Archive for Friday, February 18, 2011

Statehouse Live: Case of wrong ovary removal heard again before Kansas Supreme Court

Justices weigh in — again — on capping damages for malpractice suits

February 18, 2011, 12:38 p.m. Updated February 23, 2011, 12:41 p.m.


— A damage award to a woman whose wrong ovary was removed could be determined by whether the Kansas Supreme Court believes the Kansas Legislature violated the constitutional right to a jury trial by capping damages in injury claims.

"What the Legislature cannot do is change the Constitution," said attorney Lynn Johnson, who is representing Amy Miller of Eudora.

Bruce Keplinger, an attorney representing Dr. Carolyn Johnson, who removed Miller's left ovary by mistake, said the Legislature can cap non-economic damages without violating the Kansas Bill of Rights.

The two sides argued for more than three hours Friday in a rare re-hearing before the Kansas Supreme Court in the case that has pitted businesses, insurance companies and doctors against labor groups and trial lawyers. The court first heard arguments in the case in October 2009. Last month, the court ordered a second round of arguments.

At the end of Friday's hearing, Chief Justice Lawton Nuss said the court would take the case under advisement. He gave no indication on when a decision would be made.

In 2002, Miller, who was 28 at the time, went in for surgery for removal of her right ovary. Lawrence physician Dr. Johnson removed Miller's left ovary by mistake.

In 2006, a Douglas County jury returned a verdict for Miller for nearly $760,000. 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 reduced the award, striking the $150,000 for future noneconomic losses because of a state law that limits noneconomic damages to a maximum of $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.

Dr. Johnson's attorney, Keplinger, argued that the cap in damages provided a societal benefit by ensuring the availability of health care by limiting jury awards and stabilizing that medical malpractice insurance that doctors must have.

But Justice Lee Johnson said he didn't believe the Legislature could take away individual rights guaranteed by federal and state constitutions to benefit insurance companies. "I guess I have a different concept of rights," Justice Johnson said to Keplinger.

Chief Justice Nuss quoted the Kansas Bill of Rights that says; "The right of trial by jury shall be inviolate."

"That's kind of where I'm starting from," Nuss said.

But justices also attacked the position of Miller's attorney, Lynn Johnson.

They asked Johnson how they could rule that the law setting limits violates the right to trial by jury without also overturning workers' compensation and no-fault auto insurance systems that bypass jury trials.

But Johnson said in those instances, the Legislature has set up an administrative system to handle workers' comp and auto insurance cases to substitute for juries.

There is no such substitute system set up in wrongful injury claims, he argued, just a limit on how much juries can award.

"This is an absolute violation of the inviolate right of trial by jury for Amy Miller and others," he said.

Miller and her husband, Kevin, were present during the arguments, but they have declined to comment on the case.

The fight against legislatively imposed limits in wrongful injury cases has been fought in numerous states. Recently, the Georgia Supreme Court overturned the caps.

But Keplinger said that no state, in which its Supreme Court has affirmed the caps in previous cases, as Kansas has done, has reversed it.

But Justice Johnson asked, "So what's that got to do with the price of wheat in Kansas?" Courts are allowed to overturn previous decisions, he noted. Keplinger replied, "You absolutely have the ability, but you'd be way out in your wheat field."

Another attorney for Dr. Johnson, Steven Day, argued that if the Kansas Supreme Court overturned the cap, it would be usurping the power of the Legislature and giving more power to the courts.

But Justice Johnson said, "We have always had the power to interpret the constitution."

And attorneys for Miller said it was the Legislature that had gone beyond its authority by imposing its will on juries even though it is the juries that are the fact-finders in the injury lawsuits.

(An earlier version of the story contained an inaccurate portrayal of attorney Bruce Keplinger's argument concerning the Kansas Constitution.)


Jeanne Cunningham 7 years, 4 months ago

In 2002, Miller, who was 28 at the time, went in for surgery for removal of her right ***surgery.

*** What???

I repeat, "would you like to hire an editor?"

bad_dog 7 years, 4 months ago

Well I guess I won't even bother mentioning the misspelling of the word "Supreme" in the flippin' headline either, then...


