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Wisconsin “Tort Reform” Law Bars Some Health Care Inspection Reports from the Court

March 20, 2013

This past February, the Wisconsin Center for Investigative Journalism (WCIJ) published a two-document series called “A Frail System” about a measure billed as tort reform which has seriously affected people in nursing homes in that state. This legislation touches on two of the most prominent dangers of so-called tort reform: preventing access to courts by victims of medical negligence, and lowering standards of medical care (by eliminating consequences that go along with poor treatment) in not allowing evidence that may prove negligence.

The title of the first section is “New state law conceals records of abuse, neglect in nursing homes,” which this post will cover. We will address part two next week. The WCIJ writes, in a summary of the report:

“Families’ abilities to hold potentially negligent nursing facilities accountable have been diminished by a recent change in state law that bars records of abuse and neglect from use in the courts, the Wisconsin Center for Investigative Journalism has found. The Center’s investigation also shows that some long-term care facilities are failing to report deaths and injuries, as required by law.”

The law in question, which went into effect in February of 2011, “made state inspection reports of nursing homes and other health care facilities inadmissible as evidence in civil and criminal cases.” The first part in the series explains the consequences of the law: for instance, a woman checked her disabled son into a twenty-four hour care center for treatment of a bedsore, but–rather than seeking medical attention when the problem worsened–the employees there kept treating him with antibiotic cream. This led to hospitalization and growing bills. But this new law does not allow the family, in their efforts to prove negligence, to use records from the treatment center in their case.

The law not only affects civil suits like this; it also “makes such records inadmissible in criminal cases against health care providers accused of neglecting or abusing patients.”

Supporters of the law include Governor Scott Walker and the American Tort Reform Association. Walker is quoted as saying, “frivolous lawsuits (are) a huge barrier to economic growth and development,” while an ATRA spokesperson said, “No one in my group is going to suggest that real victims ought not have access to the courts, but it seems to me we can’t afford to unleash a hungry mob of plaintiffs’ attorneys, bringing technically-oriented, nitpicking types of lawsuits.”

He does not explain who should represent these “real victims” if plaintiffs’ attorneys should not, nor does he elaborate on the difference between a “real” lawsuit and a “nitpicking one.” It is statements like these that trivialize the seriousness of medical malpractice and the devastating effects it can have on individuals and their families.

Dane County Circuit Court Judge William Hanrahan has problems with the law, explaining, “There are witness statements in state inspection reports. You can’t replace those. I can’t imagine if it were a homicide. It would be like saying the police reports couldn’t be used.”

Next week we will discuss the second half of the Wisconsin Center for Investigative Journalism’s report, one that details health care providers neglecting to report injuries and deaths of patients.

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