KHI News Service

Watching the court ... and watching and watching and watching

The Kansas Supreme Court now has taken more than three years to decide a case of major importance for the state’s medical providers

By Dave Ranney | July 16, 2012

The Kansas Supreme Court has had a case of major importance for more than three years now with no clear indication yet when the justices might rule on it.

“There may be other cases that have taken this long” to be decided, said Bill Rich, a professor of constitutional law at Washburn University School of Law. “But if there are, I’m not aware of them.”

At stake in the justices’ pending decision is a long-standing cap or limit on the amount juries can award people injured as the result of medical malpractice or accidents. Since 1986, with strong backing from Kansas doctors, state law has limited awards for pain and suffering resulting from physician error or personal injury to $250,000.

The court’s seven justices, Rich said, appear to be “having difficulty coming together on an opinion, but we don’t know what the cause of that may be. I say ‘cause;’ it’s most likely ‘causes.’”

The justices’ deliberations are confidential, so it is anyone’s best guess what might be complicating or delaying a decision.

“We’ve given up speculating about it,” said Jerry Slaughter, executive director of the Kansas Medical Society. “I have to assume the court is just deadlocked and for whatever reason can’t make a decision. I don’t know how else to explain it.”

Slaughter has credited the cap for helping control the cost of malpractice insurance premiums, which he predicts would soar without it.

‘Stacking up’

Meanwhile, the number of court cases and jury awards that could hinge on what the judges rule has been growing, kind of like planes circling a busy airport waiting to land.

“There are cases going on all over the state where the (award) cap is an issue, where a jury awards more than $250,000 for pain and suffering, the judge reduces the award to $250,000 and the plaintiff’s attorney has filed an appeal in hopes of the Supreme Court coming out with a decision,” said Lee Smithyman, an Overland Park attorney and president of the Kansas Bar Association. “You could say they (cases) are stacking up.

“Once a judgment is rendered, you have 30 days to appeal it,” he said. “If you don’t appeal it, the judgment becomes the law of the case. So there are creative appeals being filed to keep a case before the court in hopes there would be a change” in the law.

Ron Keefover, a spokesman for the court, said a decision “could come at anytime,” which is what he has said at various intervals since at least 2010. He said he couldn't say what was taking so long. The justices keep their deliberations to themselves and do not comment on pending cases.

Slaughter is among those who have said it was likely that the court would overturn the law.

Should that happen, Slaughter said, Kansas doctors are prepared to launch a campaign to reinstate a cap in some form, either with a new law from the Legislature or a constitutional amendment, which would require approval from the public in a statewide vote.

“If the court comes out and says this can be fixed legislatively, we would do that,” Slaughter said. “But if there are no other options except for amending the constitution, then, yes, we will proceed with that.”

Amy Miller's doctor wrongly removed one of her ovaries when she was age 28. Miller is challenging the constitutionality of a law that caps at $250,000 the amount a medical malpractice victim can be awarded for pain and suffering. Doctors, hospitals and others have been awaiting the decision of the Kansas Supreme Court for more than three years.

View larger photo

Weary waiting

The case in question is Miller v. Johnson.

Amy Miller, the plaintiff, and her family are among those who have grown weary waiting for it to be resolved.

“It’s very frustrating. Very upsetting,” she said. “It’s not fair to people like me. This happened to me when my kids were both babies, and now one of them is getting ready to drive and the other one is getting ready to start junior high. It’s just not fair that it’s taken so long.”

Should Miller ultimately prevail in court, her award in 2012 dollars would have about $55,000 less buying power than in 2006 when the jury awarded the money after Dr. Carolyn Johnson mistakenly removed Miller’s right ovary instead of the left.

Miller, 28 at the time of the botched surgery, eventually ended up having her left ovary removed, too.

A Douglas County jury awarded the young mother $760,000 in total damages: $360,000 for past and future medical expenses and the $400,000 for past and future non-economic losses that have puzzled the court. Those non-economic losses commonly are referred to as damages from “pain and suffering.”

The judge in the case cut Miller’s pain-and-suffering award from $400,000 to $250,000 because that was the most the law allowed. The law also prohibits juries from being informed of the cap as they are deciding awards, so it inevitably falls upon a judge to trim sums granted in excess of the limit. Juries are barred from hearing of the cap, presumably because if they were aware of it they might try to be more generous in the awarding of economic damages.

'Inviolate' right

Miller and her attorneys appealed the district court judge’s decision. The cap, they argued, abridged her “inviolate” constitutional right to have her case decided by a jury.