As far as whether chic was reading a "free" newspaper, would it matter more if it was the online copy that is available only by subscription?

Seriously, I don't usually comment on the LJW's typos, but there do seem to be a lot of them.

bad_dog 7 years, 4 months ago

Nice to see it's now been corrected-without acknowledgement, of course ;-)

cato_the_elder 7 years, 4 months ago

Bad_dog, re your last post: In America, it's spelled "acknowledgment." "Acknowledgement" is the correct spelling in Britain, not America.

bad_dog 7 years, 3 months ago

cato, it's only spelled "Bad_dog" in Britain. It's not a proper noun in America.

Jeanne Cunningham 7 years, 4 months ago

I did. What do you think, "would you like to hire an editor?" means?

palmettostar 7 years, 4 months ago

Just curious, but is this the same Dr. Carolyn Johnson who works at the KU Watkins Health Center on campus?

guesswho 7 years, 4 months ago

This comment was removed by the site staff for violation of the usage agreement.

sr80 7 years, 4 months ago

This comment was removed by the site staff for violation of the usage agreement.

pace 7 years, 4 months ago

Why would a person post a woman's medical information, trying to be a big mouth? It has nothing to do with the point of law.

devobrun 7 years, 4 months ago

And finally, Johnson and Johnson will be included in the suit just so there will be additional Johnson confusion.

svenway_park 7 years, 4 months ago

I hope nobody's Johnson was removed by Johnson, or Johnson will have Johnson's Johnson in his briefcase.

Jimo 7 years, 4 months ago

There's always a tendency to make life easier and cheaper by throwing a few individuals to the wolves so that the majority may proceed on the party bus without inconvenience or delay.

The attorney had it right: if the State feels juries are over-awarding judgments due to irrationality and sympathy, the State is free to set up an administrative process full of boring forms, committees, and hearings. But if a victim suffers $10,000,000 in damages they suffer $10,000,000 in damages.

If physicians can create that much damage through negligence then they'll need to develop processes that keep them from such slip-ups if they wish to avoid paying up. A doctor's life isn't all gravy. (The ancient Romans would have acquired a slave to stand behind the triumphant to whisper -- You are mortal, you are mortal, you are mortal ! Maybe it would cheaper for the insurance company to hire 4 year olds who do nothing but stand around and ask -- why are you doing that ?)

greenworld 7 years, 4 months ago

just pay this lady what she deserves and move onto the next person sueing for something. Give her a million and move on. By the time all of it ends the longer it carries on , her attorneys will end up making way more than what she will get and deserve. they will take half or more of whatever she is awarded. so who is the greedy ones always.

Rich Noever 7 years, 4 months ago

Remeber that the defense attorneys get their bucks as a percentage of the settlement. It taints every thing they say about excessive jury awards.

Rich Noever 7 years, 4 months ago

Sorry, I should have said plaintiffs attorneys not defense attorneys.

Amy Stotts 7 years, 4 months ago

wow. i already had opinions about malpractice lawsuits, this just illustrates the lack of patients rights in deferment to insurance companies and doctors getting fatter wallets and immunity to wrong-doing.

aa469285 7 years, 4 months ago

And how exactly do malpractice lawsuits fatten doctors' wallets? And then tell me exactly how does it allow for immunity to wrong-doing?

Jonathan Becker 7 years, 4 months ago

Do I feel better knowing that insurance companies are looking out for health care! But then, as a company devtoted only to theiri shareholders who are interested in dividends, which shareholder is going to sue the insurance company for breaching its duty to its shareholder by being interested in anything other than the bottom line?

coloradoan 7 years, 4 months ago

So, krich, just how do you think the lawyers for insurance companies are doing? Do you think they are working pro bono?

ralphralph 7 years, 4 months ago

These damage limits threaten the level of contributions to Democrat candidates from personal injury lawyers.

Want to stop malpractice? Make it criminal. Instead of saying, "if you take out the wrong body part your insurance company has to pay a lawyer a bunch of money - and his client some, too", try saying, "if you take out the wrong body part, you go to prison." That might cause heightened attention with less expense. After all, isn't it really an "aggravated battery" to slice off something you weren't supposed to? Ask some guy in a knife fight ...

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