Kansas patients can finally win big in doctor malpractice suits. But at what cost?

KANSAS CITY, Mo. - Brenda Lundeen went in for routine surgery to relieve heavy periods.

What the Overland Park mom and grade school teacher got was a nightmare, as a medical mistake caused 194-degree water to pour through a hole in her uterus and scald her insides.

After three surgeries to remove parts of her burnt colon and intestines, months defecating into a colostomy bag and years of trauma, a jury awarded Lundeen $2 million in a medical malpractice lawsuit for noneconomic damages, commonly called "pain and suffering."

That number was immediately knocked down to $250,000 - the maximum allowed under Kansas law at the time.

"I have felt since this began that I should try to speak up against the cap," Lundeen said. "Not for me, but for all the people whose cases are way worse than mine."

That cap on noneconomic damages is now gone - struck down in a Kansas Supreme Court ruling last month.

Doctors say that ruling will open the floodgates to high-dollar lawsuits that will drive up the cost of care for everyone. But patients like Lundeen and plaintiffs' attorneys say Kansas doctors have for too long been shielded from responsibility for mistakes that cause a lifetime of suffering.

Both sides agree: It's a new ballgame after the court's decision in Hilburn v. Enerpipe.

"I think it definitely changes the landscape for any pending cases or any future cases," said Michael Rader, a personal injury lawyer in Leawood.

In the past, Kansas lawyers often wouldn't even take on medical malpractice claims, Rader said, because unless there were extensive economic damages (countable costs like lost wages and medical bills) the cost of going to trial might exceed the amount they could recoup if they won.

But now anybody who has gone to a lawyer and been turned down for that reason should go back and ask again, Rader said.

Lundeen said she spent two years looking for an attorney who would take her case, and that lawyer, Mike Hodges, warned her that it wouldn't bring a financial windfall.

"We did not go into it obviously for the money, because we knew there wasn't going to be any," Lundeen said. "I really just wanted to not have another woman go through went I went through."

Lundeen's story

Lundeen had her surgery in 2010, on her 40th birthday. An endometrial ablation, in which a layer of the uterus is removed, can be done several ways, and Lundeen said she didn't think her doctor fully explained the risks of the hydrothermal route.

When her uterus was perforated and the super-heated water flowed into her abdominal cavity, she said she woke up at the surgical center in indescribable pain and was taken by ambulance to the neighboring Menorah Medical Center.

Her doctor was supposed to follow her there immediately, but according to the lawsuit didn't show up for three hours. The hydrothermal ablation machine used in her procedure was later determined to have disappeared.

The next day she had surgery to remove 6 to 8 inches of her burned colon and appendix. It wasn't enough. She got a serious infection and five days later was back in surgery. This time she had 21 inches of intestine removed and the colostomy bag installed.

Lundeen lived with the bag for 11 months, going back to work in her classroom and trying to ignore the odor that would sometimes waft out of the bag. Other times the bag of feces was impossible to ignore.

"I had what they call 'blowouts' where it would completely detach from me and I would have to rush home (to change clothes)," she said.

Finally, she went to the Mayo Clinic for a last-ditch surgery to try to reconnect her bowels - a procedure she said even the staff at Mayo wasn't sure would work.

It did, and she no longer needed the colostomy bag. But she will have to take several medications for the rest of her life, including one for ongoing nerve pain, and she has had to cut dairy products completely out of her diet and and can tolerate only small amounts of red meat or fried foods.

It was a grueling journey that she had to relive when her lawsuit went to trial. The verdict in 2015 was a huge relief.

"It was disbelief, really, that A: we got the verdict in our favor and, B: to hear what the jury awarded us," Lundeen said. "Obviously I knew we weren't getting that, but just the fact that that amount validated all the pain and suffering and everything we'd gone through. I have the physical ailments, but my husband, my girls my parents, they all were affected."

The Supreme Court

Kansas legislators passed the $250,000 cap on noneconomic damages in 1986. It initially applied only to medical malpractice cases - the idea being that the state could better recruit and retain doctors if they knew their legal liability was limited.

The courts quickly ruled that the cap couldn't apply only to that small subset of cases, though, and in 1988 the Kansas Legislature expanded it to all personal injury cases.

The cap stayed at $250,000 for decades, even after inflation cut the actual buying power of that amount of money by more than half.

From the beginning, plaintiffs' attorneys argued that it was unfair.

It was first challenged just four years after it became law, by a Fort Riley soldier paralyzed in a head-on crash caused by a semi-truck driver. The court upheld the cap but said it had concerns that it discriminated against those most severely injured.

In 2012 the state's highest court handed down another verdict in a challenge brought by a woman whose doctor had removed the wrong ovary, rendering her infertile later when the ovary that was actually causing her pain also had to be removed. A lower-court jury had awarded her $575,000 in noneconomic damages, which the cap cut by more than half.

