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Imagine how you would feel if you lost a child as a result of medical negligence and could not file a medical negligence lawsuit.  This is a “three strikes and you’re out” story.

Strike One:  On April 5, 1999, Erin Rice sought medical attention for an upset stomach, vomiting, signs of nausea, shortness of breath, and a bad cough.  Two-weeks later, she died; the cause of death?  Bacteria pneumonia.  Strike Two:  Ten months later, Erin’s family learned that she actually had viral cardiomyopathy, an enlarged heart, caused by a virus.  Despite the fact that an X-ray technician had noticed that Erin’s heart was enlarged, no one ever relayed that important information to Erin or her family.  This news was as devastating has Erin’s death; her parents were understandably upset at the quality of her medical care and readied themselves to retain an attorney and file a medical malpractice lawsuit.   Strike Three:  Another shock was yet to come – the parents could not file a medical malpractice lawsuit.

Under a terribly unjust Wisconsin law, parents are barred from pursuing a lawsuit over the death of an adult child (Erin was 20 at the time of her death) in medical malpractice wrongful death cases. The law also applies to an adult child that loses a divorced or widowed parent as a result of medical malpractice.  No such ban exists for other wrongful deaths in Wisconsin, such as those caused by drunken drivers or other negligent acts.  Because Erin was a legal adult at the time of her death and her death was the result of medical negligence, her parents could not file suit for justice.  If the same negligent doctor had killed in an auto accident, the parents could pursue the case, but not if the doctor was negligent in his care for her rather than behind the wheel.  He could be drunk, texting, incompetent, inattentive; he could be the worst care-giver in the history of medicine, a doctor who has been kicked out of every state in the union, but in Wisconsin, he can kill Erin without legal consequence.  Wisconsin also has a $750,000 cap on “noneconomic” (pain & suffering) damages.  The cap is even lower, $250,000, if the doctor is employed by the state.  Can you believe it?! Wisconsin may be worse than TEXAS! Apparently, both states love bad doctors.

Patient safety and medical error reduction and/or prevention should be the focus of pro-citizen legislatures.  Protecting and licensing bad doctors, providing them legislative protections to kill citizens should not be a goal of any legislator.  Yet, more and more states are passing these draconian anti-patient statutes in the name of “keeping doctors from leaving the state”.  What citizen, what legislator, would want an incompetent doctor to practice medicine in his/her state?  Would any want to be treated by the doctor who treated Erin Rice?  If it was their family member, their daughter, their loved one, would they want the right, granted by the 7th Amendment of the Constitution, to seek and receive civil justice?  This case is a travesty; a young person is dead, death was absolutely preventable, treatment was negligent and there is absolutely no accountability for the perpetrator.  Apparently, the Wisconsin legislature values the profits of an insurance company and the pocketbooks of a hospital or a doctor more than it values the life of a young citizen with everything to live for.

To discriminate against two classes of people – parents of adult children and adult children-is wrong; to deny accountability when someone is killed is wrong.  While no amount of money would compensate the Rice family for the loss of their daughter, compensation for pain and suffering, as well as punishment to the wrongdoer must be part of a pro-safety, pro-citizen model. There is no reason, none, to immunize doctors from the damage they cause due to negligence.  Wisconsin, and all, citizens deserve better.

We have been complacent in the face of injustice for too long.  We must all be proactive in protecting our rights from being trampled on by the powerful health care industry and pro-insurance lobbies.  Until patient safety is the first and only priority of health care providers, a lawsuit is the only vehicle to achieve punishment for wrongdoing and prevention from further misconduct.  The only source of redress or ability to prevent further harm is for a citizen to pursue his or her own claim through the legal process  Contact Governor Scott Walker; see where he stands on correcting this injustice.  Ask his political opponent where he stands.  Get involved in the process.  If you don’t like what you hear from one, prepare to vote for the other and encourage others to do so.  We have the power to effect change; we must begin to use it in America.  Otherwise, we have only ourselves to blame.

Mark Bello is the CEO and General Counsel of Lawsuit Financial Corporation, a pro-justice lawsuit funding company.

25 Comments

  1. Gravatar for Darren McKinney

    Though there's no way for him to know, much less prove, that young Ms. Rice's unfortunate "death was the result of medical negligence," the self-interested Mr. Bello nonetheless makes that assertion rather blithely, as though the implied hunch of an x-ray technician could somehow have been the basis for a jackpot-winning lawsuit were it not for Wisconsin's litigation-limiting statute.

    But assuming an actual physician or two also looked at Ms. Rice's x-ray and test results, and observed her symptoms, it's reasonable to conclude that the diagnosis of bacterial pneumonia -- as opposed to viral cardiomyopathy -- was made in good faith and based on what was known at that moment.

