A Milwaukee man’s death, following a hospital accident, has illustrated some of the issues plaguing injured patients in the state of Wisconsin. Over the past several years, the state has enacted a series of laws imposing restrictions of medical malpractice cases.
The laws, which specify who can file malpractice lawsuits and how much can be collected (the state has caps on non-economic damages), have resulted in a decrease in the number of lawsuits filed in the state. Since 1999, the number of medical malpractice lawsuits filed in Wisconsin has fallen by more than 50%.
This past January, Robert Schmitt, aged 91 years, went to the hospital due to shortness of breath. A few days later he was taken to a procedure room for a cardiac catheterization. Somehow, while being prepped for the procedure, Schmitt fell off the procedure table, crashed to the floor and suffered a broken pelvic bone. A little over a month later, he was dead.
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The Milwaukee medical examiner ruled the death a result of complications from the fracture, but also listed hardening of the arteries and heart disease as contributing factors.
Schmitt was the primary caretaker of his wife, Levaine Schmitt, aged 88 years. The hospital’s insurance company disagreed that the fall was the cause of Schmitt’s death, and refused to pay a wrongful death claim, but instead offered Schmitt’s widow $75,000 for her husband’s pain and suffering, medical expenses, and her loss of consortium.
Two Wisconsin laws make a malpractice suit difficult to impossible in this case. The first is a 2011 law which protects incident reports written by hospital staff. Prior to 2011, incident reports were fairly regularly used in court in malpractice cases.
The law, which was enacted to encourage hospitals to review and improve procedures without the fear of the reports being used in court, means that Schmitt’s family cannot access the hospital’s reports (if any) about the cause of the fall and what role it played in his death.
The second Wisconsin law specifies that only spouses and minor children can sue for wrongful death in a medical malpractice case. In 2007, the state Supreme Court ruled that if the plaintiff (spouse or minor child) in a medical malpractice wrongful death lawsuit dies, the case essentially dies too.
In practical terms, this means that where the plaintiff is a widow, aged 88 years, in poor health, the best defense tactic may be to simply stall the case and hope the surviving spouse dies before trial.
Schmitt’s family has yet not decided how to proceed.
Ann W. Latner, JD, a former criminal defense attorney, is a freelance medical writer in Port Washington, N.Y.
