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When the doctor’s wrong

Russ Golla is the 60th president of the Wisconsin Association for Justice. He has been a partner at Anderson, O’Brien, Bertz, Skrenes & Golla since 1986.

Russ Golla is the 60th president of the Wisconsin Association for Justice. He has been a partner at Anderson, O’Brien, Bertz, Skrenes & Golla since 1986.

There is a scene in the 1970’s movie classic, “Network,” when the TV anchorman Howard Beale finally snaps. “I’m a human being” (expletive deleted) rants Beale, “my life has value.”

Value, yes, but God help us if we get sick.

A new study says medical errors are the third leading cause of death, some 250,000 annually, in the U.S. As we understand this new study, it does not include deaths from Health Care or Hospital Acquired Infections, which are estimated to add another 100,000 to this total. That’s 959 deaths a day that can be attributed to the people and institutions we trust to take care of us.

Health care providers, like everyone else, are human and will act carelessly from time to time. But when the number of deaths connected to medical “errors” — a euphemistic reference to carelessness or negligence — is only eclipsed by cancer and heart disease, then the time has come for raising serious questions.

One researcher calls the problem an “under-recognized epidemic.” What’s more, it’s an epidemic that is largely invisible to the public and ignored if it is not being deliberately covered up by the medical community.

Likewise, a recent study by Stanford University concluded that most health-care centers are trying to avoid penalties by “misreporting” Hospital Acquired Infections. We are all in denial. Who among us wants to think that the very people and institutions we entrust our health to could kill us?

You might be surprised to learn that health-care providers aren’t expected to publicly report deaths connected to medical error. According to the New York Times, medical error is not listed as a cause of death on death certificates. Nor does the Centers for Disease Control and Prevention ask about medical errors. It’s hard to get a handle on a problem if the most basic questions are being ignored.

Here in Wisconsin, the troubles are compounded by the state’s having some of the worst medical-malpractice laws in the U.S. Our lawmakers have created a safety net for doctors by building a wall between patients and medical claims.

Internal investigations by health-care institutions are privileged, which means they won’t see the light of day in a case started by a patient even if the conclusion is that the patient was harmed or killed by medical malpractice. If a health-care provider admits to having caused harm, and that admission comes in the form of an apology to malpractice victims or their families, then juries will never get to see that evidence that a wrong was committed.

What’s more, Wisconsin parents can’t sue if their adult children die from a medical error. And adult children can’t sue if their parent is killed by medical carelessness.

If — and it’s a huge if — you have grounds for a suit, damage caps make it all but impossible to find a lawyer who will take your case. As lawyers, we routinely front the six-figure bills it takes to get to court. But when there’s a cap on damages, we must often conclude we simply can’t afford to take on these sorts of cases.

The sad truth is that health-care institutions know this — that is exactly why they have sought and obtained such caps on damages. In 2014, there were only 118 medical malpractice claims asserted in the entire state and only 84 lawsuits filed.

The claim number for 2015 is under 100. And if you do get a lawyer to take your case to court, the odds of winning are against you.

According to the National Practitioner Data Bank, Wisconsin ranks 49th in malpractice payments. What is even more amazing is that, in Wisconsin, all doctors and health-care providers have the benefit of an unlimited umbrella policy called the Injured Patients and Families Compensation Fund.

That fund is presently valued at $1.2 billion and has a surplus of $783 million. This means that even if a health-care provider is found liable for malpractice, that provider does not have to worry about any risk of using his or her personal assets to pay a judgment. Health-care providers are protected and the vast majority of medical-malpractice victims go uncompensated.

It all adds up to a mountain of frustration for victims of medical malpractice and their families. Medical errors are killing people at a terrifying pace. Yet, health-care providers have used their power and the money they’ve received from you to secure legislative protection which makes pursuit of all but a few medical malpractice claims a year untenable.

Many have argued that these laws are needed to keep the cost of health care down. That argument is and always has been bogus. For in Wisconsin, there is no relationship between health-care costs and medical-malpractice claims. And the reason for this is simple: Medical malpractice claims in Wisconsin are virtually non–existent.

Some 4,500 Wisconsinites will die this year because of negligent medical care and virtually all of the guilty health care providers will escape responsibility for their conduct because of their preferred status under the law.

It’s up to us to change these laws. This won’t happen unless we all understand that the next victim of malpractice might be our spouse or child. Let’s not wait for this to happen.

Tell the lawmakers who represent you that your doctors and health-care providers should not receive preferred status under the law.

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