Archive for Friday, October 5, 2012

Statehouse Live: Kansas Supreme Court upholds cap on jury awards in medical malpractice

October 5, 2012


Related document

Supreme Court opinions in Miller case ( .PDF )

— Kansas Supreme Court on Friday upheld a state law that limits jury awards to people harmed by medical malpractice in a case that stemmed from a botched surgery on a Eudora woman whose doctor removed the wrong ovary.

In a 5-2 decision, the court ruled the $250,000 cap for pain and suffering was constitutional.

One of the disputes was whether the 1988 law limiting awards violated the constitutional right to a jury trial.

Writing for the majority, Justice Dan Biles said the Kansas Legislature may modify the right to a jury trial to promote the public welfare and if an “adequate substitute remedy” is provided.

The cap has been touted by its supporters as a way to make medical malpractice insurance more readily available and ensure that injuries were compensated.

But in a sharply worded dissent, Justice Lee Johnson said, “Today, in my view, this court has incorrectly and unnecessarily limited jury involvement and allowed a segment of unfairly burdened Kansans to drown while maintaining higher profits for insurance companies and lower expenses for doctors. Shame on us.”

Justice Carol Beier also dissented.

Doctor removed the wrong ovary

In 2002, Amy Miller, of Eudora, who was 28 at the time, went in for surgery for removal of her right ovary. Dr. Carolyn Johnson, of Lawrence, 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 total of $400,000 in past and future noneconomic losses to $250,000 because of the law that limits to $250,000 awards for noneconomic losses. Six also struck down the $100,000 for future medical expenses.

Powerful interests faced off in case

As the case rose to the state Supreme Court, powerful organizations lined up on opposite sides.

Labor groups and plaintiffs’ attorneys said capping damages in injury claims was unconstitutional because it removed the right to have a jury decide just compensation.

But business groups, insurance companies, and physicians said the cap limiting jury awards provided a societal benefit by stabilizing the cost of medical malpractice insurance that doctors must have.

In the majority opinion, Biles noted that the debate over caps on jury awards was “a long-standing and highly polarizing question.”

But Biles argued that limits were allowed as long as the Legislature provided an adequate remedy or “quid pro quo.” Similar legal caps have been established in workers’ compensation cases and no-fault auto insurance, he said.

Justice Beier, however, said the caps were an infringement on a basic right under the Kansas Constitution that says trial by jury shall be “inviolate.”

“I believe the quid pro quo test to be a senseless and unsupported overlay that transforms what the people made inviolate into something violable at will,” she wrote.

Miller awarded additional $100,000

On a separate issue, the court unanimously remanded the case back to district court with instructions to reinstate the $100,000 award to Miller for future medical expenses. The court said the lower court failed to consider all the evidence Miller presented to support her claim for future medical expenses.

The court also rejected an appeal by Dr. Johnson, who said Miller failed to prove malpractice caused her injuries and that the trial judge improperly restricted expert testimony.

The case has been on appeal since 2008, and the Supreme Court has twice heard arguments from attorneys, the last time in February 2011.

Decision produces conflict

Reaction to the decision was swift.

Miller’s attorney, William Skepnek, of Lawrence, said he was surprised by the decision, calling the cap on the award “unjust” for Miller, who is 38, the mother of two and unable to have more children.

“It’s really a shame that we don’t trust juries and we’re just going to make sure that people who are badly hurt are undercompensated,” Skepnek told The Associated Press.

Skepnek said Miller continues to face health issues.

Miller had agreed to surgery after suffering from abdominal pain for years. When her doctor removed the wrong ovary, the pain persisted.

Later, Miller had the right ovary removed, and the pain subsided, but Skepnek said she faces a lifetime of hormone therapy.

“As a man, how would you feel about being castrated? For a woman who loses her ovaries, it’s the same thing,” Skepnek said. “That limits the quality of your life. That affects your happiness.”

The Kansas chapter of Americans for Prosperity agreed with the ruling but blasted the court for taking as long as it did to decide the matter. AFP said the Legislature and Gov. Sam Brownback should change the way state Supreme Court justices are selected.

