Monday, July 22, 2019

In December 2015, Drew Martin, age 29, in Wisconsin persuaded legislators to create a system of accountability for victims of possible medical error.  Drew Martin’s wife, Erin Martin, cried during the Capitol briefing called by Sen. Nikiya Harris Dodd on Wisconsin's medical malpractice laws. 

The Martins' daughter died seven days after she was born.  Grace Magdalena Martin did not breathe when she was born August 4, 2014, in Madison, Wisconsin St. Mary's Hospital after a normal pregnancy and lengthy labor. Doctors revived the baby and rushed Erin Martin, age 29, into surgery since she was hemorrhaging.

Mother and baby survived, but Grace Martin was brain damaged, requiring a lifetime of care, without ever being able to speak or walk. The parents decided to remove Grace's breathing tube.  If the child lived, and required millions in medical care, a court could have awarded costs.  Such a medical malpractice case would have been easier for an attorney to take on.

The state's medical malpractice laws limit who can sue physicians and how much they can collect.  Current Wisconsin law allows minor children and spouses to file malpractice suits in death cases.  The law does not let adult children sue if a parent dies.  Nurses and doctors are generally in a better position legally if a patient dies as opposed to surviving a medical error and requiring costly lifetime care.

In Wisconsin, non-economic damages, for example, loss of companionship, are capped at $500,000 (twice the non-economic damage cap in California) for death of a child cases. The child's estate can sue additionally for pain and suffering and collect up to $750,000, but attorneys usually advise it is hard to prove a decedent was in pain or knew s/he was about to die.

The damages caps deter attorneys from taking medical malpractice cases.  Lawyers often must spend more than $100,000 to thoroughly research a case and hire expert witnesses.  Medical malpractice cases are a risk because after the investment, the attorneys collect a fee only if they win the case in most instances.

Dodd circulated a bill to let parents who lost adult children, up to age 27, file suit for medical malpractice.  Dodd’s proposal is called "Erin's Law," in memory of Erin Rice.  According to court records, Rice died in 1999 at age 20 after being misdiagnosed by an emergency room doctor at UW Hospital and Clinics.

Legislators and lobbyists report the Harris Dodd bill has little opportunity to pass in the Republican-controlled legislature. Similar bills brought in previous years were rejected.  Wisconsin physicians paid fewer malpractice claims per capita in 2014 than their peers in other states.

Read the Article Here