Wisconsin Notice of Intent to Sue / Pre-Suit Demand for Medical Malpractice (Wis. Stat. ch. 655)

NOTICE OF INTENT TO SUE / PRE-SUIT DEMAND FOR SETTLEMENT

Wisconsin Medical Malpractice Action under Wis. Stat. ch. 655

TABLE OF CONTENTS

1. Letterhead, Date, and Recipients
2. Subject and Purpose Statement
3. Identification of Patient/Claimant and Authority of Counsel
4. Identification of Health Care Providers Subject to Notice
5. Statement of Facts and Allegations of Negligence
6. Standard of Care and Causation
7. Damages and Demand for Compensation
8. Statutory Cap Acknowledgment
9. Limitations Period and Tolling
10. Mediation Panel Notice (Wis. Stat. § 655.44)
11. Apology Statute Acknowledgment (Wis. Stat. § 904.14)
12. Records Request and HIPAA Authorization (Wis. Stat. §§ 146.81-.84)
13. Litigation Hold and Spoliation Notice
14. Insurance Notification Demand
15. Settlement Demand and Response Deadline
16. Confidentiality (FRE 408 / Wis. Stat. § 904.08)
17. Signature Block
18. Sources and References
19. Exhibits Checklist

1. LETTERHEAD, DATE, AND RECIPIENTS

[LAW FIRM NAME]
[Address]
[Phone] · [Fax] · [Email]

Date: [____________________]

VIA CERTIFIED MAIL — RETURN RECEIPT REQUESTED, AND VIA EMAIL (where address is known)

2. SUBJECT AND PURPOSE STATEMENT

Re: Notice of Intent to Pursue a Medical Malpractice Claim under Wis. Stat. ch. 655
Patient: [______________________]
Date(s) of Treatment at Issue: [__/__/____] through [__/__/____]
Facility: [______________________]

This letter constitutes formal notice that the undersigned represents [CLAIMANT NAME] in connection with injuries sustained as a result of medical negligence allegedly occurring during the above-referenced treatment. This Notice of Intent is provided as a courtesy and to trigger your obligations relating to evidence preservation, insurance notification, and good-faith claim handling. The undersigned will, in due course and within the limitations period under Wis. Stat. § 893.55(1m), file a formal Request for Mediation with the Director of State Courts pursuant to Wis. Stat. § 655.44 and, if not resolved, commence a civil action.

3. IDENTIFICATION OF PATIENT/CLAIMANT AND AUTHORITY OF COUNSEL

3.1 Patient. [_____________________], DOB [__/__/____], previously treated at your facility/practice on the dates indicated above.

3.2 Claimant(s).

• ☐ Patient (individual capacity)
• ☐ Spouse — [__________]
• ☐ Parent / Natural Guardian of minor patient — [__________]
• ☐ Personal Representative of the Estate of [DECEDENT] (Estate File No. [______], [______] County)
• ☐ Guardian / Legal Representative of person under disability

3.3 Authority. Pursuant to a written engagement agreement complying with Wis. Stat. § 655.013, the undersigned has been retained to represent the above Claimant(s). All communications regarding this matter must be directed to undersigned counsel; please refrain from direct contact with the patient or family.

4. IDENTIFICATION OF HEALTH CARE PROVIDERS SUBJECT TO NOTICE

The following individuals and entities are "health care providers" within the meaning of Wis. Stat. § 655.001(8) and are subject to this Notice:

Provider Status. Each named provider is, on information and belief, a participating provider in the Injured Patients and Families Compensation Fund pursuant to Wis. Stat. § 655.27 and maintains primary professional liability coverage of at least $1,000,000 per occurrence and $3,000,000 per annual aggregate as required by § 655.23(4)(b).

5. STATEMENT OF FACTS AND ALLEGATIONS OF NEGLIGENCE

5.1 Pre-Treatment History. [Patient] presented to [Provider/Facility] on [__/__/____] with the following history and complaints: [______]. Pertinent past medical history, allergies, and medications were disclosed: [______].

