Dying By The Numbers

By: Russell T. Golla, President, Wisconsin Association For Justice

There is a scene in the 1970’s movie classic, Network, when TV anchorman Howard Beale finally snaps. “I’m a human being” (expletive deleted) rants Beale, “my life has value.”

Value, yes, but God help us if we get sick. A new study says medical errors are the third leading cause of death, some 250,000 annually, in the United States. As we understand this new study, it does not include deaths from Healthcare or Hospital Acquired Infections (HAIs) which are estimated to add another 100,000 to this total.  That’s 959 deaths per day that can be attributed to the people and institutions we trust to take care of us.

Health care providers, like everyone else, are human and will act carelessly from time to time. But when the number of deaths connected to medical “errors” – a euphemistic reference to carelessness or negligence, is only eclipsed by cancer and heart disease, it is a crisis of care. One researcher calls the problem an, “under-recognized epidemic.” An epidemic that is largely invisible to the public and ignored if not actively covered up by the medical community.  Likewise, a recent study by Stanford University concluded that most facilities are “misreporting” Hospital Acquired Infections (HAI’s) to avoid penalties.  We are all in denial.  Who among us wants to think that the very people and institutions we trust our health to could kill us. 

You might be surprised to learn that health care providers aren’t expected to publicly report any deaths connected to medical error. According to the New York Times, medical error is not listed as a cause of death on death certificates. Ditto for the Centers for Disease Control and Prevention (CDC). It doesn’t ask about medical errors either. It’s hard to get a handle on a problem if the most basic questions are ignored. 

Here in Wisconsin, that conundrum is compounded by some of the most patient unfriendly medical malpractice laws in the nation. Our lawmakers have created a safety net for doctors by building a wall between patients and medical claims. Internal investigations by health care institutions are privileged which means that they won’t see the light of day in a case commenced by a patient even if they conclude that the patient was harmed or killed by medical malpractice.  Juries will never hear that health care providers made statements to victims of malpractice or their family members admitting responsibility for the harm they caused if that admission was made in the context of an “apology.” Wisconsin parents can’t sue if their adult children die from a medical error. Adult children can’t sue if their parent is killed by medical carelessness.

If – and it’s a huge if – you have grounds for a suit, damage caps make it all but impossible to find a lawyer who will take your case. As lawyers, we routinely front the six-figure bills it takes to get to court, but when there’s a cap on damages, we have to look at fiscal reality too and simply can’t afford to take on such cases. The sad truth is that the health care institutions know this – that is exactly why they have sought and obtained such caps on damages. In 2014, there were only 118 medical malpractice claims asserted in the entire State of Wisconsin and only 84 lawsuits filed.  The claim numbers for 2015 are under 100. And if you do get a lawyer to take your case to court, the odds of winning are against you. According to the National Practitioner Data Bank, Wisconsin ranks 49th in malpractice payments.  What is even more amazing is that in Wisconsin, all doctors and health care providers have the benefit of an unlimited umbrella policy called the Injured Patients and Families Compensation Fund. That fund is presently valued at $1.2 billion with a surplus of $783 million.  This means that even if a health care provider is found liable for malpractice, that provider does not have to worry about any risk of using his or her personal assets to pay a judgment. Health care providers are protected and the vast majority of medical malpractice victims go uncompensated.

It all adds up to a trail of frustration for medical malpractice victims and their families. Medical errors are killing people at a terrifying pace. Yet, health care providers have used their power and the money paid them by you to secure legislative protection which makes pursuit of all but a few medical malpractice claims per year untenable.

Many have argued that these laws are needed to keep the cost of health care down.  That argument is and always has been bogus. In Wisconsin, there is no relationship between health care costs and medical malpractice claims for one very good reason – medical malpractice claims in Wisconsin are virtually non–existent.

Some 4,500 Wisconsinites will die this year because of negligent medical care and virtually all of the guilty health care providers will escape responsibility for their conduct because of their preferred status under the law. 

It’s up to us to change these laws. This won’t happen unless we all understand that the next victim of malpractice might be our spouse or child.  Let’s not wait for this to happen.  

Tell your lawmaker that your doctors and health care providers should not receive preferred status under the law.

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