“We believe the decision today to retain the cap is appropriate but undoubtedly long overdue. These years of uncertainty have created an unstable environment within the medical profession,” said AFP-Kansas State Director Derrick Sontag.

AFP was founded by billionaires Charles and David Koch, who run Wichita-based Koch Industries.

In Kansas, a nominating committee picks three finalists for the state’s highest court, and then the governor selects from that group. Conservative groups have said they want the governor to select the justice with confirmation of the Senate.

Retiring House Speaker Mike O’Neal, R-Hutchinson, who was recently hired by the Kansas Chamber of Commerce as its president and chief executive officer, said he was pleased with “the court’s affirmation of the long-standing precedent of upholding the right of the Legislature to fashion reasonable limitations on personal injury awards.”

But House Minority Leader Paul Davis, D-Lawrence, criticized the ruling and said the $250,000 cap for pain and suffering was inadequate for what Miller has been through and needed to be increased.

“I call upon Gov. Brownback and my fellow legislators to make sure a tragedy like this never happens again when the Legislature convenes in January,” Davis said.

In the majority opinion, Biles said the failure to increase the cap in more than 20 year was troubling.

A number of groups said juries provide better justice than arbitrary limits.

“A one-size-fits-all cap is no substitute for the wisdom of a citizen jury,” the AARP, the Kansas AFL-CIO, and Kansas Advocates for Better Care said in a joint statement.

Miller could not be reached for comment.


Currahee 5 years, 7 months ago

I haven't followed on this suit but fun fact: 250,000 in 1986 dollars is equal to 490,000 in 2010 dollars. Too bad it isn't adjusted for inflation.

notajayhawk 5 years, 7 months ago

The injury occurred in 2002, and original jury award was in 2006.

Cody Ochs 5 years, 7 months ago

I believe the point was that the cap was enacted in 1986, but has not been adjusted for inflation since it was enacted.

Currahee 5 years, 7 months ago

Monetary damages need to be adjusted for inflation. Entities that become liable for losses over time incur less punitive damages than they would have paid when first made.

Resident10 5 years, 7 months ago

Score one for the insurance companies. Less than 5% of every healthcare dollar goes to medical malpractice coverage/verdicts in the U.S. And way less than that in Kansas. After this ruling, if you lose your arm, leg or whatever in a wrong side surgery in Kansas, you are entitled to actual expenses (medical expenses, lost wages, etc...) and (at most) $250,000 in punatives. Think that is going to change the behavior or any physicians you know? Every surgery is a low risk surgery to a Kansas physician. Oh well, I guess we can count on the Board of Healing Arts to enforce and teach quality, right? (crickets) Kansas Medical Society? .....anybody....?

salinalawrence 5 years, 7 months ago

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

Pastor_Bedtime 5 years, 7 months ago

A drive-by smackdown of a victim. Salina, you're clearly a superior person.

notajayhawk 5 years, 7 months ago

"Less than 5% of every healthcare dollar goes to medical malpractice coverage/verdicts in the U.S. And way less than that in Kansas."

Overall. But OB/GYN's pay by far the highest malpractice premiums, in some parts of the country it can cost them around $5000 per WEEK (that's not an extra zero, that's five thousand dollars a week, a quarter million dollars per year).

Resident10 5 years, 7 months ago

As someone who used to work with med mal insurance, I really, REALLY need a second source on that one. So do these GYN's drive '94 Subarus because of this unfair practice?

bad_dog 5 years, 7 months ago

They pay higher rates because their potential liability is higher than certain other practicioners like an allergist or dermatologist. If an Ob/Gyn has a bad outcome during a delivery for example, the potential economic damages are catastrophic. Lost future earnings, medical expenses for treatment, therapy or equipment, etc. Non-economic damages such as pain and suffering are going to be subject to the cap. ER physicians and neurosurgeons are not far behind in terms of malpractice insurance expense. The greater the potential for bad outcomes, the higher the premiums will be.

jafs 5 years, 7 months ago

It would be nice to have some information about why they ruled this way, I think.

