Topeka Attorneys for a Eudora woman whose doctor removed the wrong ovary said Thursday that a $250,000 cap for damages was unconstitutional.
“It’s a fundamental affront to the court and separation of powers,” said Ned Miltenberg in arguments before the Kansas Supreme Court.
But Bruce Keplinger, an attorney for Dr. Carolyn Johnson, said the Legislature was within its rights to cap damages as a way to help keep insurance companies and doctors in the state.
The cap, Keplinger said, “is vital to the viability of this state. If it goes away, you will be creating the insurance crisis of 2010.”
The state Supreme Court took the case under advisement, and didn’t indicate when it would decide the matter.
The dispute focuses on the case of Amy Miller, who in 2002 went in for surgery for removal of her right ovary. Johnson, of Lawrence, removed her left ovary by mistake.
Miller sued for malpractice and a Douglas County jury awarded her $759,680, which included funds for pain and suffering and future medical expenses.
But the award was knocked down by then-District Court Judge Steve Six — now the state’s attorney general — to comply with the $250,000 cap approved by the Legislature 20 years ago.
The case has drawn the attention of doctors, insurance companies and businesses that support the cap, while unions and plaintiffs’ attorneys want to see the cap shot down.
Miltenberg argued that establishment of such a cap violates a person’s constitutional right to trial by jury, and infringes on the constitutional authority of the judiciary.
But Keplinger said the cap was put in place to promote a public good -- keeping health care and insurance available -- and didn’t infringe on constitutional rights.
“Limiting the amount a plaintiff takes home does not affect the right to a jury trial,” he said.
Keplinger also argued that although Johnson removed the wrong ovary, the one she did remove would have had to have been removed soon anyway because it was in bad condition.
But Bill Skepnek, the trial attorney for Miller, said there was no evidence to indicate that was true. “There was no medical justification for removing the left ovary,” he said.
Keplinger argued that the ruling against Johnson should be reversed or that Johnson should get a new trial. He said expert witnesses of his weren’t allowed to testify during the trial.