    That the diagnosis may have later proved to be incorrect is hardly proof of negligence. It is only proof that human beings -- even highly trained and caring physicians -- are fallible. We call it the "practice of medicine" because it will never be perfect. Unfortunately, the vast complexities of our human physiology will sometimes confuse and confound even the very best, Dr. House-like diagnostic geniuses. But confusion isn’t necessarily negligence, and it is rarely grounds for costly malpractice lawsuits that we all end up paying for, one way or another.

    Everyone with a human heart empathizes with the tragic loss suffered by Ms. Rice's parents. Everyone who has ever lost and mourned a loved one understands the pain they’ve experienced. Such loss and grief have motivated much of the work of humanity’s great poets, playwrights, sculptors, painters and novelists for millennia. But it's only been within the past several decades that those who promulgate and hope to profit from lawsuits have advanced the self-serving argument that anyone who loses a loved one, despite the good-faith efforts of medical professionals, thus has an unalienable right to sue and perhaps get rich beyond his wildest dreams. This argument is nonsense, of course, and everyone in Wisconsin who pays taxes and health insurance premiums, or otherwise seeks affordable health care from time to time should be glad that the Badger State is increasingly inhospitable to the lawsuit industry.

    -Darren McKinney, American Tort Reform Association, Washington, D.C.

  2. Gravatar for Mark Bello

    Mr. McKinney: And the "American Tort Reform Association" has no "self-interest" in these types of outcomes? Putting "rich beyond his wildest dreams" aside (as if any amount of money would 'replace' one's daughter), deserved 'punishment' should not be a goal of litigation? Should the offending doctor get "rich" by providing substandard care on a regular basis? Shouldn't punishing the guilty always be a motive in these matters? Or, should we give every wrongdoer, every murderer, full immunity?

    The point of the article is not whether or not some doctor committed malpractice or not. I will concede that there may have been no breach of the standard of care here. The point of the article is that IF THERE WAS A BREACH OF THE STANDARD OF CARE, the parents are without remedy under Wisconsin and Florida law. The loss of a child to medical malpractice should be actionable for parents regardless of how old the child may be. For any "tort reform" to say otherwise and for you to advocate for such a result provides protection for the guilty and punishment for the innocent. Is that what you stand for?

  3. Gravatar for Darren McKinney

    Do you mean to argue, Mr. Bello, that the doctor or doctors who imperfectly treated Ms. Rice were "providing substandard care on a regular basis"? If you have evidence of this, surely you would have included it in your original piece? Meanwhile, you may wish to stick to what you know, which is this: A young lady came down with a rare and terrible illness, which doctors allegedly failed to diagnose properly. What none of us can know is whether her life could have been saved even if the diagnosis had been different.

    As for the "punishment" of truly negligent or reckless conduct that kills or maims, that is better left to criminal proceedings and/or medical boards. Our civil courts exist primarily to make whole those who suffer tangible losses as a result of someone else's negligence or recklessness. And as you well know, a Harvard study last decade showed that 40% of all medical malpractice lawsuits filed each year are groundless. (see http://www.nejm.org/doi/full/10.1056/NEJMsa054479). The people of Wisconsin and many other states have since wisely chosen, through their duly elected representatives, to limit such groundless lawsuits and awards for intangible losses in order to help keep health care more affordable and accessible. And your hyperbolic efforts here to paint the medical profession as one full of reckless killers would be laughable if it weren’t so shameless.

    -Darren McKinney, American Tort Reform Association, Washington, D.C.

  4. Gravatar for Mark Bello

    Again and deliberately, Mr. McKinney, you miss the point. We are not talking about your "40% are groundless" statistic. That skewed statistic, even if true, is irrelevant to the issue presented: If a doctor is guilty of killing a patient, should any legislature give him a free pass in a lawsuit against the parents of the deceased patient? That a statute exists that grants such immunity is the issue of this article. You can claim hyperbole, you can claim shamelessness. You can continue to put words in my mouth. But that doesn't answer the core question posed: Why should a negligent doctor get immunity against a grieving parent?

    Tort Reformists don't rail against corporate frivolity or political frivolity like the Boehner lawsuit against the President of the United States. Reformists don't complain that frivolous defenses prevent swift justice for victims. Reformists don't complain (using your own statistics) about severe restrictions on recoveries due the 60% of malpractice cases that aren't "groundless". Please tell the people: What constituency does the American Tort Reform Association represent and where do you get your funding?

  5. Gravatar for Rick Shapiro

    Mr. McKinney's organization represents the largest companies and insurance companies and their goal, essentially is to increase their profits, and convince consumers to "give away" their own rights under the guise of "keeping health care affordable." The problem: individuals and families are giving up their own rights in a time of need, and the profiteers are the big insurances companies and entitiies, not the consumers. The "trickle down" theory Mr. McKinney says will work in the Badger state, aint working. The rich companies just get richer and the consumers have no recourse in a time of need. Notice how Mr. McKinney attacks the "lawsuit industry" but when a loved one is catastrophically harmed by negligence (or dies...) its not "an industry" to a family. Its a single loved one. SHAME on the sham perpetrated by this organization which hides behind a false premise.

