Archive for Sunday, October 25, 2009

Botched surgery case to test pain, suffering limits

October 25, 2009


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— 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.


Richard Heckler 8 years, 6 months ago

This a case of sloppy medical work.

So now does the woman have zero ovaries as a result?

Did the doctor go into this procedure thinking that the situation in general was not good therefore it made no difference which ovary was removed? If so why did the doctor not level with the patient?

emptymind 8 years, 6 months ago

There was never a proven wrongdoing, yet she admitted she removed the wrong ovary? Did I miss something here?

Maybe her good ovary wouldn't have gone bad as soon or at all if her correct one was taen the first time. Doc probably was sleeping or had another case to think about

jafs 8 years, 6 months ago

When physicians make mistakes that affect their patients' health and well-being, they should be held accountable.

If we want to improve our health care system, we must reward excellence and punish incompetence.

I am unaware of any hospital/doctor/etc. that has offered to reimburse patients for unnecessary or incorrect procedures.

tomatogrower 8 years, 6 months ago

Realistically if you limit payoffs, will the doctor's liability insurance go down? Probably not. The insurance companies know a good way to profit when they see one. Money to ambulance chasers or money to insurance companies? What's the difference? None of them give a hoot about medical care. They only care about getting rich, having a trophy wife and a nanny for every child (I here this is a common practice now). Not making a good living, but getting filthy rich. It's what spurs jerks, like the balloon boy dad. Our greed will be this country's downfall.

tomatogrower 8 years, 6 months ago

Reread my post. I'm talking about the liability insurance companies and the trail lawyers not caring about health care, not the doctors. But if the doctors are making enough money to have a nanny for every child they have, then maybe health care isn't their primary concern. I don't deny anyone a comfortable living, but the excesses of the some of the rich are just disgusting. Millions of dollars for a birthday party. Please.

A doctor who cares and is good, should be rewarded, but money shouldn't be their number one priority. And the courts need to handle those people who bring frivolous law suits. If a doctor really does blunder, then there should be some compensation for a patient.

My daughter nearly died when a doctor botched her hysterectomy. Did the hospital offer comfort? No, they released her too quickly. She almost bled to death, but another doctor and hospital saved her life. She decided it was too much trouble to sue, but the bad doctor is still performing surgery, even though a nurse who worked there secretly confided, that my daughter wasn't the first botched surgery by this surgeon. During the initial surgery her husband wasn't told anything. Then when she was in recovery he wasn't allowed to see her. They then told him there was a problem and they would have to go back in and fix it, but gave him no details. He went out for a smoke, and the surgeon was actually out there smoking. After spending all night in the ICU, they released her the following day. Did this doctor care? Neither he, nor the hospital called, until a week later when the other hospital called to get her records, because she was bleeding internally.

Most doctors and hospitals care, but when a mistake is made, they should own up to it. This surgeon didn't offer to pay the additional medical expenses that he caused my daughter. I am mad at my daughter for at least not filing a complaint against him. What about taking responsibility for their actions?

james bush 8 years, 6 months ago

Lawyers should not get windfall profits............enough said.

Glenda Susie Breese 8 years, 6 months ago

Doctors bury their mistakes. Why should they not be held accountable?,,,,,,,,Now enough said.

igby 8 years, 6 months ago

How can Six, pretend to protect the people of Kansas, from criminals and the rouges of the business marketplace. When Six, continues to reward these rouge doctors who can't even read an x-ray from the right front side, flips it over and butchers the women. She should get millions.

Vote Six, out of office in the 2010, because, GOP or Dems, neither, need an AG, or judge, or even legislator, who can't see that rewarding rouge acts of hospitals and ill trained staff and doctors who are as rouge as these in this case.

The $700,000.00 in this case is not enough for these doctors or hospital to pay for a mistake such as this.

Get rid of Kathy's left-over trash !

Six, is a good example of how a little power corrupts not only the law but the basic common sense of the peoples rights in Kansas, to be protected from the rouges of the business market place.

