Topeka Seven years ago, Amy Miller, Eudora, went in for surgery for removal of her right ovary. Lawrence physician Dr. Carolyn Johnson removed Miller’s left ovary by mistake.
Miller sued, alleging medical malpractice. The dispute will land this week before the Kansas Supreme Court with arguments scheduled for Thursday.
The case has drawn some of the state’s biggest special interests, with doctors, insurers and businesses lined up against plaintiff’s attorneys, organized labor and other groups in a battle over whether it’s constitutional to place a legal limit on damages for pain and suffering.
In 2006, a Douglas County jury returned a verdict for Miller for $759,680.
That award included $250,000 for noneconomic losses; $150,000 for future noneconomic losses; $84,680 for medical expenses; $100,000 for future medical expenses, and $175,000 for loss or impairment of services as a spouse. Noneconomic losses are awarded for pain, suffering, disability, mental anguish and physical disfigurement.
But then-District Court Judge Steve Six knocked the award down, striking the $150,000 for future noneconomic losses because of a law that states noneconomic damages can’t go above $250,000. Six also struck down the $100,000 for future medical expenses.
Miller’s attorneys say the $250,000 cap, approved by the Kansas Legislature in 1988, is unconstitutional.
The cap usurps the jury’s role in calculating malpractice damages, infringes on the separate powers of the courts and hurts those with the worst injuries, argued Lawrence attorney William Skepnek.
“Among the broad universe of all medical malpractice victims, the cap imposes special burdens only on those in greatest need of relief through the civil justice system,” Miller’s side said in a brief before the court.
But the Kansas Chamber of Commerce argues the cap has helped the economy by taking away “jackpot justice” and stabilizing the legal system.
“In these difficult and uncertain economic times, opponents of statutory limits to noneconomic damages are challenging one of the most important pieces of the tort reforms that fueled Kansas’ economic growth,” the chamber said in a written brief to the court.
Miller’s attorneys also argue against the deduction of future medical expenses, saying she is likely to face physical and mental care from the mistaken operation.
Attorneys for Johnson support the lower court decision to disallow both the pain and suffering damages above the cap, and future medical expenses.
But Johnson’s side is appealing, too, saying that the district court should have ordered a new trial because Miller never proved a connection “between the alleged negligence and her claimed injuries.”
Johnson said that although she made a mistake in removing the wrong ovary, she removed the worst of the two ovaries and that the left ovary, which she erroneously removed, would have required removal at some point. Miller eventually had the other ovary removed in 2004.
“In retrospect, we now know that the answer was that both of Ms. Miller’s ovaries and uterus were going to need to be removed even if the right ovary had been taken first,” said attorneys Bruce Keplinger and John Hicks in a legal brief.