655.007 Patients' claims. On and after July 24, 1975, any patient or the patient's representative having a claim or any spouse, parent, minor sibling or child of the patient having a derivative claim for injury or death on account of malpractice is subject to this chapter.
History: 1975 c. 37, 199; 1983 a. 253; 1997 a. 89.
This chapter was inapplicable to a 3rd-party claim based on contract in which no bodily injury was alleged. Northwest General Hospital v. Yee, 115 Wis. 2d 59, 339 N.W.2d 583 (1983).
In this section “child" refers to a minor child. An adult child cannot assert a claim based on medical malpractice committed against the adult child's parent. Ziulkowski v. Nierengarten, 210 Wis. 2d 98, 565 N.W.2d 164 (Ct. App. 1997), 95-1708.
Section 893.55 (4) (f) makes the limits on damages applicable to medical malpractice death cases, but does not incorporate classification of wrongful death claimants entitled to bring such actions, which is controlled by this section. As such, adult children do not have standing to bring such an action. The exclusion of adult children does not violate equal protection. Czapinski v. St. Francis Hospital, Inc. 2000 WI 80, 236 Wis. 2d 316, 613 N.W.2d 120, 98-2437
A mother who suffers the stillbirth of her infant as a result of medical malpractice has a personal injury claim involving negligent infliction of emotional distress, which includes the distress arising from the injuries and stillbirth of her daughter, in addition to her derivative claim for wrongful death of the infant. That the sources of the mother's emotional injuries cannot be segregated does not mean that there is a single claim of medical malpractice subject to the single cap for noneconomic damages. Pierce v. Physicians Insurance Co. 2005 WI 14, 278 Wis. 2d 82, 692 N.W.2d 558, 01-2710.
Under ss. 895.01 (1) (o) and 895.04 (2), a wrongful death claim does not survive the death of the claimant. In a non-medical malpractice wrongful death case, under s. 895.04 (2) a new cause of action is available to the next claimant in the statutory hierarchy. In a medical malpractice wrongful death case, eligible claimants under s. 655.007 are not subject to a statutory hierarchy like claimants under s. 895.04 (2). However, in a medical malpractice wrongful death case, adult children of the deceased are not listed as eligible claimants and are not eligible because of the exclusivity of s. 655.007, as interpreted in Czapinski. Lornson v. Siddiqui, 2007 WI 92, 302 Wis. 2d 519, 735 N.W.2d 55, 05-2315.
The plaintiff's claim that the hospital staff failed to adequately search his wife upon her return to an inpatient psychiatric unit when she carried in a gun and ammunition she used to kill herself alleged negligence in the performance of custodial care, not medical malpractice governed by ch. 655. While the decision to place the patient on the unit involved medical decisions made in the course of rendering professional medical care, the search itself was a matter of custodial care. The staff's search was not the result of special orders nor did it involve the exercise of professional medical judgment. Snyder v. Waukesha Memorial Hospital, Inc. 2009 WI App 86, 320 Wis. 2d 259, 768 N.W.2d 271, 08-1611.
A tortfeasor's insurer's subrogation claim against the injured party's doctor asserting that the doctor rendered unnecessary medical treatment for which the insurer was responsible amounts to an action for medical malpractice, which is governed by ch. 655. Neither the tortfeasor nor the insurer are patients or patient's representatives under this section and thus do not have standing to bring a malpractice claim. The application of ch. 655 to bar the insurer's subrogation claim does not violate equal protection guarantees. Konkel v. Acuity, 2009 WI App 132, 321 Wis. 2d 306, 775 N.W.2d 258, 08-2156.
Chapter 655 applies only to negligent medical acts or decisions made in the course of rendering professional medical care. To hold otherwise would exceed the bounds of the chapter and grant seeming immunity from non-ch. 655 suits to those with a medical degree. Plaintiff's claims arose from the discriminatory provision of medical care. Chapter 655 does not apply when the provider engages in discriminatory acts on the basis of a patient's disability. Rose v. Cahee, 727 F. Supp. 2d 728 (2010).