5.2 Course of Care. From [__/__/____] through [__/__/____], [Provider/Facility] [describe diagnostic, treatment, surgical, or other care provided in chronological detail].

5.3 Acts and Omissions. Based on review of available records, the following departures from the standard of care occurred:

a. Failure to diagnose / delayed diagnosis. [______]
b. Negligent diagnostic workup. [______]
c. Negligent procedural / surgical performance. [______]
d. Medication error (prescribing / dispensing / administration / monitoring). [______]
e. Failure to obtain informed consent under Wis. Stat. § 448.30. [______]
f. Negligent monitoring / failure to rescue. [______]
g. Failure to refer or consult specialists. [______]
h. Negligent communication / handoff. [______]
i. Negligent credentialing, supervision, or staffing. [______]
j. Other. [______]

5.4 Outcome. As a direct and proximate result of the foregoing acts and omissions, [Patient] sustained the following injuries: [describe with clinical specificity, including date of injury manifestation and date of discovery for limitations purposes].

6. STANDARD OF CARE AND CAUSATION

6.1 Standard of Care. Each Provider owed [Patient] the duty to exercise that degree of care, diligence, judgment, and skill exercised by a reasonable health care provider acting in the same or similar circumstances, as articulated in Wisconsin Civil Jury Instruction 1023 and applicable Wisconsin Supreme Court precedent.

6.2 Expert Review. Counsel has obtained or is in the process of obtaining review by a qualified health care expert under Wis. Stat. § 907.02 and Seifert v. Balink, 2017 WI 2, who is prepared to opine that the foregoing departures from the standard of care were a substantial factor in causing [Patient]'s injuries.

6.3 Causation. The injuries described above are not the natural progression of any pre-existing condition and would not have occurred in the absence of the providers' departures from the standard of care.

7. DAMAGES AND DEMAND FOR COMPENSATION

7.1 Categories of Damages.

7.2 Documentation. Supporting documentation is enclosed or available upon request, including itemized medical bills, employment records, life-care planner reports, and economist projections.

8. STATUTORY CAP ACKNOWLEDGMENT

Counsel acknowledges and is mindful of the following Wisconsin statutory caps applicable to medical malpractice claims:

• Noneconomic Damages Cap — § 893.55(4)(d): $750,000 per occurrence, upheld in Mayo v. Wisconsin Injured Patients & Families Compensation Fund, 2018 WI 78. Plaintiff reserves all rights to challenge the application of this cap to the facts of this case while complying with current law.
• Wrongful Death Cap — § 895.04(4): $350,000 per occurrence (adult decedent) or $500,000 per occurrence (deceased minor), in addition to predeath noneconomic damages under Bartholomew v. Wis. Patients Comp. Fund, 2006 WI 91.
• Economic Damages: No statutory cap.
• Punitive Damages — § 895.043: Recoverable only on a showing of malicious or intentional disregard, capped at the greater of $200,000 or twice compensatory damages.
• Joint and Several Liability — § 895.045: Defendants whose causal negligence is found to be 51% or more are jointly and severally liable.

9. LIMITATIONS PERIOD AND TOLLING

9.1 Statute of Limitations. Under Wis. Stat. § 893.55(1m), this action must be commenced not later than:
a. Three (3) years from the date of the act or omission; or
b. One (1) 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 all events to the five-year statute of repose under § 893.55(2), except as tolled by fraud, concealment, or foreign-object discovery under § 893.55(3).

9.2 Minor Tolling. If the patient is a minor, the period is tolled under Wis. Stat. § 893.56 until the patient's tenth birthday or the otherwise applicable period, whichever is later.

9.3 Disability Tolling. Under § 893.16, the limitations period is tolled for persons under legal disability subject to statutory limits.

