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Archive for Friday, January 21, 2011

Kansas Supreme Court orders re-arguments in medical malpractice lawsuit

January 21, 2011, 12:07 p.m. Updated January 21, 2011, 5:11 p.m.

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— In a rare move, a highly watched medical malpractice lawsuit will be re-argued before the Kansas Supreme Court.

Chief Justice Lawton Nuss on Friday ordered re-arguments for 9 a.m. Feb. 18 in the case where a doctor removed the wrong ovary from a Eudora woman.

The dispute is over a cap in damages to the woman and has pitted some of the state’s largest special interests against each other.

The Supreme Court first heard arguments in the case in October 2009, and has not issued a decision.

Since then, former Chief Justice Robert Davis died and has been replaced by Justice Nancy Moritz. It was also announced Friday that Justice Eric Rosen would recuse himself from the case, although no reason was given. He will be replaced by David Knudson, a retired judge from the Kansas Court of Appeals.

Each side will be given 90 minutes before the court. Nuss has ordered that no further legal briefs will be allowed to be submitted.

Already numerous interests have weighed in on the case.

In 2002, Amy Miller went in for surgery to remove her right ovary. Dr. Carolyn Johnson removed her left ovary by mistake. Johnson continues to practice in Lawrence, working on the staff of the Kansas University Watkins Memorial Health Center.

Miller sued for malpractice. In 2006, a Douglas County jury returned a verdict for Miller for $759,680.

The 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 downward by striking the $150,000 for future noneconomic losses because of a law that states that noneconomic damages can’t go above $250,000. He also struck down the $100,000 for future medical expenses.

Miller’s attorneys, supported by unions, claim the $250,000 cap violates a person’s constitutional right to trial by jury and infringes on the constitutional authority of the judiciary.

But insurance companies, doctors and businesses support the cap, saying it keeps health care and insurance available by providing certainty within the business sector.

Miller has not received any compensation from the case yet, according to her attorney William Skepnek. Skepnek also said that in his 33 years of practice he doesn’t remember a time when the court has requested re-arguments in a pending appeal.

Comments

ralphralph 3 years, 8 months ago

  • plaintiffs' attorneys would like to see the cap eliminated *

Really ? .... .... ...

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ModerateOne 3 years, 8 months ago

ralphralph does not want to see the cap eliminated . . . until a well-meaning doctor severs his spinal cord during a routine appendectomy.

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Richard Payton 3 years, 8 months ago

Raise the bar above $250,000 please. This often doesn't even cover many hospital stays that are longer than a few weeks. This low amount helps the doctors that are making mistakes stay in practice.

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WestHills1980 3 years, 8 months ago

The cap in dispute applies to non-economic damages only -- commonly thought of as pain and suffering. Any provable medical expenses -- past and future -- life-care costs, and other economic losses are not limited.

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Bob Forer 3 years, 8 months ago

Not that left, your other left.

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Jeff Zamrzla 3 years, 8 months ago

I agree that the cap needs to be lifted. I am currently involved in a malpractice suit where the cap is a grave injustice. My wife died a slow painful death over six days due to misdiagnosis. Her pain and suffering was horrendous and the cap is a slap in my family's collective face due to the egregious behavior of the doctor involved. I don't think he should be allowed to wash dishes in a slop house.

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William Weissbeck 3 years, 8 months ago

My earlier post must have gotten lost in the ether. This argument is where the Republicans' philosophy of individual rights collides with their business philosophy. The damage caps and other litigation restrictions effect the individual's right to sue and collect damages, in favor of a perceived greater collective good by restricting the individual's rights. It is the state intervening to favor one group over another. Our basic contract and tort law evolved from the common law and the courts, not the legislatures. The principles and doctrines have evolved over decades and centuries. When a legislature writes its own principles and doctrines, it is a political decision imposed on court precedent. It is business wanting to impose insurance risk standards (so that their actuaries and accountants can know in advance what something is going to cost) on the vagaries of life in general.

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Bob Forer 3 years, 8 months ago

Couldn't agree more. Sounds like you are either a lawyer or philosopher, or both.

In response to the inevitable conservative counterargument that the cap protects society against the proverbial "runaway jury," lets remember that the common law also allows remiiter in cases where the jury award is unreasonably excessive.