Belinda Rehmer 5 years, 7 months ago

I found it online. Here is the official press release if you would like to read it:

Or you can read the actual ruling here:

It's quite lengthy.

jafs 5 years, 7 months ago


I looked at the press release, and didn't find much, other than the statement that these sorts of caps have been controversial.

Not sure I want to wade through the entire ruling :-)

bad_dog 5 years, 7 months ago

jafs, not exactly what you're seeking but as a bit of the "back story", the caps were enacted in 1988 as the result of a perceived "crisis" in the availability of malpractice coverage. Numerous carriers were threatening to or had pulled out of the malpractice market in Kansas. On the other side of the equation, there was a perception that trial lawyers were creatively using "non-economic" damages as a mode to artifically enhance the monetary value of a verdict.

I was told at the time that then Insurance Commissioner Fletcher Bell intervened and told the carriers if they didn't write malpractice coverage in Kansas, they couldn't write any other lines of business. As an enticement to these carriers, the non-economic damages cap was proposed and I believe the Health Care Stabilization Fund (an excess insurer) was formed to provide coverage for judgments greater than $200,000. As such, the private sector insurers covered only the initial $200,000 in liability for health care providers. If there was a belief liability would exceed that amount, the private carrier would "tender" their reserves to the Fund. The Fund would then take over defense of the case and have liability up to the maximum policy limits ~$1,000,000.

Shelley Bock 5 years, 7 months ago

So, now according to Romney, health insurance costs will go down or at least, stabilize? As a prior writer has stated, malpractice costs are only 5% of the cost and in Kansas, much less than the rest of the US. I suspect that this "stated" cause for increased insurance and medical costs will have insignificant impact on thwarting medical expenditures in Kansas, but be a boon to the profitability of Kansas medical insurance companies.

Isn't it interesting that the free market types who are always wanting less regulation and control are so against allowing free market control professional care and responsibility? If they were consistent, they would be outraged at these limitations on responsibility.

Resident10 5 years, 7 months ago

Kansas has some of the harshest tort reform in the country. Yet our medical bills are no less than they are in any other state. Healthcare is mostly government (CMS)funded and, therefore, the industry's costs and profits will continue to be decided politically. Physicians are not paid a certain amount for a proceedure on a free market cost basis. What they charge is determined by CMS and the RUC.

notajayhawk 5 years, 7 months ago

"Kansas has some of the harshest tort reform in the country."

Hardly. Just next door in Missouri, for example, I believe they changed the law several years ago to limit awards to actualy damages only - NO pain & suffering.

gphawk89 5 years, 7 months ago

Nope. Missouri's tort reform law was recently struck down. No limits on pain & suffering. And there was never NO pain & suffering - it was previously capped at $350K. KS law is better (or harsher, if you want to call it that).

Resident10 5 years, 7 months ago

Actually, Missouri just declared their punitive cap unconstitutional. Previous to that it was substantially more than the Kansas cap. So you are like, 100% incorrect.

Mike1949 5 years, 7 months ago

Yep, this if the free market decision. The right always, and I mean ALWAYS talk out of both sides of the mouth! That I can guarantee you!

Now I am wondering why we even have juries any more. It is like the republicans sure likes the dictatorial aspect of society to control the masses. So Kansans, welcome to a new day that you have less rights than yesterday!

remember_username 5 years, 7 months ago

Does the lawyer get a contingency fee out of this award? If so that reduces the amount even further. A low cap helps the insurance companies, corporations, and doctors even more when the contingency fee recouped from the award becomes too low to attract attorneys.

Sure doesn't sound fair but recently there is a lot about Kansas that doesn't sound fair.

notajayhawk 5 years, 7 months ago

The lawyer that won the original award most likely took around 1/3 of what she got (plus expenses, so it was probably closer to half). I seriously doubt she got an attorney to take on an appeal on a contingency basis, so she probably had to pay themstraight fees. I wouldn't be surprised if she lost a lot of ground by appealing.

