Wisconsin Law Journal: Family Justice Bill passes state senate
Senate Bill looks to expand wrongful death claims

February 1, 2008
Jack Zemlicka

A single, 20-year-old man living at home with his parents dies due to alleged negligence on the part of a state health care provider.

Under current state law, the parents would be unable to file a wrongful death claim against the provider. But Senate Bill 138, also known as the Family Justice Bill seeks a change in the law to allow the adult child of a parent who has died or the parents of an adult child who has died to seek recourse for medical malpractice.

The bill passed the state Senate on Jan. 22 with an 18-15 vote and now moves to the state Assembly.

While some attorneys maintain that the proposed change will rightfully close a legal loophole, others suggest it will increase exposure to potential liability claims against health care providers in the state.

"It's very difficult to have someone call and we have to say, sorry, but there is no way to seek compensation for your loss of society and companionship under the current law," said Christine Bremer Muggli, president of the Wisconsin Association for Justice (WAJ).

However, Attorney Mark E. Larson, a member of the Civil Trial Counsel of Wisconsin's Board of Directors, said the amendment would put medical practitioners at greater risk for malpractice claims.

"You would have a far greater population of people eligible to file claims," said Larson, who practices medical malpractice and professional liability at Gutglass, Erickson, Bonville & Larson SC, in Milwaukee. "Right now it's limited to age 18, but there could be another 62 years (life expectancy) added and that is far greater exposure than anybody in Wisconsin was subjected to 10 months ago."

Expansion of the Law

While the change to Wis. Stat. 655 would increase eligibility, the number of claims filed would likely be minimal based on current numbers, Bremer Muggli said.

In 2006 the Wisconsin Medical Mediation Panel had 235 requests for medical mediation and 41 dealt with wrongful death claims. In 2007, there were 183 requests and only 22 were related to wrongful death.

"It's certainly not a huge number of cases so it's not like the floodgates are going to open," said Bremer Muggli.

But Ruth Heitz, counsel for the Wisconsin Medical Society (WMS) said that any new applicants would be burdensome in light of the recent developments in health care system operations. 

She specifically cited the re-institution of medical malpractice caps for non-economic damages in 2006 and the recent "raiding" of $200 million from the Wisconsin Injured Patients and Families Compensation Fund by the state.

"This would contribute to the destabilization of the climate," said Heitz.

Bremer Muggli argued that any additional claimants would not have any impact on the fund, since these types of wrongful death cases are capped at $350,000. The fund is only affected when claims exceed $1 million.

Heitz acknowledged the limits, but maintained that any influx of new claimants would have an impact on the fund.

"We still had a period of time when the cap was removed and we're just starting to see what that will mean in Wisconsin," said Heitz. "There are cases still pending so why should we be adding new claimants when we're not even caught up now?"

No Guarantees

Two cases, Estate of Wells v. Mt. Sinai Medical Center, 183 Wis. 2d 677 (1994) and Czapinski v. St. Francis Hospital, Inc., 236 Wis. 2d 316 (2000), were cited in the Legislative Reference Bureau's analysis.

In Wells, the Supreme Court ruled that a parent does not have the right to recoup for the loss of an adult child whose injuries were the result of medial malpractice. In Czapinski, siblings were denied recovery for the loss of society and companionship of their mother who died during a routine hip replacement surgery.

While the proposed change is designed to include circumstances like those previously denied in Wells and Czapinski, Larson said there will likely be extreme claims brought as well.

He suggested under the law change, a 90-year-old parent could file a claim for loss of his 65-year-old son.

"The idea is to protect minor children and parents who lost minor children," said Larson. "It's a question of is society looking to do that, or just expand liability to all kinds of people that don't have traditional support or obligation."

Sen. Fred Risser, D-Madison, said even if the legislation is approved, there is no assurance that all claimants will receive financial closure.

"Any jury will say to that 65-year-old, unless living together and totally dependent of the parent, he would not apply," said Risser, who co-sponsored the bill.

Risser did suggest that if a son or daughter is living with and taking care of 95-year-old parents, and they die because of medical malpractice, the case may constitute a true loss of society and companionship.

"It's a philosophical viewpoint," said Risser. "Some people think society is too litigious and others think rights of individuals should be protected in this way."

No timetable is set for an Assembly hearing on the bill, but Bremer Muggli said several families of victims who allegedly died due to medical negligence hope to appear in support of the legislation.

"We cannot bring a family member back, but they should at least know they had their day in court," said Bremer Muggli.



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