An Introduction to Long-Term Care Defense
Vincent J. Scipior, Coyne, Schultz, Becker & Bauer, S.C.
I. Introduction
Claims against long-term care providers such as nursing homes are on the rise. Representing and defending long-term care providers requires an understanding of the different types of facilities that exist, the types of records they keep, the standard of care applicable to long-term care providers, the various claims that can be brought against them, and the different protections available to long-term care providers under Wisconsin law. This Article provides an introduction to these and other issues common in long-term care defense.
II. Understand the Facility
Wis. Stat. § 893.555 defines “long-term care providers” to include:
• An adult family home, as defined in s. 50.01 (1);
• A residential care apartment complex, as defined in s. 50.01 (6d);
• A community-based residential facility, as defined in s. 50.01 (1g);
• A home health agency, as defined in s. 50.01 (1r);
• A nursing home, as defined in s. 50.01 (3); and
• A hospice, as defined in s. 50.90 (1).
Not all types of facilities meet the statutory definition of “long-term care provider.” For example, adult day centers (day programs which provide a safe environment and activities for seniors and adults with disabilities) are not considered “long-term care providers” under Wis. Stat. § 893.555. Accordingly, adult day programs are not afforded the same protections as long-term care providers.
Understanding the facility is step one. Is it a community-based residential facility (“CBRF”) or a nursing home? How many rooms? How many beds? A 5-bed CBRF is much different than a 100-bed nursing home, both in size and level of care. Residents at a CBRF can receive “no more than 3 hours of nursing care per week,” whereas residents at a nursing home “require access to 24-hour nursing services.”
Who owns the facility? Who operates the facility? Who holds the license for the facility? Often times, these are not the same person or entity. Early on, you want to identify the following persons who were at the facility during the resident’s stay:
• Administrator
• Assistant Administrator
• Admissions Director
• Director of Nursing
• Assistant Director of Nursing
• Director of Operations
• Medical Director
• Nurse Manager
• Nurse Supervisor
• Nurse Educator
• Director of Compliance
• Dietary Manager
• Human Resource Director
• Payroll Director
• Bookkeeper
• Scheduler
• Social Worker
III. Gather the Records
After you identify your client, you should send a litigation hold letter to prevent spoliation. The litigation hold letter informs the facility that it has a continuing legal duty to preserve and protect all documents in its possession or control that are relevant to the subject matter of the lawsuit, including electronically-stored information (“ESI”). It is essential that the facility immediately preserve and retain all potentially relevant evidence. The facility and its staff must not alter, delete, destroy, or otherwise modify potentially relevant documents. Preservation should be interpreted broadly. If the facility has any doubt about whether a document needs to be preserved, it should err on the side of preservation. The duty to preserve evidence supersedes any company document retention or destruction policy. It is important to instruct the facility to stop any automatic document destruction software to preserve relevant ESI.
For litigation purposes, recordkeeping is critical. You can produce 20,000+ pages of documents in discovery, but plaintiff’s counsel will focus on the five missing pages of records. The following is a non-exhaustive list of records you should ask the facility to provide at the outset:
• Resident record;
• Emails referencing the resident and/or the resident’s room number;
• Facility license;
• Facility floorplan;
• Organizational chart;
• Job descriptions;
• Staff schedules;
• Punch detail reports;
• Resident census reports;
• Operating policies and procedures;
• Employee handbook;
• Employee orientation and training records; and
• Employment files.
The Wisconsin Statutes list the documents that must be maintained in a resident’s record. The types of records that must be maintained in a resident’s record depends on the type of facility. For nursing homes, what documents are required also depends on whether or not the resident was admitted for short-term care (also known as respite or recuperative care). Depending on the type of facility, the resident record must contain, among other things:
• A facesheet with the resident’s name and date of birth;
• Family and emergency contact information;
• Admission agreement;
• Care plan or individual service plan (“ISP”);
• Assessments;
• Physician’s orders;
• Medical records;
• Medication administration records;
• Progress notes;
• Incident reports;
• Documentation of significant changes in condition or treatment; etc.
The resident record needs to be complete, accurate, legible, and organized. The resident record must be maintained in a secure, dry location at the facility that is accessible to employees. The facility must safeguard all resident records against destruction, loss, or unauthorized access or use. Copies of a resident’s record must be made available to the resident or the resident’s guardian or designated representative upon request. Depending on the type of facility, a resident’s record must be retained for at least 5 or 7 years after the resident’s discharge or death.
In addition to understanding your facility, it is important to analyze the resident record to understand the resident. How old was the resident? Was the resident on hospice? What brought the resident to your client’s facility? What were the resident’s diagnoses at admission? Did the resident have difficulty communicating? What level of care and supervision did the resident require? What types of risks did the resident present with (e.g., falls, dehydration, choking, etc.)? Who else was involved in the resident’s care? You should determine whether the resident had a power of attorney (“POA”) for health care, whether and when the POA was activated, and whether the resident was “do not resuscitate” (“DNR”) code status.
