Summary of Our Legal Actions in this Matter
(including an overview of sovereign immunity laws)
People frequently ask us whether we pursued legal action against the hospital regarding Will's care. We did not immediately pursue legal action after our return from Boston for several reasons:
we were overjoyed and amazed at Will's recovery in Boston (based upon our understanding of his prognoses prior to going to Boston, we realistically did not expect him to survive) we still had a very fragile child who required constant care and medical appointments -- to devote the time required for a lawsuit would have been nothing short of neglectful on our part we were literally overwhelmed by the medical problems that Will had undergone during the first 18 months of his life Will still received the majority of his medical care at the hospital and we were frightened that legal action might undermine his care (after all, we had previously been told that our "questions were detrimental to Will's care") we both worked at the hospital and were afraid that our employment (and insurance) might be terminated if we filed suit (in hindsight, this may sound irrational, but it made perfect sense to us at the time). Ironically, Tom's post-doctoral fellowship position was mysteriously terminated by the Department of Psychiatry several months after our return from Boston. This occurred despite the fact that Tom had received exceptional reviews during his training and was told that the "layoff" was not based in any way on his job performance. Within one week, the position was restored, but the message was "loud and clear." we were unaware that the hospital had decided to discontinue its pediatric cardiac surgery program around the time that we traveled to Boston.
In summer of 1997, we learned two disturbing medical facts regarding Will: 1) his aortic arch was evidencing further problems; and 2) Will's left femur and hip were malformed secondary prolonged bed rest. These discoveries finally propelled us to seek legal assistance. In hindsight, we made a terrible and costly mistake by not pursuing this matter earlier (as will be described below). We entered the legal arena every bit as naive as when we had entered the medical arena (click here to go to a copy of the case summary).
Before we can discuss our odyssey with the Wisconsin State Legal System, we need to set it in the context of sovereign immunity laws. To this day, we are amazed and disappointed that such laws exist. Simply put, sovereign immunity laws mean that the state only allows itself to be sued in very limited ways for very limited amounts. The hospital was a state agency at the time of Will's injuries. Therefore, the hospital and all of its employees were protected by sovereign immunity laws in medical malpractice cases. This has several significant ramifications (click here for a link to the Wisconsin state statutes pertaining to this matter):
Heedless of these facts we pursued legal action against the state. We entered into this matter with the idea of obtaining some measure of understanding and closure regarding Will's suffering, disfigurement, and losses. Naively, we believed that wrongs would be righted and that there would be an attempt to make amends. Specifically, we sought a settlement that would provide for him in the event that he was unable to go to school, obtain employment, or live independently. We saw it as insurance for Will and protection for his brother--so that his brother would not have to spend all of his earnings caring for Will. We were sadly deluded regarding this matter.
Our first obstacle was the notice of claim law. The state ironically claimed that we must have known when Will's heart was repaired two days after we arrived in Boston that there were problems with his care at the hospital (please contrast this with their claim of not admitting wrongdoing or accepting liability in the settlement agreement). [PLEASE NOTE: we are simply restating the state's argument, not criticizing or ascribing blame.] The state's claim had disastrous implications because it meant that more than 180 days had passed since we had knowledge of Will's injuries and therefore excluded us from filing a claim.
Our attorneys developed an alternative solution. It was apparent that we (Will's parents) would not be able to sue for Will's suffering or our emotional trauma because of the notice of claim law. However, it seemed unrealistic that a minor child could be held to the 180 day notice of claim law. An infant child could not be aware of such laws or of the fact that he had been injured. Therefore, it was decided that Will would file suit through a Guardian ad Litem. Three claims were filed in the fall of 1997. The claims contended Will was not provided full information regarding his condition, prognosis, or treatment alternatives at the time of his three cardiac surgeries in Wisconsin and that the surgeries resulted in harm to him. Three claims were filed in order to increase the potential damages awarded to Will to $750,000. While this seemed to be a simple strategy, it would result in legal uproar. Our hopes of obtaining closure and understanding faded quickly during early 1998.
Despite the additional time to respond, the state failed to respond to Will's notices of claim in the proscribed window of time. As a result Will's attorney filed and was awarded a motion of default judgment in early 1998. While the ramifications of this are not entirely clear, it basically means that the state has vacated its right to contest the claims and the matter simply should move to a settlement hearing. We felt great relief that this matter would be so quickly and simply resolved. However, as with many things in Will's life, the reality would be much more complex.
The state once again raised the issue of the notice of claim law--stating that Will's claim fell outside the 180-day window for filing suit. Will's attorney argued again that a minor (especially an infant) could not possibly be held to such requirements. Unfortunately, there was no precedence for this matter in Wisconsin case law and a settlement hearing scheduled for January 1999 instead became a hearing on legal technicalities. A decision in favor of the state would throw out Will's claims (despite the order of default judgment). A decision in favor of the state would uphold the Will's claim. Realistically, however, either decision would pave the way for an appeal to the appellate court and ultimately the state supreme court.
The judge refused to offer a decision from the bench at the hearing, indicating that he would provide a written decision in 30 days. In subsequent interactions with both attorneys, he strongly recommended that the parties strive to seek resolution to this matter. The state recognized that they would likely prevail in this matter if it followed a legal trajectory because:
During the next thirty days, we saw our rights and freedoms whittled away as the state's attorneys made their demands for a settlement. Click here for an excerpt from the settlement agreement. These demands included:
The state initially required that violations of these terms would result in financial penalties to Will. Needless to say, we were appalled by these terms. Our rights to seek redress, to protect others, even to express our opinions were being taken away before our eyes. Furthermore, the first amendment rights of our son were being restricted. In essence we were being maneuvered to sign away his rights to complain, criticize, and request information about events that had befallen him. Even worse, the state wanted us to agree that Will would be penalized if we violated the terms of the agreement--even though he had no knowledge of any agreement and had no control over our behavior.
As mentioned elsewhere, we eventually capitulated to all of the state's demands except the terms regarding our rights to request medical information and the terms regarding Will being held financially responsible for our violations. We capitulated because we had no choice. It was clear that legally we did not have a leg to stand on. In fact, it is our belief that the only reason that the state even considered offering a settlement is because of readers like yourself who were outraged about this matter and presented a PR debacle for the state and for the hospital's outgoing CEO.
We are not going to discuss the terms (you can look it up yourself from the court records). However, we will say that Will's settlement was considerably less than the amount that the hospital billed for during the first 18 months of his life.
The bottom line is that we were naive
consumers and naive legal consumers. Hopefully never again...