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.