9.4 Mediation Tolling. The limitations period will be further tolled during the mediation period upon the filing of the Request for Mediation under Wis. Stat. § 655.44(4).

9.5 Date of Act: [__/__/____]. Date of Discovery: [__/__/____]. Calculated Deadline: [__/__/____].

10. MEDIATION PANEL NOTICE (Wis. Stat. § 655.44)

The undersigned hereby provides notice that, in the event this matter is not resolved by negotiation within the response period set forth below, Claimant intends to file a formal Request for Mediation with the Director of State Courts pursuant to Wis. Stat. § 655.44, naming each of the providers identified in Section 4 above as Respondents. In the alternative, if circumstances require contemporaneous filing, Claimant will file a civil action and will file the Request for Mediation within fifteen (15) days as required by Wis. Stat. § 655.445.

The mediation panel proceedings under §§ 655.46 and 655.465 will involve:

• A panel of three: an attorney, a matched-specialty health care provider, and a public/lay member;
• A mediation period of up to ninety (90) days from filing under § 655.465(7);
• Confidential proceedings under § 655.58;
• An advisory result under § 655.61;
• Tolling of the limitations period under § 655.44(4).

Counsel for the addressees is invited to engage in pre-mediation discussions and informal information exchange in advance of formal panel filing.

11. APOLOGY STATUTE ACKNOWLEDGMENT (Wis. Stat. § 904.14)

Counsel acknowledges and understands that, under 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 a civil action is inadmissible as evidence of liability or as an admission against interest. Counsel will not use any such statement against any addressee in any subsequent civil proceeding to the extent the statute precludes admission. This acknowledgment is provided to encourage open and forthright communication regarding the patient's care.

12. RECORDS REQUEST AND HIPAA AUTHORIZATION (Wis. Stat. §§ 146.81-.84)

12.1 Demand for Patient Health Care Records. Pursuant to Wis. Stat. §§ 146.81 through 146.84, and in accordance with HIPAA (45 C.F.R. § 164.508), please produce within thirty (30) days the complete patient health care records for [Patient], including:

• All inpatient and outpatient medical records (paper and electronic)
• All physician and provider notes (handwritten and dictated)
• All nursing notes, flow sheets, and medication administration records
• All operative reports, anesthesia records, and pathology reports
• All imaging reports and original imaging studies (DICOM where available)
• All laboratory and microbiology reports
• All discharge summaries and transfer records
• All ambulance/EMS run sheets where applicable
• All consent forms and informed consent documentation
• All audit logs of EHR access (metadata)
• All telemetry, monitor strips, and continuous monitoring data
• All quality assurance / peer review documents to the extent not privileged under Wis. Stat. § 146.38
• All correspondence, billing, and itemized statements

12.2 Enclosed Authorization. A signed HIPAA-compliant authorization is enclosed.

12.3 Statutory Production Time. Wis. Stat. § 146.83 governs records production timelines and permissible fees.

13. LITIGATION HOLD AND SPOLIATION NOTICE

13.1 Preservation Obligation. You and your agents, employees, contractors, and affiliated entities are hereby instructed to preserve, and to not destroy, alter, modify, or transfer, any documents, electronically stored information ("ESI"), tangible items, devices, biological specimens, equipment, instrumentation, or other materials that may be relevant to the care provided to [Patient], including but not limited to:

• All paper and electronic medical records and metadata/audit logs
• All imaging studies in original format
• All EHR system audit trails and access logs
• All emails, text messages, secure-messaging communications, and voicemails of involved providers
• All policies, procedures, protocols, order sets, and guidelines in effect at the time of treatment
• All credentialing files, peer review materials (subject to applicable privilege), and quality reports
• All equipment, devices, implants, instruments, and consumables involved in [Patient]'s care, including manufacturer/serial/lot information
• All staffing records, schedules, and call logs
• Any retained tissue, fluid, or pathological specimens

13.2 Consequences. Failure to preserve evidence may result in spoliation sanctions, adverse inference instructions, or other relief under Wisconsin law, including Insurance Co. of N. America v. Cease Elec., 2004 WI 139.

