A recent article out of Wisconsin has been making the rounds on a lot of local blogs. Changes in Wisconsin law, which took effect in February 2011, prevent families from using state health investigation records in state civil suits against long-term providers including nursing homes and hospices. It also makes these records inadmissible in criminal cases against health care providers accused of neglecting or abusing patients.
A 32 year-old man, who is brain damaged and paralyzed from the chest down, was living in a group home in Menomonie, WI. In October 2011, he had to be rushed to a local hospital for treatment of a bedsore that had gotten so bad, doctors thought he might be permanently bedridden. A Wisconsin state health department investigation report later found that he had the bedsore for four month before being hospitalized. The facility never reported it to the state or told his family about it. The family is currently suing the facility, seeking damages for negligence, but due to the changes in Wisconsin law, their attorney cannot use state investigation records as evidence in the lawsuit.
Supporters of the bill, which include Wisconsin Governor Scott Walker, argue that this law only has a minimal effect on the use of investigation records. Critics say the law removes a good tool for revealing abuse and neglect because attorney's cannot use state inspection reports to support allegations or impeach a witness. This also has a big effect on injured residents who do not have the capacity to testify about what happened to them.
Around 270 tort reform laws have been implemented in 49 states since 1990. Some, including the one in Wisconsin, can be traced back to the American Legislative Exchange Council (ALEC), which is a group funded by private industry that focuses on pro-business model legislation used mostly by Republican law makers. Supporters of the bill insist that it will help fuel the economy by reducing corporate litigation costs. Brian Hagedorn, Governor Walker's chief legal counsel, said that the law is aimed at jobs, and went on to state "[t]hese changes send a symbolic and substantive message that Wisconsin is open for business." That bears the question, at what cost?
Other proponents of the bill claim that implementation of this law allows healthcare providers to discuss problems more openly "without fearing a (personal injury attorney) is going to come [and read his or her report]." Walker said in an interview that the bill has helped slow the "constant pattern of litigation" that could be seen as a negative by employers.
Judge William Hanrahan, a Dane County (WI) Circuit Court Judge, with 19 years of experience prosecuting crimes against the elderly, expressed concern about the law because it forbids district attorneys and the state Department of Justice from using these records as evidence in criminal cases. He went on to state "I can't imagine if it were a homicide, it would be like saying the police reports couldn't be used."
Laws like this make it harder for attorneys like those at Ed Fox & Associates to do their jobs to the best of their ability in order to protect victims of nursing home negligence and abuse. What is more troubling is that the driving force behind these sorts of laws is stimulating the economy and job growth. There was very little mention of the needs of nursing home and long-term care facility patients by the proponents of this legislation. As was mentioned above, through the work of ALEC (which provides model bills for this type of legislation), 270 similar laws have been implemented across the United States. We have to work hard to make sure that these laws, veiled by good intentions, do not get implemented on a more widespread basis and lead to a lack of justice for those who are victims of neglect or abuse.