Wisconsin allows justice for some, not all
She is the iconic figure of every American courtroom. Blindfolded and holding a scale, Lady Justice decides what constitutes justice without fear or favor, regardless of a person’s money or power.
Justice is blind, but I worry she is also becoming deaf and mute.
Over the last 20-plus years, a series of laws and court cases in Wisconsin have said a wrongful death medical malpractice claim can only be filed on behalf of a minor child or a married parent. A two-tiered system has been designed, one for general wrongful death cases and those caused by medical malpractice.
Many families are left without justice because they can’t come into the courthouse. What remains is a biased system that delivers justice by separating victims based on their age and marital status. This is not progress. In fact, it’s quite the opposite.
I hope you saw the recent, exceptional reporting by Cary Spivak of the Milwaukee Journal Sentinel on families hurt by Wisconsin’s medical malpractice law. Read those stories; look at the facts. There are dozens of families across Wisconsin who have lost a loved one because of medical malpractice only to be denied justice.
The story reported that the number of medical malpractice cases filed in Wisconsin has declined by 50 percent since 1999. While doctors claim this is due to better medical care, the facts to support that is sadly lacking. Last September, the prestigious Journal of Patient Safety reported that as many as 210,000 to 440,000 people die from preventable medical errors a year. As one commenter noted, patients are dying from medical errors at the “equivalent of the entire population of Atlanta one year, Miami the next, then moving to Oakland, and on and on.” Translated down to Wisconsin, between 4,200 to 8,800 people could be dying in hospitals each year due to preventable medical errors.
Sadly, these errors not only hurt families, they drive up the cost of health care for us all. Because American medicine accepts error as an inevitable consequence of treatment, our hospitals, insurers and government do little to respond to these tragic and unnecessary deaths.
This is why the civil justice system is so important. It can review the facts and determine what went wrong as well as compensating families for their losses caused by the unnecessary death.
But as we have seen, the courthouse doors are shut to many families. To lose a child and be stopped at the courthouse steps because your child is too “old” defies comprehension. We’re sorry about your mother, but since your father is gone, there really isn’t anyone allowed to fight for your mom. Once again, Wisconsin is at the most extreme fringe of what the majority of America considers acceptable.
The simple truth is Wisconsin law gives doctors a free pass if your adult child or single parent dies because of medical malpractice. If a doctor hits my 19-year-old child with their car, they are held accountable. But if that same doctor botches my 19-year-old’s surgery, and he ends up dead, there are no consequences.
Today a “child” can stay on their parent’s health insurance policy until they are 26, but still lose a key component of their rights at 18. How can that be? Times change; standards change. We can change the law. All it takes is a new law saying all children, adult or minor, have the right to bring a claim in a medical malpractice wrongful death claim. If it passes, the system rights a wrong and justice is a big step closer to fair for everyone.
The current law is wrong and we need to change it.
Chris Stombaugh is president of Wisconsin Association for Justice, founded in 1957. As the largest statewide voluntary bar association, its members support a mission of working for a fair and effective justice system.