In 2002, Amy Miller of Eudora, Kansas, underwent surgery to remove one of her ovaries. Her doctor, Carolyn Johnson, allegedly removed the wrong one. A Douglas County jury in 2006 awarded Miller nearly $760,000 in damages.
After the trial, the court reduced Miller's award to $610,000. That's because in 1988, the Kansas Legislature had set a cap on damages for a plaintiff's pain and suffering, heeding the warnings of medical providers who claimed that without a cap, malpractice insurance rates would be so unaffordable as to make certain medical procedures too financially risky to perform.
Miller and her attorneys appealed the reduction in her award. The Kansas Supreme Court heard arguments in the case in October 2009. But before they could reach a decision, Chief Justice Robert E. Davis became ill and was forced to retire, and Justice Eric S. Rosen was recused from the matter.
Now, the case is scheduled to be reargued in Topeka on February 18. The lobbyists for insurance companies and health-care providers, tort reformists, plaintiffs' attorneys, unions and doctors are all highly anticipating the eventual decision and its fallout.
The idea of being involuntarily spayed by a careless surgeon is awful. No doubt. But here's a crazy little detail: While Dr. Johnson did remove the wrong ovary, she took the worst of the two. Both ovaries likely required removal at some point. (Miller had her other ovary removed in 2004.) According to a 2009 article in the Lawrence Journal-World, Miller's doctor also filed an appeal, claiming that Miller never proved a connection between the alleged malpractice and the injuries she claimed to have suffered as a result.
The doctor's attorney, Bruce Keplinger, tells us that his client's argument will also be heard by the Supreme Court in Topeka on February 18. "It's all still in play," he says. While he concedes that it will get less media attention than the larger issue of the constitutionality of limiting awards for pain and suffering, Keplinger says he plans to argue that the justices could avoid ruling on that issue altogether. They could simply order the case back to Douglas County for retrial.