Plaintiff who had wrong ovary removed won't see full amount of jury award / LJWorld.com

Archive for Friday, November 10, 2006

Law caps noneconomic damage at $250,000

November 10, 2006

Jurors in a medical malpractice trial last week thought they were awarding $759,000 in damages to a Eudora woman who had the wrong ovary removed in a 2002 surgery.

In reality, Amy C. Miller will receive a fraction of that money. A little-known Kansas law that caps the amount of "noneconomic" damages awarded in personal-injury lawsuits will take a bite of at least $150,000 - and, if defense attorneys have their way, as much as $325,000 - out of the jury's award.

The so-called "tort-cap" law, touted by insurance and business interests as a way to cut down on excessive jury verdicts, has been on the books in Kansas since 1988. The law specifically says that judges aren't allowed to tell jurors about it during trial.

"It's all a part of that big effort toward tort reform," said Trey Meyer, one of Miller's attorneys, who said he couldn't discuss details of Miller's award. "To me, the system has its own checks and balances and we don't need the tort caps. Our policymakers see that differently."

There is no cap under Kansas law on the amount of money jurors can award for economic loss - for example, medical bills or lost wages. In Miller's case, that was about $184,000.

But for "noneconomic" damages - pain, suffering, disability, disfigurement, mental anguish - the law says that awards can't be higher than $250,000.

In Miller's case, jurors awarded her $400,000 for pain and suffering. That amount automatically will be reduced to $250,000 because of the cap.

In addition, attorneys for Miller's former physician, Carolyn Johnson, will argue that the $175,000 the jury awarded for Miller's "impairment of services as a spouse" should fall under the category of noneconomic loss and should be struck from the award.

Miller said Thursday that she knew about the cap going into trial, but declined to comment further.

Rep. Michael O'Neal, R-Hutchinson, supported putting the cap on jury awards 20 years ago in the Legislature. At the time, he said, jury awards for pain and suffering were unpredictable - in a similar case, one jury might award thousands of dollars, and another might award millions.

"The theory is that this is not something that is really capable of calculation," he said.

As a result, he said, malpractice insurance was unaffordable or unavailable for doctors.

"You have to have risk that you can evaluate and quantify so that you can set a premium that's affordable to somebody who has to carry the insurance," he said. "We do allow juries to put numbers on it. We just cap it so it doesn't get out of hand - so that in a particularly sympathetic case, you don't have a runaway verdict and break the bank on one case."

The flip side of that argument is that the cap itself is arbitrary.

"I can certainly tell you that we have seen many cases where, in our opinion, $250,000 doesn't remotely begin to compensate a plaintiff for their losses," Meyer said.

O'Neal pointed out that, despite the cap, other features of the system are beneficial to plaintiffs. For example, he said, a plaintiff who had $100,000 in health care costs can receive the full amount, even if he or she only paid a fraction of that money out of pocket and the rest was covered by insurance.

"There is a balancing," O'Neal said. "There are some things that are very pro-plaintiff in the system. There are things that are pro-defendant in the system, and it's worked pretty well over the last decades."

The award Miller ultimately receives will be paid partly through the state's Health Care Stabilization Fund - a pool of money from surcharges paid by health care providers - and partly through private insurance. But the case is far from settled.

"Given the way the evidence came in, as long as there's a judgment against us, we're very likely to appeal," said Bruce Keplinger, one of Johnson's attorneys.

Discussion

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10 November 2006
at 5:19 a.m.

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tashtego (Anonymous) says…

I am a lawyer specializing in medical cases in another state. I also oppose these caps, as they just encourage insurance companies to roll the dice—the worst that can happen is that the jury awards the maximum in damages, i.e. more than the cap on non-economic damages.

However, at least we have not seen these caps enacted by federal law, as proposed by the so-called “conservatives” like Bush. Under the system known as “federalism”, states experiment with laws like this and if they work in one state, maybe other states follow. If the laws do not work, and result only in doctors who do high-risk work— like OB/GYN doctors— getting minimal insurance, maybe other states will think again.

My state recently enacted caps on non-economic damages. The result is that doctors like pediatricians and OB/GYN doctors typically have only 200K in insurance coverage—less than most homeowners and many drivers.

It's absurd. What's more is that the doctors' insurance companies charge outrageous rates even for those policies.

Finally, anyone who has knowledge of medical negligence cases knows that most of the cases of malpractice are the result of a small minority of doctors who have repeated cases of negligence. The profession does a lousy job of policing itself.
10 November 2006
at 6:51 a.m.

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Baille (Anonymous) says…

Whoa! Is this the same Mike O'Neal who is a defense attorney representing insurance companies?