Depending on the type of case, you might focus on different parts of the resident record. If it is a choking death case, you should review the resident record to determine whether the resident had been diagnosed with dysphagia (difficulty swallowing), whether there had been prior choking incidents, what type of diet the resident was on (mechanical soft diet, puréed diet, etc.), whether the care plan or ISP required supervision while eating, whether the resident received speech therapy for bad eating habits, whether the resident had been assessed as “high choking risk” by a speech language pathologist (“SLP”), etc. If it is a fall injury case, you should review the resident record to determine whether the resident had prior fall incidents, whether the resident used an assistive device to ambulate (cane, walker, crutches, wheelchair, etc.), whether the resident could transfer independently or required a 1-person or 2-person assist, what types of interventions were implemented to address the resident’s fall risk, etc. Regardless of the theory of liability, the facility’s care plan for the resident is usually a key component to any long-term care defense.
IV. Arbitration and Negotiated Risk Agreements
Admission agreements often contain arbitration provisions which require the parties to arbitrate any and all claims or controversies arising out of the resident’s stay at the facility. An arbitration agreement might also be an addendum or attachment to the admission agreement, or a separate contract. When a lawsuit is filed in breach of an arbitration agreement, a defendant can file a motion to stay the civil action and compel arbitration in lieu of an answer pursuant to Wis. Stat. § 788.02, which provides:
If any suit or proceeding be brought upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration.
Arbitration in Wisconsin is governed by Wis. Stat. Ch. 788, the Wisconsin Arbitration Act. It provides:
A provision in any written contract to settle by arbitration a controversy thereafter arising out of the contract, or out of the refusal to perform the whole or any part of the contract, or an agreement in writing between 2 or more persons to submit to arbitration any controversy existing between them at the time of the agreement to submit, shall be valid, irrevocable and enforceable except upon such grounds as exist at law or in equity for the revocation of any contract. This chapter shall not apply to contracts between employers and employees, or between employers and associations of employees, except as provided in s. 111.10, nor to agreements to arbitrate disputes under s. 292.63 (6s) or 230.44(4)(bm).
The Wisconsin Arbitration Act reflects the “sensible policy of this state … to promote arbitration as a viable and valuable form of alternative dispute resolution.” This principle is specifically reflected in Wis. Stat. § 788.02, which directs the court to stay the trial of the action upon being satisfied that the issue involved in such suit is referable to arbitration under an agreement. See Wis. Stat. § 788.02. The goal of arbitration is to resolve the entire controversy out of court without the formality and expense that normally attaches to the judicial process.
Sometimes the signatory to the admission agreement is not always the same entity being sued. It is not uncommon for plaintiffs to sue multiple related companies involved in the ownership and operation of the facility. In general, a plaintiff cannot avoid an arbitration provision by suing a non-signatory affiliated company. First, there is usually some provision in the admission agreement binding all agents, assigns, predecessors, successors, parent companies, subsidiaries, affiliates, etc. Second, Wisconsin recognizes five legal doctrines through which a non-signatory can be bound by an arbitration agreement entered into by others: (1) assumption; (2) agency; (3) estoppel; (4) veil piercing; and (5) incorporation by reference. When charges against two affiliated companies are based on the same facts and inherently inseparable, but only one company is a party to the arbitration agreement, the court can bind both parties to the arbitration agreement. The question of arbitrability is one for judicial determination unless the parties expressly agree otherwise.
Sometimes the signatory to the admission agreement is not always the resident. It is not uncommon for a resident to have an activated power of attorney or legal guardian that executes the admission contract on their behalf. It is important to understand the capacity of the resident at the time of admission and their legal ability to make their own decisions and enter into legally binding contracts. If the admission agreement was executed by anyone other than the resident, a copy of the document authorizing the representative to sign, e.g., letters of guardianship or an activated power of attorney document, should be obtained from the facility.
Like arbitration provisions, negotiated risk agreements are a growing trend. Negotiated risk agreements shift legal responsibility for injuries caused by staff while providing care requested by the resident. The agreement acknowledges potential risks of the care and allows the resident to make informed decisions about his or her care. The following is example language of a negotiated risk agreement:
Resident understands that the care described in this Negotiated Risk Agreement may have significant negative consequences to the Resident’s health and quality of life, including injury or death. These consequences have been fully explained to the Resident. Having considered these consequences, Resident wishes to have his/her care delivered as described in this Negotiated Risk Agreement. Resident agrees that the facility will not be held legally or otherwise responsible for any consequences, including injury or death, arising out of or relating to the care described in this Negotiated Risk Agreement.
