Wisconsin medical malpractice deadlines: how long you have to act.

In Wisconsin, a medical malpractice lawsuit generally must be filed within 3 years from the date of the injury, or within 1 year from when the injury was discovered or should have been discovered, whichever is later. The 1-year discovery rule can’t be used more than 5 years after the act or omission (Wis. Stat. § 893.55(1m)).

The main exceptions and special rules:

• Children: a child’s claim can generally be brought by the child’s 10th birthday, or within the usual limits if that’s later.
• Foreign objects: if an object with no medical purpose was left in the body, there’s 1 year from when the patient became aware of it, or the usual limits if that’s later.
• Concealment: if the provider concealed a prior act or omission that caused injury, there’s 1 year from when the concealment was or should have been discovered, or the usual limits if that’s later.
• Mediation: a request for mediation under Wisconsin’s chapter 655 can pause the clock.
• Other rules: claims about a death, government providers, and federal facilities have their own points to check.

These are general rules, not legal advice. Deadlines depend on the exact facts, so talk with an attorney licensed in Wisconsin about your dates.

Wisconsin’s law gives two measures, and the later one applies: 3 years from the date of the injury, or 1 year from the date the injury was discovered or, “in the exercise of reasonable diligence,” should have been discovered (§ 893.55(1m)). The rule covers injury from any treatment or operation by a health care provider, or from any omission, whatever legal theory the claim is based on.

The discovery measure matters because many medical problems aren’t obvious right away. A missed diagnosis may only come to light when another doctor finds it. A surgical problem may take months to show.

When exactly someone “should have” discovered an injury is often disputed. Don’t assume the clock started late. Write down when the care happened, when you first noticed a problem, and when you first learned it may have been caused by the care, and give all of those dates to an attorney.

The 1-year discovery rule has an outer limit: a lawsuit can’t be started under that rule more than 5 years from the date of the act or omission (§ 893.55(1m)(b)). So a problem discovered 4½ years after the care may leave only about 6 months under the discovery rule, and one discovered after 5 years generally can’t rely on it at all.

The 3-year period from the date of the injury is a separate measure, and the exceptions below for children, foreign objects, and concealment have their own rules. Which one gives more time depends on the facts, so give an attorney all your dates before deciding it’s too late.

For a child under 18, a claim against a health care provider must be brought within the usual limits in § 893.55 or by the time the child turns 10, whichever is later. The claim is brought by a parent, guardian, or other person with custody of the child within that time (Wis. Stat. § 893.56).

For a young child, that usually means until the 10th birthday. For an older child, the usual limits will often run longer, and the later date controls. Wisconsin’s general rule that gives extra time to people injured before age 18 doesn’t apply to claims against health care providers ({stat('893.16', '§ 893.16(1)')}).

Section 893.56 is written for children who aren’t under a disability such as a developmental disability. If that may apply to your child, ask an attorney which rules govern. See birth injuries for more on concerns about a baby’s care.

When a foreign object with no therapeutic or diagnostic purpose is left in a patient’s body, the claim must be brought within 1 year after the patient became aware, or with reasonable care should have become aware, of the object, or within the usual limits in § 893.55(1m), whichever is later (§ 893.55(3)).

This rule is written as an exception to the usual limits, so it can matter even when years have passed. Keep any imaging reports or records that show when the object was found, and give that date to an attorney.

If a health care provider concealed from the patient a prior act or omission that injured the patient, the claim must be brought within 1 year from when the patient discovered, or with reasonable diligence should have discovered, the concealment, or within the usual limits in § 893.55(1m), whichever is later (§ 893.55(2)).

Showing concealment takes evidence, such as altered records or false statements about what happened. If you believe something was hidden from you, tell an attorney, and keep copies of everything you were given.

Wisconsin’s general deadline for a lawsuit over a death caused by the wrongful act, neglect, or default of another is 3 years (§ 893.54(1m)(b)). But when the death is linked to medical care, the medical malpractice limits in § 893.55, which run from the date of the injury, may apply instead. Which deadline applies, and whether it runs from the injury or from the death, is a question to put to an attorney right away.

When a patient died months or years after the care, part of the time may already have run. Under Wisconsin’s chapter 655, a patient’s spouse, parent, minor sibling, or child can have a claim for injury or death caused by malpractice, and those claims are subject to that chapter, including its mediation rules (§ 655.007). Who can bring the claim, and when, depends on the facts, so families should talk with an attorney early.

Wisconsin has a mediation system for medical malpractice disputes between patients or their families and health care providers. It is run by the director of state courts (Wis. Stat. § 655.42). For claims under chapter 655, mediation is part of the process:

• Mediation before a lawsuit. A written request for mediation can be filed before going to court. It names the patient and the provider, gives the dates of treatment, and briefly describes the injury, and it is delivered in person or sent by registered mail to the director of state courts (§ 655.44(1)–(3)). Once a request is filed this way, a lawsuit can’t be started until the mediation period ends (§ 655.44(5)).
• Mediation with a lawsuit. If a lawsuit is filed first, a request for mediation must be filed within 15 days after the lawsuit is filed, and discovery and trial wait until the mediation period ends (§ 655.445(1), (3)).
• The mediation period. It ends 90 days after the director of state courts receives a request delivered in person, or 93 days after a request is mailed by registered mail, unless everyone agrees in writing to a longer period (§ 655.465(7)). The claimant and every provider named in the request must take part (§ 655.43).

Filing a request for mediation pauses the statute of limitations. The pause starts on the day the director of state courts receives a request delivered in person, or on the day a request is sent by registered mail, and it lasts until 30 days after the mediation period ends (§ 655.44(4)).

These steps take time and have to be done correctly, so attorneys usually start well before a deadline. Whether chapter 655 covers a particular provider is a question for an attorney.

• Write down the dates: when the care happened, when you first noticed a problem, and when you first learned or suspected the care may have caused it.
• Request your medical records and keep bills, discharge papers, and anything you were given.
• Note who provided the care, including whether it was a county or state provider or a VA or military facility, since different rules may apply.
• Talk with an attorney licensed in Wisconsin soon. Only an attorney can tell you which deadline applies and how much time is left.

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This guide summarizes the Wisconsin Statutes and federal law. It is general information, not legal advice.

• Wis. Stat. § 893.55(1m), (2), (3): medical malpractice limits, 5-year limit, concealment, foreign objects
• Wis. Stat. § 893.56: claims of children under 18
• Wis. Stat. § 893.16(1): general disability rule and its exception for health care providers
• Wis. Stat. § 893.54: injury and wrongful death limits
• Wis. Stat. § 655.007: patients’ and family members’ claims
• Wis. Stat. §§ 655.42, 655.43, 655.44, 655.445, and 655.465: mediation and tolling
• Wis. Stat. § 893.80: claims against local governments and their employees
• Wis. Stat. § 893.82: claims against state officers, employees, and agents
• 28 U.S.C. § 2401(b): federal tort claims