It’s spring, and the legislative session is in full swing in Wisconsin – the perfect time to reflect on some atypical aspects of the Wisconsin health law environment. In no particular order, here are our top picks.

There is no automatic surrogate decision maker for a patient who becomes incapacitated.

This is Amy’s top pick because, in her experience, Wisconsin’s lack of a surrogate decision-maker law adds more stress than patient protection to many end-of-life situations.

Much to the surprise of many Wisconsin spouses and adult children, Wisconsin has no law authorizing “next of kin” to make health care decisions or nursing home admissions. This means that if the patient has no power of attorney for health care¹ or other advance directive, a guardianship of the person² is the only way to legally authorized someone to make health care decisions for the patient.³

This legal structure can delay discharges from hospitals, admission into nursing homes, and end-of-life decisions.

Illinois has a clear statutory framework for health care decision making in the absence of a written advance directive.⁴ Minnesota has judicially endorsed the concept of deferring to next of kin for health care decisions when a patient is incapacitated and lacks an advance directive and there is no disagreement among the surrogate decision makers, the patient’s fiduciaries, and medical providers.⁵

Given the current state of Wisconsin law, a written advance directive is essential for people who want to prevent court involvement and family strife, and to ensure their wishes are honored in the event of an incapacitating injury or illness.

Physicians cannot initiate an involuntarily hold for psychiatric assessment and treatment.

Every state has a process to admit patients for involuntary psychiatric assessment and treatment. States are rightly sensitive to the curtailment of patients’ civil liberties, and for this reason the level of physician latitude in initiating the process varies significantly.

Many states require physicians to obtain approval from a court, a police official, or other entity before a patient can be involuntarily held for a psychiatric evaluation. Some states require the concurrence of more than one physician.

The American College of Emergency Physicians (ACEP) takes the position that physicians are more qualified than any nonmedical personnel to determine whether a patient needs to be held involuntarily for psychiatric evaluation, and “while other authorities may also be empowered to order an involuntary hold, a physician should be authorized to make this determination unilaterally.”⁶

Wisconsin is unique in placing the decision to initiate detention with county crisis units, who are often called into hospital emergency departments to start the process.⁷ The limited authority of physicians has historically created concern among emergency physicians and mental health practitioners, including how to square the county’s role with their duties to provide medical screening and stabilizing treatment under the Emergency Medical Treatment and Labor Act and their duty to warn others of a patient’s dangerousness. The 2017 Act 140 provided some much-needed clarity, although the Wisconsin structure remains far from that advocated for by ACEP.

Wisconsin’s abortion law has swerved since Dobbs v. Jackson Women’s Health and where it will end up is anyone’s guess.

After the Dobbs decision,⁸ all eyes turned to the Wisconsin’s 1849 abortion ban, Wis. Stat. section 940.04.

Many aspects of the statute are murky, but what is clear is how narrow of an exception the law contains. Under the statute, a therapeutic abortion is permitted only to “save the life of the mother.”

Even those who do not consider themselves abortion providers – especially emergency physicians – wondered whether their treatment of conditions like ectopic pregnancy would be implicated under Wis. Stat. section 940.04.

The Wisconsin abortion ban is currently being challenged by the governor and attorney general in case captioned Kaul v. Urmanski​.^9​

Wisconsin’s unique medical malpractice environment helps retain physicians.

For those who have practiced only in Wisconsin, it can be easy to underestimate the impact the Wisconsin Insured Patients and Families Compensation Fund and the $750,000 cap on noneconomic damages¹⁰ has on health care.

The structure is credited with creating a practice environment that has consistently kept physicians from leaving Wisconsin for other states. Quality has remained strong, even in the face of the exposure limits, thanks in part to the peer review protections of Wisconsin’s Quality Improvement Act,¹¹ which provides legal protection when reporting and reviewing incidents and errors.

While physician retention is a bright spot in the health care workforce, filling and accelerating the talent pipeline is a pressing challenging in Wisconsin as it is in other states. State laws, agency rules, and licensure requirements must facilitate young workers’ safe and efficient entry into health care professions and must be continue to be modernized, to allow health care professionals to practice to the full extent of their capabilities.¹²

Conclusion: What’s Your View?

For those of you with a multistate health law practice, tell us: Which laws do you wish you could transplant to Wisconsin? And which laws do you wish you could surgically remove?

This article was originally published on the State Bar of Wisconsin’s Health Law Blog. Visit the State Bar sections or the Health Law Section webpages to learn more about the benefits of section membership.

Endnotes

¹ Wis. Stat. chapter 155.

² Wis. Stat. chapter 54.

³ For a general discussion, see Marlene Arias, “Recent Updates to Default Surrogate Statutes,” American Bar Association Bifocal, Jan. 12, 2023.

⁴ 755 Il ICLS 40.

⁵ Butcher v. Fashingbauer, No. C2-93-2530, (Minn. Ct. App. Mar. 1, 1995) (unpublished opinion).

⁶ ​State Legislative Options to Facilitate Emergency Involuntary Psychiatric Evaluation, American College of Emergency Physicians, acep.org.

⁷ Wis. Stat. section 51.15.

⁸ Dobbs v. Jackson Womens Health Organization, 597 U.S. 215.

⁹ Josh Kaul et al vs. Joel Urmanski et al.

¹⁰ Wis. Stat. section 893.55.

¹¹ Wis. Stat. section 146.38.

¹² For a fuller discussion of this issue, see Wisconsin Hospital Association’s 2023 Wisconsin Health Care Workforce Report, March 2023.