We should get rid of Six, in the 2010, AG's race. How can anyone put any trust in him to protect the public in the AG's position.

getreal 8 years, 6 months ago

The article says Steve Six was a judge at the time. Judges do not get to make the law, only uphold it in court. The Kansas Legislature passed the law limiting the amount a jury can award in a malpractice lawsuit. Steve Six did not overturn the guilty verdict against the Dr.

If you don't like the law you should ask legislative candidates how they would vote on such an issue.

bearded_gnome 8 years, 6 months ago

uh, Igby, I think you mean "rogue," had trouble reading your post with a straight face!

have a boatload of experience with Dr. Johnson.

she's a wonderful and caring doctor. many, and I mean many times she treated Mrs. Gnome on-call and in the E.R.

anyone makes mistakes, without being negligent. the thing is, we're human.

doesn't say why Miller's ovary had to be removed. it is very common that when one has to be removed that the other does too because of whatever the condition.

now, it is possible that when she was in the abdomen she saw the other ovary and realized it had to come out. but I would trust that if that were the case, she would have said that plainly.

OB/GYN's pay the highest or nearly the highest malpractice premiums.

I've been working on another blog about health care national proposals: "who really are the doctors."
coming soon.

Shelbyrules 8 years, 6 months ago

Dr. Johnson is an awesome professional, and I would let her treat any family member of mine.

Katara 8 years, 6 months ago

I wonder what future medical expenses this woman might have that would warrant $100,000. Both ovaries and her uterus were removed. There is no need for medical care on non-existent organs.

Her only worry would be hormone replacement (if needed) and she would have had that expense anyway.

mobugs2009 8 years, 6 months ago

Why do people get so sue-happy? Doctors are human and they do make mistakes, and before someone attacks me and says "well what if it happened to your loved-one" ??!! Well people it did. After 12 hours in labor, my daughters heart rate crashed, we ended up doing an emergency c-section, she was turned sideways and when the doctor made an incision, her cut her face. I was upset sure, it looked terrible, but she was alive that was all the mattered to me. 18 months later she is a healthy, happy toddler and I still see that scar on her cheek everyday, and I am just so glad that she is here, it never even crossed my mind to sue him.

JoRight 8 years, 6 months ago


There's a big difference in the eyes of the law between your case & the one the article is talking about. I believe you have to prove gross negligence in order for a settlement to be made.

I'd say taking out the wrong ovary would prove to be gross negligence. Mistakenly cutting a baby during a rushed c-section probably wouldn't fall into that category.

Which is why I think there shouldn't be a cap on how much a person can sue for (if there were to be one, it should be kept pretty high). The doctor has to be clearly in the wrong for a settlement like the one above to be made.

Now, this is only in medical cases exhibiting gross negligence. This type of lawsuit in my mind is absurd:

mbaird628 8 years, 5 months ago

Is the real debate about this more about money. Someone is taking money away from someone else. Is it also about the drama that the “car-chase” media uses to feed our own egos so that we can feel superior, that we are better then someone else? Is this what our society has come to, money versus real people? For the past eight years a stem cell had more rights then a living breathing human being. Why is it that we fought so hard for the rights of a stem cell then living breathing human beings?

What has all of this debate left me, nothing. Was my son a dollar amount in some company's ledger? Was my son the price that I pay for societies “innovation”? Was my son the price that I have to pay so that someone else can live a better life, a longer life? Someone please tell me. Is this the price my son paid for each of you to have innovation even though in his death he still donated over 96 bones, connective tissues and organs? In his death he has given more to society then society is willing to give him. Society is not even willing to give him a basic core principle of our constitution, his day in court.

mbaird628 8 years, 5 months ago

Texas state has the highest percentage of self-referal. Yes, doctors are more pure and moral then the trial lawyers. Doctors come from a differen planet.

And, yes this is a statement from just one doctor, anecdotal evidence just as those the talk about defensive medicine use.

"There’s a lot of money to be made in owning imaging machines," said Dr. Richard Strax, president of the Texas Radiological Society. "You can buy a relatively inexpensive second- or third-hand MRI machine for a few hundred thousand dollars and make millions on it."

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