655.44 Request for mediation prior to court action.

(1) Request and fee. Beginning September 1, 1986, any person listed in s. 655.007 having a claim or a derivative claim under this chapter for bodily injury or death because of a tort or breach of contract based on professional services rendered or that should have been rendered by a health care provider may file a request for mediation and shall pay the fee under s. 655.54.

(2) Content of request. The request for mediation shall be in writing and shall include all of the following information:

(a) The claimant's name and city, village or town, county and state of residence.

(b) The name of the patient.

(c) The name and address of the health care provider alleged to have been negligent in treating the patient.

(d) The condition or disease for which the health care provider was treating the patient when the alleged negligence occurred and the dates of treatment.

(e) A brief description of the injury alleged to have been caused by the health care provider's negligence.

(3) Delivery or registered mail. The request for mediation shall be delivered in person or sent by registered mail to the director of state courts.

(4) Statute of limitations. Any applicable statute of limitations is tolled on the date the director of state courts receives the request for mediation if delivered in person or on the date of mailing if sent by registered mail. The statute remains tolled until 30 days after the last day of the mediation period under s. 655.465 (7).

(5) No court action commenced before mediation. Except as provided in s. 655.445, no court action may be commenced unless a request for mediation has been filed under this section and until the expiration of the mediation period under s. 655.465 (7).

(6) Notice of court action to director of state courts. A claimant who files a request for mediation under this section and who commences a court action after the expiration of the mediation period under s. 655.465 (7) shall send notice of the court action by 1st class mail to the director of state courts.

History: 1985 a. 340; 1989 a. 187 s. 28.

A request for mediation of a claim naming only one doctor did not toll the statute of limitations applicable to claims against doctors not named in the mediation request. Dipple v. Wisconsin Patients Compensation Fund, 161 Wis. 2d 854, 468 N.W.2d 789 (Ct. App. 1991).

When a care provider was deceased, it was sufficient to name the deceased provider in the mediation request rather than a legal entity, such as the estate or the provider's insurer. In that case, the tolling of the statute of limitations under sub. (4) is effective against an insurer and the Wisconsin Patients Compensation Fund. Failure to name the fund as a party to an action brought against the insurer within the 30-day period under sub. (4) barred the claim against the fund. Geiger v. Wisconsin Health Care Liability Insurance Plan, 196 Wis. 2d 474, 538 N.W.2d 830 (Ct. App. 1995), 95-0692.

The limitation periods under s. 893.55 (1) (a) and (b) [now s. 893.55 (1m) (a) and (b)] are both tolled by the filing of a request for mediation under sub. (4). Landis v. Physicians Insurance Company of Wis. Inc., 2001 WI 86, 245 Wis. 2d 1, 628 N.W.2d 893, 00-0330.

Sub. (5) does not mandate dismissal for filing an action before the expiration of the statutory mediation period. When a plaintiff fails to comply with sub. (5), the circuit court retains discretion to determine the appropriate sanction. Ocasio v. Froedtert Memorial Lutheran Hospital, 2002 WI 89, 254 Wis. 2d 367, 646 N.W.2d 381, 00-3056.

Nothing in the language of either s. 655.44 or 655.445 precluded the application of s. 655.44 to a mediation request filed under s. 655.445 when an action was filed but became a nullity due to failure to complete service. Young v. Aurora Medical Center, 2004 WI App 71, 272 Wis. 2d 300, 679 N.W.2d 549, 03-0224.

Delivery of a mediation request by regular mail is not determinative of the validity of the request. Geisel v. Odulio, 807 F. Supp. 500 (1992).

Failure to name the patient compensation fund in a mediation request did not exempt the fund from the tolling of the statute of limitations under sub. (4). Geisel v. Odulio, 807 F. Supp. 500 (1992).