Once again today, I had to turn down a potential medical malpractice case for a young adult because there was no survivor of the victim who had the legal right to pursue the claim. Under Wisconsin law, if a person is over the age of 17 and dies as a result of medical negligence, parents may not bring a claim for loss of society and companionship. If the victim dies without a spouse or children, there is no one to bring a claim for the wrongful death.
Similarly, if the victim of malpractice is an elderly parent, the only person that can file a claim is the spouse of the elderly parent. If that spouse is already deceased, then there is no one to file a claim to recover for the wrongful death.
The same is also true if medical malpractice causes the death of an unmarried, widowed or divorced parent whose children are no longer minors. The surviving adult children may not bring a claim for loss of society or companionship.
Ironically, if the doctor had killed the parent in an automobile accident, a wrongful death claim could be filed. But if the death is caused by negligent conduct in the operating room, there is no claim. This makes no sense and must be changed.
Wisconsin is one of only about six states that deprive adult children of the right to bring a wrongful death claim for the death of a parent due to medical malpractice.
The Wisconsin Family Justice Bill, a measure to change this rule, is stalled in our legislature.
Not surprisingly, the Wisconsin Medical Society opposes expansion of those who can sue for medical malpractice.
The Wisconsin Association for Justice is working hard to get this legislation passed. and has expressed sound reasons why survivors of medical practice victims should have the right to sue:
Wisconsin families deserve the right to a fair and just civil remedy through our court system when a loved one is killed in a medical malpractice case. Age and marital status should not be the determining factors!
How would you deal with the awful prospect of the loss of your own 18-year-old son or daughter due to medical errors? How would you react to the fact that there is no legal recourse for the medical negligence that lead to the death of your 18-year-old child or your elderly parent?
Everyone deserves to be treated equally in Wisconsin. Our laws should not discriminate against people based on their age or martial status. Negligent health care providers in an operating room should not be treated differently than negligent car drivers.
The Wisconsin State Senate has voted to approve the legislation, and forwarded it to the State Assembly for its consideration. The bill was referred to the Assembly Committee on Judiciary and Ethics, where the legislation has stalled. Hopefully, this fall’s elections will result in the replacement of several legislators who are blocking this needed legislation, and allow justice for all victims, regardless of age and marital status.