One of the important laws that protect Wisconsin citizens in the event that someone's negligence causes the death of a loved one is the Wrongful Death Statute. Under this important law surviving family members can bring a claim against the person causing the harm – whether the harm is caused by a faulty product, an unsafe work place, a car accident or medical malpractice. However there is no equality in the law right now because a family does not have the right to bring a wrongful death claim when they lose the society and companionship of an unmarried child over age 18 due to medical malpractice. The same is true when the death is of a widowed parent.
The Family Justice Bill simply ensures that families of a widowed parent or single adult child who dies as a result of medical malpractice are treated with the same access to the courts as a person who had a parent or adult child die in a car accident. The bill is about fairness pure and simple.
The Family Justice Bill is about equal rights for all families. It makes no sense to tell adult children whose widowed parent dies in an automobile accident they have a wrongful death claim, but if they die due to medical negligence they have no right to pursue justice. The law is absurd.
The fact is that medical malpractice costs, as a percentage Wisconsin healthcare expenditure, are at an all time low, one-third of one percent. That is 33 cents for every 100 dollars spent on health care. This law affects a handful of cases a year. Because of the limited number of cases, allegations that AB 291/SB 203 will lead to higher health care costs are speculative and against the great weight of evidence.
The Congressional Budget Office (CBO) report referred to in the Wisconsin Civil Justice Council (WCJC) press release shockingly admits that “imposing limits on [the right to sue for damages] might be expected to have a negative impact on health outcomes.” It seems to brush aside the significance of this not because it is untrue, but because it says there are too few studies on the topic. Yet of the three studies that do address the issue of mortality, CBO notes that one study finds the tort restrictions advocated by proponents of tort "reform" would lead to a .2 percent increase in the nation’s overall death rate. If true, that would be an additional 4,853 Americans killed every year by medical malpractice, or 48,250 Americans over the ten-year period CBO examines.
The Government Accountability Office in its study on defensive medicine, Medical Malpractice: Implications of Rising Premiums on Access to Health Care, is extremely skeptical of the claim that the tort system encourages unnecessary defensive medicine. The report notes that (1) some defensive medicine is good medicine, (2) managed care discourages bad defensive medicine, and (3) doctors practice some excessive defensive medicine because they make money from defensive medicine. It also found that state tort laws have no impact on medical spending.
The group representing the major businesses in Wisconsin including insurance, and healthcare providers, WCJC, relies on the opinion of a medical malpractice attorney who represents negligent healthcare providers claim that families can sue for pre-death pain and suffering of their loved one. That legal option is available in some cases. The person who died must be shown to have been conscious while the pain and suffering was inflicted. If the person was unconscious or under the effects of anesthesia, there is no grounds for such a legal action. It is clear the group’s goal is to continue to shut the door to justice for families who have lost a single loved one due to medical malpractice.
All citizens deserve justice and accountability. That is what the Family Justice Bill is all about.