Reform push

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Christine Larson’s daughter Tia entered a Port Washington nursing home in 2009 for rehabilitation from a severe episode of hypoglycemia.

During the night, 26-year-old Tia’s blood sugar levels rose to dangerous levels. It went untreated until she stopped breathing the next morning, Christine Larson said. The nursing home staff administered insulin, but was unable to save her life.

Christine Larson testified Jan. 11 that a proposed tort reform bill would limit her options in seeking compensation from the nursing home, which she says was negligent in its care of her daughter. Larson and her attorney are building a negligence case against the nursing home, but if the bill is passed by the Wisconsin Legislature, it will severely limit the possible remedies for Larson and others in similar situations.

With Republicans holding a 60-38 majority in the State Assembly and a 19-14 edge in the Senate, the bill, the first proposed by Republican Gov. Scott Walker, is expected to pass.

If it does, it would not only limit recovery for victims of abuse in long-term health care facilities, but also give defense attorneys an arsenal of arguments to deflect liability. Among them is a provision that prohibits the use of internal peer review incident reports in criminal or civil actions against a health care provider.

“It’s going to be darn near impossible to prove that somebody intended to harm or kill a particular resident,” said attorney Jeffrey A. Pitman, who represents victims of nursing home neglect. “I can’t imagine a circumstance where someone would admit that was their goal.”

Currently, non-economic damages are uncapped, but the legislation would impose the same $750,000 limit currently in place for medical malpractice claims.

In addition, damages for loss of society and companionship recoverable in a wrongful death action against a health care provider would be capped at $500,000 in the case of a deceased minor and $350,000 in the case of a deceased adult.

Those limits would apply to negligence claims against long-term care providers, such as nursing homes, hospices, or assisted living facilities.

The bill also seeks to lower the odds of proving punitive damages by broadening the liability protection for providers, changes which Wisconsin Association for Justice President J. Michael End said will make victories “virtually impossible” for victims.

The legislation provides that “a person who negligently abuses or neglects a patient or a resident is not guilty of a crime” if the incident occurred on the job and was a result of “inability, incapacity, inadvertency, ordinary negligence, or good faith error in judgment or discretion.”

The protections would create a wide range of options for defense attorneys.

“This creates defenses that I was unaware even existed,” said defense attorney Patrick J. Knight.

The Gimbel, Reilly, Guerin & Brown  lawyer said that if the bill passes, the defenses could be applicable to other health care providers, such as hospitals, and insulate employees who make mistakes from criminal charges.

If a nurse made a mistake hooking up the wrong IV bag, Knight said the person could avoid criminal prosecution by claiming it was an accident.

“People have been effectively prosecuted under the current statute and arguably, they would have a complete defense under the new one,” he said.

At a joint legislative hearing to discuss the bill on Jan. 11, Walker’s Chief Legal Counsel Brian K. Hagedorn defended the changes as a way to promote job growth by lessening the threat of costly litigation against long-term health care facilities.

While the changes don’t absolve providers from wrongdoing, he argued that cases which involve simply the threat of punitive damages can cripple businesses. One of the goals of the legislation is to decrease the threat by removing criminal penalties for long-term health care professionals who are negligent on the job.

“The fact that punitive damages are regularly involved in litigation and regularly threatened in litigation is enough to be damaging to the business environment,” Hagedorn said at the hearing. “So, this is an effort to lessen that burden.”

Lawyers expect little opposition to the legislation. Should it pass wholesale, the recovery caps, combined with broader liability protection for providers, will deter families from bringing legitimate claims, said Cannon & Dunphy attorney Mark L. Thomsen.

“The cost to pursue those, given the limitations, will prevent lawyers from taking those cases to juries,” he said. “But that doesn’t mean those are frivolous lawsuits.”

Madison attorney Michele A. Vaughan agreed.

Approximately 25 percent of the Boller & Vaughan partner’s practice is dedicated to nursing home abuse cases and she expects that percentage to dip, dependent on an evaluation of the costs of bringing cases versus the potential recovery.

“Are cases going to be worth less? Probably,” she said. “Attorneys will be careful with how much they spend to make it worthwhile, but I think cases will still be worth bringing.”

Walker is pushing for passage of the laws by spring, so attorneys expect a flurry of filings in advance of any changes.

Pitman said he plans to file every one of the cases he has in his office in the near future, in order to preserve his client’s rights.

But passage of the bill won’t deter the partner at Pitman, Kyle, Sicula & Dentice from taking “any and all” legitimate cases where residents are injured or killed due to long-term health care facility negligence.

“It just means there are limitations on finding the truth,” he said.

During her emotional testimony to the legislative committee, Larson was less optimistic that justice would be served in cases likes her daughter’s.

“The bill being considered by this committee strips my family and families of victims of neglect in the future from achieving true justice in the civil courts,” she said.

Jack Zemlicka can be reached at [email protected].

Tort reform bill would limit remedies

Proposed changes to liability and evidence laws related to claims against long-term health care providers.

Noneconomic damage caps: Special Session Assembly Bill 1 proposes a $750,000 limit on noneconomic damages, along with loss of society and companionship caps recoverable in a wrongful death action against a health care provider of $500,000 in the case of a deceased minor and $350,000 in the case of a deceased adult.

Punitive measures: Stricter liability standards for proving punitive damage claims against health care providers and prohibition on criminal prosecution of employees who engage in negligent abuse on the job.

Peer review confidentiality: Review records, incident or occurrence reports remain confidential and may not be used in a civil or criminal action against any health care provider.