Negotiated risk agreements are a form of liability waiver (or exculpatory contracts). To date, no Wisconsin court has addressed the enforceability of negotiated risk agreements. In general, liability waivers “are not favored by the law because they tend to allow conduct below the acceptable standard of care.” Wisconsin courts will not enforce liability waivers which are overly broad in scope or when the non-drafting party lacked bargaining power. “A valid exculpatory contract must be clear, unambiguous, and unmistakable to the layperson.”
V. Investigation
After an incident, the Wisconsin Department of Health Services (“DHS”) will often investigate and conduct a survey. This can result in the creation of several documents, including a misconduct incident report, a statement of deficiencies (“SOD”), a notice of violation, an order to submit a plan of correction, a plan of correction, etc. Plaintiff often uses the SOD as a roadmap for their lawsuit. It is important to obtain a copy of any documents generated as a result of a DHS investigation. Pursuant to Wis. Stat. § 904.16(2), however, reports submitted to DHS and statements obtained by DHS “may not be used as evidence in a civil or criminal action brought against a health care provider.” For this reason, these documents should be kept separate from the resident record.
The facility may also have investigated the incident. In order to encourage free and open discussion among health care providers about the quality of treatment they provide, the Wisconsin Legislature enacted the Health Care Services Review Statute, § 146.38. The Health Care Services Review Statute applies to nursing homes, community-based residential facilities, and hospices. It provides that any report or record kept or created by any person or organization for the purpose of reviewing or evaluating the services of a health care provider is “confidential” and cannot be used in any civil or criminal action against the health care provider. In addition, any person who participates in the investigation “may not testify as to information obtained through his or her participation in the review or evaluation, nor as to any conclusion of such review or evaluation.” Under former law, the Health Care Services Review Statute applied only to quality review committees. The current language of § 146.38 applies to “[a]ll persons, organizations, or evaluators, whether from one or more entities.”
After an incident, it is not unusual for the administrator and staff to meet with the resident’s family. Sometimes statements of apology or condolences are offered. Wisconsin’s “I’m sorry” law, § 904.14, makes an apology inadmissible to prove negligence. It provides:
A statement, a gesture, or the conduct of a health care provider, or a health care provider's employee or agent, that satisfies all of the following is not admissible into evidence in any civil action, administrative hearing, disciplinary proceeding, mediation, or arbitration regarding the health care provider as evidence of liability or as an admission against interest:
(a) The statement, gesture, or conduct is made or occurs before the commencement of the civil action, administrative hearing, disciplinary proceeding, mediation, or arbitration.
(b) The statement, gesture, or conduct expresses apology, benevolence, compassion, condolence, fault, liability, remorse, responsibility, or sympathy to a patient or his or her relative or representative.
Like the Health Care Services Review Statute, Wisconsin’s “I’m sorry” law applies to nursing homes, community-based residential facilities, and hospices. It also applies to adult family homes.
VI. Standard of Care
In order to prove negligence, a plaintiff must prove a duty of care, a breach of that duty, an injury, and a causal connection between the breach and the injury. Long-term care providers have a duty to exercise ordinary care. Ordinary care is “the care which a reasonable person would use in similar circumstances.” A person fails to exercise ordinary care “if the person, without intending to do harm, does something (or fails to do something) that a reasonable person would recognize as creating an unreasonable risk of injury or damage to a person or property.” Failure to exercise ordinary care constitutes negligence. In general, a plaintiff must produce expert testimony to establish a deviation from the standard of care in long-term care cases.
The Wisconsin Administrative Code sets the minimum threshold for standard of care. For example, Chapter DHS 83 applies to community-based residential facilities and sets forth basic requirements for licensing, hiring, maintaining employee files, training employees, admitting residents, discharging residents, respecting resident rights, ISP planning, etc. A violation of the administrative code is negligence per se. At a minimum, long-term care providers must follow the administrative codes.
As a general rule, however, the internal policies and procedures of a long-term care provider do not set the standard of care. It is the law, not any protocol or policy of a company, that establishes a defendant’s duty. If, however, an employee testifies that the company’s policies and procedures are consistent with what a reasonable person would do in similar circumstances, the judge may allow the plaintiff to use the policies and procedures as evidence of the standard of care.
