Currently in the state of Wisconsin, if an 18-year-old high school student is killed from medical malpractice, their parents cannot legally sue for wrongful death.

Sen. Nikiya Harris Dodd, D-Milwaukee, wants to expand medical malpractice legislation in the state to avoid such a scenario.

Wisconsin law does not allow parents to sue on behalf of their adult child for wrongful death. Harris Dodd is seeking co-sponsorship for a bill that would allow parents to sue for wrongful death due to medical malpractice for their child up to age 27.

At a briefing on Oct. 15, Harris Dodd announced she is calling her bill “Erin’s Law,” dedicated to 20-year-old Erin Rice who died after a misdiagnosed case of bacterial pneumonia in 1999. Her parents were not able to sue the UW Health doctor responsible for her death because Erin was already of adult age.

“I am proud to draft this bill as one step in the right direction to making families whole,” Harris Dodd said at the briefing. “It’s time that we give Wisconsin families who have faced such tragic circumstances the right to have their questions answered.”

Mark Grapentine, senior vice president of government relations at Wisconsin Medical Society, said Harris Dodd likely set the age at 27 because it would be in accordance with the Affordable Care Act’s policy of allowing children to use their parents’ insurance up to that age.

But there are many other gaps in medical malpractice law, Ann Jacobs, president of Wisconsin Association for Justice said. She said this bill addresses one portion of that.

“What Erin’s Law seeks to do is close one very small part of that gaping hole, and that is to allow parents of unmarried children who are between the ages of 18 and 27 to sue if somebody kills their child,” Jacobs said.

Grapentine said if someone is injured or dies from medical malpractice, they can sue for either economic or non-economic damages.

Harris Dodd’s bill deals only with non-economic damages, also known as suing for the loss of society and companionship. Grapentine said such cases are often difficult to sue for because it is hard to create a standard for emotion-based damages in court.

Grapentine said Wisconsin Medical Society is wary of Harris Dodd’s legislation because they do not want to expand the potential exposure of physicians in the lawsuit industry world.

Grapentine said Wisconsin has a fairly well-regarded ability to provide all economic damages that a medical liability claimant can get if they prevail in courts.

“We have a medical liability environment in Wisconsin that is envied by much of the rest of the nation because we don’t have to deal with a lot of junk lawsuits or attempted shakedowns to get a settlement,” Grapentine said.

Grapentine said Wisconsin has the “Wisconsin Injured Patients and Families Compensation Fund,” which almost all physicians must participate in. It is an umbrella insurance fund that does not limit the amount of economic damages that an injured patience can be covered by, he said.

“There’s no other fund like it in the country that has mandatory participation and unlimited economic damages exposure,” Grapentine said.

But Jacobs said the fund has flaws. She said Wisconsin ranks last in the nation in terms of people being compensated for medical malpractice.

Jacobs said there are a vast number of issues in current medical malpractice law in Wisconsin. For one, she said patients or their families have a difficult time getting a case in the first place because they are so expensive that attorneys are reluctant to take them. That is because there is a cap on the amount of damages that can be received in non-economic medical malpractice cases. Another issue is the limits on who can file a lawsuit, which is what Harris Dodd is trying to address.

Jacobs said by addressing such a narrow part of medical malpractice law, more Republicans might support Harris Dodd’s legislation.