Wisconsin Medical Malpractice Complaint

COMPLAINT FOR MEDICAL MALPRACTICE (WISCONSIN)

TABLE OF CONTENTS

1. Caption and Introduction
2. Parties
3. Jurisdiction and Venue
4. Compliance with Wis. Stat. ch. 655 and Mediation Panel Procedure
5. Factual Background
6. Standard of Care
7. First Cause of Action: Medical Negligence (Wis. Stat. ch. 655)
8. Second Cause of Action: Lack of Informed Consent (Wis. Stat. § 448.30)
9. Third Cause of Action: Vicarious Liability / Respondeat Superior
10. Fourth Cause of Action: Negligent Hiring, Credentialing, Supervision
11. Fifth Cause of Action: Loss of Consortium / Derivative Claims
12. Sixth Cause of Action: Wrongful Death (if applicable, Wis. Stat. § 895.04)
13. Damages and Statutory Caps
14. Demand for Jury Trial
15. Prayer for Relief
16. Verification
17. Sources and References

1. CAPTION

Case No.: [____________]
Case Code: 30107 (Medical Malpractice)
Honorable: [_______________]

COMPLAINT

Plaintiff [______], by and through undersigned counsel, alleges as follows:

2. PARTIES

1. Plaintiff [______] is an adult resident of [______] County, Wisconsin, residing at [______]. [If representative capacity: Plaintiff brings this action individually and as duly appointed Personal Representative of the Estate of [DECEDENT], having been appointed by the Circuit Court for [______] County on [__/__/____], Estate File No. [______].]

2. [If minor/disabled: Plaintiff [PARENT NAME] brings this action as parent and natural guardian of [MINOR CHILD NAME], a minor born [__/__/____], pursuant to Wis. Stat. § 803.01(3) and § 893.56.]

3. Defendant [PHYSICIAN NAME], M.D., is a physician licensed to practice medicine and surgery in the State of Wisconsin pursuant to Wis. Stat. ch. 448, holding License No. [______], and is a "health care provider" as defined in Wis. Stat. § 655.001(8). At all material times, Defendant maintained primary professional liability coverage of at least $1,000,000 per occurrence and $3,000,000 per annual aggregate as required by Wis. Stat. § 655.23(4)(b), and is a participating provider in the Injured Patients and Families Compensation Fund (IPFCF) pursuant to Wis. Stat. § 655.27.

4. Defendant [HOSPITAL/CLINIC NAME] is a [Wisconsin corporation / limited liability entity] organized under the laws of [______], with its principal place of business at [______], and is a "health care provider" within the meaning of Wis. Stat. § 655.001(8) and a participating provider in the IPFCF.

5. Defendant [PRIMARY INSURER NAME] is the primary professional liability carrier for Defendant(s) [______] and is named as a direct defendant pursuant to Wisconsin's direct action statute, Wis. Stat. § 632.24.

6. Defendant Wisconsin Injured Patients and Families Compensation Fund ("IPFCF" or the "Fund") is a statutory fund created under Wis. Stat. § 655.27 to provide excess medical malpractice coverage above the primary limits required by § 655.23(4). The Fund is named as a statutory defendant pursuant to Wis. Stat. § 655.27(5) because Plaintiff seeks damages potentially in excess of the primary coverage limits.

3. JURISDICTION AND VENUE

7. This Court has subject-matter jurisdiction under Wis. Stat. § 753.03 and Article VII, § 8 of the Wisconsin Constitution.

8. Venue is proper in [______] County under Wis. Stat. § 801.50(2)(a) because [the cause of action arose in this county / Defendant resides or has its principal place of business in this county].

9. The amount in controversy exceeds the small claims threshold and qualifies for case classification 30107 (Medical Malpractice) under SCR Chapter 70.

4. COMPLIANCE WITH WIS. STAT. CH. 655 AND MEDIATION PANEL PROCEDURE

10. This action is governed by Wis. Stat. ch. 655 because it arises out of "professional services rendered or that should have been rendered by a health care provider," as defined in § 655.001(8) and § 655.007.

11. Mediation Panel Compliance. [Select one:]

☐ Pre-Suit Mediation Request (§ 655.44). On [__/__/____], Plaintiff filed a Request for Mediation with the Director of State Courts pursuant to Wis. Stat. § 655.44. The mediation period under § 655.465(7) has expired, and this action is timely commenced.