  6. Gravatar for Darren McKinney

    Mr. Bello still has yet to present any evidence that a doctor or doctors acted negligently in the unfortunate case of Ms. Rice. He hasn't even bothered to reference another Wisconsin case wherein a doctor or doctors so acted. I don't argue that such cases have never occurred in Wisconsin or elsewhere, but if we're going to have a serious discussion about a particular state law that limits lawsuits by those who suffer only subjective, intangible losses, the least we ought to do is use particular examples that don't rely on nearly libelous speculation.

    And unlike Mr. Shapiro, I’ve plainly identified my well known organization and its obvious interest -- on behalf of physicians and hospitals, their patients and their insurers -- in limiting the parasitism of the personal injury bar that, if unchecked, works to make health care less affordable and less available. Americans consistently and overwhelmingly rate the trustworthiness of physicians high above that of personal injury lawyers, and for good reason. Few of us believe, as Messrs. Bello and Shapiro insist, that their profession is all about lookin’ out for the little guy. Accordingly, a significant majority of Wisconsin voters defeated the trial lawyer-labor union coalition’s effort to recall Gov. Walker, and they’re likely to return him to office again as the state’s economic fortunes continue to brighten.

    -Darren McKinney, American Tort Reform Association, Washington, D.C.

  7. Gravatar for Jon Lewis

    Our common laws have been in place since the inception of this country. The right to trial by jury is a part of our Constitution, and it has been eroded by lobby groups such as the American Tort Reform Association.

    These statutes that exist such as this one and the Alabama Medical Liability Act prevent someone from having their day in Court. It prevents our "4th Branch of Gov't": the PEOPLE. The people sitting on juries are the ones who live and breath on American streets every day, and they are the check against big corporate interests and greed. THEY are the check against lawyer parasites as you call them, and it should not be up to lobbyists to make these decisions.

    We aren't getting rich as trial lawyers. Far from it. Many lawyers are starving. Many are seeking other careers. Look at the law school admissions.

    There is not one person outside of the medical community who would agree with the Alabama Medical Liability Act and Supreme Court Rulings which state that a victim of alleged medical negligence cannot attempt to discover other acts of the physician or hospital. In other words, if a doctor leaves ten sponges in ten different patients and then leaves a sponge in the 11th, the first ten are meaningless. The attorney can't ask about it or tell the jury. That is ludicrous.

    The only reason these laws exist are due to the fact that the medical lobbies and insurance companies have paid millions to have these laws enacted.

    I was in court on a case with a medical malpractice defense lawyer. She told me she had been in two different trials the last two weeks. I asked how she came out. Her answer, "We won. They're kind of hard to lose."

    Mr. McKinney, do you know what it costs to litigate one of these cases? Do you know how much work goes into them? Do you know the percentages of wins and losses? To think that there is some crisis here is incredible. The only winners, and I mean the ONLY winners, are the insurance companies and bad doctors. Good doctors don't get sued.

    Frivolous lawsuits should have caps. Those caps should be $0. Meritorious lawsuits don't deserve a cap.

  8. Gravatar for Jon Lewis

    Oh, and one more thing. I'm sure we can all agree that all doctors look out for the little guy. All insurance companies look out for the little guy. All CEO's look out for the little guy. The problem in this country, and it includes some lawyers, is GREED. Every industry has bad individuals. The problem is, our "industry" does include numerous individuals who do look out for the little guy. And, I sleep well at night knowing that I have helped people against the title pawn industry, the mortgage industry, the auto industry, the insurance industry, and the medical industry.

  9. Gravatar for Darren McKinney

    Mr. Lewis,

    The Fourth Branch, as you call the voters of Wisconsin (and Alabama and other states), have already spoken through their duly elected lawmakers. And if those voters want to repeal the reasonable and perfectly constitutional limits on costly and corrosive litigiousness that their lawmakers have enacted in good faith, they're free to change their lawmakers next Election Day, when they’ll be represented more fully and soberly than when represented only by a few jurors who’ve been subjected to emotionally manipulative arguments by silver-tongued devils such as yourself, Mr. Bello and Mr. Shapiro.

    -Darren McKinney, American Tort Reform Association, Washington, D.C.

  10. Gravatar for jc

    Bravo to Darren McKinney--you have successfully unmasked a trait of Mark Bello and his kindred plaintiff attorneys. They seem to feel that WHENEVER THERE IS A BAD RESULT IT IS MEDICAL MALPRACTICE AND ONLY A PLAINTIFF ATTORNEY CAN RECTIFY THE SITUATION! Yet plaintiff attorneys lose 85% of their cases at trial! Notice how Rick Shapiro talks about 'sham' when he talks about the health care industry, yet he never talks about 'sham' when only 1 in 20 plaintiffs get any money at all after a jury trial and years of litigation.

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