14. INSURANCE NOTIFICATION DEMAND

14.1 Notice to Carriers. Each named provider is directed to immediately notify its primary medical malpractice carrier and any excess carrier (including the Wisconsin IPFCF where applicable) of this claim and to forward a copy of this Notice of Intent. Failure to provide timely notice may compromise coverage and may give rise to bad-faith liability under Anderson v. Continental Insurance Co., 85 Wis. 2d 675 (1978).

14.2 Coverage Information Demand. Within thirty (30) days, please provide:

• Name, address, and policy number of primary professional liability carrier
• Limits of primary coverage
• Name and address of any excess / umbrella carrier
• Confirmation of IPFCF participation and effective dates
• Identification of risk management / claims contact

15. SETTLEMENT DEMAND AND RESPONSE DEADLINE

15.1 Demand. To resolve this matter without proceeding to formal Mediation Panel filing or civil litigation, Claimant demands payment in the total amount of $[______] in full settlement of all claims, inclusive of liens, costs, and attorneys' fees.

15.2 Response Deadline. Please respond in writing on or before [__/__/____] (forty-five (45) days from the date of this letter, or such other date as the parties may agree). A reasoned response, including any counter-proposal, will assist in narrowing issues prior to Mediation Panel filing.

15.3 No Waiver. This demand is made without prejudice to Claimant's right to seek any and all damages, including damages exceeding the demand amount, in any subsequent Mediation Panel or civil proceeding. No statement herein constitutes a waiver of any claim, right, or remedy, including but not limited to claims for punitive damages under Wis. Stat. § 895.043 or any constitutional challenge to the cap on noneconomic damages.

16. CONFIDENTIALITY (FRE 408 / Wis. Stat. § 904.08)

This communication and any settlement discussions arising from it are made for the purpose of compromise and are confidential under Wis. Stat. § 904.08 and Federal Rule of Evidence 408. They are not admissible to prove liability for, the invalidity of, or the amount of any claim.

17. SIGNATURE BLOCK

Respectfully submitted,

[LAW FIRM NAME]

By: ______________________________
[ATTORNEY NAME], SBN [______]
[Address]
[Telephone] | [Fax] | [Email]
Attorneys for [CLAIMANT NAME]

cc: [Co-counsel; Claimant; Lien holders; Subrogated insurers]

18. SOURCES AND REFERENCES

Primary Statutes (verify at docs.legis.wisconsin.gov)

• Wis. Stat. ch. 655 — Health Care Liability and Injured Patients and Families Compensation
• Wis. Stat. § 655.001 — Definitions
• Wis. Stat. § 655.007 — Patients' claims
• Wis. Stat. § 655.013 — Contingency fee limits
• Wis. Stat. § 655.23 — Required primary insurance ($1M / $3M)
• Wis. Stat. § 655.27 — Injured Patients and Families Compensation Fund (IPFCF)
• Wis. Stat. § 655.42 — Legislative intent (mediation system)
• Wis. Stat. § 655.44 — Pre-suit Request for Mediation
• Wis. Stat. § 655.445 — Contemporaneous Request for Mediation (15-day rule)
• Wis. Stat. § 655.46 — Mediation panel
• Wis. Stat. § 655.465 — Mediation panels; period; tolling
• Wis. Stat. § 655.58 — Confidentiality
• Wis. Stat. § 655.61 — Advisory nature
• Wis. Stat. § 893.55 — Medical malpractice limitations and damages cap
• Wis. Stat. § 893.56 — Minors
• Wis. Stat. § 893.16 — Persons under disability
• Wis. Stat. § 895.04 — Wrongful death
• Wis. Stat. § 895.043 — Punitive damages
• Wis. Stat. § 895.045 — Comparative negligence and joint/several liability (51% threshold)
• Wis. Stat. § 904.08 — Compromise and settlement evidence
• Wis. Stat. § 904.14 — Health care provider apologies inadmissible
• Wis. Stat. § 907.02 — Expert testimony
• Wis. Stat. § 448.30 — Informed consent
• Wis. Stat. §§ 146.81-146.84 — Patient health care records access and production
• Wis. Stat. § 146.38 — Peer review privilege
• 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 (cap upheld)
• Bartholomew v. Wis. Patients Comp. Fund, 2006 WI 91, 293 Wis. 2d 38 (caps in death cases)
• Maurin v. Hall, 2004 WI 100 (overruled in part by Bartholomew)
• Phelps v. Physicians Ins. Co., 2009 WI 74 (causation; loss of chance)
• Seifert v. Balink, 2017 WI 2 (expert qualifications under Daubert)
• 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)
• Anderson v. Continental Ins. Co., 85 Wis. 2d 675 (1978) (bad faith)
• Insurance Co. of N. America v. Cease Elec., 2004 WI 139 (spoliation)