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jafs 3 years, 8 months ago

Yes.

And, by limiting the caps, they are also protecting doctors from their own mistakes and liability - that also seems to conflict with the idea of personal responsibility/accountability.

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malpracvictim 3 years, 8 months ago

Every single one of us on this earth is one Quack away from having one's health or life taken away by a careless medical provider. Malpractice occurs at a MUCH higher rate than malpractice lawsuits. Most people bite the bullet and end up paying their own higher and more numerous medical bills that result. Docs fail miserably in policing their own ranks and turn away when they see someone suffering at either their own hands or another medical professional's hands, and hiding of malpractice incidences happens often. Another version of "Don't Ask, Don't Tell!" Those legislators and doctors who think there should be a cap to the noneconomic "suffering" and loss of quality of life should line up to donate a replacement organ or throw themselves or their children on the knife to die a similar horrendous death as what they believe is only worth "X" amount of dollars. There is no quid pro quo for the ones who suffer the actual irrepairable damage by some ignorant fool doctor who sets him/herself up to play God. Legislators? Doctors? The organ donation line forms at the KU Transplant center! Do a quid pro quo and save a life!!!

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malpracvictim 3 years, 8 months ago

I am curious as to what other people think. When should a medical mistake actually still be considered a simple negligent mistake? Comments recognizing a person's condition are made in the medical record and still the standards of care are not met, and the same "mistake" of providing no care is made once? Twice? Three times? How about ten times? Thirteen times? Shouldn't there be a CAP on the number of repeat of the SAME mistake when simple negligence becomes absolute, undeniable GROSS negligence?

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ralphralph 3 years, 8 months ago

Bad stuff happens to good people every day. If it happens to you, does that mean you should become a millionaire? The cap is on "non-economic" damages, I think, which is pain & suffering and such, not actual expenses.

If you want to eliminate malpractice or bad doctors, then lock 'em up. Taking out the wrong ovary sounds like Aggravated Battery to me ... let's see if we can remember the elements ... an intentional and unconsented touching or application of force to the person of another resulting in great bodily harm to that person ... hmmm... sounds about right. Lock up the Doc!

Any social good done by PI lawyers is purely incidental to their blind greed.

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malpracvictim 3 years, 8 months ago

So, what is it worth to be hooked up to a dialysis machine 10 hours a night for the rest of your life? No going swimming, no hot tubs, constant threat of peritoneal infection, job limitations....A downright pleasureable experience that you would volunteer for? That's right, bad stuff happens to good people every day, and some stuff simply can't be fixed. If they haven't been through it, people gloss over what is "pain and suffering" as being almost meaningless. Divide that $1,000,000 by 16 years= $62500. Divide that by 365 days. $171. Divide that by 10 hours a night. $17.10. What great pay for the INCONVENIENCE! All because some moron doctor wouldn't read lab results and refer on.

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smot 3 years, 8 months ago

Malpractice victim:

I am sorry this bad outcome happened to you. I cannot imagine the anger and grief you must have as a result of having to be on dialysis due to lack of deligence by your physician. I suspect he is upset and feels guilty about this...at least I hope he does. Delayed diagnosis can be malpractice although it is hard to say what exactly occurred in your case without knowing the particulars.

When a doctor does a particular activity one thousand times, something is going to go wrong at least once. I am not sure this inevitability is malpractice as much as it is a consequence of living and the imperfection of living. This is what malpractice insurance is for.

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deec 3 years, 8 months ago

Suppose for the sake of argument, gents, that your right one was diseased and needed to be removed. The doctor instead removes the left one. You still need the diseased one removed, leaving you with none.. Now do you think there should be a limit on your "pain and suffering?" How much are your babymakers worth?

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WestHills1980 3 years, 8 months ago

Perhaps there isn't a price to be attached to the examples you provide. Yours is a valid point. Removing the caps, however, would not solve that problem.

The cap in dispute would not apply to punitive damages, which is another category of damage that would address reckless errors.

Unfortunately, the LJW story mischaracterizes the issue. Commenters are mislead, and their comments mislead others.

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ralphralph 3 years, 8 months ago

PS - Quick! Decide! Before somebody else dies or quits!