Long-term care cases are subject to the comparative negligence provisions of Wis. Stat. § 895.045. Pursuant to Wis. Stat. § 895.045(1), contributory negligence does not bar recovery in an action to recover damages for negligence resulting in injury or death, if that negligence was not greater than the negligence of the person against whom recovery is sought, but any damages allowed shall be diminished in proportion to the amount of negligence attributed to the person recovering. Pursuant to Wis. Stat. § 895.045(1), the liability of each person or entity found to be causally negligent whose percentage of causal negligence is less than 51 percent is limited to the percentage of the total causal negligence attributed to that person or entity. A person or entity found to be causally negligent whose percentage of causal negligence is 51 percent or more, however, shall be jointly and severally liable for the damages allowed. It is important to note, however, that there is a rebuttable presumption in wrongful death cases that a deceased person was not negligent. A jury is instructed to presume that the deceased person was not negligent at and before the time of his or her death, unless the jury finds the presumption is overcome by other evidence.”
Contributory negligence is not commonly seen in long-term care cases. That is because the resident is being admitted to the facility precisely because they cannot care for themselves and often have mental and physical disabilities. They are relying on the facility to keep them safe and maintain their health. Practically speaking, it is difficult to argue that a long-term care resident was contributorily negligent. Occasionally, there is evidence that a family member was comparatively negligent.
VII. Vicarious Liability
In Wisconsin, long-term care providers are vicariously liable for the torts of their employees under the doctrine of respondeat superior if the acts occurred within the scope of employment. “Our supreme court has stated that the ‘conduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master.’” “Further, the employee's intent must be considered when determining whether his or her conduct was within the scope of employment. “In short, employees act within the scope of their employment as long as they are, at a minimum, ‘partially actuated by a purpose to serve the employer.’” “Serving the employer need not be the sole purpose of the employee's conduct, nor need it be even the primary purpose.” “An employee's conduct, however, cannot be said to fall within the scope of employment ‘if it is too little actuated by a purpose to serve the employer or if it is motivated entirely by the employee's own purpose.’” “Thus, if the employee fully steps aside from conducting the employer's business to procure a predominantly personal benefit, the conduct falls outside the scope of employment.” Normally, the scope-of-employment issue is presented to the jury because it entails factual questions on an employee's intent and purpose.
A long-term care provider may even be vicariously liable for the intentional torts of its employees. “[T]he scope-of-employment concept recognizes that an [employee] can exceed or abuse his authority—even intentionally or criminally—and still be acting within the scope of his employment.” There is an argument that some intentional conduct, such as resident assault and abuse, falls outside the scope of employment because it is forbidden by the facility’s written policies. Many courts have held, however, that assault can fall within an employee’s scope of employment if the assault was related to the performance of the employee’s job duties. For example, in Rodebush v. Oklahoma Nursing Homes, Ltd., an Oklahoma court upheld employer liability for an employee’s intentional tort where a nursing home employee slapped a combative Alzheimer's patient he was bathing because the nursing home was in the business of taking care of Alzheimer patients, and the employee had not deviated from his assigned duties, and was carrying out an assigned task when the slapping occurred. Similarly, in Kevin C. v. Founds. Behavioral Health, the United States District Court for the Eastern District of Pennsylvania—applying a similar standard as Wisconsin—held that a jury could find that an employee of a psychiatric hospital who yelled at, pushed, shoved, dragged, and struck a patient was acting within the scope of his employment because the alleged misconduct occurred while the employee was performing tasks within the responsibilities of his job (taking care of the patient and performing daily cares), and therefore motivated at least in part to serve his employer. Likewise, in Elliot v. Ohio Dept. of Rehab. & Corr., the court held that the Ohio Department of Rehabilitation and Corrections was vicariously liable for a prison guard’s intentional assault of an inmate because the guard’s acts, while heedless and unnecessary, were not outside the scope of his employment duties to maintain and discipline an inmate population, which served the prison’s interest. In McCombs v. Ohio Dep't of Developmental Disabilities, the Court of Claims of Ohio held that a treatment center was vicariously liable under the doctrine of respondeat superior for an employee’s intentional abuse and neglect of an autistic adult because in each instance of abuse the employee was engaged in client monitoring or attempting to control the client’s behaviors, which was in furtherance of the facility's interest. What these cases all teach is that the scope-of-employment question is very complex and must be analyzed in light of the facts presented on a case-by-case basis.
