Views differ on whether state malpractice law is adequate

Wisconsin's prohibition against parents filing malpractice lawsuits over the deaths of their adult children typically comes as a surprise to grieving families, a leading trial attorney says.

However, the system helps keep the cost of practicing medicine in Wisconsin down, a group representing the state's doctors contends.

"The cases are tragic, and we wish they'd never happen," said Mark Grapentine, senior vice president of government relations for the Wisconsin Medical Society. "But if you were to expand the areas of (economic) recovery ... there are just too many questions about who would make claims, how you would determine how close someone was to someone else, and (courts) just didn't want to go there because the potential ramifications were so broad."

Grapentine said Wisconsin doctors benefit from a stable system in which they are required to carry private malpractice insurance as well as fund the state-administered Injured Patients and Families Compensation Fund.

In other states, such as Illinois, malpractice costs drive doctors away, he said.

"Wisconsin is looked to nationwide as a state that has found a balance when it comes to medical liability law and exposure for physicians while at the same time being able to provide for those who have been harmed as a result of medical negligence," Grapentine said.

Legal reasons

The current state of affairs in Wisconsin is the result of both the law and a series of court decisions. In a 1990 case, Rineck v. Johnson, the state Supreme Court determined children can file lawsuits for the loss of society and companionship when their parents die because of malpractice. However, "children" was determined to mean only minor children. Subsequent court rulings determined this standard barred adult children from suing for the loss of society and companionship if a parent dies because of medical malpractice and that it also barred similar lawsuits by parents when their adult children die.

It is the latter situation that the parents of Trenton Nusbaum find themselves in. Nusbaum, 32, of rural Eau Claire, died last year as a result of methadone toxicity; his parents would like to sue the clinic that provided the methadone but are barred from doing so.

Mike End, a Milwaukee attorney who specializes in medical malpractice cases, wasn't familiar with the Nusbaum case but said the situation didn't surprise him.

"My hunch is that we probably get a call about once every three weeks from somebody in that exact situation," said End, the past president of the Wisconsin Association for Justice, which represents trial lawyers. "I can tell you that nobody who has called in that situation was aware of the fact that the law is as restrictive as it is."

Lawyers seek change

The trial lawyers group has lobbied unsuccessfully for the state Legislature to pass the so-called Family Justice Bill, which would open up medical malpractice lawsuits to the parents of adult children and to adult children who lose their parents.

"It's a matter of simple, basic justice," End said. "Why should a person who's the victim of medical malpractice be denied compensation?"

Under the current system, he said, a family can't file suit over the death an adult child on the operating table, but they can if that same child dies in an auto accident because of someone else's negligence.

But Grapentine, of the Wisconsin Medical Society, said trial lawyers are only making a self-interested argument.

Attorneys like to say that Wisconsin law "closes the courthouse door" to some families, but that isn't really the case, Grapentine said. For example, he said, a family that believes a loved one died because of medical malpractice can pursue the physician in front of the state Medical Examining Board, which has the power to discipline medical practitioners. However, Grapentine said, lawyers don't want to take such cases because they aren't as lucrative as malpractice lawsuits.

End, the trial lawyer, counters that the doctors' argument that changing the law will make practicing medicine more expensive is "ridiculous." That, he said, is because malpractice lawsuits are actually rare: He pointed to statistics from the Office of Director of State Courts that showed only 122 medical malpractice cases were filed in Wisconsin last year and that malpractice payments were only made 54 times.

Coming up short

The Family Justice Bill, which would change the malpractice system, has been introduced in the Legislature five times over the past decade. In 2010, the bill passed the Senate but not the Assembly. At the time both chambers were controlled by Democrats. Now Republicans are in the majority. While some GOP lawmakers have supported the bill in the past, End believes the sharp partisan divide in the Legislature will be a roadblock if the measure goes before lawmakers again.

"I'm pessimistic about the chances of this bill passing," he said.

Giffey can be reached at 715-833-9205, 800-236-7077 or tom.giffey@ecpc.com.

(c)2012 the Leader-Telegram (Eau Claire, Wis.)

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