☐ Contemporaneous Mediation Request (§ 655.445). Plaintiff is filing a Request for Mediation contemporaneously with the filing of this Complaint, or will file such Request within fifteen (15) days of the filing of this action, in compliance with Wis. Stat. § 655.445(1). Plaintiff acknowledges that, pursuant to § 655.445(2), no discovery may be conducted and no trial, pretrial conference, or scheduling conference may be held until the expiration of the mediation period under § 655.465(7).

12. Statute of Limitations. This action is commenced within the limitations period prescribed by Wis. Stat. § 893.55(1m), which provides that a medical malpractice action shall be commenced no later than:
    a. Three years from the date of the act or omission; or
    b. One year from the date the injury was discovered or, in the exercise of reasonable diligence, should have been discovered, whichever is later;
    c. Subject in any event to the five-year statute of repose under § 893.55(2), except as tolled by fraud or foreign object under § 893.55(3);
    d. Tolled, where the injured party is a minor, until the patient's tenth birthday or the otherwise applicable period, whichever is later, under Wis. Stat. § 893.56.

13. The act or omission giving rise to this action occurred on or about [__/__/____]. The injury was discovered, or reasonably should have been discovered, on or about [__/__/____]. This action is therefore timely.

14. The applicable limitations period was further tolled by the filing of the Request for Mediation pursuant to Wis. Stat. § 655.44(4), which tolls the period of limitations during the mediation period.

5. FACTUAL BACKGROUND

A. Pre-Treatment Medical History

15. On or about [__/__/____], Plaintiff [PATIENT] presented to Defendant [______] with the following history, complaints, and condition: [______].

16. Plaintiff's relevant past medical history included [______]. Plaintiff disclosed all known allergies, medications, and prior conditions to Defendants and their staff.

B. Provider-Patient Relationship

17. By accepting Plaintiff for evaluation, diagnosis, and treatment, Defendants entered into a physician-patient (or provider-patient) relationship with Plaintiff and assumed all duties imposed on health care providers under Wisconsin law.

C. The Negligent Acts and Omissions

18. On [__/__/____], at [TIME] at [LOCATION/FACILITY], Defendant [PROVIDER] [describe specific clinical encounter, decision, or procedure].

19. The negligent acts and omissions include, but are not limited to, the following:
    a. Failure to obtain an adequate history and perform an adequate examination;
    b. Failure to order indicated diagnostic studies, including [______];
    c. Failure to interpret diagnostic studies in accordance with the applicable standard of care;
    d. Failure to timely diagnose [______];
    e. Failure to timely treat [______];
    f. Negligent performance of [PROCEDURE], including [______];
    g. Negligent prescription, dosing, or administration of [______];
    h. Failure to obtain appropriate informed consent prior to [______];
    i. Failure to monitor, recognize, and respond to changes in Plaintiff's condition;
    j. Failure to refer to or consult with appropriate specialists;
    k. Failure to communicate critical findings to other treating providers;
    l. Failure to maintain accurate, timely, and complete medical records;
    m. [Other specific acts or omissions: ______].

D. Resulting Injury

20. As a direct and proximate result of the foregoing negligence, Plaintiff suffered [describe injuries: e.g., delayed diagnosis of cancer with metastasis; surgical injury; medication overdose; fetal injury; brain injury; death].

21. The injuries described above were not the natural progression of any pre-existing condition and would not have occurred in the absence of Defendants' departures from the standard of care.

6. STANDARD OF CARE

22. At all material times, Defendants owed Plaintiff the duty to exercise that degree of care, diligence, judgment, and skill which is exercised by a reasonable health care provider acting in the same or similar circumstances, as articulated by Wisconsin Civil Jury Instruction 1023 and the case law applying Wis. Stat. ch. 655.

23. Plaintiff is prepared to present qualified expert testimony pursuant to Wis. Stat. § 907.02, as construed in Seifert v. Balink, 2017 WI 2, demonstrating that Defendants' acts and omissions constituted breaches of the applicable standard of care and were a substantial factor in causing Plaintiff's injuries.