When there are allegations that an employee committed an intentional tort, occasionally the employee will also be facing criminal charges. Because of the parallel criminal case, the employee may need to exercise his or her constitutional right not to testify in the civil case on the ground that the testimony might tend to incriminate them in the criminal case. Wisconsin has long recognized that a person may invoke the Fifth Amendment privilege against self-incrimination in a civil action as protection from the adverse use of such evidence in a parallel or subsequent criminal action. “[The privilege] extends not only to testimony which would support a conviction but also to evidence which would furnish a link in a chain of evidence necessary to prosecution.” “The privilege against self-incrimination exists whenever a witness has a real and appreciable apprehension that the information requested could be used against him [or her] in a criminal proceeding.” While asserting his or her Fifth Amendment rights cannot be used against a defendant in a criminal case, a civil jury is instructed that it “may find by this refusal to answer that the answer would have been against the interest of the witness.” For this reason, you may need to move the court to stay discovery in the civil case until the parallel criminal case is resolved. Upon a showing of good cause, Wis. Stat. § 804.01(3)(a) authorizes a trial court to make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression or undue burden or expense in a discovery proceeding. This includes, without limitation, “[t]hat the discovery not be had, … [t]hat certain matters not be inquired into, or that the scope of the discovery be limited to certain matters.” Issuance of a protective order in a discovery proceeding is within the trial court's sound discretion. Whether a particular court should stay the civil proceedings in face of a parallel criminal investigation must be decided in light of the particular circumstances and competing interests involved in the case.
VIII. Causation
Often times, an injury or death has more than one cause. An autopsy report or death certificate may list multiple competing causes of death. For this reason, Wisconsin law asks whether someone’s negligence was “a cause” of the plaintiff’s injury, not “the cause.” Someone’s negligence was “a cause” of an injury if it was “a substantial factor in producing the injury.” In long-term care cases, it is not unusual for a plaintiff to allege that the defendant’s negligence was “a cause” of injuries that led to the resident’s death, even though the alleged negligence and death are far removed in time. If a physician expert is retained, it is often helpful to have one that is experienced in geriatric care and will understand the significance and impact of the resident’s comorbidities on their overall life expectancy and death.
IX. Compensatory Damages
Pursuant to Wis. Stat. § 893.555(4), the total noneconomic damages recoverable for bodily injury arising from care or treatment provided by a long-term care provider is capped at $750,000. This cap applies to “all long-term care providers and all employees of long-term care providers acting within the scope of their employment and providing long-term care services who are found negligent.”
When a resident dies, an action for wrongful death may be brought against a long-term care provider pursuant to Wis. Stats. §§ 895.03 and 895.04. Section 895.03 provides:
Whenever the death of a person shall be caused by a wrongful act, neglect or default and the act, neglect or default is such as would, if the death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who would have been liable, if death had not ensued, shall be liable to an action for damages notwithstanding the death of the person injured; provided, that such action shall be brought for a death in this state.
Under Wis. Stat. § 895.04, the resident’s estate can seek damages for his or her pre-death conscious pain and suffering (capped at $750,000). In addition, the resident’s surviving relatives have a single claim for loss of society and companionship capped at $350,000.
In addition to noneconomic damages, plaintiffs in a wrongful death action can recover “the reasonable cost of medical expenses, funeral expenses, including the reasonable cost of a cemetery lot and care of the lot, grave marker or other burial monument, coffin, cremation urn, urn vault, outer burial container, or other article intended for the burial of the dead.” Unlike a typical personal injury case, however, the collateral source rule does not apply in actions against long-term care providers. “Simply put, the collateral source rule states that benefits an injured person receives from sources that have nothing to do with the tortfeasor may not be used to reduce the tortfeasor's liability to the injured person.” Pursuant to Wis. Stat. § 893.555(8), “Evidence of any compensation for bodily injury received from sources other than the defendant to compensate the claimant for the injury is admissible in an action to recover damages for negligence by a long-term care provider.”
X. Punitive Damages
In addition to compensatory damages, an action for punitive damages may be brought pursuant to Wis. Stat. § 895.043. Unlike compensatory damages, the purpose of punitive damages is “to punish the wrongdoer and to deter the wrongdoer and others from similar conduct in the future.” Punitive damages are available when “evidence is submitted showing that the defendant acted maliciously toward the plaintiff or in an intentional disregard of the rights of the plaintiff.” A person’s acts are “malicious” when they are “the result of hatred, ill will, desire for revenge, or inflicted under circumstances where insult or injury is intended.” A person acts with an “intentional disregard of the rights of the plaintiff” if the person acts with the purpose to disregard the plaintiff’s rights, or is aware that his or her acts are substantially certain to result in the plaintiff’s rights being disregarded. Punitive damages must be proven by “clear and convincing evidence.” An award for punitive damages is capped at “twice the amount of any compensatory damages recovered by the plaintiff or $200,000, whichever is greater.”
To hold an employer liable for punitive damages arising out of the tortious acts of its employee, a plaintiff must prove that the employer either authorized the acts in advance, or, with knowledge of the acts, ratified them. No matter how willful or outrageous the acts of an employee, an employer, in the absence of a direction on its part to do the act in the manner in which it is done, cannot be held liable for punitive damages unless the employer ratified the employee’s acts. While retaining an employee guilty of a tort is one fact tending to show ratification, it is not conclusive. Where the evidence shows that the employer denounced the tortious acts of its employee in the strongest terms, there is no basis for ratification and punitive damages are not appropriate.
