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.


Liberty275 1 year, 6 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.


Biker 1 year, 6 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 1 year, 6 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.


imastinker 1 year, 6 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.


Kate Rogge 1 year, 6 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?


verity 1 year, 6 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."


Carol Bowen 1 year, 6 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.


Eride 1 year, 6 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.


senegal66025 1 year, 6 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.


Carol Bowen 1 year, 6 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%?


jackbinkelman 1 year, 6 months ago

How does this even happen?!! Removing the wrong body part?!!! Did the doctor lose her license? Censured? Or What?!! Are there not protocols in place to check and recheck, so incompetence of this magnitude doesn't happen?!!! I don't get how it can happen. Is the entire team in the operating room partially to blame? Horrendous! My sympathy to the victim.


SnakeFist 1 year, 6 months ago

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


Steven Gaudreau 1 year, 6 months ago

I dont agree with malpractice caps but this case is why they exist. When you have dishonest people bilking the system, caps have to exist.


Topple 1 year, 6 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!"


donttreadonme 1 year, 6 months ago

Another example of class warfare.

Ironicly, if Dr. Johnson had been the victim of malpractice (resulting in her not being able to work) she could have been awarded the $250K plus millions in economic losses. But if a housewife experiences the same malpractice, she gets $250K plus zip.

I guess that's fair, since it keeps our medical bills low. Ha ha ha ha ha...


deec 1 year, 6 months ago

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


remember_username 1 year, 6 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.


Shelley Bock 1 year, 6 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.


jafs 1 year, 6 months ago

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


Resident10 1 year, 6 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....?


Currahee 1 year, 6 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.


KansasLiberal 1 year, 6 months ago

And the Koch takeover of Kansas is nearly complete.


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