(1) PURPOSE. This section implements ss.
(b) and (5m) (b),
(a) 2m. and (bg) 2. and
DEFINITIONS. In this
(a) "Aggregate indemnity" means the
total amount attributable to an individual provider that is paid or owing to or
on behalf of claimants for all closed claims arising out of one incident or
course of conduct, including amounts held by the fund under s.
Stats. "Aggregate indemnity" does not include any expenses paid in the defense
of the claim.
means a medical malpractice claim against a provider, or a claim against an
employee of a health care provider for which the provider is vicariously
liable, for which there has been either of the following:
1. A final determination based on a
settlement, award or judgment that indemnity will be paid to or on behalf of a
2. A payment to a
claimant by the provider or another person on the provider's behalf.
(c) "Council" means the peer
review council appointed under s.
(cg) "Health care provider"
has the meaning given in s.
(cr) "Patient health care
records" has the meaning given in s.
(d) "Provider," when used
without further qualification, means a health care provider subject to ch. 655,
Stats., who is a natural person. "Provider" does not include a hospital or
other facility or entity that provides health care services.
(e) "Review period" means the 5-year period
ending with the date of the first payment on the most recent closed claim
reported under s.
Stats., for a specific provider.
"Surcharge" means the automatic increase
in a provider's plan premium or fund fee established under s.
(2m) TIME FOR
REPORTING. In reporting claims paid under s.
Stats., each insurer or self-insurer shall report the required information by
the 15th day of the month following the date on which there has been a final
determination of the aggregate indemnity to be paid to or on behalf of any
PROVIDER. Upon receipt of a report under sub. (2m), the council shall mail to
the provider who is the subject of the report all of the following:
(a) A copy of the report, with a statement
that the provider may contact the insurer that filed the report if the provider
believes it contains inaccurate information.
(b) A statement that the council may use its
authority under s.
(a) 5, Stats., to obtain any patient health
care records necessary for use in making determinations under this
(c) A request that the
provider sign and return to the council an authorization for release of
information form, authorizing the provider's insurer to provide the council
with relevant factual information about the closed claim for use in making
determinations under this section. A copy of the form shall be enclosed with
(d) If necessary, a
request that the provider verify the council's closed claim record and furnish
the council with information on any additional closed claims not known to the
council that have been paid by or on behalf of the provider during the review
(e) Notice that if the
provider does not comply with a request under par. (c) or (d) within 40 days
after the date of the request, the provider is in violation of s.
Stats., and may be subject to a forfeiture of up to $1,000 for each week of
continued violation, as provided in s.
OF NEED FOR REVIEW. Based on reports received under sub. (2m) and any
additional closed claims reported in response to a request under sub. (2s) (d),
the council, using the tables under ss.
determine when a provider has, during a review period, accumulated enough
closed claims and aggregate indemnity to consider the imposition of a
NOTICE TO PROVIDER.
When the council
makes a determination under sub. (3), it may request any of the following:
1. From any health care provider, patient
health care records related to each closed claim subject to review as provided
(a) 5, Stats.
2. From the provider's insurer, relevant
factual information about each closed claim subject to review. This subdivision
applies only if the provider has complied with the request under sub. (2s)
(b) A request under
par. (a) shall be in writing and shall specify a reasonable time for response.
Each person receiving a request shall provide the council with the records and
information requested, unless the person no longer maintains or has access to
them. If a person is unable to comply with a request, the person shall notify
the council in writing of the reason for the inability to comply.
(c) The council shall notify a provider for
whom a determination is made under sub. (3) that, after reviewing the patient
health care records, consultants' opinions and other relevant information
submitted by the provider and the provider's insurer, the council may recommend
that a surcharge be imposed on the provider's plan premium, fund fee or both,
and that the surcharge may be reduced or eliminated following a review as
provided in this section. The notice shall include a description of the
procedures specified in this section and a statement that the provider may
submit in writing relevant information about any closed claim involved in the
review and a description of mitigating circumstances that may reduce the future
risk to the plan, the fund or both.
PROCEDURE FOR REVIEW.
(a) The council or a single council member
may conduct a preliminary review of the records and information relating to
each of a provider's closed claims. If the council or council member is able to
determine, without a consultant, that the provider met the appropriate standard
of care with respect to any closed claim, the council shall not refer that
closed claim to a consultant and shall not use that closed claim in determining
whether to impose a surcharge on that provider.
(b) Unless a determination under par. (a)
reduces the number of closed claims and aggregate indemnity so that the
provider is no longer subject to the imposition of a surcharge, the council
shall refer all records and information relating to closed claims subject to
review, including records and information in the custody of the plan and the
fund, to one or more specialists as provided in s.
(c) Each specialist consulted under par. (b)
shall provide the council with a written opinion as to whether the provider met
the appropriate standard of care with respect to each closed claim
(d) At least 30 days
before the meeting at which the council will decide whether or not to recommend
that a surcharge should be imposed on a provider, the council shall notify the
provider of the date of the meeting and furnish the provider with a copy of the
consultant's opinions and a list of any other documents on which the
recommendation will be based. The council shall make all documents available to
the provider upon request for inspection and copying, as provided under s.