When punitive damages are alleged, you may want to file a motion to bifurcate the punitive damage claim from the negligence claim and stay discovery on the punitive damage claim. Circuit courts are statutorily authorized to bifurcate punitive damage claims from negligence claims and hold separate trials on each pursuant to Wis. Stat. § 805.05(2), which provides:
Separate Trials. The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition or economy, or pursuant to s. 803.04(2)(b), may order a separate trial of any claim, cross-claim, counter-claim, or 3rd-party claim, or any number of claims, always preserving inviolate the right of trial in the mode to which the parties are entitled.
Wis. Stat. § 906.11 also supports the court’s power to bifurcate and stay punitive damage claims, which grants the court authority to exercise reasonable control over the mode and sequence of trial. Thirty years ago, the Wisconsin Court of Appeals clarified in Badger Bearing, Inc. v. Drives and Bearings, Inc. that punitive damage claims and negligence claims are “distinct” and “entirely separable.” The claims require different elements and different levels of proof. Additionally, circuit courts are expected to serve as gatekeepers before sending a punitive damage question to the jury. In order to preserve this gatekeeping function, Wisconsin courts may bifurcate punitive damage claims from the negligence claims. Whether to bifurcate claims and hold separate trials lies in the discretion of the court.
In addition to bifurcation and separate trials, circuit courts have the power to stay discovery on punitive damage issues. A motion to stay discovery is addressed to the circuit court’s broad discretion.
XI. Statute of Limitations
Pursuant to Wis. Stat. § 893.555(2), “an action to recover damages for injury arising from any treatment … performed by, or from any omission by, a long-term care provider, regardless of the theory on which the action is based, shall be commenced within the later of: (a) Three years from the date of the injury[; or] (b) One year from the date the injury was discovered or, in the exercise of reasonable diligence should have been discovered, except that an action may not be commenced … more than 5 years from the date of the act or omission.” If there is evidence, however, that the long-term care provider concealed a prior act or omission that resulted in injury to the resident, an action may be commenced within one year from the date the concealment is discovered or, in the exercise of reasonable diligence, should have been discovered.
XII. Conclusion
Wisconsin law offers special protections for long-term care providers. It also requires long-term care providers to keep good records and meet a minimum standard of care. In order to effectively represent long-term care providers, you must be familiar with these requirements and protections.
Special thanks to Amy F. Scholl and Myranda Stencil for their feedback and assistance with this Article.
Author Biography:
Vincent J. Scipior is a shareholder at Coyne, Schultz, Becker & Bauer, S.C. where he practices insurance defense, personal injury, professional liability, long-term care defense, and general litigation. He received his bachelor’s degree in 2007 from the University of Wisconsin-Madison and his J.D. in 2011 from the University of Wisconsin Law School. He is admitted to practice in all Wisconsin state and federal courts. He has tried cases in Adams, Columbia, Grant, Green, and Dane Counties. Mr. Scipior is a member of the American Inns of Court James E. Doyle Chapter, the Dane County Bar Association, and the Wisconsin Defense Counsel. He was recognized as a 2017 Up and Coming Lawyer by the Wisconsin Law Journal and has been included in the Wisconsin Rising Stars List by Super Lawyers Magazine since 2016. He is the current Editor of the Wisconsin Civil Trial Journal.
Wis. Stat. § 893.555(1)(a).
Wis. Stat. § 50.01(1g).
Wis. Stat. § 50.01(3).
See, e.g., Wis. Admin. Code §§ DHS 83.42(1), 88.09(1)(d), 132.45(5).
See Wis. Admin. Code. §§ DHS 132.45(5), 132.70(7).
Wis. Admin. Code §§ DHS 83.42(1), 88.09(1)(d), 132.45(5).
Wis. Admin. Code § DHS 132.45(4)(g)1.
Wis. Admin. Code §§ DHS 83.42(3), 88.09(1)(a), (1)(e).
Wis. Admin. Code §§ DHS 83.42(2), 88.09(1)(b).
Wis. Admin. Code § DHS 88.09(1)(c).
Wis. Admin. Code §§ DHS 88.09(1)(e), 132.45(4)(f)1.
Wis. Stat. § 788.02; see also Payday Loan Store of Wis., Inc. v. Krueger, 2013 WI App 25, ¶¶ 9-11, n. 3, 346 Wis.2d 237, 828 N.W.2d 587 (citing 2A JAY E. GRENIG AND NATHAN A. FISHBACH, WISCONSIN PRACTICE SERIES: METHODS OF PRACTICE § 86.49 (5th ed. 2012)).
Mortimore v. Merge Techs., 2012 WI App 109, ¶ 14, 344 Wis. 2d 459, 824 N.W.2d 155.
