Feb. 17, 2010 – In a preliminary victory for the State Bar of Wisconsin, the state Senate has approved a bill to eliminate the 180-day notice requirement for medical malpractice claims against state employees on a 26-7 bipartisan vote, sending the bill to the Assembly to await committee action and a floor vote in that house.
All 18 Senate Democrats were joined by eight Republican senators in voting for the bill on Tuesday, Feb. 16, 2010.
The legislation, Senate Bill 127, would repeal 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 would apply 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.
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 Senate’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. 4, 2010 the Senate Judiciary Committee recommended SB 127 for passage on a bipartisan 5-0 vote. The committee had held a public hearing on the bill on August 18, 2009 at which State Bar President Douglas W. Kammer testified in favor of the legislation. Senator Fred Risser and Representative David Cullen introduced the legislation in March 2009.
On Jan. 19, 2010 the Senate also passed another major medical malpractice reform bill supported by the State Bar, Senate Bill 203, sending the bill on to the Assembly to await a floor vote in that house.
Also known as the Family Justice Bill, SB 203 would permit a parent to recover for the loss of society and companionship of an adult child whose injuries are the result of medical malpractice. 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 be 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.”
In September, the Assembly Committee on Judiciary approved the Assembly version of the Family Justice Bill, Assembly Bill 291, on 6-4 vote.
In other legislative developments, on Feb. 11, 2010 Gov. Doyle signed Senate Bill 182 into law as 2009 Wisconsin Act 120. The State Bar’s Litigation Section supported the legislation. Introduced by Senator Jim Sullivan and Representative Kelda Helen Roys and given final approval by the Assembly in Jan. 19, 2010, the legislation increases the statute of limitations for bringing an action for an intentional tort from the current two years to three years. Act 120 conforms the statute of limitations for intentional torts to the three-year statute of limitations that applies to negligent torts.
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:
Family Justice Bill passes Senate, moves on to Assembly - January 20, 2010
State Bar sections gear up for end-of-session rush - December 1, 2009
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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