April 23, 2010 – In an end-of-session victory for the State Bar of Wisconsin, the state Assembly has given final passage to a bill to eliminate the 180-day notice requirement for medical malpractice claims against state employees, sending the bill to Gov. Jim Doyle for his consideration.

Members of the Assembly passed the bill by a voice vote on Thursday, April 22.

The legislation, Senate Bill 127, repeals the requirement that a person injured by medical malpractice involving a state officer, employee, or agent serve notice of claim with the Attorney General within 180 days of the injury. The bill applies to state officers and other governmental bodies the same 3-year statute of limitations for medical malpractice cases that applies to privately run health care providers.

The State Bar’s Board of Governors has a long-standing position in favor of any legislation which would remove the 180-day notice requirement so as to provide for notice of a claim consistent with existing statutes governing private medical care providers. State Bar President Douglas W. Kammer testified in favor of the legislation at a Senate committee hearing in August 2009.

Under current law, injured patients must notify the state or other governmental body of a potential malpractice claim within 180-days if they were treated by physicians or other health care professionals at a health facility operated by a governmental body and medical malpractice results in injury or death to a family member. Privately run health systems are subject to a three-year statute of limitations for such claims.

“This unequal treatment is problematic in several respects,” said a State Bar memo sent to legislators prior to the Assembly’s vote. “Most people do not know about the 180-day period for state-run facilities since no one is legally obligated to inform patients of the length of the statute of limitations, creating a trap for the unwary. Victims of medical malpractice should not be penalized by losing their right to proceed in court for failure to know about the notice requirement and comply within 180 days. Wisconsin families should be afforded fair and equal protection under the law, regardless of which hospital or doctor they use.”

On Feb. 16, 2010 the state Senate approved SB 127 a bipartisan 26-7 vote. Senator Fred Risser and Representative David Cullen introduced the legislation in March 2009. The Assembly Committee on Insurance approved the bill on a 10-0 bipartisan vote on April 13, 2010.

Unfortunately, during the last week of the regular session the Democratic-led Assembly failed to muster the votes necessary to pass another major medical malpractice reform bill supported the State Bar. Senate Bill 203, also known as the Family Justice Bill, would have permitted a parent to recover for the loss of society and companionship of an adult child whose injuries are the result of medical malpractice. The state Senate passed SB 203 on January 20, 2010.

Assembly leaders scheduled SB 203 for a vote on April 20 but were unable to secure the 50 votes needed to pass the bill in the 99-member body and ended up pulling the bill from the calendar. Legislative leaders did not bring the bill up again on April 22, the final day of session.

Current law does not allow a parent to recover for loss of society and companionship if the parent’s adult child dies as the result of medical malpractice. Similarly, an adult child cannot recover for loss of society and companionship if the adult child’s parent dies as the result of medical malpractice. Under SB 203, both the parent and the adult child would have been allowed to recover in these situations. The bill was introduced last year by Senator Jeffrey Plale and Representative Jon Richards.

The State Bar’s Board of Governors has a long-standing position in favor of “any legislation which would permit a parent to recover for loss of society and companionship of an adult child.”

Continue to monitor WisBar.org and visit the State Bar’s Government Relations page for updated information on this legislation.

By Adam Korbitz, Government Relations Coordinator, State Bar of Wisconsin

Related articles:

Senate passes bill to repeal 180-day notice limit for malpractice claims against state - February 17, 2010

Family Justice Bill passes Senate, moves on to Assembly - January 20, 2010

State Bar anticipates busy fall legislative session - September 8, 2009

Senate judiciary committee approves Impartial Justice Bill, holds hearing on Family Justice Bill, other issues - August 25, 2009

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