Generally, a personal injury claim is a claim in which one individual sues another individual or a group for causing injuries against them. Usually, the injured party is seeking a financial compensation (generally called “damages”) for their injuries, but not always.
There are many different types of personal injury claims that can be filed, including:
- auto accident
- slip and fall (which usually refers to general injuries),
- medical malpractice
- worker’s compensation
- mesothelioma (cancer from asbestos exposure)
- and others
Statute of limitations
Anyone wishing to file a claim in Wisconsin should be aware of the statute of limitations (SOL) for their particular case type. This is the amount of time that a client has to file a claim. If a person does not file in this time period, he or she may not be allowed to file in the future. In Wisconsin, the SOL for medical malpractice is five years from the date of the incident or one year from the date of discovery.
Different types of medical malpractice cases in WI
Usually, there are several types of medical malpractice claims that can be filed:
- birth injury
- nursing home
- wrongful death
- dental malpractice
- wrongful diagnosis
It is important to find an attorney that specializes in the specific case type that you are pursuing. These all have different requirements to be brought to trial, and different ways that they are viewed by courts in Wisconsin. Also, your case may need the testimony of a qualified medical expert.
Laws regarding Med Mal in Wisconsin
It is important to note that in wrongful death claims, only a spouse or a minor child is legally allowed to file a claim on behalf of another person. Similarly, a parent is only allowed to file a claim on behalf of a minor child.
Steps to take in filing a personal injury claim
If you believe that you have a claim, it is imperative to consult an attorney as soon as possible. It is also important to present to your attorney as many supporting documents as possible (medical records, death certificates, photos of injury, etc). It is very likely that your case will go to trial, as the majority of physicians and hospitals will not admit wrongdoing. Also, most courts do not consider a negative result to be evidence of incompetence or wrongdoing.
If your attorney declines to represent you at any stage, it is critical to find another attorney as soon as possible. The statute of limitations makes time an enemy, and attorneys will often look at the same incident in different ways. One attorney may have more time, resources, and most importantly money to pursue a claim than another attorney.
Wisconsin is one of many states that places a limit on the amount of damages that you can receive on a claim. This is known as a “damage cap.” Generally, the damage cap on medical malpractice cases in Wisconsin is $750,000 per incident for non-economic cases (pain and suffering, etc) and there is no limit for economic damages, which refers to financial damages (money spent on medical care, money lost in wages, etc.). Non-economic cases are seen as more subjective, thus the perceived need for a cap for these types of claims. However, there is a cap on damages against state employees of $250,000 per incident.
There have been challenges to this damage cap in recent years. Terri Fiez was awarded $1.8 million by a Wisconsin court after her husband died after being misdiagnosed by the UW-Medical Center. Robert Fiez was admitted to their facility with chest pains, but the blood clots in his lung went undiagnosed.
He was discharged and died four days later. Because the care occurred at University of Wisconsin and not a private hospital, the cap of $250,000 in damages applied. Fiez’s case went before a grand jury and six doctors were found to be negligent in the case. Fiez is now challenging the state’s cap on UW and other state employed workers.