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Wayne Parsons
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Isn't Tort Reform Only About Frivolous Cases?

5 comments

If you listen to doctors complain that they need protection from lawsuit abuse and that the real problem in health care reform is defensive medicine and lawsuits driving up the cost of health care, you get the impression that this isn’t about terrible medical care and real injuries. Well, what do you think about a doctor removing the wrong ovary? A Kansas doctor did that a law in Kansas says that a woman who sued the doctor for the horrible mistake can’t recover more that $250,000 for that lost ovary. Let’s have a show of hands ladies: how much is your left ovary worth? Now, how about the husbands?

Scott Rothschild of the Lawrence Journal has been covering this story and reports on an upcoming battle at the Kansas Supreme Court:

Seven years ago, Amy Miller, Eudora, went in for surgery for removal of her right ovary. Lawrence physician Dr. Carolyn Johnson removed Miller’s left ovary by mistake.

Miller sued, alleging medical malpractice. The dispute will land this week before the Kansas Supreme Court with arguments scheduled for Thursday.

The case has drawn some of the state’s biggest special interests, with doctors, insurers and businesses lined up against plaintiff’s attorneys, organized labor and other groups in a battle over whether it’s constitutional to place a legal limit on damages for pain and suffering.

In 2006, a Douglas County jury returned a verdict for Miller for $759,680.

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 knocked the award down, striking the $150,000 for future noneconomic losses because of a law that states noneconomic damages can’t go above $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.

The cap usurps the jury’s role in calculating malpractice damages, infringes on the separate powers of the courts and hurts those with the worst injuries, argued Lawrence attorney William Skepnek.

Dr. Johnson admits the error:

It’s not disputed that Johnson accidentally removed Miller’s left ovary instead of the right one on Oct. 18, 2002, when Miller came in for surgery to relieve severe pain on the right side of her pelvis.

"I thought it was the right ovary. I don’t have an explanation for how that happened. : I made a mistake," Johnson testified Thursday in Douglas County District Court.

The argument made by Miller’s attorneys is that “Among the broad universe of all medical malpractice victims, the cap imposes special burdens only on those in greatest need of relief through the civil justice system.”

They call this a wrong site surgery case:

Such mistakes are common nationwide but underreported, according to a September article in the medical journal Archives of Surgery. The authors estimated there are from 1,200 to 2,700 surgeries per year that involve the wrong site on the body, wrong procedure or wrong patient.

"Despite a significant number of cases, reporting of (the cases) is virtually nonexistent, with reports in the lay press far more common than reports in the medical literature," an abstract of the article states. "Wrong-side/wrong-site, wrong-procedure, and wrong-patient adverse events, although rare, are more common than health care providers and patients appreciate."

The Kansas Chamber of Commerce puts the Miller case into its one-size-fits-all cap on damages that protects the doctors overly sensitive egos and saves billions for a boated out-of-control insurance insurance industry. In a choice between health and money, the AMA and the Chamber of Commerce and the doctors put money first and an ovary second. Someone has to sacrifice and women have been doing it for years so why not an ovary to put a few more dollars into pockets of doctors and their insurers:

“In these difficult and uncertain economic times, opponents of statutory limits to noneconomic damages are challenging one of the most important pieces of the tort reforms that fueled Kansas’ economic growth,” the chamber said in a written brief to the court.

Dr. Johnson claims that the jury was wrong because although Dr. Johnson was negligent in removing the wrong ovary, it would have had to be removed anyway in the future.

Steve Lombardi of Des Moines, Iowa has written a six-part series on the legal aspects of wrong site surgery cases: Part I – Wrong Site Surgeries – The Board of Medicine – The Surgeon

What do you think? Is your ovary worth only $250,000.

5 Comments

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  1. Mike Bryant says:
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    You got the question exactly right, but the issue is what they call frivolous. It seems that any lawsuit, that isn’t businesses sueing each other or their own personal injury, is what they want to stop. Don’t agree? Than why do they want to cap the most injured cases? They don’t want to take responsibility and they couch it in lies and lawyer bashing. They don’t want to debate the facts, listen to injured people , or even to protect the consumer. Heck, the US Chamber only wants to hide the assets of the biggest companies. It’s a joke that they even suggest that they protect small businesses.

  2. ian lin says:
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    I don’t think even physicians would argue against fair and adequate compensation for wrong site surgery victims. I think caps do hurt these people.