“O'Neal pointed out that, despite the cap, other features of the system are beneficial to plaintiffs. For example, he said, a plaintiff who had $100,000 in health care costs can receive the full amount, even if he or she only paid a fraction of that money out of pocket and the rest was covered by insurance.”

What? The plaintiff gets the money for a fraction of a second and then has to pay back the liens the insurance companies place on the judgment. If the insurance company paid for $80,000, they get the $80,000 back with a possible reduction for the attorney fees.

There is nothing in the law that is pro-plaintiff in a medical malpractice case. The standard jury instructions favor the insurance companies, the ability of the insurance companies to speak with treating physicians without the patient being present favors the insurance companies, the remedial scheme favors the insurance companies, and on and on and on. Mike can't point to one thing that favors the injured person.
10 November 2006
at 6:59 a.m.

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oldgoof (Anonymous) says…

Baille understands this stuff. But despite his explanation, Goof agrees with the need for reasonable tort caps. I've seen too much greed from too many plantiffs and their attorneys, which all the rest of us end up paying for.
10 November 2006
at 7:14 a.m.

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bestnightmares (Anonymous) says…

Things were so much easier in the days of “eye for an eye.” Just pull out the doctor's ovaries and there, all settled.
10 November 2006
at 7:21 a.m.

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Baille (Anonymous) says…

Confirmed: Michael O'Neal is an attorney for Gilliland and Hayes out of Hutchinson and specilizes in representinig insurance companies.

“Mike has an active state and federal trial practice involving, primarily, the defense of doctors and other health care providers. Mike is a member of the Kansas Bar Association, Kansas Association of Defense Counsel, Kansas Trial Lawyers Association, and the Defense Research Institute.”

I would rather we trust our juries with these cases and allow them to award what they think is fair. One proposal I have heard about to handled excessive awards is creation of an appelate procedure and/or board to just look at awards for pain and suffering over a certain amount. That would seem a better way to deal with the issue rather than arbitrarily setting caps - that have not been changed in over a decade. We don't even adjust the $250,000 for inflation. This means that we value such losses less and less every year.
10 November 2006
at 7:28 a.m.

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promitida (Anonymous) says…

This doctor should never be allowed to do surgery again. How hard is it to keep track of whether you're removing the right or the left ovary. My gracious. What an imbecile.
10 November 2006
at 10:21 a.m.

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ranger73 (Anonymous) says…

Maybe there should be a cap on attorney fees…

Yeah, and birds will fly out my…………

10 November 2006
at 10:40 a.m.

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Baille (Anonymous) says…

There already is. Attorney fees have to be reasonable and they are reviewed by the judge.

Tell me this: how many professions do you know that invest $40,000 to $50,000 of their own money on their clients' behalf with absolutely no guarantee of seeing the money again unless they are successful?

That is what attorneys like Trey Meyer do. They take cases on a contingency fee basis meaning they don't get paid unless they are successful. Furthermore, since the vast majority of clients can't afford to invest $50,000 in paying the litigation expenses necessary, if they determine that a case has merit, these attorneys fund the case. They risk their own money to help their client. Maybe they have the funds available. Maybe they borrow it on a case by case basis. But the attorney shoulders the risk. They lose the money if the case goes south or if they lose at trial. They don't get paid unless their client does.

Does your doctor work like that? Does your doctor refund your money if he or she screws up or fails to diagnose your problem correctly? Does your doctor refund your money if you don't get better? Does your mechanic invest money in your car? Does he refund you money when he puts the wrong new part in it?

C'mon, buddy. Step back a bit, and look at this thing objectiveky. I don't like outrageous fees any more than you do. They make the profession smell bad. But they don't come in these kinds of cases.
10 November 2006
at 10:56 a.m.

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emilyhadley (Emily Hadley) says…

“O'Neal pointed out that, despite the cap, other features of the system are beneficial to plaintiffs. For example, he said, a plaintiff who had $100,000 in health care costs can receive the full amount, even if he or she only paid a fraction of that money out of pocket and the rest was covered by insurance.”

How? Why wasn't that allowed for me two years ago? I paid a lot on premiums, and it was quite clear that no insurance coverage was coming back to me, nor the full amount of lost wages, much less pain and suffering.

Both sides said it wasn't possible to repay insurance-paid costs, regardless of circumstance. Pain and suffering awards are restricted according to your condition, too, which can actually depend on the diagnosis of the doctor at fault.
10 November 2006
at 11:04 a.m.

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Solomon (Anonymous) says…

Quote: “Attorney fees have to be reasonable and they are reviewed by the judge.”

Yeah, and the judge is a lawyer, too.

