The Wisconsin Legislature created Medical Mediation Panels in 1986 in an effort to provide “an informal, inexpensive and expedient means for resolving medical malpractice disputes without litigation,” providing an early neutral evaluation that may reduce litigation costs by identifying claims without merit as early as possible and by expediting the resolution of those claims that do have merit. Wis. Stat. § 655.42(1).
The Medical Mediation Panels, each consisting of a lawyer, a health care provider, and a layperson, are intended to provide an objective assessment of the strengths and weaknesses of a medical malpractice claim, and it is a requirement in Wisconsin that all medical malpractice claims go through this process before the cases can be filed in court.
The official statistics regarding Wisconsin’s Medical Mediation Panels are: from 1986 to 1994, in cases where the request for mediation was filed prior to the commencement of a court action, 9.2% of the cases settled as a direct result of the mediation; 42.8% of the cases resulted in neither a settlement nor a filing in circuit court by the time the statute of limitations had expired; in 19.4% of the cases, the parties in circuit court indicated that early neutral evaluation served a constructive purpose; and, in 28.6% percent of the cases, mediation was perceived as having served no constructive purpose. In cases where the request for mediation was filed in conjunction with a court action, 3.5% of the cases settled as a direct result of the mediation; in 41.8% of the cases, the parties indicated that early neutral evaluation served a constructive purpose; and, in 54.7% of the cases, mediation was perceived as serving no constructive purpose.
Recent experiences with Wisconsin Medical Mediation Panels show that the Panels are increasingly considered to be failures: 410 medical malpractice claims were filed for Medical Mediation Panel consideration in 1987 (the first full year that the panels operated), falling to 161 in 2013. Sixty percent of the 302 medical malpractice claims that were filed for Medical Mediation Panel consideration in 2012 and 2013 expired due to procedural or scheduling problems – of the 67 medical malpractice claims that had a hearing, only two were resolved as a result of the hearing. Medical Mediation Panel hearings dropped from almost 55% in 2003 to 22.5% in 2013.
One of the greatest legal loopholes in the procedure is that if a hearing is not scheduled within 90 days of the filing, an extension cannot be granted unless all parties agree to an extension, which rarely occurs, resulting in the case being administratively closed. With the likelihood that one or more participating parties will exercise their mediation veto power by refusing to consult to an extension, there is little incentive for any of the parties to take the process seriously or to spend the time and money to prepare to present medical malpractice claims before a medical mediation panel – many medical malpractice lawyers consider the Wisconsin medical mediation panel process to be a waste of time.
The additional burdens placed on medical malpractice victims in Wisconsin and restrictions on recoverable medical malpractice damages have resulted in a greater than 50% decrease in the number of medical malpractice cases filed in Wisconsin since 1999, while Wisconsin’s state-managed medical malpractice insurance fund that pays medical malpractice claims in the amount of $1 million or more has grown steadily to $1.15 billion.
If you or a loved one were injured due to medical negligence in Wisconsin or in another U.S. state, you should promptly seek the legal advice of a Wisconsin medical malpractice attorney or a medical malpractice attorney in your state who may investigate your medical negligence claim for you and represent you in a medical malpractice case, if appropriate.
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