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: https://wilawlibrary.gov/topics/medlaw/malpractice.php
• Wisconsin State Law Library — Medical Mediation: https://wilawlibrary.gov/topics/medlaw/mediation.php
• Wisconsin Civil Jury Instructions 1023 (Standard of Care) and 1740 (Comparative Negligence)

County-Specific Practice Considerations

• Milwaukee County Circuit Court: Med-mal cases coded 30107; Civil Division case management orders typically issue stays pending Mediation Panel completion when § 655.445 pathway is used.
• Dane County: Several judges issue scheduling orders contemporaneous with civil filings; verify current local rules.
• Waukesha County: Stipulated stays and scheduling protocols common; coordinate with opposing counsel and chambers.
• Brown County: Confirm scheduling expectations with court clerk and assigned judge.
• Outagamie / Winnebago / Kenosha / Racine: Smaller counties may have less standardized practices; rely on local rules and direct chambers communication.

Verification Checklist

☐ All statutory citations independently verified against current Wisconsin Statutes
☐ Recipients list complete (providers, insurers, IPFCF, hospital risk management/general counsel)
☐ HIPAA-compliant authorization enclosed
☐ Limitations period properly calculated under § 893.55(1m); minor tolling under § 893.56 applied where relevant
☐ Litigation hold notice complete; spoliation reference included
☐ Insurance notification demand included with response deadline
☐ Settlement demand documented with itemized damages
☐ Apology statute acknowledgment included
☐ Reservation of rights and constitutional challenges preserved
☐ Plan to file Mediation Panel Request under § 655.44 (or § 655.445) confirmed and calendared
☐ Contingency fee agreement reviewed against § 655.013

19. EXHIBITS CHECKLIST

☐ Exhibit A — Authorization for Release of Patient Health Care Records (HIPAA-compliant; § 146.81-.84)
☐ Exhibit B — Letter of Representation / Engagement (or proof of representative capacity)
☐ Exhibit C — Letters of Authority / Order Appointing Personal Representative (if applicable)
☐ Exhibit D — Medical bills and lien notices
☐ Exhibit E — Employment / wage loss documentation
☐ Exhibit F — Photographs / illustrative materials
☐ Exhibit G — Preliminary expert review summary (optional, redacted)
☐ Exhibit H — Death certificate (if wrongful death)
☐ Exhibit I — Birth certificate (if minor)
☐ Exhibit J — Subrogation/lien notices (Medicare, Medicaid, ERISA, private health plan)

This template does not constitute legal advice. Wisconsin medical malpractice procedure is governed by Chapter 655 and is uniquely structured around the Mediation Panel system. Counsel must independently verify all citations, mediation procedural compliance, statute-of-limitations calculations, and current Director of State Courts forms before filing any related action or notice.