Resident10 5 years, 7 months ago

Again, completely untrue. When the plaintiff attorney takes the case they are in for the whole thing. Abandoning a case like this just becasue it goes up on appeal is a good way to stop getting business referrals. In this case, the plaintiff attrorney didn't get anything. In fact, the plaintiff attorney would be out the entire cost of the case. Its very expensive to get these to trial which is why only the cases with merit actually get taken. (yes, that last sentence is true. try looking it up)

jhawkinsf 5 years, 7 months ago

Define "cases with merit" as in only those get taken.

Wouldn't that by definition mean that zero frivolous cases are being taken? I suspect we've all heard of cases that were frivolous moving through the legal process.

jhawkinsf 5 years, 7 months ago

I was just reading about a case out of California, where 5 convicted child molesters were suing the state. Apparently, the terms of their parole, which included no Halloween decorations that might lure children to their property, they feel it violates their Constitutional rights.

Frivolous? I don't know. I do know that some judge will hear this and the state will have to pay him/her. A court reporter will be paid. So will bailiffs, etc. Transcripts will be produced. The actual costs will run into the thousands even if the judge listens for just a few minutes and throws the case out. Costs might be one teacher, even if it takes very little actual time. And God forbid the judge takes the case under advisement, or rules it might have merit. Then the costs to the state will skyrocket. Multiple teachers, then.

The thing is this, cases like that happen all the time. For Resident10 to suggest that "only" cases with merit happen is just plain wrong. Frivolous cases happen all the time. And there is a very real cost.

deec 5 years, 7 months ago

I wonder if the decision would have been the same if a gentleman's baby-maker had been wrongly removed.

gphawk89 5 years, 7 months ago

What exactly makes that ironic? Economic losses are based on your income. The housewife is not going to have to continue to pay $10K's per year in malpractice insurance (among many continuing expenses) after she stops "working". The doctor will - "tail coverage".

Topple 5 years, 7 months ago

"The court also rejected an appeal by Dr. Johnson, who said Miller failed to prove malpractice caused her injuries and that the trial judge improperly restricted expert testimony"

Well, that's good. I wonder what exactly was Dr. Johnson's defense against it being malpractice. "Maybe the ovary just fell out!? You can't prove that I removed the wrong ovary, just that I didn't remove the correct one!"

bad_dog 5 years, 7 months ago

I believe the point was not that the incorrect ovary was removed, but whether whatever other health related issues she may claims exist/resulted from the malpractice. For example, she may have to take estrogen for decades to ensure her hormones remain as balanced as possible. She could have any number of post-surgical health issues. The plaintiff says they're all related to the malpractice, the defendant says "not so fast". Typical stuff of personal injury lawsuits.

Resident10 5 years, 7 months ago

What are you talking about? The doctor removed the wrong body part! Who is being dishonest? Are you even commenting on the correct story?

SnakeFist 5 years, 7 months ago

The simplest way to reduce medical malpractice litigation and damage awards is for doctors to stop committing malpractice.

gphawk89 5 years, 7 months ago

That might put a very small dent in litigation. The vast majority of malpractice suits are just baseless abuses of the judicial system driven by greed. In Ms. Miller's case, sure, she should sue the doctor, assistants, hospital, etc. for all they're worth. But those type of cases are few and far between.

jafs 5 years, 7 months ago

People who file frivolous lawsuits can be sued for that, which is a clear check on the number of those lawsuits.

jhawkinsf 5 years, 7 months ago

Courts give very wide latitude to plaintiffs filing lawsuits. The fact that the case is "near" frivolous doesn't make defending such cases any less expensive.

jafs 5 years, 7 months ago

It's either frivolous or it's not.

"Near frivolous" is just another way of saying "has merit", and of course is a subjective judgement.

jhawkinsf 5 years, 7 months ago

"Subjective judgement" "wide latitude", same thing, just different words.

verity 5 years, 7 months ago

"The vast majority of malpractice suits are just baseless abuses of the judicial system driven by greed."

