A 2011 law bans families of victims of nursing home abuse from accessing state health investigation reports. Senior abuse and neglect lawyers at Pintas & Mullins want to expose this injustice and advocate for the law’s repeal.
Known as Wisconsin Act 2, it was the first bill Governor Scott Walker proposed in 2010 after Republicans gained the majority in both the Wisconsin house and governor’s office. It was part of a tort reform legislation, and can be traced back to the American Legislative Exchange Council, which is a business model group funded by private industries.
A recent article in the Green Bay Press Gazette highlights the story of one victim of nursing home neglect, Joshua Wahl. Joshua was admitted to Aurora Residential Alternatives in Menomonie, Wisconsin when he was 32, because his mother could no longer care for him. The man suffers from spina bifida, brain damage, and is paralyzed from the chest down.
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In October 2011, Wahl was rushed to a nearby hospital because of a severe bedsore. Doctors told his mother it was so infected that he may be bedridden for the rest of his life. The state health department investigated the incident and found that Aurora neglected to notice, report, and care for Wahl’s bedsore for more than four months before he was taken to the hospital. Wahl’s mother filed a nursing home neglect lawsuit against Aurora, alleging her son was neglected consistently over the four-month period.
Wahl’s bedsore was the size of a half-dollar on his buttocks, and the skin, fat and muscle had completely eroded away over the four months. It was a quarter-inch deep and heavily infected with feces and other bacteria.
Under the law’s stipulations, Wahl’s mother and her attorney are not able to use the state’s health investigation records as evidence in their trial. The law also prohibits these records from being used in civil and criminal cases against long-term providers, including hospices.
Advocates claim that the law helps fuel the economy by reducing corporate litigation costs, which creates more jobs for Wisconsin residents. They argue that it enables nursing home providers to discuss their problems more openly, improving care. They claim that state investigation records are not usually used in lawsuit proceedings anyway, and that lawyers can still view the records, they just cannot use them as evidence.
But what other solid, irrefutable evidence are victims able to produce? Many nursing home residents do not have the mental or physiological capacity to testify about what happened to them. Nursing home staff may have reasons to cover up the illegal acts and lie under oath.
Access to state reports is integral to proving negligence and prosecuting criminals. The law was passed under the guise that it would create more jobs – however, according to the Pacific Research Institute, Wisconsin has the ninth best business climate for tort liability in the nation. The Institute found that, between 2000 and 2010 (the law was enacted in 2011), nursing home lawsuits decreased by about 28%, which means corporate litigation costs were already steadily decreasing. This all but proves the Wisconsin Act 2 law is superfluous and unnecessary, victimizing people who are already disempowered and vulnerable.
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State inspection records usually include witness statements that are invaluable to criminal cases to trace and prove patterns of neglect. Oftentimes, there is simply no other way to prove it. Attorneys use the records to impeach lying witnesses or affirm allegations of abuse or inadequate care. Many of these things are impossible without the records, and would mean the difference between obtaining justice and having a case thrown out for lack of evidence.
Joshua Wahl is now 33 and finally starting to heal. He required surgery after hospitalization, and spent nine months confined to laying on his stomach in a hospital bed for wound therapy. He is now in a different nursing home, 70 miles away from his mother. She still visits twice a week.
Since 1990, at least 270 tort reform bills have been proposed in nearly every state throughout the U.S. Many, like the law in Wisconsin, simply shield nursing home facilities that neglect and abuse residents from lawsuits. Elder abuse lawyers at Pintas & Mullins want to make the public aware of the reality of these tort reform laws, and will continue to advocate for victims of nursing home abuse and their families.