655.005 Health care provider employees.

(1) Any person listed in s. 655.007 having a claim or a derivative claim against a health care provider or an employee of the health care provider, for damages for bodily injury or death due to acts or omissions of the employee of the health care provider acting within the scope of his or her employment and providing health care services, is subject to this chapter.

(2) The fund shall provide coverage, under s. 655.27, for claims against the health care provider or the employee of the health care provider due to the acts or omissions of the employee acting within the scope of his or her employment and providing health care services. This subsection does not apply to any of the following:

(a) An employee of a health care provider if the employee is a physician or a nurse anesthetist or is a health care practitioner who is providing health care services that are not in collaboration with a physician under s. 441.15 (2) (b) or under the direction and supervision of a physician or nurse anesthetist.

(b) A service corporation organized under s. 180.1903 by health care professionals, as defined under s. 180.1901 (1m), if the board of governors determines that it is not the primary purpose of the service corporation to provide the medical services of physicians or nurse anesthetists. The board of governors may not determine under this paragraph that it is not the primary purpose of a service corporation to provide the medical services of physicians or nurse anesthetists unless more than 50 percent of the shareholders of the service corporation are neither physicians nor nurse anesthetists.

(2t) Subsection (2) does not affect the liability of a health care provider described in s. 655.002 (1) (d), (e), (em), or (f) for the acts of its employees.

History: 1985 a. 340; 1987 a. 27; Stats. 1987 s. 655.005; 1989 a. 187; 1991 a. 214; 1993 a. 473; 1995 a. 167; 2001 a. 52; 2005 a. 36.

Although not a health care provider, because an unlicensed 1st-year resident physician was a borrowed employee of the hospital where the resident allegedly performed negligent acts, the relation of employer and employee existed between the resident and hospital, and accordingly, the resident was an employee of a health care provider within the meaning of ch. 655 and s. 893.55 (4). Phelps v. Physicians Insurance Company of Wisconsin, Inc. 2009 WI 74, 319 Wis. 2d 1, 768 N.W.2d 615, 06-2599.

Chapter 655 does not permit claims other than those listed in ss. 655.005 (1) and 655.007. Because ch. 655 exclusively governs all claims arising out of medical malpractice against health care providers and their employees, and because the legislature did not include bystander claims in s. 655.005 (1) or 655.007, negligent infliction of emotional distress claims arising out of medical malpractice are not actionable under Wisconsin law. Phelps v. Physicians Insurance Company of Wisconsin, Inc. 2009 WI 74, 319 Wis. 2d 1, 768 N.W.2d 615, 06-2599.