Wis. Stat. § 788.01.
Mortimore, 344 Wis. 2d 459, ¶ 14 (citing Manu-Tronics, Inc. v. Effective Mgmt. Sys., Inc., 163 Wis .2d 304, 311, 471 N.W.2d 263 (Ct. App. 1991)); First Weber Grp., Inc. v. Synergy Real Estate Grp., LLC, 2015 WI 34, ¶ 24, 361 Wis. 2d 496, 860 N.W.2d 498 (citing Kemp v. Fisher, 89 Wis. 2d 94, 100, 277 N.W.2d 859 (1979)).
First Weber Grp., 361 Wis. 2d 496, ¶ 24 (citing Borst v. Allstate Ins. Co., 2006 WI 70, ¶ 61, 291 Wis. 2d 361, 717 N.W.2d 42).
See Midwest Neurosciences Assocs., 2018 WI 112, ¶ 6, n. 4, 384 Wis. 2d 669, 920 N.W.2d 767 (citing Zurich Am. Ins. Co. v. Watts Indus., Inc., 417 F.3d 682, 687 (7th Cir. 2005)).
See Sam Reisfeld & Son Import Co. v. S.A. Eteco, 530 F.2d 679, 681 (5th Cir. 1976).
Mortimore, 344 Wis.2d 459, ¶ 15 (citing AT&T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 648-50 (1986)).
Yauger v. Skiing Enters., 206 Wis. 2d 76, 81, 557 N.W.2d 60, 62 (1996).
Id. at 86.
Id.
See Wis. Stat. §§ 146.38(1)(b), 146.81(1)(L), 146.81(1)(m), 50.135(1), 146.81(1)(n).
See Wis. Stat. § 146.38(3t).
Wis. Stat. § 146.38(2).
See Wis. Stat. § 146.38(2).
See Wis. Stat. §§ 914.14(1)(a), 146.81(1).
See Wis. Stat. § 914.14(1)(a). For a more detailed analysis of Wisconsin’s “I’m sorry” law, see Terri Weber & Andrew Stevens, The Wisconsin Healthcare Provider Apology Law, WIS. CIVIL TRIAL J. (Spring 2015) (available at http://wdc-online.org/wdc-journal/archived-editions/wisconsin-healthcare-provider-apology-law) (last visited Oct. 25, 2021).
Paul v. Skemp, 2001 WI 42, ¶ 17, 242 Wis. 2d 507, 625 N.W.2d 860.
See Wis. JI-Civil 1005.
See id.
See id.
Otto v. Milwaukee Northern Ry. Co., 148 Wis. 54, 59, 134 N.W.157 (1912); Marolla v. American Family Mut. Ins. Co., 38 Wis. 2d 539, 157 N.W.2d 674 (1968); Johnson v. Misericordia Comm. Hosp., 97 Wis. 2d 521, 294 N.W.2d 501 (Ct. App. 1980)(aff’d 99 Wis. 2d 708, 301 N.W.2d 156 (1981)); Cooper v. Eagle River Memorial Hospital, 270 F.3d 456 (7th Cir. 2001).
Wis. Stat. § 893.555(7).
See Wis. Stat. § 895.045(1).
See Wis. JI-Civil 353.
See id.
See Maniaci v. Marquette Univ., 50 Wis. 2d 287, 302-03, 184 N.W.2d 168, 176 (1971).
Block v. Gomez, 201 Wis. 2d 795, 805-06, 549 N.W.2d 783 (Ct. App. 1996) (quoting Scott v. Min-Aqua Bats Water Ski Club, Inc., 79 Wis. 2d 316, 321, 255 N.W.2d 536 (1977)).
Id. (citing Olson v. Connerly, 156 Wis. 2d 488, 498-99, 457 N.W.2d 479 (1990)).
Id.
Id.
Id. (quoting Olson, 156 Wis. 2d at 499-500).
Id. (citing Olson, 156 Wis. 2d at 500 & n.11).
Desotelle v. Continental Cas. Co., 136 Wis. 2d 13, 26-28, 400 N.W.2d 524 (Ct. App. 1986).
See Maniaci, 50 Wis. 2d at 302-03 (“[D]efendants' assertion that [it] is not liable for the intentional torts of its agents finds no support in the Wisconsin law. Under Wisconsin law, the general rule is, subject to the usual rules of agency, that an employer is vicariously liable for the torts of his employees.”).
Javier v. City of Milwaukee, 670 F.3d 823, 832 (7th Cir. 2012).
See Block, 201 Wis. 2d at 807 (holding that a therapist’s sexual conduct with a patient fell outside the scope of employment in part because the therapist “knew that he was forbidden by the Clinic to enter into a sexual relationship with his patients because the Clinic had a written policy forbidding such conduct between its therapists and patients.”).