By a 5-2 decision, the justices upheld the cap again, but expressed concern that it hadn't been raised since it was enacted.

That led the Legislature to embark on a multi-year effort to step it up slowly: to $300,000 by 2014, to $325,000 by 2018 and finally to $350,000 by 2022.

That didn't sway the court when it took up the case of Diana Hilburn, another Kansan injured by a semi-truck driver. This time the justices ruled - by a 4-2 vote in June - that the cap was unconstitutional, that it violated Kansans' rights to a jury trial.

The reaction

The ruling caught the entire business community by surprise, coming so quickly on the heels of the 2012 decision.

Health care providers were among the first to express concern.

Tom Bell, the president of the Kansas Hospital Association, wrote that the ruling "will undoubtedly create upward pressure on medical liability insurance rates, and it will certainly not help how Kansas is perceived during the recruitment of healthcare providers."

The Kansas Medical Society, which represents doctors, said the state "has enjoyed a stable medical malpractice environment for many years" but that was about to change thanks to the "unfortunate and costly decision by the court."

"The elimination of the caps on pain and suffering awards will soon translate into increased insurance premiums for physicians, hospitals and health care professionals which will ultimately be passed on to patients," the group said in a statement released the same day the decision was published. "Health care is already a major part of every household and business budget and today's decision will result in significantly higher liability costs for the health care system, which in turn will drive up health care costs already paid by Kansans."

The two groups both said they were still analyzing the decision before deciding on next steps, which could include lobbying the Legislature to enact new caps that are structured differently, or pursuing an amendment to the state constitution (which would require two-thirds votes in the House and Senate, rather than simple majorities).

The full Legislature doesn't return to Topeka until January, but legislative leaders have already taken note of the decision.

Senate Majority Leader Jim Denning, a Republican from Overland Park, said during a recent interim committee meeting that he heard that medical malpractice insurance rates went up 6% almost immediately after the decision was published.

Gov. Laura Kelly, a Democrat, has predicted it will be a major issue when lawmakers reconvene.

"I think it guarantees us a really exciting 2020 legislative session," she told The Topeka Capital-Journal. A spokeswoman for her office declined to elaborate.

Kansas could explore other ways to structure a cap that have been upheld in other states. Missouri, for example, gives juries more leeway to take into account the severity of a case, with a cap of about $400,000 that can be increased to about $750,000 if the patient's injuries are deemed "catastrophic."

Other states peg their caps to inflation so they increase automatically. Or they lift the cap in cases where the medical practitioner was grossly negligent, committed fraud or intentionally harmed the patient.

The result

The impact the Hilburn decision will have on medical costs is hard to predict, but clues can be found in data from other states.

There are now 21 states (including Kansas) with no cap on noneconomic damages, according to the Center for Justice and Democracy at New York Law School.

In those states, the average annual cost of medical malpractice insurance is $10,445.57, according to Capson Physicians Insurance Company.

In the 29 states that have a cap, the average annual cost is $8,702.79.

But it's an imperfect comparison because the caps vary widely from state to state (from $250,000 in California and Montana to more than $2 million in Nebraska) and because juries tend to be more generous in some states than others.

Rader, the personal injury lawyer, said Kansas juries tend to be more sympathetic to doctors.

"The juries are very conservative on medical malpractice cases," Rader said.

That's borne out in state data.

Only 14 medical malpractice cases went to jury trial in Kansas in the fiscal year that ended July 2017 (the most recent report available), and the jury found for the plaintiff in only two of them. In the previous year there were 13 medical malpractice jury trials in Kansas and the plaintiffs won only one.

Rader said other businesses, like trucking companies, are likely to be harder hit by the loss of the damages cap. But medical providers will still see their costs go up.

"Kansas doctors have been able to maintain the minimum amount of liability insurance because their exposure to damages in excess of coverage was slim," thanks to the cap, Rader said. "Now that these doctors can be held accountable for their errors, they're all under-insured now, no doubt about it. They're going to have to purchase more insurance."

The Kansas Supreme Court decision doesn't apply retroactively, so people like Lundeen can't go back and seek the full judgments juries awarded them.

But Lundeen said she's glad others will have a chance to be made whole financially.

"My lawyers told me about cases with way worse physical ailments than mine that still only got the cap, and that is not fair. It's not right," Lundeen said. "They gave me examples of people who have become paraplegic, quadriplegic, and it's just like a joke that they're supposed to sustain themselves for their lives on that amount.

"I'm hoping this means that they're going to be more pro-patient than pro-doctor. We all know people make mistakes, but when it uproots your life as you know it I think there needs to be responsibility taken so we can continue living life the best that we can."

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(Includes reporting by Jonathan Shorman of the Wichita Eagle.)

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