorney, and a licensed health care provider. Experts cannot testify during mediation. However, the panel can consult with experts on an informal basis.

The information shared in mediation cannot be used in court. However, the information can help the medical malpractice lawyer build the case.

Defendants and plaintiffs often settle during mediation. However, if they do not, they can proceed to court.

Going to Trial

During the trial, the plaintiff and defense will have an opportunity to present their cases. The trial begins with opening statements from each side. The two sides use this time to lay out their cases. The medical malpractice lawyer will explain the injuries and why the defendant is at fault during the opening statement.

Then the Wisconsin medical malpractice attorney will present the plaintiff’s case. The attorney will likely call expert witnesses to back up claims made by the plaintiff. The defense can cross-examine the witnesses. After calling all the witnesses, the plaintiff’s attorney will rest, and the defense attorney will present their side of the case. The defense will likely call experts to refute the plaintiff’s claims. The malpractice attorney will cross-examine the witnesses.

After the defense rests, the two sides will make closing arguments. The arguments allow both sides to remind the jury about the facts of the case. Then the jury will deliberate and determine a verdict.

Appealing a Wisconsin Medical Malpractice Case

The losing party has 45 days from the close of the case to submit an appeal. An appeal will not be granted just because someone is unhappy with the verdict. The court must find that an error was made during the case. For example, if the judge misinterpreted a law, the losing party can file an appeal. If the appeal is granted, a higher court will review the case.

How Personal Injury Attorneys Help With Cases

Medical malpractice cases are confusing for the layperson. Most people do not understand Wisconsin’s medical malpractice laws. They also do not know how to investigate and proceed with a case.

A Milwaukee malpractice attorney is essentially a patient advocate. The attorney investigates the claim and builds the case. This entails reaching out to experts to validate the claim. The attorney also files the paperwork before the deadlines so that the case can move forward.

Along with building the case, the attorney can help the claimant reach a settlement if he or she wishes. Many people prefer to settle out of court so that they can recover damages quickly. The attorney can aid in the settlement process during mediation.

If the case does not reach a settlement, the attorney will represent the client in court. Using an attorney saves the claimant time and also increases the likelihood of reaching the desired outcome.

These cases are complicated, so an experienced personal injury lawyer is necessary. The attorney will work to recover damages for the claimant or the claimant’s loved one in the case of wrongful death.

Damage Caps in Wisconsin

The noneconomic damages are capped at $750,000 for each occurrence on or after April 6, 2006.

See Damage Caps by Each State