1993 OK 160, 867 P.2d 1241 (Okla. 1993).
No. 20-6431, 2021 U.S. Dist. LEXIS 159384, at *18-19 (E.D. Pa. Aug. 24, 2021).
Ct. of Cl. 1992 Ohio 285 (1992).
2021-Ohio-2404, ¶ 18, 2021 Ohio Misc. LEXIS 84 (Ct. Cl.).
See Desotelle, 136 Wis. 2d at 26-28.
S.C. Johnson & Son, Inc. v. Morris, 2010 WI App 6, ¶ 11, 322 Wis. 2d 766, 779 N.W.2d 19 (citing Grognet v. Fox Valley Trucking Serv., 45 Wis. 2d 235, 239, 172 N.W.2d 812 (1969)).
In re: Matter of Sheila Grant, 83 Wis. 2d 77, 81, 264 N.W.2d 587 (1978).
Id.
See Wis. JI-Civil 425.
Wis. Stat. §§ 804.01(3)(a).
State v. Beloit Concrete Stone Co., 103 Wis. 2d 506, 511, 309 N.W.2d 28 (Ct. App. 1981); see also Dahmen v. Am. Family Mut. Ins. Co., 2001 WI App 198, ¶ 11, 247 Wis. 2d 541, 635 N.W.2d 1 (“Likewise, the decision whether to stay discovery is committed to the trial court's discretion.”).
State v. Steenberg Homes, 204 Wis. 2d 113, 552 N.W.2d 900 (Ct. App. 1996), (citing Keating v. Office of Thrift Supervision, 45 F.3d 322, 324 (9th Cir.)).
Wis. JI-Civil 1500.
Id.
Wis. Stat. § 893.555(4).
See Wis. Stat. § 893.555(6) (“Notwithstanding the limits on noneconomic damages under this section, damages recoverable against a long-term care provider, and an employee of a long-term care provider acting within the scope of his or her employment and providing long-term care services, for wrongful death are subject to the limit under s. 895.04 (4).”).
See Wis. Stat. § 893.555(4).
See Wis. Stat. § 895.04(4); Bartholomew v. Wis. Patients Comp. Fund, 2006 WI 91, ¶ 98, 293 Wis. 2d 38, 717 N.W.2d 216.
See Wis. Stat. § 895.04(5).
See Wis. Stat. § 893.555(8).
Leitinger v. DBart, Inc., 2007 WI 84, ¶ 26, 302 Wis. 2d 110, 736 N.W.2d 1.
Wangen v. Ford Motor Co., 97 Wis. 2d 260, 278, 294 N.W.2d 437 (1980).
See Wis. Stat. § 895.043(3).
Ervin v. City of Kenosha, 159 Wis. 2d 464, 483, 464 N.W.2d 654 (1991).
Strenke v. Hogner, 2005 WI 25, ¶ 36, 279 Wis. 2d 52, 694 N.W.2d 296.
Id. ¶ 31.
See Wis. Stat. § 895.043(6).
See Garcia v. Samson's, Inc., 10 Wis. 2d 515, 518, 103 N.W.2d 565 (1960).
Marlatt v. W. Union Tel. Co., 167 Wis. 176, 180-84, 167 N.W. 263 (1918).
Id.
Id.
111 Wis. 2d 659, 674 (Ct. App. 1983).
Id.
Henrikson v. Strapon, 2008 WI App 145, ¶ 15, 315 Wis. 2d 225, 758 N.W.2d 205; Strenke, 279 Wis. 2d 52, ¶ 40.
See, e.g., Mews v. Beaster, 2005 WI App 53, ¶ 4, 279 Wis. 2d 507, 694 N.W.2d 476 (“the trial court … did allow bifurcation of the compensatory and punitive damages claims”); Kottke v. Commercial Truck, 2009 Wis. App. LEXIS 536, ¶ 5 (July 21, 2009) (unpublished opinion) (Kottke sued and a jury awarded him damages for breach of contract. In a subsequent bifurcated proceeding, a jury … also awarded punitive damages”); Walter v. Cessna Aircraft, 121 Wis. 2d 221, 236 (Ct. App. 1984) (remanding for separate retrial on punitive damage claim).
See Keplin v. Hardware Mut. Cas. Co., 24 Wis. 2d 319, 325, 129 N.W.2d 321 (1964).
See Mucek v. Nationwide Comm., Inc., 2002 WI App 60, ¶ 28, 252 Wis. 2d 426, 643 N.W.2d 98 (circuit courts have authority to control the order of discovery).
Dahmen, 247 Wis. 2d 541, ¶ 11.
Wis. Stat. § 893.555(2).
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