    But in regards to defensive medicine, these are not the cases that drive such practice. It’s very obvious and clear cut in wrong site surgery cases. Either the doctor removed the wrong ovary or they didn’t. If anything, this would prompt the surgeon/hospital to take more safeguards to help prevent such mistakes. That is good medicine.

    The cases that drive defensive medicine are the subjective, gray zone ones. Delayed diagnosis of cancer and heart attacks are very common areas of litigation in primary care. But not everyone goes to their doctor with classic symptoms of these diseases. Some people can’t even describe their symptoms, they just say, “Doc, I don’t feel well, I can’t describe it, but something is wrong. Fix me.” I’ve seen people with heart attack have constipation as the main concern, without any other symptom. Most people with headaches do not have a brain tumor. But you won’t have to do much convincing to get your doc to order you a MRI or CT “just to make sure.” Most people with any trouble breathing won’t have a clot in the lung. But the ER doc is almost guaranteed to order several thousand dollars worth of tests if you show up in the ER with that symptom. You say that the doctors are being thorough, and maybe that’s good, even though there’s a 3% risk of future cancer everytime you get a CT scan. But you can’t say this is an inexpensive way to run healthcare.

  3. Mike Bryant says:
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    So in the cases where they didn’t do it right, you are saying yes there should be a case. But, at the same time you are saying that there are cases where doctors do too much, because real people come in with actual symptoms. And actually do have cancer a tumor. How exactly do you see a difference between the those cases??? Looks like there should have been defensive medicine in all of those examples.

  4. ian lin says:
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    Just to clarify, my comment is intended to say that I’m in favor of caps on damages. I clearly state that I think it hurts certain people. But I’m referring to whether or not defensive medicine is good medicine.

    I’ll give three scenarios to try and illustrate my point:

    1. First scenario involves Dr. A. He just came off a case involving removing the wrong ovary (as discussed above). Now he’s checking and double checking before operating his next patient. The hospital also instills new measures involving multiple nurses making the same checks. This does increase costs, but I’d argue that this is what they should have been doing in the first place. While this can be considered defensive medicine, I think it’s good medicine.

    2. Scenario 2 involves Dr. B and patient B. Patient B goes to the doctor’s office, saying that he’s having fatigue. Keep in mind, fatigue is a very vague symptom. It can be a symptom for nearly every single disease out there. (as an experiment, ask your doctor what he/she thinks about fatigue the next time you’re in their office).

    Dr. B. does a thorough history taking and physical exam (and I’ll admit this doesn’t always happen in the real world, but it should). Dr. B. upon questioning also finds out that patient B has been having blood in the stool, so he refers him for lab tests and to a gastroenterologist. A diagnosis of bleeding stomach cancer is found, which explains the fatigue, and the patient is sent for the appropriate treatments.

    The lab tests and referral are all expensive, but this isn’t defensive medicine. This is good medicine, and the doctor should be liable if he didn’t proceed as illustrated.

    3. Scenario 3 will involve Dr. C. and patient C. Patient C reads patient B’s web blog about being diagnosed with stomach cancer with fatigue as the presenting symptom. Patient C thinks, “well, I’ve been tired too.” So he goes to see Dr. C. Dr. C does the same thorough history taking and physical exam, and aside from fatigue, there is no other symptom or abnormal physical finding with patient C.

    Dr. C. informs patient C that he doesn’t find any abnormal findings. He also correctly informs him that less than 1% of cases of fatigue are due to serious conditions such as cancer, and it is a very ambiguous symptom (unlike scenerio 1, you either removed the wrong ovary or you didn’t).

    However patient C, concerned about gastric cancer insists on labs, CT scans, a referral to a specialist to truly rule out stomach cancer.

    What does Dr. C do? What should he do? What would you do if you were Dr. C?

    ….

    He does what tens of thousands of docs do every day across the country. He figures that ordering the tests and referral poses very little financial cost to him. He also figures that should patient C be the less than 1% that does have stomach cancer, he could face a costly lawsuit. So there’s really no major disincentive for Dr. C. to send patient C for all the tests that he had requested.

    So this scenario is defensive medicine, and it occurs all the time everyday. The question is, is it good medicine? All tests and procedures do have real risks of complications. Again 3% of future cancers are associated with radiologic scans. So for the less than 1% of the cases of fatigue with cancer as underlying diagnosis, we create an additional 3% of future cancers and increase the cost of healthcare in this country.

  5. ian lin says:
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    Sorry, meant to say in first sentence NOT in favor of caps.