Wisconsin, like many U.S. states, specifies which relatives of those who die as a result of the negligence of others, including medical malpractice, may seek and obtain compensation for their losses. While it is said that there is no greater pain than the pain associated with the death of one’s child, Wisconsin law does not permit the parents of an adult child to recover their noneconomic damages associated with the death of their adult child if the death was caused by medical negligence.
A Wisconsin lawmaker is seeking to take a small step in addressing and resolving this injustice by introducing a proposed law known locally as “Erin’s law,” which would expand Wisconsin’s present law, which currently allows only the spouses, minor children, and the parents of minor children to file wrongful death lawsuits that arise out of medical malpractice. There is no such restriction in filing wrongful death cases in Wisconsin if the negligent cause of death was unrelated to medical care.The proposed law would allow parents to seek compensation for their losses resulting from the death of a child who died before reaching the age of 27, if medical malpractice was the cause of death.
In light of the contentious medical malpractice litigation climate in Wisconsin, the lawmaker’s proposed law, which faces stiff opposition from the powerful health care industry as well as from insurance and business interests, does not address the claims of adult children for their losses for the death of their parent due to medical malpractice, who would remain without legal recourse.
Who Was Erin?
The proposed law is named after Erin Rice, a 20-year-old college student who died in 1999 after an emergency room physician in Wisconsin negligently failed to diagnose her enlarged heart and instead diagnosed her with pneumonia and sent her home with antibiotics and cough medicine. Erin died two weeks later, due to her untreated enlarged heart.
Erin’s father, Eric Rice, has been championing a change to Wisconsin’s law since his daughter’s death. As Mr. Rice has stated, “If a doctor was driving down the street and hit somebody’s kid and killed them, there would be a lawsuit. So why shouldn’t you be able to bring a lawsuit in a medical malpractice death case? … State law says she [my daughter] isn’t worth anything because she was over 18 … She had no value – that’s what the law is saying.”
The Wisconsin lawmaker’s current effort follows her unsuccessful attempt during 2014 to have Wisconsin’s wrongful death claim restrictions in medical malpractice cases more broadly lifted: “A parent should not have to suffer having lost a child without having their day in court.”
If you or a loved one were injured (or worse) as a result of medical negligence in Wisconsin or in another U.S. state, you should promptly seek the legal advice of a local Wisconsin medical malpractice attorney or a medical malpractice attorney in your state who may investigate your medical malpractice claim for you and represent you in a medical malpractice case, if appropriate.
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