7. FIRST CAUSE OF ACTION — MEDICAL NEGLIGENCE (Wis. Stat. ch. 655)

24. Plaintiff incorporates paragraphs 1 through 23 as if fully restated.

25. Defendants breached the standard of care as set forth above.

26. The breaches were a substantial factor in causing Plaintiff's injuries and damages.

27. The negligence of Defendants was the sole or predominant cause of Plaintiff's injuries; if any contributory negligence is alleged, Plaintiff's negligence (if any) was less than fifty-one percent (51%) of the total causal negligence under Wis. Stat. § 895.045(1), and Plaintiff is therefore entitled to recover.

8. SECOND CAUSE OF ACTION — LACK OF INFORMED CONSENT (Wis. Stat. § 448.30)

28. Plaintiff incorporates paragraphs 1 through 27 as if fully restated.

29. Pursuant to Wis. Stat. § 448.30, a physician treating a patient has the duty to inform the patient about the availability of all alternate, viable medical modes of treatment, including the benefits and risks of such treatments and the risks of treatment refusal, to the extent reasonably necessary to permit the patient to make an informed decision.

30. Defendant [______] failed to disclose [the diagnosis, the proposed procedure, the material risks, alternative modes of treatment, including conservative or non-surgical management, and the risks of refusing treatment].

31. A reasonable patient in Plaintiff's position, fully informed, would have refused the proposed treatment or chosen an available alternative, and Plaintiff suffered injury that materialized from an undisclosed risk.

9. THIRD CAUSE OF ACTION — VICARIOUS LIABILITY / RESPONDEAT SUPERIOR

32. Plaintiff incorporates paragraphs 1 through 31 as if fully restated.

33. At all material times, Defendant [PROVIDER] was an employee, agent, ostensible agent, or borrowed servant of Defendant [HOSPITAL/CLINIC], acting within the scope of that relationship.

34. Defendant [HOSPITAL/CLINIC] is therefore vicariously liable for the negligent acts and omissions of its employees, agents, and apparent agents, including under the borrowed-servant doctrine recognized in Wisconsin medical-malpractice jurisprudence.

10. FOURTH CAUSE OF ACTION — NEGLIGENT HIRING, CREDENTIALING, SUPERVISION

35. Plaintiff incorporates paragraphs 1 through 34 as if fully restated.

36. Defendant [HOSPITAL/CLINIC] owed an independent duty to exercise reasonable care in the credentialing, privileging, retention, supervision, and monitoring of its medical staff, consistent with Johnson v. Misericordia Community Hospital, 99 Wis. 2d 708, 301 N.W.2d 156 (1981).

37. Defendant breached that duty by [granting/renewing privileges to a provider with a history of [______]; failing to monitor outcomes; failing to act on prior incident reports; failing to enforce policies], proximately causing Plaintiff's injuries.

11. FIFTH CAUSE OF ACTION — LOSS OF CONSORTIUM / DERIVATIVE CLAIMS

38. Plaintiff incorporates paragraphs 1 through 37 as if fully restated.

39. Plaintiff [SPOUSE / PARENT / MINOR CHILD] brings a derivative claim under Wis. Stat. § 655.007 for loss of society, companionship, services, and consortium arising from the injuries inflicted upon [PATIENT].

12. SIXTH CAUSE OF ACTION — WRONGFUL DEATH (Wis. Stat. § 895.04) [if applicable]

40. Plaintiff incorporates paragraphs 1 through 39 as if fully restated.

41. As a direct and proximate result of Defendants' negligence, [DECEDENT] suffered fatal injuries and died on [__/__/____].

42. Pursuant to Wis. Stat. § 895.04, Plaintiff [SURVIVING SPOUSE / PARENT / CHILD], on behalf of all statutory beneficiaries, claims pecuniary loss, loss of society and companionship, and other damages recoverable under § 895.04.

43. Plaintiff acknowledges that, pursuant to Bartholomew v. Wisconsin Patients Compensation Fund, 2006 WI 91, in a medical malpractice case resulting in death, two separate caps apply: the medical malpractice noneconomic damages cap under § 893.55(4)(d) for predeath claims, and the wrongful death cap under § 895.04(4) for postdeath loss of society and companionship ($350,000 per occurrence for an adult decedent; $500,000 per occurrence for a deceased minor).

