Debate heats up over lawsuit reform bill

By MARY SPICUZZA
Wisconsin State Journal
January 12, 2011
 
A photograph of Frances Orechovsky taken just months before she died shows her with her son, Rick, wearing the Green Bay Packers jacket he gave her while enjoying french fries and a cup of coffee.

But another picture of the 92-year-old Racine woman, taken not long after she went to a nursing home, reveals that while there she developed deep sores spreading across her body. She died of blood poisoning soon afterward.

Rick Orechovsky filed a complaint with the state and on Tuesday joined advocates for the elderly, disabled and victims of drunken driving who warned state lawmakers about a sweeping civil lawsuit reform bill proposed by Gov. Scott Walker.

Critics say the legislation will weaken the power of Wisconsinites, including nursing home patients and their families, to sue businesses and care providers when they or their loved ones are harmed or killed. And they argue the bill, part of a special session on the economy, will not help create jobs.

But Walker and other supporters say the legislation will make the state more business friendly and fight what they call frivolous lawsuits. The bill will improve the "regulatory climate" and "lawsuit climate" hindering economic growth in the state, Walker said, without lowering the quality of medical care.

"To me those are all things that send a clear message," Walker said.

Business groups and company owners applauded Walker's proposal at a public hearing on Tuesday, one of several simultaneous hearings held on special session proposals. "This is about jobs," Bill Smith, state director of the National Federation of Independent Business, said. "It's about creating an environment that will allow jobs to grow."

But Orechovsky and others said some of the bill's provisions, like one that prohibits reviews and reports about health care providers from being allowed as evidence in civil or criminal cases, will make it harder to find out what happened to people like his mom.

That's not the intent of the bill, said Sen. Rich Zipperer, R-Pewaukee. He said the proposals will encourage health care providers and others to regulate themselves while helping to change Wisconsin's reputation as an "outlier" state when it comes to lawsuits.

Democratic legislators, however, argued the state does not have significant problems with frivolous lawsuits and excessive litigation. Both Democrats and business interests have cited a study by the Pacific Research Institute, which favors tighter controls on lawsuits. That group ranked Wisconsin 35th for its laws and rules, but it did far better overall. It was No. 9, among the best in the country, for its overall lawsuit climate, following states like Alaska, North Carolina and Virginia.

At the hearing, anti-drunken driving activists warned the bill would harm the state's reputation by making it easier to drive under the influence and get away with it.

Paul Jenkins, the stepfather of Jennifer Bukosky — a pregnant woman killed along with her 10-year-old daughter by a man driving under the influence — warned provisions the bill would make it harder to sue drunk drivers and collect punitive damages. The bill raises the standard of proof for winning punitive damages but specifies being intoxicated or drugged isn't a defense if the person would have otherwise known an action "was practically certain to result in injury."

"If this bill goes through, a drunk driver is going to be better off," said Rep. Gary Hebl, D-Sun Prairie, who opposes the proposal.

At Tuesday's hearing, Rep. Jim Ott, R-Mequon, assured Jenkins and others the bill would be changed if needed to make sure that won't be the case.

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