Disinformation On Nurse Thao

dis·in·for·ma·tion

false information deliberately and often covertly spread (as by the planting of rumors) in order to influence public opinion or obscure the truth.
Merriam-Webster Online

There has been a lot of outcry over former Madison St. Mary's Hospital nurse Julie Thao being charged criminally for a medication error that caused the death of sixteen year old Jasmine Gant while in labor. By almost all accounts Nurse Thao was a dedicated, compassionate nurse to the benefit of hundreds of birthing women. Ms. Gant's family has publicly stated that they do not want to see Ms. Thao charged criminally. Despite this, the Wisconsin Attorney General's Office in the final stages of Peg Lautenschlager's regime filed felony charges against Ms. Thao which resulted a month later in a plea agreement where Ms. Thao pled to reduced charges.

Many are under the impression that this criminal charge cannot have any relation to the ongoing civil litigation between St. Mary's Hospital and Ms. Gant's familys attorney, Eric Farnsworth of the high profile, well-connected law firm, DeWitt, Ross & Stevens SC. This impression is in large part due to an opinion piece by Atty. Farnsworth in the Wisconsin State Journal on Friday November 17, 2006 with the headline, "There is no 'jackpot' for Jasmine's Son, Family." In this piece Atty. Farnsworth comes across ambiguous to his feelings about Nurse Thao being criminally charged. He comes across unambiguous when inferring that the entire moneys that the victim's family will recover due to Nurse Thao's action will be limited to the $500,000 statutory wrongful death cap and whatever would be determined as Ms. Gant's likely future lost wages. From this piece one would wonder why settlement talks are ongoing because the wrongful death claim would appear to be a pretty open and shut matter. And, whether or not Nurse Thao's behavior exceeded ordinary negligence would appear to have no bearing legally and, therefore, no jackpot or rainbow is awaiting the family of Jasmine Gant or her son. (See Wisconsin State Journal article dated November 17, 2006, There Is No 'jackpot' For Jasmine's Son, Family)

Atty. Farnsworth proved that he is indeed a clever lawyer. What he artfully omitted was that there is a second possible law suit involving Ms. Gant's surviving newborn and St. Mary's Hospital. Our source of this second possible suit is none other than Atty. Farnsworth. In The Capital Times article of November 4, 2006 titled, "Family, St. Mary's work on Settlement" the following was asserted,

...The family's counsel, Eric Farnsworth, said in an interview with WISC-TV Friday that Jasmine Gant's infant son was deprived of oxygen and may have cognitive or other problems.

"It will be a matter of (St. Mary's) determining whether or not they are willing to step up to the plate and meet that responsibility," Farnsworth told the news station. "And, as you know, if two people can't agree, the courts allow them to have the disagreement resolved in court." (See The Capital Times article dated November 4, 2006,Article, Family, St. Mary's Work On Settlement)

In this second suit, Nurse Thao's criminal conviction has a tremendous impact. The Injured Patients and Families Compensation Fund has a statutory provision s.655.27(1) wherein... 'the fund shall not be liable for damages for injury or death caused by an intentional crime, as defined under s.939.121s.939.12 states that 'a crime is conduct which is prohibited by state law and punishable by fine or imprisonment or both. Conduct punishable only by a forfeiture is not a crime'. In other words, any crime is an intentional crime for the purposes of s.655.27(1), committed by a health care provider or an employee of a health care provider, whether or not the criminal conduct is the basis for a medical malpractice claim.'

This is critical because it means that due to Nurse Thao's conviction, St. Mary's Hospital can not rely, as they otherwise would, on the fund to assist in defending any future civil suit or in any resulting pay out. Therefore, Nurse Thao's conviction provided Atty. Farnsworth with extraordinary leverage he would not otherwise have when negotiating with St. Mary's Hospital and their insurance company. But, it gets even better for Atty. Farnsworth.

A new $750,000 statutory cap on non-economic damages in medical malpractice claims was enacted to commence on April 6, 20062This cap was the result of the Wisconsin Supreme Court striking down the prior cap of $350,000 in the summer of 2005. Legally, in Wisconsin, there is a distinction between wrongful death suits and medical malpractice suits with a survivor. The interplay of three statutory provisions [see s893.55(4)(b)(c)(d)] permits juries to find unlimited non-economic damages in medical malpractice claims with any award reduced to $750,000. However, because the cap pertains to the aforementioned Injured Patients and Families Compensation Fund, Nurse Thao's conviction is of great benefit to Atty. Farnsworth because it permits him to get around the $750,000 cap. The bottom line, Nurse Thao's criminal conviction was of great benefit to Atty. Farnsworth because it provided both leverage and a jackpot opportunity.

If as expected, the legal establishment and personal injury attorneys attempt to downplay the possibility of criminal charges impacting civil settlements, any protestations, as shown above, should be taken with a grain of salt, and one should be aware of possible disinformation.

---

Footnotes

1. (Return) s.939.12 states that 'a crime is conduct which is prohibited by state law and punishable by fine or imprisonment or both. Conduct punishable only by a forfeiture is not a crime'. In other words, any crime is an intentional crime for the purposes of s.655.27(1)
2. (Return) This cap was the result of the Wisconsin Supreme Court striking down the prior cap of $350,000 in the summer of 2005. Legally, in Wisconsin, there is a distinction between wrongful death suits and medical malpractice suits with a survivor.

Vote for Joe Sommers on February 20th and April 3rd.

return to top