Suit ends in $11.9 million settlement

0 Comments | La Crosse Tribune, Aug 23, 2001 | by Rindfleisch, Terry

SPARTA, Wis. - An $11.9 million settlement in a lawsuit against a Viroqua physician, hospital and clinic may be one of the largest out-of-court payouts ever in a medical malpractice case in western Wisconsin.

A lawsuit filed by Lori K. Schmitz of rural Cashton and her family in August 1999 was scheduled for a month-long trial in August in Monroe County Circuit Court, but attorneys in the case reached an agreement just before trial.

The Schmitz family claimed that several parties, including Dr. Jeffrey Merin of Viroqua, Vernon Memorial Hospital, the Hirsch Clinic and Viroqua pharmacist Mons Langhus were negligent in the care of Schmitz.

But because of the out-of-court settlement, there was no finding of negligence or malpractice.

The lawsuit alleged that Menn prescribed huge doses of drugs that caused seizures in Schmitz, who went into respiratory distress, slipped in a coma and suffered irreversible brain damage. At the age of 38, Lori Schmitz has a permanent brain injury and needs 24-hour care at the Bancroft Rehabilitation Living Centers in New Orleans. Schmitz will receive at least $6.4 million for her care, and with $3 million in annuities could receive $9.165 million if she lives her life expectancy of 40 more years, while her husband and their two daughters will receive a total of about $500,000.

Tom Fitzpatrick, a La Crosse lawyer who represented Schmitz, said Schmitz's husband, Carlton, and their two teenage daughters, Heather and Nichole, had limits on how much they could receive in the settlement due to caps on noneconomic damages under state law.

Of the $11.9 million settlement, the Wisconsin Patients Compensation Fund, which insured Vernon Memorial, Hirsch Clinic and Menn, paid out $6.575 million after another insurer for the three parties paid $2 million.

Fitzpatrick said he worked with a large specialty medical malpractice law firm, Habush, Habush & Rottier of Milwaukee.

The lawsuit was over the treatment of an injury suffered by Schmitz while working at Valley Pride Pack meat packing plant in Norwalk in August 1993. A trolley wheel fell from a 15-pound metal hook and struck her on the back of the neck and shoulder.

She was treated for chronic pain by Menn at Hirsch Clinic after the injury. The lawsuit claimed that Menn continued to increase dangerously high dosages of morphine over 2 1/2 years and then used the drug in combination with methadone and other drugs that caused seizures.

In March 1997, Schmitz started to stumble and suffer muscle jerking and leg spasms that caused falls, the lawsuit said. By August 1998, Schmitz developed extreme, muscle spasms that made it difficult for her to walk, and she was admitted to the Viroqua hospital.

The lawsuit claimed Schmitz was found on the floor of her hospital room Aug. 21, 1998, showing signs of a seizure, and later that day she had a severe seizure and was not treated for at least 20 minutes.

She then went into respiratory stress and a coma and suffered brain damage. The lawsuit claimed Schmitz's brain injury was caused by negligence.

Fitzpatrick said Schmitz's behavior today is unpredictable. She always recognizes her husband and can be sociable, he said.

"But with no warning, she becomes violent and engages in selfdestructive behavior," Fitzpatrick said. "She has injured herself and other staff people."

Fitzpatrick said he had experts from Harvard, Stanford and, the University of Minnesota who would have testified that the defendants' actions constituted negligent care.

Garith Steiner, Vernon Memorial Hospital chief executive officer, said the case is an "unfortunate tragedy" and he has only compassion for Lori Schmitz and her family.

"It was a difficult situation for everyone," Steiner said. "My heart goes out to the family. Dr. Menn had been the family's longtime physician and friend.

"If we did something wrong, we would admit we did something wrong, but we don't believe we did anything wrong here, and our experts agreed," he said.

Steiner said there was no finding of negligence, adding that he did not have much say in the out-of-court settlement. The agreement was reached among attorneys, insurance companies and the Wisconsin Patients Compensation Fund.

"We treat thousands of patients after many years of care, and suddenly we have an outcome that is completely unexpected," Steiner said. "There are still a lot of questions that are unexplained, but all I can say is that we feel for the Schmitz family."

Menn and his lawyer declined comment, referring inquiries to Steiner. Vernon Memorial owns Hirsch Clinic.

The lawsuit claimed Mons Langhus, who owns Langhus Pharmacy in Viroqua, failed to warn Schmitz and Menn of the inherent dangers in the size, frequency and interactions of the doctor's prescriptions.

Michael Gill, Langhus' attorney from La Crosse, said there was no dispute that Langhus properly filled Menn's prescriptions and verified their accuracy with the physician. "She had to see the doctor every time she got a refill," Gill said.

By everyone's admission, the dosages of drugs were large, he said. The question was whether Langhus should have vetoed a doctor's decision, Gill said.