A divided Kansas Supreme Court has upheld the state’s limitations on medical malpractice awards in a case where a doctor removed the wrong ovary from a 28-year-old female patient.
The court majority issued the ruling in a Douglas County case brought by Amy C. Miller against her former doctor, Carolyn M. Johnson.
Johnson preformed surgery on Miller in 2002, removing her left ovary instead of the right one that was the cause of her medical problems. Her other ovary had to be removed by another surgeon.
The trial court found the doctor fully at fault and awarded Miller a total of $759,679 in damages, including $575,000 for current and future noneconomic losses — ie pain, suffering and impairment as a spouse — plus $100,000 for expected future medical expenses.
The judgment was reduced to $334,679 under the state law capping noneconomic damages at $250,000. The trial judge also disallowed the money for future medical bills.
The Supreme Court majority did reinstate the $100,000 for future medical expenses, but ruled the $250,000 limitation on noneconomic damages should stand.
While acknowledging that the cap does restrict the common-law right to compensation for damages, and that $250,000 buys a lot less than it did when the cap was passed by the Legislature in 1988, the Supreme Court majority ruled that it is still an adequate remedy.
“We hold that the Legislature has substituted an adequate statutory remedy for the modification of the individual rights at issue,” said the majority opinion by Justice Dan Biles.
The majority also said the Legislature adequately justified the law, which was designed to rein in large jury awards and reduce the cost of malpractice insurance for doctors.
“We hold that it is “reasonably conceivable” … that imposing a limit on noneconomic damages furthers the objective of reducing and stabilizing insurance premiums by providing predictability and eliminating the possibility of large noneconomic damages awards,” the majority opinion said.
Two justices dissented from the majority decision, Carol Beier and Lee Johnson.
“In my view, the majority fails to recognize the hollowness of the purported substitute here and neglects its responsibility to demand that even the illusory remedy be adequate,” wrote Beier in her dissent. “In short, the cap and the other legislation relied upon by the majority take from injured Kansans; these measures give nothing in return.”
Johnson’s drew largely the same conclusion but expressed it in stronger terms.
“To state the obvious for us in the legal profession, the amount of noneconomic damages that will compensate a malpractice victim is determined by a jury composed of regular Kansas citizens—not by a ‘liberal activist judge’ or a ‘greedy plaintiff’s attorney,’” Johnson wrote.
“Unfortunately, the most affluent and advantaged people in our society often get what they want at the expense of the least fortunate among us whose voice is not loud enough to be heard,” he added. “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.”
Rep. Jim Ward, D-Wichita, an attorney and a member of the House Judiciary Committee, said he felt the majority had issued a “well-thought-out” opinion upholding the liability caps.
But he said the Legislature also needs to take note of the signal the court sent on how inflation has eroded the cap over time.
“I think the ball’s in the Legislature’s court,” he said.
Ward said that few cases reach the cap level but those that do represent significant and life-changing damage to the individuals involved. He said even medical associations have acknowledged that the $250,000 cap may be too low now.
In the upcoming legislative session, “we should have experts come in and talk to us about what the costs are and look at it that way,” Ward said. “The longer we let it go without raising it, the more problems it will cause.”