(e) In reviewing a closed
claim, the council or a consultant may consider any relevant information except
information from a juror who participated in a civil action for damages arising
out of an incident under review. The council or a consultant may consult with
any person except a juror, interview the provider, employees of the provider or
other persons involved in an incident or request the provider to furnish
additional information or records.
(f) The council, after taking into
consideration all available information, shall decide whether each closed claim
reviewed should be counted in recommending whether to impose a surcharge on the
If the total number of closed
claims which the council determines should be included and the aggregate
indemnity attributable to those claims would be sufficient to require the
imposition of a surcharge under s.
both, the council shall prepare a written report for the board recommending the
surcharge that should be imposed. The report shall include the factual basis
for the determination on each incident involved in the review and a description
of any mitigating circumstances.
(b) If the council determines that one or
more closed claims should not be counted and, as a result, the total number of
closed claims remaining and the aggregate indemnity attributable to those
claims is not sufficient to require the imposition of a surcharge, the council
shall prepare a written report for the board recommending that no surcharge
should be imposed. The report shall include a brief summary of the basis for
(c) The council
shall furnish the provider with a copy of its report and recommendation to the
board and with notice of the right to a hearing as provided in sub.
(a) A provider has the right to a hearing
under ch. 227, Stats., and ch. Ins 5 on the council's recommendation, if the
provider requests a hearing within 30 days after receiving the notice under
sub. (7) (c).
(am) The reports of
the consultant and any other documents relied on by the council in making its
recommendation to the board are admissible in evidence at a hearing under this
(b) Notice of the hearing
examiner's proposed decision shall inform the provider that he or she may
submit to the board written objections and arguments regarding the proposed
findings of fact, conclusions of law and decision within 20 days after the date
of the notice.
FINAL DECISION; JUDICIAL REVIEW. The board shall make the final decision on the
imposition of a surcharge. The final decision is reviewable by the circuit
court as provided under ch. 227, Stats.
SURCHARGE; IMPOSITION; REFUND; DURATION.
(a) A surcharge imposed on a provider's plan
premium, fund fee or both after a final decision by the board takes effect on
the next billing date and remains in effect during any period of judicial
(c) If judicial review
results in the imposition of no surcharge or a reduced surcharge, the plan, the
fund or both shall refund the excess amount collected from the provider or
apply a credit to the provider's next plan premium or fund fee bill or
(d) A surcharge remains in
effect for 36 months. The percentage imposed shall be reduced by 50% for the
2nd 12 months and by 75% for the 3rd 12 months, if the provider does not
accumulate any additional closed claims before the expiration of the surcharge.
The time periods specified in this paragraph are tolled on the date a provider
stops practicing in this state and remain tolled until the provider resumes
practice in this state.
provider accumulates additional closed claims while a surcharge is in effect,
the provider is subject to the higher of the following:
1. The surcharge imposed under sub. (10) and
2. The surcharge
determined by the board following a new review of the provider's claims record
under sub. (5).
the provider is a physician who changes from one class to another class
specified in s.
surcharge is in effect, the percentage imposed by the final decision of the
board shall be applied to the plan premium, fund fee or both for the
physician's new class effective on the date the class change occurs.
(12) REQUEST FROM PRIVATE INSURER.
If the council receives a request for a recommendation under s.
(a) 3, Stats., from a private insurer, the
council shall follow the procedures specified in subs. (3) to (5) and notify
the private insurer and the provider of the determination it would make under
sub. (5) (f) if the provider's primary insurer were the plan. A provider is not
entitled to a hearing on any determination reported under this
The final decision of the board and all information and records relating to the
review procedure are the work product of the board and are
(14) MEMBER AND
CONSULTANT COMPENSATION. Council members and consultants shall be paid $250 per
meeting attended or $250 per report filed by a consultant based on the
consultant's review of a file under s.
Wis. Admin. Code Office of the Commissioner of Insurance § Ins 17.285
Cr. Register, February,
1988, No. 386, eff. 3-1-88; am. (2) (a) and (b), (3) (a) and (c) 2., (5) (b)
(intro.), (7) (a), (8), (9) (a), (11) (f) and (14), cr. (2m) and (4) (c) 2.,
renum. (4) (c) to be (4) (c) 1., Register, June, 1990, No. 414, eff. 7-1-90;
am. (2) (a), (b), (d) and (e), (7) (b), (11) (a), (c) to (e) (intro.) and 1.,
(f) and (12), renum. (3) (a), (4) (b) (intro.) and 1., (5) (d), (8) to be (3),
(4) (c), (5) (e) and (7) (c) and am. (3), (4) (c) and (7) (c), r. (3) (b) and
(d), (4) (b) 2., (c) (d), (6) and (11) (b), cr. (2) (cg) and (cr), (2s), (4)
(b), (5) (d) and (f), (9) (am), r. and recr. (4) (a), (5) (a) to (c) and (9)
(a), Register, January, 1992, No. 433, eff. 2-1-92; CR 03-039: cr. (14)
Register October 2003 No. 574, eff.