Should Kansas have a cap on "pain and suffering" damages?

This one's not a crime, but it does involve an interesting case before the Kansas Supreme Court. A Eudora woman had surgery to remove her right ovary -- only the left one was taken by mistake. A jury originally awarded the woman about $760,000, but the judge reduced that by $250K because of the state's cap on noneconomic losses, a category that includes pain, suffering, mental anguish, physical disfigurement, etc., the Journal-World reports. The woman's attorney argue that such a cap is unconstitutional. The state's Chamber of Commerce say it's a necessary protection for businesses.

Comments

[Man in a Mission]

Slate.com has a great article regarding medical torts. It points out that the problem isn't huge jury awards, but rather medical mistakes and malpractice. Reducing the number of errors (especially egregious and easily preventable errors like this one) will reduce the number of medical malpractice lawsuits as well as the costs associated with medical malpractice.

Yes, this is demanding a higher standard than is required for most other careers. However, the results of errors in human terms can literally cost someone his or her life. Also, physicians are one of the top 2 most highly compensated fields by average earnings (keep in mind that those earnings are after the cost of malpractice insurance).

[aqua]

IMHO, caps and if you lose - you pay costs, would help. That way, attorneys would have to think twice about taking on a suit without merits.

[Chuck Rizzo]

Well if you read the article, medically speaking she needed both and her uterus taken out anyway. She's getting lucky the took a different one out first and can sue. Otherwise she'd have to get both taken out anyway without getting bankrolled for a mistake.

[aqua]

in Arizona, medical liability suits have dropped by about 30 percent.

Some states, like Arizona, have already implemented medical liability reform measures with positive results.

Dr. James Carland, president and CEO of MICA, Arizona’s largest medical liability insurer, wrote to me to describe some of the results he’s seen from Arizona’s medical liability laws – specifically from two statutes: one that reformed expert witness standards and another that imposed a requirement to inform the defendant, before trial, of expert witness testimony and allow the defendant to preview the substance of that testimony. According to Dr. Carland, these two statutes have reduced meritless medical malpractice suits in the state.

[kbp]

"[Dr.] Johnson said that although she made a mistake in removing the wrong ovary, she removed the worst of the two ovaries and that the left ovary, which she erroneously removed, would have required removal at some point. Miller eventually had the other ovary removed in 2004 [2+/- years later]."

If we could rely on a judge to reduce any judgment that was “jackpot justice”, I do not think there should be a limit. Unfortunately, judges are humans, so the call of what is due would vary greatly from one judge to another. I do not understand how the plaintiff could be due what she received in this case.

[Elrond of Rivendell]

I'm for tort reform and limits on awards.

My brother, an orthopedic surgeon, was involved in a meritless malpractice suit. Cost him and his practice money to defend. In the end, even the other side's "expert witness" said the suit was meritless, so they dropped it, and begged that he not countersue.

[Man in a Mission]

"Honesty really is the best policy, especially when it comes to taking responsibility and avoiding lawsuits. That is what the University of Michigan Health System (UMHS) discovered after it launched an innovative program in 2002. Before then, the health system, like many others, had a “deny and defend” strategy based on numerous fears that fueled the reluctance of clinicians to speak openly with patients about things that may have gone wrong, even in the absence of negligence."

Clinical Advisor article by Ann W. Lattner, JD, 12 October 2009

This is only the latest in a long line of studies that have found that doctors, even those who actually make a mistake, can reduce the number of lawsuits simply by being up front and honest with their patients.

[Nemesis]

Are we to presume the ovaries and uterous were either cancerous or pre cancerous and would have in all probability resulted in the woman developing ovarian/uterine cancer if not removed? The article doesn't say. If it was, in this situation, it is a no brainer, the Dr was acting in the best interests of the patient, no matter how much the patient dislikes the outcome. It is also very likely that future healthcare costs for battling ovarian cancer would be much greater than the stipulated future medical costs in the suit she sued for, not to mention the pain and suffering of having ovarian cancer itself or the pain to the family for suffering her loss if she had died.

This not to say that Dr's aren't capable of gross negligence. They are, but this case is not negligence. I certainly feel for the woman, because this is a hard pill to swallow, and I realize how highly women prize motherhood and rightly so, but the alternative was much worse. So, at most, I think the Dr is guilty of not stepping out of the operating room to apprise the family before proceeding. It's what I would have done.