Talk about not policing yourselves, I had an opportunity, many years ago, to see a publication, by and for lawyers, of the California bar. In the back was a very large listing of “sanctions” given lawyers who had “malpracticed.” Though I can't remember specifics, there were instances such as 30 days for “mis-appropriating” funds from a client. Very many instances that a “normal” person would view as un-ethical, if not illegal, being given a 30 to 60 day suspension.

Give me the choice to pattern ethics after the medical profession or the legal profession, and I'll pick the docs every time.
10 November 2006
at 11:23 a.m.

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mommaeffortx2 (Anonymous) says…

so this says you need to go somewhere else to have your surgury messed up, that should really cut down on the medical practice around ks.
But really I guess there is a good and bad side to this little law, but for the jury to not know about it is a bit wrong.
10 November 2006
at 11:32 a.m.

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Baille (Anonymous) says…

“Give me the choice to pattern ethics after the medical profession or the legal profession, and I'll pick the docs every time.”

Really? The doctors are peer reviewed in complete confidentiality. There is no transparency. There is no public hearing. And they rarely get dinged.

Lawyers are put on for public display in what is commonly called Bad Lawyer Thursday at the Supreme Court. Their misdeeds are published both for public consumption and in trade publications. Lawyers who screw up routinely get dinged. What's more lawyers have to turn in each other or they risk getting dinged themselves, and the public can turn in complaints by many means. Clients who complain get the lawyer's response and get a full written account of the investigation and determination.

If the complaint satisfies the barest minimum of scrutiny a hearing is held at which the client is able to be present and argue their position. Doctors have no similar process.

Lawyers have a very detailed and rigorous ethical scheme by which they must abide. It can be found at www.kscourts.com. Physicians do not.

By the way, not only can the jury not know about the cap on pain and suffering, one can not mention the presence or absence of insurance either, unless the insurance company is on trial for something.
10 November 2006
at 11:38 a.m.

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Baille (Anonymous) says…

http://www.kscourts.org/attydisc/disc…

Show me something similar for physicians.
10 November 2006
at 11:52 a.m.

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Solomon (Anonymous) says…

Show me a major malpractice suit against a lawyer.
10 November 2006
at 1:16 p.m.

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Baille (Anonymous) says…

“Show me a major malpractice suit against a lawyer.”

They are out there. You can research the issue on Findlaw, Westlaw, Lexis, or even throught the Kansas site at www.kscourts.org.

Most cases aren't appealed, though, and even those that are won't necessarily be published. The only way I know of to find cases at the trial level is to search through public records at each courthouse.

Good luck in your search.

10 November 2006
at 1:31 p.m.

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Katara (Anonymous) says…

Culture-Warrior, I think you are mistaking this woman for a chicken.

While it is sad that she had the incorrect ovary removed, I don't think she should have been awarded any damages such as these.

1. She told others that she and her husband were done having children (3 weeks prior to the surgery). That would also take care of the “impairment of services as a spouse” damages as well.

2. From previous articles written on this, her condition indicated that it wouldn't be too long before the left ovary would have to be removed as well. She should rightfully be awarded damages for pain & suffering because the ovary causing her immediate problems was not removed but nothing else.

3. Why isn't she going after her regular doctor too? I had the same surgery this woman did a little more than a month before she did. My regular doctor followed up with sonograms to make sure there were no other problems. How did no one that was treating this woman fail to realize that the wrong ovary was removed all this time?

And Solomon, lawyers are subject to malpractice suits too. It is one of the reasons a lawyer can be disbarred.
10 November 2006
at 1:34 p.m.

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whatintheworld (Anonymous) says…

Doctors could just save all of the time and money they spend in court and just admit to messing up. I don't understand why doctors just wouldn't want to use that malpractice insurance and say I am human I messed up. I am sorry. This mistake was BIG and I am shocked at who the doctor was!
10 November 2006
at 1:52 p.m.

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Luxor (Anonymous) says…

Katara, as a woman you should know that ovaries serve a number of critical functions that are more important than just making babies. Regardless, it was a part of her body part that was wrongly removed. How would you feel if you lost a breast to medical negligence? Or a hand? Or an eye?
10 November 2006
at 2:21 p.m.

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reginafliangie (Anonymous) says…

Regardless if she was going to eventually have to have it removed. Isn't that her choice as to when it would of been done? And Luxor is exactly right, because this woman no longer has overies she has to take hormones to compensate for the work her overies used to do. Hormones suck. It doesn't matter that she was done having kids. The doctor took out the wrong one! It was a mistake on her part. Maybe the doctor should of worked to settle this out of court, instead the doctor decided that she was “right” and forced the patient to go to extremes to get her rights heard.
10 November 2006
at 3:19 p.m.

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Katara (Anonymous) says…

Luxor, I am very aware of their function as I have had the exact same surgery as this woman.

