Miller v. Johnson

Decision Date05 October 2012
Docket NumberNo. 99,818.,99,818.
PartiesAmy C. MILLER, Appellant/Cross-appellee, v. Carolyn N. JOHNSON, M.D., Appellee/Cross-appellant.
CourtKansas Supreme Court

295 Kan. 636
289 P.3d 1098

Amy C. MILLER, Appellant/Cross-appellee,
Carolyn N. JOHNSON, M.D., Appellee/Cross-appellant.

No. 99,818.

Supreme Court of Kansas.

Oct. 5, 2012.

289 P.3d 1102
295 Kan. 636

William J. Skepnek, of Skepnek Fagan Meyer & Davis, of Lawrence, argued the cause in the original argument and on reargument; Ned I. Miltenberg, of Center for Constitutional Litigation, P.C., of Washington, D.C., argued the cause in the original argument, and Trey T. Meyer, of Skepnek Fagan Meyer & Davis, of Lawrence, was with them on the briefs for appellant/cross-appellee. Lynn R. Johnson, of Shamberg, Johnson & Bergman, of Kansas City, Missouri, and Robert S. Peck, of Center for Constitutional Litigation, P.C., of Washington, D.C., argued the cause on reargument for appellant/cross-appellee.

Bruce Keplinger, of Norris & Keplinger, of Overland Park, argued the cause in the original argument and on reargument, and John Hicks, of the same firm, was with him on the brief for appellee/cross-appellant. Steven C. Day, of Woodard, Hernandez, Roth & Day, L.L.C., of Wichita, argued the cause on reargument for appellee/cross-appellant.

Cathy J. Dean, Douglas J. Kramer, and Lauren E. Tucker McCubbin, of Polsinelli Shughart PC, of Kansas City, Missouri, were on the brief for amicus curiae Kansas Medical Society and Kansas Hospital Association.

Timothy J. Finnerty and Ryan D. Weltz, of Wallace, Saunders, Austin, Brown & Enochs, Chartered, of Wichita, were on the brief for amicus curiae Kansas Association of Defense Counsel.

Toby Crouse, Scott C. Nehrbass, and James D. Oliver, of Foulston Siefkin, LLP, of Overland Park, were on the brief for amicus curiae Kansas Chamber of Commerce.

James R. Howell and Derek Casey, of Prochaska, Giroux & Howell, of Wichita, and Lynn R. Johnson, and David Morantz, of Shamberg, Johnson & Bergman, of Kansas City, Missouri, were on the brief for amicus curiae Kansas Association for Justice.

William Rich and James M. Concannon were on the amici curiae brief pro se.

289 P.3d 1105

Molly Wood, of Stevens & Brand, LLP, of Lawrence, was on the brief for amici curiae AARP; El Centro, Inc.; Kansas AFL–CIO, Kansas Advocates for Better Care, Inc.; The Disability Rights Center of Kansas; Kansas Coalition Against Sexual and Domestic Violence; and Linda Henry Elrod, Director of Children and Family Law Center of the Washburn University School of Law.

Steven C. Day, of Woodard, Hernandez, Roth & Day, LLC, of Wichita, was on the brief for amicus curiae Estephan N. Zayat, M.D.

The opinion of the court was delivered by BILES, J.:

295 Kan. 640

Amy C. Miller sued her doctor, who mistakenly removed her left ovary during a laparoscopic surgery intended to take the right ovary, and a jury awarded her $759,679.74 in damages. But the district court reduced that amount by $425,000 because of a state law limiting noneconomic damages in personal injury lawsuits and a posttrial ruling finding her evidence of future medical expenses insufficient. Both sides appeal, with each claiming the district court erred at various points in the proceedings.

Our initial focus is the constitutionality of K.S.A. 60–19a02, which operated to cap Miller's jury award for noneconomic damages. This statute is one of several enacted to “reform” our state's tort laws, and it has been a subject this court has visited—and revisited—in prior cases with conflicting outcomes. It represents a

295 Kan. 641

long-standing and highly polarizing question nationwide. See, e.g., Samsel v. Wheeler Transport Services, Inc., 246 Kan. 336, 338, 789 P.2d 541 (1990) ( Samsel II ) (referring to “the stormy controversy which currently surrounds the liability insurance and tort systems”); see also Kansas Malpractice Victims Coalition v. Bell, 243 Kan. 333, 354–55, 757 P.2d 251 (1988) (McFarland, J., dissenting) (“Many physicians truly believe that the legal profession is out to destroy them for personal gain. Many lawyers believe, with equal sincerity, that the medical profession is attempting, through legislation, to avoid its responsibility for harm done by its members. Companies providing medical malpractice insurance are attacked by both groups.”). The continuation of this controversy no doubt contributed to the larger-than-usual volume of briefs received in this appeal from the parties and their allied interests.

