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March 2, 2010
TOPEKA Amy Miller was 28 years old when she agreed to have her right ovary removed.
Her doctor said it would help relieve the pain that accompanied her menstrual cycles.
The surgery seemed to go well. But a month or so later, the pain in her lower right abdomen returned. This time, another surgeon suggested she have an appendectomy. Again, she agreed.
Before the second surgery, an ultrasound revealed that Miller still had her right ovary. The first surgeon had removed her left ovary. The appendectomy didn’t stop the pain, either.
A year later, Miller had to have her right ovary removed.
She sued the surgeon who removed the wrong ovary and won.
In 2006, a Douglas County jury awarded her $760,000 in damages - $360,000 for past and future medical expenses and $400,000 for past and future non-economic losses.
Then-District Court Judge Steve Six reduced the non-economic damages to $250,000.
Six, now Kansas attorney general, had no choice.
Under Kansas law, awards for non-economic losses – often referred to as ‘pain and suffering’ – are capped at $250,000. Legislators enacted the cap in 1986 amid fears that lawsuits were on the rise, causing medical malpractice insurance premiums to skyrocket and doctors to flee the state.
Miller’s attorney, Bill Skepnek, appealed Six’s reduction of the pain-and-suffering award to the Kansas Court of Appeals in January 2008. The cap, he argued, was unconstitutional because it interfered with Miller’s right to a jury trial.
The Kansas Supreme Court moved Miller’s case to its docket in April 2009 and heard it in October. It has not yet ruled.
But lobbyists for doctors, hospitals and insurance companies are expecting the cap will be struck down by the court and are warning that should that happen, malpractice premiums for doctors and hospitals likely would double.
Kansas Medical Society Executive Director Jerry Slaughter told members of the Kansas Health Policy Authority board last month that he believed the cap would be struck down
Without a cap, he said, annual premiums for a primary care or family practice doctor could rise to $12,000 or $15,000 a year; surgeons could end up paying $80,000 or $90,000 annually.
“When premiums go that high," Slaughter said, "it's hard to recruit to our rural areas."
If the cap is overturned, Slaughter said, the medical society will push for a state constitutional amendment aimed at giving the Legislature the authority to limit damages.
"We'll get it on the ballot, presumably for 2010 in August or November,” he said. “This is a very big issue for people in health care. We hope they (the court) will uphold the law, but we're not optimistic that will be the case."
Slaughter has been with the medical society since 1973. He led the organization’s fight for the cap. His chief opponent in 1986, when the cap was enacted, was the Kansas Trial Lawyers’ lobbyist, Kathleen Sebelius.
Sebelius was later twice elected governor and then tapped by President Obama to lead the U.S. Department of Health and Human Services. As governor, she appointed four of the seven justices now on the Kansas Supreme Court.
The legal arguments
Several organizations have filed amicus briefs, offering different perspectives on why the cap should or should not be upheld.
Generally, the legal arguments center on this:
• The Kansas Constitution guarantees everyone the right to a jury trial. But it’s a right that, over time, the court has said can be modified as long as the individual’s access to justice is assured.
Worker compensation cases, for example, used to be heard by juries. Now, they’re heard by administrative panels that are considered more efficient and accessible but also assure fairness.
“What the courts have said, generally, is that you can’t take away somebody’s right to a jury trial unless you’re providing something else in return,” said Bill Rich, a constitutional law professor at Washburn Law School. “It’s called a quid pro quo.”
Skepnek and other plaintiffs’ attorneys have long argued – thus far without success – that the cap was unconstitutional because it took more than it gave.
KHI News Service
The state’s medical community has argued that because the cap ensured Kansans in general access to health care, the quid pro quo requirement was met.
Slaughter said it also was significant that the cap does not limit a victim’s award for past, present or future medical costs or lost earnings. It only limits the award for non-economic losses, which, he said, are difficult to calculate and prone to exaggeration.
But Skepnek said the fact a doctor may or may not have trouble buying insurance should not keep a woman who’s had the wrong ovary removed from having her non-economic losses determined by a jury. If the jury’s calculation is irrationally high or low, the judge has both the authority and the responsibility to adjust the amount. The cap, however, ties the hands of the judge and the jury.
Slaughter defended the arrangement, saying non-economic damages, “can’t really be quantified. There isn’t a metric or a standard that applies. It’s a subjective process.”
The cap does not limit a plaintiff’s access to “actual damages – things like medical expenses, rehabilitation costs, lost earnings,” he said. “All of those things are fully recoverable.”
The cap, Slaughter said, doesn’t eliminate non-economic damages; instead, it makes them predictable.
“It’s a reasonable limitation, it’s a balance,” he said. “Without it, jury verdicts would be unpredictable and that would create a lot of volatility, which would put us back where we were in the 1980s when all this started.”