Medical professionals usually strive to provide the very best medical care to patients. They want to administer the right tests, prescribe the right medications, and perform needed surgeries flawlessly.
But humans make mistakes despite best intentions, including doctors and nurses. Sometimes those mistakes are the result of carelessness and actions that fall short of the accepted standards of medical care.
Patients injured as a result of medical mistakes have the right under the law to seek monetary compensation for their injuries, including medical bills, lost wages, and pain and suffering. This legal right undoubtedly helps to keep medical professionals accountable for their actions and provide a semblance of justice to injured patients and their loved ones.
But some states have passed laws that restrict the right of injured patients to seek compensation for medical malpractice. Despite dubious data, these laws are cast as a protection against “frivolous” lawsuits and a reduction of medical costs.
In the real world, these laws can put injured patients and their loved ones into legal limbo with little hope of recovering compensation for injuries, and – even more important – getting real answers to just went wrong.
A tragic Wisconsin story is a case in point.
A 91-year-old man died after breaking his pelvis when he fell off a table in a hospital while being prepped for a routine heart procedure, according to a recent article in the Milwaukee Journal Sentinel. Prior to falling, the gentleman was largely independent and able to get around on his own. He was the primary caretaker of his ailing 88-year-old wife of 65 years, attending to her needs in their home and transporting her around town.
Wisconsin has thrown up legal roadblocks for those seeking compensation for medical malpractice, and, perhaps just as troubling, obtaining information about details on medical incidents.
Similar to numerous other states, Wisconsin has placed a cap on the amount of pain and suffering damages an injured patient can receive in a lawsuit. The cap amounts vary from state to state, and in Wisconsin the limit is $750,000.
Another restriction facing the widow and her adult children: Under a unique Wisconsin law, only a surviving spouse and minor children can pursue a wrongful death lawsuit. Should the ailing widow pass away before the conclusion of a lawsuit, the wrongful death claim would end immediately. This increases the risk for an attorney to represent the woman, especially considering the relatively high expenses typically associated with pursuing a medical malpractice case.
In fact, this law creates an incentive for the hospital and its insurer to delay payment on the claim as well as resolution of any legal case.
Yet another law in Wisconsin impinges on the ability of the family of the deceased man to get answers to what went wrong. They still don’t know exactly how he fell off the prep table in the presence of medical personnel at the hospital, according to the Milwaukee Journal Sentinel.
The law bars patient access to confidential “incident reports” written by staff in hospitals, nursing homes and other health care providers, and from using the reports in civil or criminal cases. The law purportedly encourages medical professionals to be more forthcoming about the details of treatments and medical services provided to patients when accidents occur, with the ultimate goal of improving health care procedures.
But sunshine is the best disinfectant, right? Transparency and accountability to patients would more likely lead to improvements in medical care, rather than circling the proverbial wagons, and keeping incident reports under lock and key.
Achieving consistently outstanding health care is inarguably a goal shared by everyone. However, laws such as those in Wisconsin that limit the legal rights of injured patients do not appear to further that goal, and instead appear to favor the health care industry and insurance companies.
This article provided on behalf of Scott Gottlieb at Scott C. Gottlieb & Associates, LLP.