Archive for Saturday, February 19, 2011

Case of wrong ovary removal heard again before Kansas Supreme Court

February 19, 2011

— A damage award to a woman whose wrong ovary was removed could be determined by whether the Kansas Supreme Court believes the Kansas Legislature violated the constitutional right to a jury trial by capping damages in injury claims.

"What the Legislature cannot do is change the Constitution," said attorney Lynn Johnson, who is representing Amy Miller of Eudora.

But Bruce Keplinger, an attorney representing Dr. Carolyn Johnson, who removed Miller's left ovary by mistake, said the Legislature can change the Constitution.

Justice Carol Beier asked Keplinger, "Is there any constitutional limit on the Legislature's power to amend the common law?" Keplinger replied there wasn't.

Asked if it would be constitutional if the Legislature capped malpractice damages at $10, Keplinger said that if citizens were upset with what legislators did they could try to vote them out of office.

The two sides argued for more than three hours in a rare rehearing before the Kansas Supreme Court in the case that has pitted businesses, insurance companies and doctors against labor groups and trial lawyers. The court first heard arguments in the case in October 2009. Last month, the court ordered a second round of arguments.

At the end of Friday's hearing, Chief Justice Lawton Nuss said the court would take the case under advisement. He gave no indication on when a decision would be made.

In 2002, Miller, who was 28 at the time, went in for surgery for removal of her right ovary. Lawrence physician Dr. Johnson 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 award, striking the $150,000 for future noneconomic losses because of a state law that limits noneconomic damages to a maximum of $250,000. Six also struck down the $100,000 for future medical expenses.

Miller’s attorneys say the $250,000 cap, approved by the Kansas Legislature in 1988, is unconstitutional.

Dr. Johnson's attorney, Keplinger, argued that the cap in damages provided a societal benefit by ensuring the availability of health care by limiting jury awards and stabilizing that medical malpractice insurance that doctors must have.

But Justice Lee Johnson said he didn't believe the Legislature could take away individual rights guaranteed by federal and state constitutions to benefit insurance companies. "I guess I have a different concept of rights," Justice Johnson said to Keplinger.

Chief Justice Lawton Nuss quoted the Kansas Bill of Rights that says; "The right of trial by jury shall be inviolate."

"That's kind of where I'm starting from," Nuss said.

But justices also attacked the position of Miller's attorney, Lynn Johnson.

They asked Johnson how they could rule that the law setting limits violates the right to trial by jury without also overturning workers' compensation and no-fault auto insurance systems that bypass jury trials.

But Johnson said in those instances, the Legislature has set up an administrative system to handle workers' comp and auto insurance cases to substitute for juries.

There is no such substitute system set up in wrongful injury claims, he argued, just a limit on how much juries can award.

"This is an absolute violation of the inviolate right of trial by jury for Amy Miller and others," he said.

Miller and her husband, Kevin, were present during the arguments, but they have declined to comment on the case.

The fight against legislatively imposed limits in wrongful injury cases has been fought in numerous states. Recently, the Georgia Supreme Court overturned the caps.

But Keplinger said that no state, in which its Supreme Court has affirmed the caps in previous cases, as Kansas has done, has reversed it.

But Justice Johnson asked, "So what's that got to do with the price of wheat in Kansas?" Courts are allowed to overturn previous decisions, he noted. Keplinger replied, "You absolutely have the ability, but you'd be way out in your wheat field."

Another attorney for Dr. Johnson, Steven Day, argued that if the Kansas Supreme Court overturned the cap, it would be usurping the power of the Legislature and giving more power to the courts.

But Justice Johnson said, "We have always had the power to interpret the constitution."

And attorneys for Miller said it was the Legislature that had gone beyond its authority by imposing its will on juries even though it is the juries that are the fact-finders in the injury lawsuits.

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