Topeka 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Since then, former Chief Justice Robert Davis died and has been replaced by Justice Nancy Moritz.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.