13. DAMAGES AND STATUTORY CAPS

44. As a direct and proximate result of Defendants' negligence, Plaintiff has suffered and will continue to suffer damages, including but not limited to:

a. Past and future medical, hospital, rehabilitative, custodial, attendant care, and prescription expenses;
b. Past and future lost earnings, lost earning capacity, and lost benefits;
c. Past and future physical pain, suffering, disability, and disfigurement;
d. Past and future emotional distress, mental anguish, and loss of enjoyment of life;
e. Loss of society, companionship, services, and consortium (derivative claimants);
f. Wrongful death pecuniary loss and loss of society and companionship (if applicable);
g. Funeral and burial expenses (if applicable);
h. Such other and further damages as the evidence may show.

45. Statutory Caps Acknowledgment. Plaintiff acknowledges that:
    a. Noneconomic damages in this medical malpractice action are limited to $750,000 per occurrence pursuant to Wis. Stat. § 893.55(4)(d), as upheld in Mayo v. Wisconsin Injured Patients & Families Compensation Fund, 2018 WI 78;
    b. There is no cap on economic damages (medical expenses, lost earnings, lost earning capacity);
    c. The wrongful death noneconomic cap, where applicable, is $350,000 per occurrence (adult) or $500,000 per occurrence (minor) under § 895.04(4);
    d. Punitive damages are governed by Wis. Stat. § 895.043, and the Plaintiff [does / does not] seek punitive damages at this time;
    e. Plaintiff does not waive any constitutional challenge to the cap as applied to Plaintiff's individual circumstances.

46. Joint and Several Liability. Pursuant to Wis. Stat. § 895.045(1), any defendant whose causal negligence is found to be 51% or more shall be jointly and severally liable for the full damages awarded; defendants found less than 51% causally negligent shall be severally liable in proportion to their causal negligence.

47. Apologies Inadmissible. Pursuant to Wis. Stat. § 904.14, any statement, gesture, or expression of apology, sympathy, compassion, fault, liability, or remorse made by a health care provider before commencement of this action is inadmissible as evidence of liability or as an admission against interest.

14. DEMAND FOR JURY TRIAL

48. Pursuant to Wis. Stat. § 805.01 and Article I, § 5 of the Wisconsin Constitution, Plaintiff demands trial by a jury of twelve (12) on all issues so triable.

15. PRAYER FOR RELIEF

WHEREFORE, Plaintiff respectfully requests that this Court enter judgment in favor of Plaintiff and against Defendants, jointly and severally where applicable, for:

• (a) Compensatory damages, including economic and noneconomic damages, in an amount to be determined by the jury subject to applicable statutory caps;
• (b) Wrongful death damages where applicable;
• (c) Punitive damages under Wis. Stat. § 895.043 where supported by evidence;
• (d) Pre- and post-judgment interest as allowed by Wis. Stat. § 807.01 and § 815.05;
• (e) Costs and disbursements pursuant to Wis. Stat. § 814.01 et seq.;
• (f) Attorneys' fees subject to the limits of Wis. Stat. § 655.013; and
• (g) Such other and further relief as the Court deems just and equitable.

Dated this ______ day of ______________, 20____.

Respectfully submitted,

[LAW FIRM NAME]

By: ______________________________
[ATTORNEY NAME], SBN [______]
[Address]
[Telephone] | [Email]
Attorneys for Plaintiff(s)

16. VERIFICATION

STATE OF WISCONSIN )
) ss.
COUNTY OF [______] )

I, [PLAINTIFF NAME], being first duly sworn on oath, depose and state that I am the Plaintiff in the above-captioned action; that I have read the foregoing Complaint; and that the allegations contained therein are true to the best of my knowledge, information, and belief.

______________________________
[PLAINTIFF NAME]

Subscribed and sworn to before me this ______ day of ______________, 20____.