If her medical situation is the same as mine (and the previous articles make me think so), then she was already having hormonal problems.

The other articles mentioned that her left ovary needed to be removed eventually as well (I believe the article stated in the next couple of years).

Losing a breast, eye or hand really isn't a good comparison because there are prosthetics for those. In the case of ovary removal, hormone replacement is usually the only option.

This woman already indicated that she wasn't going to have any more children so she can't be suing for that. What other reason would she be suing?

I can see for the pain she had on the right side. I can see for any other medical issues the incorrect removal caused (the articles do not state if there were).

But $175,000 for “impairment of services as a spouse” damages??? Please.

The hormone issue was more was probably already discussed with this woman as the doctor did with me when I had the same surgery by the same doctor.

As for admitting she was wrong, the doctor did so and was very upfront about it. You should read the other articles about this.

The doctor cannot control if her insuance wants to take it to court and she would be required to testify.
10 November 2006
at 3:24 p.m.

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Baille (Anonymous) says…

“The doctor cannot control if her insuance wants to take it to court and she would be required to testify.”

Sometimes they can. Often doctors will have a policy where they get to decide whether to accept liability or not.
10 November 2006
at 3:52 p.m.

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reginafliangie (Anonymous) says…

Katara: I personally know the woman in question and it wasn't because of hormonal problems. She tried to settle this without court but the doctor felt she didn't have a leg to stand on, so the doctor refused. Hence, court. I'm sure her insurance did instruct her how to handle it. Now they are probably wishing they had gone the other way.
10 November 2006
at 6:02 p.m.

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Baille (Anonymous) says…

Oh, no. He is very familar with the terms. He represents insurance companies for physicians and other health care providers. Ther must be some other reason he would point to a remedial provision that affects a miniscule number of cases as an example of pro-plaintiff legislation.

I wonder why he would wish to mislead the public as to the true extent that the law favors the insurance companies.

10 November 2006
at 9:02 p.m.

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tashtego (Anonymous) says…

Some of the largest verdicts in modern history have been malpractice cases against lawyers and law firms.

And lawyers are usually willing to testify against other lawyers. There is not that “conspiracy of silence” you find in medicine.

When I defended medical negligence cases, I had no problem finding world-class experts to raise their right hands and swear that 2+2=5. Now that I represent patients—and have for about 15 years—I find that often I have to go all the way to Harvard Medical School, or the very top physicians in the nation to get someone to testify that what is written in basic medical textbooks is, in fact true.

Capping lawyers' fees? Half the time we end up reducing our fees to help the client accept a reasonable settlement.

How come I never hear people demanding that the salaries of CEOs, rap stars, sports team owners, athletes be capped?

How about a cap on the salaries of college coaches? Should the Jayhawks'
hoops coach make more than the best KU professors?

By the way, there have been many studies that show repeatedly and conclusively that malpractice suits have negligible effects on the costs of medical care.

The insurance companies screw their doctors by charging high rates, pay their lawyers low rates that they make up for by pushing frivolous paper around and delaying, stalling, etc. Then they rely on the juries to have people on them who think that if they award money damages, it will drive up their costs of medical care.

Having said that, I detect that the defense had some good arguments on damages in this case, which probably explains why it went to trial.
10 November 2006
at 9:04 p.m.

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tashtego (Anonymous) says…

Some of the largest verdicts in modern history have been malpractice cases against lawyers and law firms.

And lawyers are usually willing to testify against other lawyers. There is not that “conspiracy of silence” you find in medicine.

When I defended medical negligence cases, I had no problem finding world-class experts to raise their right hands and swear that 2+2=5. Now that I represent patients—and have for about 15 years—I find that often I have to go all the way to Harvard Medical School, or the very top physicians in the nation to get someone to testify that what is written in basic medical textbooks is, in fact true.

Capping lawyers' fees? Half the time we end up reducing our fees to help the client accept a reasonable settlement.

How come I never hear people demanding that the salaries of CEOs, rock/rap stars, sports team owners, athletes, movie stars be capped?

How about a cap on the salaries of college coaches? Should the Jayhawks'
hoops coach make more than the best KU professors?

By the way, there have been many studies that show repeatedly and conclusively that malpractice suits have negligible effects on the costs of medical care.

The insurance companies screw their doctors by charging high rates, pay their lawyers low rates that they make up for by pushing frivolous paper around and delaying, stalling, etc. Then they rely on the juries to have people on them who think that if they award money damages, it will drive up their costs of medical care.

Having said that, I detect that the defense had some good arguments on damages in this case, which probably explains why it went to trial.
13 November 2006
at 11:29 p.m.

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whatintheworld (Anonymous) says…

Just out of curiosity I wonder if Dr. Johnson delivered Amy Miller's babies?