January 10, 2011Client Alert

Proposed Tort Reform Bill Contains Numerous Health Care Provisions

The Wisconsin Legislature is currently meeting in a Special Session called by Governor Walker to consider legislative proposals put forth by the Governor. One of the proposed bills (SS-AB 1) has been dubbed the “Tort Reform Bill,” for which most of the focus has been on its liability protections for manufacturers. However, the Tort Reform Bill also contains several provisions relevant to health care providers, as summarized below. The bill was introduced in the State Assembly on January 6, 2011.

Increased Protections for Provider Reviews

Currently, the Wisconsin Statutes grant certain protections to the process of reviewing health care providers. For example, Section 146.37 protects anyone who participates in the good faith review of a health care provider from civil liability, and Section 146.38 generally prohibits the disclosure of records created in such a review. Both sections are subject to certain exceptions.

The Tort Reform Bill would overhaul Section 146.38 to better define its scope and expand its protections. The revised section would specify the definition of “health care provider” to include individual providers; facilities, organizations and business entities that are providers; persons working under the supervision of or in collaboration with an individual provider; and parents, subsidiaries or affiliates of entity providers. Further, the new section would clarify that a protected review could include multiple organizations and must be conducted for one of the following purposes: to help improve the quality of health care, to avoid improper utilization of the services of health care providers or to determine reasonable charges for such services.

Perhaps most significantly, revised Section 146.38 would extend the prohibition against disclosure of review records to criminal proceedings against a health care provider, rather than maintaining the current limited reach of only civil proceedings.

In a similar effort, the Tort Reform Bill would amend another section of the statutes to restrict the use of certain types of records in the possession of the Department of Regulation and Licensing and the division within the Department of Health Services in charge of health care provider quality assurance. Records required by such regulatory agencies to be disclosed by a health care provider, as well as statements and records of interviews of employees of a provider obtained by such agencies would not be available for use as evidence in a civil or criminal proceeding brought against a health care provider.

Limits on Actions Against Long-Term Care Providers

Medical malpractice awards against health care providers are currently limited by the State of Wisconsin. Specifically, non-economic damages, such as pain and suffering, are limited to $750,000 and certain categories of damages available for relatives bringing a wrongful death lawsuit against a health care provider are also capped. In addition, a specific statute of limitations applies for medical malpractice claims equal to the later of three years from the date of the injury or one year from the date of discovery of the injury.

The Tort Reform Bill extends these same limitations to lawsuits brought against long-term care providers, which is defined to include: an adult family home, a residential care apartment complex, a community-based residential facility, a home health agency, a nursing home, or a hospice.

Limits on Criminal Liability for Health Care Providers

It is a crime in Wisconsin to cause the death of or bodily harm to another person by the negligent operation or handling of a dangerous weapon, explosives or fire. A dangerous weapon is defined to include any device or instrumentality, which in the manner it is used or intended to be used, is calculated or likely to produce death or great bodily harm. The statute could conceivably be used to prosecute a health care provider who is found to have acted negligently while performing a medical procedure. The Tort Reform Bill would specifically exclude health care providers acting within the scope of their practice or employment from the scope of these criminal statutes.

It is also a crime under Wisconsin law for a person who is in charge of or employed by a residential care facility, an inpatient health care facility, a treatment facility, or a home health agency to intentionally, recklessly or negligently abuse or neglect a patient or resident of such a facility or agency. The Tort Reform Bill would not impose liability for negligent abuse or neglect by a health care provider acting in the scope of his or her practice or employment when he or she commits an act or omission of mere inefficiency, unsatisfactory conduct or failure in good performance as the result of inability, incapacity, inadvertency, ordinary negligence or good faith error in judgment or discretion.

Michael Best will continue to monitor the Tort Reform Bill as it continues through the legislative process. If you have any questions on the Tort Reform Bill or the Special Session, please contact one of the authors of this alert.

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