In Wisconsin, an injured patient (the plaintiff) in a medical malpractice case may not need to jump through as many procedural "hoops" as plaintiffs in other states, but there are still plenty of thorny issues to contend with. For starters, it helps to have an understanding of the different elements of "medical negligence"—what you’ll need to prove in order to hold a health care provider liable for harm caused by the provision of sub-standard medical care. Since the assistance of a medical expert is usually crucial to proving medical malpractice, it also helps to get familiar with expert witness rules in Wisconsin civil cases. Read on for the details.

No "Certificate of Merit" Requirement in Wisconsin

In most states, thanks to controversial tort reform efforts, when an injured patient wants to file a medical malpractice lawsuit against a health care provider, the patient (usually through his or her attorney) must file a "certificate of merit" or "affidavit of merit" alongside the civil complaint (that's the legal document that starts the lawsuit and lays out the allegations against the health care provider).

This certificate or affidavit must typically be prepared by (or be based on consultation with) a qualified medical expert, who has reviewed the particulars of the injured patient's case and believes there is substantial evidence of medical negligence—in other words, that the medical malpractice lawsuit has "merit."

Wisconsin has no "certificate of merit" requirement, but to get an idea of how this procedural step works in a neighboring state, check out our article on Illinois medical malpractice lawsuit filing requirements.

What a Medical Malpractice Plaintiff Must Prove in Wisconsin

First, it’s important to note that not every unfavorable outcome or misstep in a course of treatment will give rise to a viable medical malpractice lawsuit—most won’t, in fact. (Learn more about the kinds of medical errors that often lead to a successful medical malpractice case.)

There is no specific Wisconsin statute that spells out the elements that must be established in order to hold a health care provider liable for malpractice, but there is a body of case law that has developed over the years, so a plaintiff’s proof obligations are pretty clear.

If you’re filing a medical malpractice lawsuit in Wisconsin, as the plaintiff, you have the burden of establishing:

• that a provider-patient relationship existed between you and the defendant (this element usually isn’t in dispute)
• the appropriate “standard of care” under the circumstances (the skill and attention that a similarly-trained health care provider, in the same medical community as the defendant, would have provided to you)
• how the provider’s conduct (including their decisions, actions, and/or their failure to act) fell below that accepted medical standard of care and amounted to negligence, and
• a causal connection between the provider’s medical negligence and quantifiable harm to you.

Learn more about proving medical malpractice.

For medical malpractice lawsuits in Wisconsin, as in every state, proving complex elements like the "standard of care" and deviation from that standard will almost always require the testimony of a qualified medical expert.

Expert Witnesses in Wisconsin Medical Malpractice Cases

The most relevant rules on expert witness testimony in a Wisconsin medical malpractice lawsuit are set out at Wisconsin Statutes section 907.02. This statute says that when "scientific knowledge" will "assist the trier of fact"—i.e. the jury in a medical malpractice lawsuit, who is trying to determine whether a health care provider’s error amounted to negligence—a qualified expert witness may offer an opinion, as long as:

• the expert’s testimony is based on sufficient facts or data
• the testimony is the product of reliable principles and methods, and
• the witness has applied the principles and methods reliably to the facts of the case.

It's important to note that expert testimony isn't usually a requirement in Wisconsin if the medical malpractice lawsuit hinges on "routine" treatment issues that are within the jury's common knowledge.

Section 907.02 goes on to make clear that an expert’s testimony can’t be admitted in a medical malpractice trial if the expert "is entitled to receive any compensation contingent on the outcome" of the trial. In other words, if the expert gets paid only if the plaintiff gets a judgment in his or her favor, the expert's testimony will be inadmissible.

More on Wisconsin Medical Malpractice Lawsuits

Anyone thinking about filing a medical malpractice lawsuit in Wisconsin needs to understand and comply with the statute of limitations for these kinds of civil cases. This law sets a strict time limit on an injured patient’s right to file a lawsuit against a health care provider. Get the details on the Wisconsin medical malpractice statute of limitations. And if you have questions about filing a medical malpractice case in Wisconsin, an experienced attorney will have the answers. Learn how to choose the right medical malpractice lawyer for you and your case.