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Tragic Case Demonstrates Horrible Consequences of Tort Reform

We regularly discuss the folly of tort reform in this blog, and how it hurts people who are legitimately injured by medical malpractice and insulates bad actors from having to take responsibility for the harm they cause. But a recent case in Wisconsin demonstrates in a very real, and human way, exactly how bad this problem is.

Family of Man Who Falls off Hospital Table and Dies Struggles to Recover

The Milwaukee Journal Sentinel reported on the case of Robert Schmitt and his family. Mr. Schmitt went to the Aurora St. Luke’s Medical Center back in February for a routine heart procedure. The 91-year-old Schmitt fell off the procedure table onto the floor and broke his pelvis. Five weeks later he died, and the Milwaukee County Medical Examiner said his death was caused by complications from the fracture. Hardening of the arteries and heart disease also contributed to his death.

However, the hospital’s insurance company refused to pay Mr. Schmitt’s family’s wrongful death claim. Instead they offered Mr. Schmitt’s widow a paltry $75,000. While that may sound like a lot, it is important to note that Mr. Schmitt was his wife’s primary caregiver (they had been married for 65 years) and that she requires care 24/7 due to her own medical issues. So more than $75,000 has already been spent on Mr. Schmitt’s medical and Mrs. Schmitt’s care.

Yet the Schmitt family is finding it difficult to go to court to assert their claim. Part of the issue is that attorneys are reluctant to take the case because, under a nonsensical Wisconsin law, if Mrs. Schmitt dies before the suit is concluded, the suit would immediately end. That means there would be no way for the Schmitt family to recover the costs of the litigation from the other side, and they cannot afford the costs themselves. And this situation cannot be resolved by having a different family member file the suit, because under another problematic Wisconsin law, only spouses and minor children can file medical malpractice wrongful death cases, and all of Mr. and Mrs. Schmitt’s children are grown.

State Laws have Gutted Medical Malpractice in Wisconsin

Before reporting on the Schmitt family’s case, the Milwaukee Journal Sentinel did an in-depth report on the state of medical malpractice law in Wisconsin, and the outlook is grim for those who suffer a healthcare related injury. The state has put strict limits in place regarding who can sue over medical malpractice, how much can be collected, and where that money will come from. Over the last decade and a half, the number of medical malpractice cases filed in the state has dropped by roughly 50%.

While it would be nice if the massive decline were caused by improved medical care, there is no evidence to support that theory. Instead, the evidence includes cases like the death of Colleen Daniels. State regulators said Ms. Daniels died after a breathing tube was mistakenly inserted into her esophagus instead of her windpipe. Seems like an obvious legitimate medical malpractice claim. But Ms. Daniels was divorced, so she had no spouse. And while her youngest daughter was still in high school and living with her, she had reached her 18th birthday. So no one was allowed to file a lawsuit, and the medical providers who are responsible for Ms. Daniels’ death never had to take responsibility.

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