Citation, please.

Resident10 5 years, 7 months ago

Welcome to the party. The healthcare industry causes around 100,000 deaths a year. Quality measures (like a pre-surgery time out) are accepted by doctors only with them kicking and screaming as protocols and proceedures are seen as an infringement on physician autonomy. Really, the only thing you have protecting you (that is, "forcing" docs to take quality measures and protocols seriously) is the plaintiff's bar. Doctors have known that healthcare isn't safe for over ten years now. (see "To Err is Human" published by the CBO) And they refuse to change. Now there is even less incentive for that change in Kansas. Enjoy the supreme court opinion... and write your representative.

bad_dog 5 years, 7 months ago

Wrong side surgeries occur much more frequently than one would believe. One of the most catastrophic cases I've ever seen involved a wrong side brain surgery. The patient was a composer. After the surgery, he had difficulty thinking, speaking, etc. Almost like a stroke patient-all because an x-ray got reversed.

Hospitals go through extensive procedures to avoid this outcome, but as is the case with all human activities, mistakes can still occur. Wrong side knee surgeries, joint replacements, corneal transplants, amputations; you name it.

jafs 5 years, 7 months ago

Nobody's perfect, but I'd say we could be doing a lot better with health care than that.

Carol Bowen 5 years, 7 months ago

How about controlling the cost of litigation. I have heard verball reports that legal representation is 40% of the take. What if we capped representation at 20%?

Bobo Fleming 5 years, 7 months ago

I know Amy Miller. She was the victim of unbelieveable mal practice. All she did was agree to have an operation and because of her doctor her life was changed. All of you commenting in the abstract would be wanting every nickle you could get for the damage that was done to her if it had been done to you or a member of your family. So have a little compassion for the victim here.As for Amy at this point I don't think she is in it for the money. I think she had the crazy idea that she was entitled to what a jury of her peers awarded. What a silly idea. Much better to have a law school debate about the pros and cons and throw in a little politics just for the fun of it.

Evan Ridenour 5 years, 7 months ago

Almost all other professionals have NO statutory protection that artificially limits the amount of liability they have for professional negligence.

Somehow I think anyone who had a family member subjected to medical malpractice on a similar scale to that which occurred in this case would support the removal (or at least an increase) of the cap on damages. In my opinion, the only thing the statute in question reflects is the influence of the medical lobby's money on dictating legislation. I find it pathetic that a right most of us hold quite dear and that is stated in black latter law in the state's constitution is tossed aside under the guise of societal benefit.

bad_dog 5 years, 7 months ago

Any person (professional capacity or otherwise) involved in a civil lawsuit alleging non-economic damages would be subject to the same monetary limitations. It's not unique to medical malpractice defendants.

Carol Bowen 5 years, 7 months ago

In my previous post, I suggested that attorney fees contribute to the cost of medical malpractice cases. Indirect costs are attorneys plus insurance. Most of the award should go to the victim.

bad_dog 5 years, 7 months ago

Stop blaming attorneys for representing injured patients. Bad medicine as practiced by incompetent, distracted or overworked providers often causes patients to become victims of medical malpractice and thus, need legal representation.

Attorney fees are typically 25-40% of the verdict or settlement, plus litigation expenses. Sure, that's high but there's a lot of overhead in a legal practice and meritorious cases don't always win. Verdict size can be constrained by external factors such as the one subject to discussion here. Med mal cases often take years to go to trial and can be tied up in appellate court even longer. Expert witnesses, filing fees, court reporters, etc. all get paid during the course of the litigation-whether or not your client wins.

verity 5 years, 7 months ago

This injury extends way beyond just not being able to have more children. At the age of 28, her body stopped producing certain hormones and "she faces a lifetime of hormone therapy" which can come with other serious problems.

The "Americans for Prosperity" (of those who are already prosperous, but not us common folk) shows itself for what it really is.

