EWU student’s death may change law

OLYMPIA – Suzanne Kirkpatrick fought back tears as she told state lawmakers about the death of her son, a student at Eastern Washington University.

“He was going to be an awesome defense lawyer and husband and father,” she said recently. “At 22, he was all possibility.”

Her son, Tony Burkhardt, died two years ago, after what Kirkpatrick says was the failure of a local clinic to realize that he was dying from a diabetic reaction. Instead, she says, Burkhardt was told he had the flu and sent home, where he died.

Under Washington law, parents or siblings can sue in wrongful-death cases involving children. But once the child turns 18, they generally can’t. There’s an exception if the family depends on an adult child for financial support.

“A just wrongful death statute would not arbitrarily draw the line at age 18,” said Jim Headley, an EWU government professor. Burkhardt was one of his students.

Rep. Timm Ormsby, D-Spokane, agrees. Parents of older children don’t mourn their children any less, he says. So Ormsby is sponsoring House Bill 1873 – strongly opposed by insurance companies and defense lawyers – which would allow parents and siblings to sue, regardless of the dead child’s age. Changing the law so courts can acknowledge that loss, Ormsby argues, is simply “honoring the value of the family relationship.”

The law clearly needs to be changed, said another grieving mother, Spokane’s Bridgett Malmoe. Her son Devin Malmoe, who had just turned 18, died in December. He was riding in a semitruck with his stepfather when the rig was struck by another semi. Flames consumed both rigs, burning them to the axles.

“Unless you’ve suffered a loss yourself, it’s really hard to understand what a parent goes through,” she said, starting to cry. “I really miss him coming home. … I never got to say goodbye to him.”

Critics say the change would allow a surge of expensive lawsuits and settlements. Among the opponents: the state hospital association, medical association, insurance companies, school districts, rural counties, small cities and defense trial lawyers. Also opposed: the attorney general’s office, which now defends state taxpayers against 20 to 25 wrongful-death cases a year.

“This bill presents a delicate issue of balancing” appropriate damages against the societal interest in limiting lawsuits, medical association lobbyist Cliff Webster told House lawmakers recently. “Having said that,” he added, “I can imagine nothing worse than my two children predeceasing me.”

Yes, families feel terrible pain and anguish and understandably want to punish whoever is responsible, said Federal Way City Councilman Eric Faison. But cities now must routinely settle “cases of lesser merit,” he said, rather than risking the potential of a jury picking yet-higher amounts. And Ormsby’s law, he noted, would allow even deadbeat parents with no family contact to sue.

It’s unclear how far the bills will make it in the Statehouse. Both the House and Senate versions are co-sponsored by the judiciary committee chairs, which suggests that they’ll at least make it out of committee. But the groups and industries opposing it carry a lot of political clout.

“I really understand your pain,” Sen. Mike Carrell, R-Lakewood, told Kirkpatrick during a hearing on a similar Senate proposal, SB 5816. Carrell said he, too, lost a son due to medical malpractice.

“The question I would ask you: Is money ever going to take away that hurt?” Carrell asked.

No, she said. But without the potential of an economic penalty to the wrongdoer, she said, it’s hard to press a case to try to right a wrong.

Money, she said, “will never bring my son back, and it will never be enough. But surely it has to be something.”

Hours earlier, in a separate hearing room, she had described June 21, 2005, the last day she saw her son alive.

He was still asleep when she left for a work assignment in Washington, D.C. She touched her son’s face, bent down and kissed him, whispered that she loved him and would miss him. The next day, he flew back to Spokane, where he was studying for the law-school entrance exam and hanging out for the summer with his roommates.

“And then, a little over two weeks later, he was dead,” she said.

The loss is impossible to describe, she said.

“It can only be measured in tears, in epithets, and the numbing certainty that at least on this earth, we will not see, feel, hear, touch or be in his presence again,” she said.

She’ll never know whom he would have married. When the family picked oranges last fall, he didn’t get to taste them. She fears that her memories of her son will dull with time.

“The knowledge of the finality, the longing for what might have been … are all real,” she said.