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malpracvictim 3 years, 8 months ago

I am curious as to what other people think. When should a medical mistake actually still be considered a simple negligent mistake? Comments recognizing a person's condition are made in the medical record and still the standards of care are not met, and the same "mistake" of providing no care is made once? Twice? Three times? How about ten times? Thirteen times? Shouldn't there be a CAP on the number of repeat of the SAME mistake when simple negligence becomes absolute, undeniable GROSS negligence?

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malpracvictim 3 years, 8 months ago

I am curious as to what other people think. When should a medical mistake actually still be considered a simple negligent mistake? Comments recognizing a person's condition are made in the medical record and still the standards of care are not met, and the same "mistake" of providing no care is made once? Twice? Three times? How about ten times? Thirteen times? Shouldn't there be a CAP on the number of repeat of the SAME mistake when simple negligence becomes absolute, undeniable GROSS negligence?

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urkiddingu 3 years, 8 months ago

Wow. You should all consider yourselves lucky you don't have a job that requires perfection at every moment. You should feel lucky that your mistakes at work don't cost a half million or a life or body part. You people are pathetic. This is just another example of how this country has completely lost all meaning of personal responsibility and forgiveness. This woman has to live with the consequences of a mistake the doctor made and I bet there is just a little more to the story than not being able to decipher between left and right. It is a tragedy this woman lost her ovary, but we stopped witch hunts a long time ago. This is a good, decent, and caring doctor who has probably spent more time asking herself for forgiveness than any of you have ever spent on your own mistakes AND she is doing it in the public eye with you heckling fools.

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jafs 3 years, 8 months ago

"Personal responsibility" would mean that doctors take that responsibility seriously, and when they make mistakes (which should be rare), they are held accountable.

And, doctors make a lot of money, presumably because of their training and education - why shouldn't they be held to a high standard of practice?

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jafs 3 years, 8 months ago

Also, the idea of compensating people is not so much to punish the doctor as to compensate the patients for the effects of the mistakes made.

That's why it's called "pain and suffering" - that refers to the pain and suffering caused by the mistake

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ModerateOne 3 years, 8 months ago

Docs make honest mistakes. But feel sorry for them only if their insurance companies pay to make it right. The patient didn't make the mistake. You break it, you fix it.

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aa469285 3 years, 8 months ago

This is why people have insurance. Notice it's called malpractice "insurance." I assume then that you don't have auto, home, life, health, etc insurance?

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Jimo 3 years, 8 months ago

Insurance does not just organically spring from the ground!

People "have" insurance when the economics and laws of the system allow sufficient certainty for insurers to be willing to put themselves and their accumulated premiums on the line and the premium cost is affordable to the doctor. If these facts are not satisfied, the people do not "have" insurance and the public at large and people like this injured victim don't get medical treatment.

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malpracvictim 3 years, 8 months ago

Some things just simply cannot be fixed or made right again. People who suffer from the aftereffects of malpractice are not like cars. Believe me, the legal bar for a malpratice lawsuit is high to meet. Notice that nobody has paid this woman one red cent yet, and the case is dragging on for years. Insurance companies are right in there in bed with the malpracticing doctors, delaying until the medical costs cause the victim to go into bankruptcy or to death's door. Yes, there are good doctors, and doctors make mistakes. No one is perfect. It is a simple and well-known solution for a doctor to ask a patient to mark on their body with a magic marker pre-surgery on which limb is to be amputated, which side of the body is the organ to be removed from, a simple safeguard ignored by this doctor. Surgical instruments/sponges are to be counted--same number in and out. Simple checks and balances.....Drivers are expected to stop at red lights. Doctors are expected to notice red flags on lab results, that's why lab results are sent to them, and not directly to the patient. This is not rocket science, it is adherance to a medical standard of care. And if they ignore the standard of care, they are as guilty of endangering/harming the patient as a drunk who goes careering down the street oblivious of the red light and smashes broadside into innocent victims. Doctors need to recognize their own limitations and act accordingly. If they don't know and can't figure it out, at least have the integrity to admit it. Say the words, "I DON'T KNOW" and send the patient on to a specialist who is more likely to know a course of treatment.

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ralphralph 3 years, 8 months ago

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

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Jimo 3 years, 8 months ago

It's important to note that another reason why limits are placed on non-economic awards are that these are particularly susceptible to irrational manipulation, often with a noticeable racial bias.

For example, this same injury could have happened to 2 different women.