Just a suggestion---if you're going to have something removed or operated on, mark it with indelible ink. "Remove kidney, this side. The other one still works." "My heart is here, on the right side. Fix, do not remove."

Kate Rogge 5 years, 7 months ago

"AFP said the Legislature and Gov. Sam Brownback should change the way state Supreme Court justices are selected." Well, then, I'm sure that's on the legislative agenda. The Kochs are just two men. Two. And yet they own and operate the state government of Kansas. How about that?

imastinker 5 years, 7 months ago

I have to wonder what some of you expect of doctors!

All of us are human and make mistakes. I took the wrong exit last night and had to turn around and go back. I've driven that way probably 300 times over the years and just turned east instead of west. This doesn't make me a bad driver or a menace on the road - it makes me human. I do believe that if any of us were to do any task long enough, a pattern of errors would result. Expecting otherwise is setting your self up for disappointment.

The focus here should be on improving "best practices" to the point that human error can be eliminated to the extent possible. Nothing in the article states that the doctor wasn't following any "best practices" or was negligent in his procedure or care.

jafs 5 years, 7 months ago

That's rather nuts - it can't be possible to follow "best practices" and remove the wrong ovary.

Your mistake only affected you, and wasted a little of your time - doctors' mistakes are much worse than that, and affect others negatively, sometimes killing them.

imastinker 5 years, 7 months ago

I don't agree with your premise that it's not possible to have mistakes.

jafs 5 years, 7 months ago

I didn't say that at all.

I said that "best practices" wouldn't include removing the wrong ovary.

bad_dog 5 years, 7 months ago

"Nothing in the article states that the doctor wasn't following any "best practices" or was negligent in his procedure or care."

From the article:

" a case that stemmed from a botched surgery on a Eudora woman whose doctor removed the wrong ovary."

The standard of care would dictate that removing the wrong ovary is per se, inherently, in & of itself negligent. It is so obviously negligent it may even be considered "grossly" negligent.

I can only wonder what you expect from your doctors...

BringBackMark 5 years, 7 months ago

If your job was to take the correct exit, I hope you could do it 300 times without screwing it up.

just_another_bozo_on_this_bus 5 years, 7 months ago

I haven't read the ruling, but on its face, it merely says that these caps are constitutional, not that they are a good idea.

Regardless, the net effect is to reward insurance companies and bad doctors-- there is a significant percentage of physicians who are consistently incompetent, and these caps give them, essentially, a free pass to kill and maim their patients.

But the bigger winners are the insurance companies. In the many states where such caps have been put in place, there has no reduction in malpractice insurance premiums, and no slowing in the increase in the cost of healthcare.

Biker 5 years, 7 months ago

Most of those arguing against this ruling missed the point of the ruling. The majority opinion reaffirmed that tort limits are in place for to protect the public welfare. It is a suitable quid quo pro remedy that for jury verdicts that need updating. So how do you increase the dollar amount while still protecting society from trial lawyers? My personal solution would be to remove all caps and have the losing party pay the prevailing party's court costs.

just_another_bozo_on_this_bus 5 years, 7 months ago

The incidence of "frivolous" lawsuits has been greatly exaggerated in order to remove the right of patients (and their families) to sue bad doctors for maiming or killing their patients.

The fact is that malpractice suits are almost always taken on a contingency basis, meaning that the suing party has to win that suit before the lawyers get a dime. This means that they are not going to spend their limited resources to take on a case that has little chance of winning. Lawyers who take on cases in which they continually lose would soon be out of business.

That's not to say they there isn't the occasional frivolous lawsuit, but they are the exception, not the rule, and are not frequent enough to justify taking away the rights of all patients to seek recompense for being maimed or killed by the negligence or outright incompetence of medical personnel.

Liberty275 5 years, 7 months ago

If anyone wants to cause some pain and suffering for $250,000, I'm willing to negotiate what you can do to me.

just_another_bozo_on_this_bus 5 years, 7 months ago

When it comes to medical malpractice, the patient doesn't get to "negotiate."

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