sconsin Nursing Home Abuse Laws
Is There a Cap On Medical Malpractice Damages in Wisconsin?
Wisconsin’s legislature has enacted a statute that places a limit or “damages cap” on the amount of compensation a claimant may receive in a medical malpractice case. Wisconsin law caps noneconomic damages of $750,000 for medical negligence. The applicable Wisconsin statute may be found at Wisconsin Stat. section 893.55.
You may be wondering, what is the difference between economic and non-economic damages?
- Non-economic damages include compensation for subjective losses, such as pain and suffering, emotional distress, and loss of enjoyment of life.
- Economic damages are reasonably quantifiable monetary losses that a plaintiff has or may incur.
Wisconsin does not cap economic damages in medical malpractice cases.
Limits on Wrongful Death Awards
Wisconsin law also limits the amount of damages a plaintiff may be awarded in cases of wrongful death. Wrongful death actions are capped at $500,000 for minors and $350,000 for adults. In Wisconsin, a plaintiff may recover the following damages in a wrongful death claim: loss of consortium, society and companionship; and pecuniary loss, comprised of loss of support to the survivors, medical, funeral, burial, cemetery, grave marker and expenses for care of the lot; loss of the value of household services, and loss of inheritance.
Notably, the loss of society and companionship is the most emotional (and probably most significant) aspect of a wrongful death claim. Unfortunately, due to a warped fear that juries would be tempted to award excessive damages, the Wisconsin legislature has consistently over the years seen fit to enact a cap on damages for the grief of the survivors. Presently, damages for wrongful death are capped at $350,000 for the death of an adult (subject to inflationary additions) and $500,000 for the death of a minor. See Wisconsin Statute § 895.04.
Statute of Limitations for Negligence and Injury Claims
As with all states, Wisconsin law limits the time period in which a claimant can file a claim for injuries or wrongful death. In Wisconsin, the statute of limitations for medical malpractice, general negligence leading to personal injury and wrongful death is three years from the incident.
However, the “discovery rule” may extend the time a person has to file a claim. The discovery rule holds that a tort claim accrues when the injury is discovered or reasonably should have been discovered. This “discovery rule” applies to all tort actions other than those governed by a statutory discovery rule. Hansen v. A. H. Robins, Inc. 113 Wis. 2d 550 (1983). A plaintiff can rely on the discovery rule only if he or she has exercised reasonable diligence. Jacobs v. Nor-Lake, 217 Wis. 2d 625, (Ct. App. 1998).
Attorney Contingency Fee Agreements
Attorneys frequently enter into contingent fee agreements when representing clients for cases of nursing home neglect and abuse. Under a contingent fee agreement, a lawyer is paid a percentage of the award obtained for the client as opposed to billing on an hourly basis. The Wisconsin Code of Professional Conduct mandates that “A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses.” An attorney’s contingent fee must be reasonable when considering factors like risk, time and labor required, and the novelty and difficulty of the case.
Wisconsin Nursing Home Resident’s Rights
Seniors residing in Wisconsin nursing home facilities have rights guaranteed by state and federal laws. Under these laws, nursing homes must protect and promote each resident’s rights. The 1987 Nursing Home Reform Law requires each nursing home to assuring residents proper care and treatment and the law strongly emphasizes individual dignity and self-determination, promoting independence and enhancing a resident’s quality of life.
Some of the rights assured to Wisconsin nursing home residents include the right to:
- A copy of nursing home rules and regulations.
- Be informed of available services and the charges for each service.
- The ombudsman’s contact information and state survey reports.
- Advance notice before a change in rooms.
- Receive adequate and appropriate care.
- Complain without fear of retaliation.
- Refuse medication and treatment.
- Right to Privacy and Confidentiality in medical treatment, personal care and when communicating with others.
- Be free from chemical and physical restraints for the convenience of the facility.
- Visit and associate with persons of their choosing such as relatives, friends spiritual advisors, or individuals providing health, social, legal, or other services.
- Participate in their treatment and be informed of all changes in medical condition.
- Not be transferred or discharged from the facility. There are exceptions to this right for changes in the residents health, safety of the resident and others or for non payment.
- Choose their physician.
- Manage their own financial affairs or request that the facility manage their finances.
- A copy of their medical record.
- Participate in community activities, both inside and outside the nursing home.
Disclaimer: This article is for informational purposes only. It is not legal advice and should not be used as legal advice. The legal statutes, laws and procedures contained in this article may not be current and may have been revised since the time of publication or contain errors. An attorney can provide legal guidance only after reviewing the details of your individual case.