On Aug. 2, 2003, George Hoffberg was recovering from apparently successful brain surgery at UW Hospital. He fell from his bed, sustaining serious head injuries. He never spoke again. He died nine months later, at age 70.
Hoffberg's widow, Donna, sued the hospital in July 2006, saying its "agents and employees" were negligent in failing to prevent George, a former health-care administrator, from falling "while he was vulnerable." She wanted the UW to make changes to prevent similar falls.
"No money can replace George," says Donna, who planned to give any payment to his alma mater, the University of Michigan, and several charities. "I miss him."
But now the lawsuit has been stopped in its tracks.
John Raihala, Hoffberg's attorney, decided he "had to withdraw" from the case in early November. The court gave Donna Hoffberg 60 days to find new representation, but it was a foregone conclusion that she would not. The deadline expires this week, and the case will likely be dismissed.
Why was this case, once considered viable, abandoned?
Raihala says a recent state Supreme Court ruling "has basically shut the courthouse doors to anybody with a claim against the UW Hospital and Clinics Authority. This will prevent many people from pursuing claims."
The case, Rouse v. Theda Clark, declared the hospital authority a "political corporation," subject to the 180-day notice-of-claim rule in state statute 893.80. This statute also sets a $50,000 cap for damages caused by authority employees; UW doctors are subject to a higher cap of $250,000 per claimant.
In contrast, a person injured at a private hospital can get up to $750,000 for non-economic damages like pain and suffering, plus unlimited actual economic damages for lost wages, medical bills and such. And certain surviving family members may bring claims over deaths due to negligence, to a maximum of $350,000 for an adult and $500,000 for a child.
Raihala says the ruling leaves the authority's insurer off the hook even in cases where an employee causes hundreds of thousands of damages. Instead, "The taxpayers of Wisconsin may end up paying for that negligence through the state Medicaid system."
The Rouse case was decided on a 4-1 vote, with two abstentions. The lone dissenter was Chief Justice Shirley Abrahamson, who argued that the authority was "created by statute with a blend of public and private characteristics" and hence is not subject to the notice-of-claim rule.
If immunizing the authority from liability was an ancillary consequence, it was not an unforeseen one. Michael End, the Milwaukee attorney who argued the Rouse case, told the court during oral arguments last April that the $50,000 cap could be inimical to the hospital's interests:
"If you're a person in Madison having to decide between going to Meriter, St. Mary's or the UW, and you know that at the UW your maximum recovery if you're injured by employee negligence is $50,000, and we all know there's a lot of injuries being caused by medical negligence, you go to Meriter, you go to St. Mary's."
End says this ruling effectively bars negligence actions, because they're so costly to pursue: "If that ruling continues to stand, nobody injured at the UW will ever be able to find a lawyer to take a case."
Lisa Brunette, a spokeswoman for UW Hospital, calls End's assumption "faulty" because patients in need of care do not typically pick hospitals "based on the sum of money that could be recovered in a lawsuit." She argues that the UW provides an exceptionally high level of care, a far more "sensible" basis on which to choose.
But the new $50,000 cap could face other challenges, ironically enough through the courts. In late December, Oregon's state Supreme Court struck down a cap of $200,000 for patients injured at the state university hospital there. The court called this cap "arbitrarily low" - language similar to that used by the Wisconsin Supreme Court in 2005, when it torpedoed the state's then-$350,000 cap on non-economic damages for medical malpractice.
Come on, take a free ride
Some of the hardest jobs to get are among the easiest to keep. Both of the Dane County judges seeking six-year terms this April are unopposed, even though neither has previously received a single vote.
The two are former Assistant Attorney General William Hanrahan, tapped by Gov. Jim Doyle to fill a court vacancy last January, and Madison trial attorney John Markson, appointed in June. Both were picked from about two dozen applicants.
Hanrahan, 49, admits he felt "vulnerable" to challenge, especially since he's "relatively unknown in Dane County." Thus, "I've been campaigning basically since I was appointed," meeting local groups and attending events. He says some local lawyers "weighed the costs and benefits" of a run against him. One even showed up in his court, to observe. At the end of the day, "we shook hands and I said, 'Whaddaya think?' and he said, 'Nah.'"
It's a tough job, notes Hanrahan, and "generally speaking, lawyers are loath to leave anything to chance."
Markson, 53, says the approval process to become a judge is "pretty rigorous," involving several rounds of interviews. But he's glad he came out on top. "It's wonderful," he says of his new job. "I really enjoy it."
Ex-judge brands cop a liar
The Madison Police and Fire Commission has released to Isthmus a 35-page report by former Judge Moria Krueger recommending the termination of Madison Police Officer Michael Grogan. In December 2004, Grogan drove his car into a ditch and later broke into a stranger's home, apparently intoxicated.
Krueger, who served as a hearing examiner in the case, harshly castigates Grogan for what she deems to be dishonest statements and convenient memory lapses.
"It is conceivable that had Michael Grogan forthrightly owned up to his misconduct on Dec. 19, 2004, and fully cooperated with the investigation, he could have been ordered to receive treatment and suffered a lengthy suspension, rather than termination," she writes. "That is far from what happened, however. Through his multiple lies he has compounded his misdeeds so that he cannot be trusted in an occupation that is often described as a 'position of trust.'"
Mom wins bed battle
Here's an update that arrived too late for the last Watchdog column, which revisited various stories from 2007. It concerns Pam Ray's clash with state and county authorities who ordered her to stop using a custom-made Vail 1000 bed for her severely disabled daughter at a Madison care facility ("Battle of the Bed," 5/24/07).
A state grievance examiner has sided with Ray, saying less-restrictive beds posed "significant safety risks" and recommending that the daughter be allowed to keep her current bed.
"It is hereby determined that [the daughter's] right to a safe and humane environment may be violated by the request to try the alternative bedding arrangements," wrote Vaughn Brandt. He stressed that his 11-page decision applied just to this particular case.
"It shouldn't have taken this long," says Ray, who has been fighting for the bed since last January. "The state should have listened to me and the doctors without putting us through this." But she's glad for Brandt's decision and says her daughter "is doing great."
Seeing the future
Not to gloat, but what follows is a word-for-word transcription of remarks made on Wisconsin Public Radio by the guy who writes Isthmus' popular "Watchdog" column, on May 18, 2007, back when a certain Republican presidential contender was polling in the low single digits (hear for yourself at wpr.org, at the 34-minute mark):
"I've said all along, and I'll say it again, just so I can look prescient when it proves to be correct, that Mike Huckabee is the candidate to watch. He could very well be the [Republican] nominee; he could very well be the president. He's personable; he's really a hardcore conservative, but he doesn't come across as such; and he should have tremendous appeal to the base of the Republican Party, once they get to know him."