In resolving the four constitutional issues in this case, a majority of the court upholds K.S.A. 60–19a02 as applied to Miller—a medical malpractice victim. A minority would hold the statute unconstitutional.

As to the trial errors alleged, we unanimously reverse the district court's decision to strike the jury's award for Miller's future medical expenses and remand the case with instructions to reinstate that award. As for the doctor's cross-appeal, it is argued the trial court erred by denying a motion for judgment as a matter of law and motion for new trial. We unanimously deny the doctor's trial error claims.


The essential facts are straightforward. Miller began seeing Dr. Carolyn N. Johnson in 1994 with a history of painful and irregular menstrual periods. In 2002, after continued suffering from severe pain in her right lower quadrant, Miller, who was 28 years old at the time, consented to having her right ovary removed. Johnson performed a laparoscopic procedure for that purpose. The surgical report, signed by Johnson, stated that the right ovary had been removed. Miller, however, continued to experience severe pain.

Three months after the surgery, Miller discovered during an examination with another doctor that Johnson had mistakenly removed

295 Kan. 642

her left ovary instead of the right. A different physician attempted to manage Miller's continuing pain with nonsurgical options, but the pain persisted and Miller decided to have another surgeon remove her remaining ovary. She sued Johnson for medical malpractice in 2004, alleging the doctor violated the appropriate standard of medical care. Johnson vigorously contested the lawsuit, claiming Miller's preexisting medical conditions would have required eventual removal of both ovaries and her uterus, even if the left ovary was taken first in error.

289 P.3d 1106

The case went to trial and a jury found the doctor completely at fault. It awarded Miller $759,679.74 in total monetary damages, comprised as follows: (1) $84,679.74 for medical expenses to date; (2) $100,000 for future medical expenses; (3) $250,000 for noneconomic loss to date; (4) $150,000 for future noneconomic loss; and (5) $175,000 noneconomic loss for impairment of services as a spouse. But the district court reduced the jury's award in two postverdict decisions.

In its first ruling, the district court enforced the statutory limitation on noneconomic damages required by K.S.A. 60–19a02. This cut the jury's total award of $575,000 in noneconomic damages by $325,000 to conform to the $250,000 statutory cap. In so ruling, the district court rejected Miller's efforts to avoid the statute's restrictions by challenging its constitutionality. Miller argued the cap violated her right to trial by jury, the right to remedy by due course of law, equal protection, and the doctrine of separation of powers. The primary basis for the district court's ruling was the 1990 decision in Samsel II, which was this court's most recent decision on the issue and which the lower court was bound to follow. In addition, the district court denied Miller's request for an evidentiary hearing to attack the legislature's basis for enacting the cap. Instead, Miller filed a written motion proffering the testimony she would have submitted. Highly summarized, Miller's experts would have testified there was no empirical evidence to support a claimed medical malpractice crisis to justify the legislation, that the noneconomic damages cap has a disparate impact on women and the elderly, and that there is little support for believing that juries award damages for frivolous claims out of sympathy for a plaintiff.

295 Kan. 643

In its second ruling, the district court struck the $100,000 jury award for future medical expenses. The court held that Miller offered insufficient evidence for the jury to make findings about her future medical or counseling needs, how much future care she would require, or what that cost would be over the next several decades until she reached menopause.

Combining the reductions resulting from these two determinations, the district court entered a final monetary judgment against Johnson for $334,679.74.

In rulings made against the doctor that are also the subject of this appeal, the district court denied Johnson's motion for judgment as a matter of law, which was premised on a defense claim that Miller failed to prove causation due to her preexisting medical conditions. The district court held there was sufficient evidence to support the jury's finding on causation. It further found there was no medical indication to remove the left ovary at the time Johnson performed the laparoscopic procedure and that the evidence was sufficient to show Miller experienced a variety of problems as a result of her having both ovaries removed. The district court acknowledged that Johnson presented conflicting evidence but held those inconsistencies were best resolved by the jury, which found against the doctor.

Regarding the motion for new trial, the district court rejected the doctor's argument that it had improperly prevented Miller's treating physicians from testifying that it would have been necessary to eventually remove both ovaries. Johnson claimed this evidence supported the defense theory and would have been significant to jury deliberations. But the district court disagreed and held the treating physicians' testimony was properly limited to those matters stated in their medical records, their care and treatment of Miller, and inquiries reasonably related to that treatment.

Both sides appeal the rulings adverse to their respective interests. This...

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