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

? 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

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.