Isthmus: When families have no redress
Bill would end limits on ability to bring malpractice claims

January 24, 2008
Bill Lueders

Erin Rice was 20 years old when she died on April 19, 1999. The Middleton High graduate had sought medical attention two weeks before, for shortness of breath, a bad cough and an upset stomach. Her condition was diagnosed, incorrectly, as bacterial pneumonia. She actually had viral cardiomyopathy - an enlarged heart caused by a virus.

"The doctors kept telling us they did everything to save Erin's life," says her father, Dr. Eric Rice. "They weren't telling us the truth."

Rice, a rocket scientist (he's president and CEO of Orbital Technologies in Madison), says his family learned 10 months afterward that an X-ray technician and a cardiologist had noticed early on that Erin's heart was enlarged.

"They should have told us that on our first emergency-room visit, but didn't," Rice says. "Her EKG was grossly abnormal. Her heart was very large. She should have had an echocardiogram immediately, and the emergency-room physician did not order one." Earlier detection, he believes, could have saved her life.

Another shock was yet to come: Rice and his wife were told they could not bring a malpractice action against the medical professionals involved. (They did sue over Erin's own pain and suffering; that action was settled in 2006 after a protracted legal fight.)

Wisconsin, virtually alone among the states, bars parents from suing over the loss of an adult child - or an adult child over the loss of a parent - due to medical malpractice. Both limitations stem from a series of appellate court rulings, not deliberately passed legislation.

Legislation to let families seek redress in these situations - dubbed the "Family Justice Bill" - passed the state Senate on Tuesday, 18-15. (The vote was nearly party-line, with one Republican voting for it and one Democrat against.) It now heads to the GOP-controlled state Assembly.

State Sen. Jeff Plale (D-South Milwaukee) has introduced similar bills in past sessions: "This has to be the third or fourth time." But he's more optimistic than ever, perceiving "a change in the attitude about it."

Plale, who was taken aback when a constituent first told him about this glitch in the law ("Oh, come on, that's ludicrous"), says the situation affects only a very small number of families. But he sees it as "a basic fairness issue" that should have bipartisan support: "We're not guaranteeing any settlement. We're not guaranteeing any results. They'll just get their day in court."

Christine Bremer Muggli, president of the Wisconsin Association of Justice (formerly the Wisconsin Academy of Trial Lawyers), also thinks the time has come: "This is the furthest we've gotten so far. People are finally realizing it's ridiculous."

Rice agrees. "The Republicans have got to get with it. They've got to understand that it's a human issue. It's not politics at all."

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