The first could be a June Cleaver look-alike who never had any intention of having more children and would have been rapidly approaching menopause but sees dollar signs and plays the jury for all the sympathy the judge will allow.

The second could be a young minority woman, perhaps with a significant criminal record, covered in tattoos and piercings and not all that personable but who really did anticipate having children someday in the many years of future fertility she had.

Blind justice of course would award far more money to the second woman. Want to bet not only that this wouldn't be true in reality but that the second - more deserving - woman would get substantially less?

In contrast, economic damages are relatively easy to measure and are less subject to sympathetic manipulation by juries (whether conscious or subconscious). This is an additional justification for statutory limits on non-economic awards.

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ModerateOne 3 years, 8 months ago

Jimo your argument assumes that juries cannot be trusted. Our legal system is built on the opposite assumption.

Juries get it wrong sometimes, but so do legislatures. If we need a cap on noneconomic damages, why not use a multiple of the economic damages instead of a random (and paltry in this context) $250,000?

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WoodsideParkBob 3 years, 8 months ago

I might be more sympathetic to protecting physicians from lawsuits -- and that is what the cap really does -- if physicians and the licensing board did more to protect the public from the few physicians that cause the bulk of the malpractice problem.

Over the last 20 years only about 20 percent of Kansas physicians have been responsible for even one malpractice payment, and only about 2.5 percent were responsible for over half of all the money paid out for malpractice. And almost all of that 2.5 percent had at least two payments in their records. You would think these few "repeat malpracticers" would have had something done about their licenses or clinical privileges, but only about 10 percent of the physicians responsible for half of all the money paid out had any action against their license by the Board of Healing Arts and only about 9 percent of them (not necessarily the same physicians) had any action against their clinical privileges.

So not much is being done by the licensing board or other physicians to protect the public from the few physicians who have caused the bulk of the malpractice problem. If physicians want to be protected from malpractice suits, they at least ought to act to protect the public from the physicians causing the bulk of the problem.

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bearded_gnome 3 years, 8 months ago

MPV writes: mark on their body with a magic marker pre-surgery on which limb is to be amputated, which side of the body is the organ to be removed from, a simple safeguard ignored by this doctor. Surgical instruments/sponges are to be counted--same number in and out. Simple checks and balances.....Drivers are expected to stop at red lights. Doctors are expected to notice red flags on lab results, that's why lab results are sent to them, and not directly to the patient. This is not rocket science, it is adherance to a medical standard of care. And if they ignore the standard of care, they are as guilty of endangering/harming the patient as a drunk who goes careering down the street oblivious of the red light and smashes broadside into innocent victims. Doctors need to recognize

---so, MPV, how do you know this was ignored by Dr. Johnson or her staff?

hmmmmm? trouble is accidents do happen, miscommunication, for odd situations the mark gets erased/covered/obscured, or maybe a mark was put on the wrong side and that's what did it. in these scenarios, Dr. Johnson would not have ignored this common safeguard. and the wrong ovary would still have been removed.

at the time of this incident, my wife was a patient of Dr. Johnson. I wish Dr. Johnson were still practicing with the big ob/gyn group because she was/is an excellent compassionate doctor. she communicated well, and her care for patients was quite obvious! she always maintained a very high standard of care.
I wish I could take my wife to her now even knowing of this incident.
accidents happen. and I am certain that Dr. Johnson is deeply troubled over this.

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bearded_gnome 3 years, 8 months ago

Woodsidebob writes that 20% of kansas docs have any malpractice payout.
I haven't looked at the stats, but assuming this is true.

but Woodie, you're ignoring a huge elephant in the malpractice issue: of the 80%, how many have felt threatened by a patient to file a malpractice suit?
ow many of those 80% don't get the ovbvious threats from patients, but perform extra tests and such to minimize lawsuit risk?

malpractice suits skew our whole healthcare system. and obamacare did squat to fix it.

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bearded_gnome 3 years, 8 months ago

historically, limits on 'pain and suffering' awards were a reaction indeed to "out of control" juries, often in california or new york, whose 'pain and suffering' awards were massive, way beyond what the defendant(s) could ever hope to pay.

often these juries were using this as a means to punish people or businesses which they did not like.
and, being in California or New York, the judges often couldn't be relied on for restraint or rationality.

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