The Kansas Supreme Court first docketed Miller v. Johnson in April 2009 and heard oral arguments for the first time in October 2009, after “reaching down” and taking the case from a lower court before the initial appeal was decided in that venue.

In February 2011, about 16 months later, the court held a second round of oral arguments. That was six months following the death of Chief Justice Robert Davis, whom many court observers assumed had agreed to write the court’s majority opinion in the case.

Now, more than 16 months after the second round of arguments, court watchers continue the wait for a decision.

“This is like the when the (U.S.) Supreme Court was getting ready to rule on Obamacare and there were all these predictions about what the court was going to do,” said the bar association’s Smithyman. “But after the decision was handed down, it was pretty clear that everybody was just guessing. There is no way to predict how a court is going to rule on a particular case, especially one that’s as thorny and difficult as Miller v. Johnson.”

Far-reaching issues

The issues raised in the case, he said, go far beyond what happened to Amy Miller in the operating room.

“This is where an individual’s right to a jury trial intersects with the right of an appropriately elected Legislature to generate rules that govern society,” Smithyman said.

Article 5 of the Kansas Bill of Rights, adopted in 1859, states that an individual’s “right of trial by jury shall be inviolate.”

But the Legislature, over time, has passed — and the courts have upheld — laws that have set up non-jury procedures for handling certain types of cases. Worker compensation cases, for example, are heard and decided by administrative judges rather than juries.

“The argument can be made that this violates an individual’s right to a jury trial,” Smithyman said. “But it can also be argued that the Legislature has passed laws that say it’s OK, that it’s for the greater good of society.”

In the Miller case, the defense has argued that the cap on non-economic losses is constitutional because the Legislature found that the societal benefits of the restriction outweigh its harms to individuals.

“After years of study, the Legislature carefully struck a balance between an individual’s right to unlimited recovery and society’s compelling need to have a stable, affordable health care system,” Cathy Dean, a Kansas City attorney, wrote in a 2009 amicus brief filed in the case on behalf of the Kansas Medical Society and the Kansas Hospital Association.

'Spiraled upward'

Without the cap, she argued, insurance premiums would have “spiraled upward,” insurers would have left the state and physicians would have been “forced to restrict their practices, retire early, or leave Kansas altogether.”

Miller’s lawyers disagree.

“Wyoming doesn’t have a cap. New Mexico doesn’t have a cap,” said Lynn Johnson, a Kansas City-based plaintiff’s attorney. “Do you see doctors running out of New Mexico to come to Kansas because Kansas has a cap on non-economic damages? No, you don’t.”

Bill Skepnek, a Lawrence attorney who has represented Miller since the initial case was filed in district court, argued that a doctor’s ability to buy affordable malpractice insurance should not trump Miller’s right to have her non-economic losses determined by a jury.

“I think a history lesson is in order here,” Skepnek said. “If you go back and look, you’ll see that the people who settled this state and who wrote the state constitution didn’t trust legislatures, they didn’t trust governors and they didn’t trust the courts. They trusted juries, which is why they put the word ‘inviolate’ in the Constitution. They wanted to keep ultimate power in the hands of a jury.”

But Kansas health care is sure to suffer if the power of the jury isn’t checked by law, Slaughter said.

“During the height of our malpractice crisis back in the 1970s and 1980s, they (plaintiff’s attorneys) all said it was just an insurance company artifice, that it was overstated. But the truth of the matter was that it really did affect health care. It was devastating for physicians, particularly in the rural areas — because costs were real,” he said. “You can debate whether they should or shouldn’t have been, but the facts were that when we were going through this (in 1986), medical malpractice insurance costs in Kansas were the 10th highest in the nation.

“Now, 20 years later, with the cap and some other tort reforms in place, we’re below the median,” Slaughter said. “We’re in the bottom one-third in liability costs across the country.”

Related stories

Samsel: $250,000 isn't enough

Kansas’ cap on pain-and-suffering awards is not unique

The legal history of Kansas caps

Where Kansas doctors get malpractice insurance

Health Care Stabilization Fund building reserves for looming lawsuit decision

Defensive medicine costs billions of dollars annually

If court throws out caps, medical society has a constitutional amendment ready

The KHI News Service is an editorially independent initiative of the Kansas Health Institute. It is supported in part by a variety of underwriters. The News Service is committed to timely, objective and in-depth coverage of health issues and the policy-making environment. All News Service stories and photos may be republished at no cost with proper attribution, including a link back to when a story is reposted online. An automatically updated feed of headlines and more from KHI can be included on your website using the KHI widget. More about the News Service at or contact us at (785) 233-5443.