______________________________
Notary Public, State of Wisconsin
My Commission Expires: ______________

17. SOURCES AND REFERENCES

Statutes (verify current text at docs.legis.wisconsin.gov)

• Wis. Stat. ch. 655 — Health Care Liability and Injured Patients and Families Compensation
• Wis. Stat. § 655.001 — Definitions (health care provider, patient, professional services)
• Wis. Stat. § 655.007 — Patients' claims
• Wis. Stat. § 655.009 — Procedure
• Wis. Stat. § 655.013 — Limit on contingency fees (one-third of first $1M; lesser percentages above)
• Wis. Stat. § 655.017 — Limit on noneconomic damages (cross-referencing § 893.55)
• Wis. Stat. § 655.23 — Required insurance
• Wis. Stat. § 655.27 — Injured Patients and Families Compensation Fund
• Wis. Stat. § 655.42-655.46 — Mediation system
• Wis. Stat. § 655.44 — Pre-suit mediation request
• Wis. Stat. § 655.445 — Mediation request in conjunction with court action (15-day rule)
• Wis. Stat. § 655.465 — Mediation panels; mediation period
• Wis. Stat. § 893.55 — Medical malpractice statute of limitations and damages cap
• Wis. Stat. § 893.56 — Medical malpractice actions involving minors
• Wis. Stat. § 893.16 — Tolling for persons under disability
• Wis. Stat. § 895.04 — Plaintiff in wrongful death action; $350K/$500K caps
• Wis. Stat. § 895.043 — Punitive damages
• Wis. Stat. § 895.045 — Contributory negligence and joint/several liability (51% threshold)
• Wis. Stat. § 904.14 — Health care provider apologies inadmissible
• Wis. Stat. § 907.02 — Expert testimony (Daubert standard)
• Wis. Stat. § 448.30 — Informed consent
• Wis. Stat. § 632.24 — Direct action against insurer

Key Case Law

• Mayo v. Wis. Injured Patients & Families Comp. Fund, 2018 WI 78, 383 Wis. 2d 1, 914 N.W.2d 678 (upholding $750K cap)
• Bartholomew v. Wis. Patients Comp. Fund, 2006 WI 91, 293 Wis. 2d 38 (medical-malpractice cap and wrongful-death cap apply concurrently)
• Maurin v. Hall, 2004 WI 100, 274 Wis. 2d 28 (overruled in part by Bartholomew)
• Seifert v. Balink, 2017 WI 2, 373 Wis. 2d 525 (Wisconsin's Daubert analysis)
• Carney-Hayes v. Nw. Wis. Home Care, 2005 WI 118 (expert testimony required)
• Johnson v. Misericordia Community Hospital, 99 Wis. 2d 708 (1981) (negligent credentialing)
• Phelps v. Physicians Ins. Co., 2009 WI 74 (loss of chance and substantial factor causation)

Practice Resources

• Wisconsin Court System — Medical Mediation Panels: https://www.wicourts.gov/courts/offices/mmp.htm
• Office of the Commissioner of Insurance — IPFCF Overview: https://oci.wi.gov/Pages/Funds/IPFCFOverview.aspx
• Wisconsin State Law Library — Medical Malpractice topic: https://wilawlibrary.gov/topics/medlaw/malpractice.php
• Wisconsin Civil Jury Instruction 1023 (Standard of Care — Physician)
• Wisconsin Civil Jury Instruction 1740 (Comparative Negligence)

County-Specific Practice Notes

• Milwaukee County (Case Code 30107): Civil Division of the Milwaukee County Circuit Court; large-claim medical malpractice cases are typically scheduled by the Differentiated Case Management program; verify local rules on protective orders and HIPAA-compliant document handling.
• Dane County: Felonies and large civil cases tracked through case management orders; Dane County Bar publishes local procedural orders.
• Waukesha County: Verify local rule for stipulated scheduling orders in medical malpractice actions.
• Brown County: Verify scheduling protocols and judicial assignment rules.

Verification Checklist

☐ All statutory citations verified against current Wisconsin Statutes at docs.legis.wisconsin.gov
☐ Mediation request filed pre-suit (§ 655.44) or to be filed within 15 days (§ 655.445)
☐ IPFCF properly joined and served via Commissioner of Insurance (§ 655.27(5))
☐ Primary insurer joined as direct-action defendant (§ 632.24)
☐ Statute of limitations confirmed under § 893.55(1m) and § 893.56
☐ Five-year repose evaluated (§ 893.55(2))
☐ Expert witness qualified under § 907.02 retained
☐ HIPAA-compliant medical record subpoenas prepared
☐ Contingency fee agreement complies with § 655.013 limits
☐ Local circuit court forms checked against Wisconsin Court System forms

This template does not constitute legal advice. All citations must be independently verified against the current Wisconsin Statutes and applicable case law before filing.