Kansas high court upholds cap on malpractice damages

The Kansas Supreme Court on Friday upheld the state law that caps the damages awarded in medical malpractice cases.

The long-awaited ruling found that the $250,000 cap on non-economic damages — damages awarded for pain and suffering — did not violate the Kansas Constitution.

The 5-2 ruling was a victory for the state’s medical and business community and a loss for trial lawyers and organizations including AARP and the AFL-CIO. The justices did, however, suggest state lawmakers raise the cap in recognition of decades of inflation.

The Kansas Medical Society had warned that overturning the law would have led to increases in the cost of medical care because doctors would have had to pay “dramatically” higher premiums for medical malpractice insurance.

Jerry Slaughter, executive director of the group, said the 1988 cap law had created “two decades of relative tranquillity” in the state’s medical community, helping attract doctors to rural areas and recruit practitioners in high-risk specialties to the state.

The ruling in Kansas came just a month after the Missouri Supreme Court overturned Missouri’s $350,000 cap on non-economic damages.

The Kansas case stemmed from a Douglas County lawsuit filed by Amy C. Miller against a doctor, Carolyn N. Johnson, after her left ovary was removed mistakenly during surgery that was supposed to remove her right ovary.

In 2006, a jury awarded her nearly $760,000 in damages, including $575,000 in non-economic damages.

The judge overseeing the case followed the law and reduced that portion of the award to $250,000. Miller appealed, leading to Friday’s decision.

“This is a victory not only for Dr. Johnson, but for all the doctors of Kansas,” said Bruce Keplinger, one of the lawyers who represented Johnson in the suit.

Keplinger said it was also a win for Kansans.

“The alternative would have been very bad for Kansas,” he said.

Miller and her attorneys had argued that the cap violated Kansas constitutional rights to a jury trial, equal protection under the law, remedy by due course of the law and the separation of powers doctrine.

Lynn Johnson, one of the lawyers who represented Miller in the case, said it appeared the court’s majority determined what it wanted the end result to be, then figured out a way to support the decision.

“I’m deeply disappointed on behalf of the people of Kansas, the Kansas Constitution and the rule of law,” Johnson said.

He applauded the dissenting justices, who he said were “intellectually honest” in their opinion that the law violated the constitutional protections. Johnson also noted that the way the majority crafted the opinion appears to leave open the question of whether the law is constitutional in personal injury cases not involving medical professionals.

In her dissent, Justice Carol Brier raised the same issue, saying that the majority left that question open in the “uncomfortable contortions” it took in arriving at its outcome.

Several groups that had supported repeal of the cap issued a joint written statement in which they said, “A one-size-fits-all cap is no substitute for the wisdom of a citizen jury.”

The statement by AARP Kansas, Kansas AFL-CIO and Kansas Advocates for Better Care said the cap has a “disproportionately negative effect” on the elderly, women, disabled persons, minorities and the poor.

“Members of these groups are likely to have nonexistent or very low economic damages,” according to the statement.

Because they might be unemployed, underemployed or have a lower earning capacity — the kinds of things taken into account when economic damages are calculated — members of those groups must rely on non-economic damages when seeking redress for injuries, the groups maintain.

“The cap is unfair punishment,” the group statement said. “It doesn’t matter if gross negligence results in an injury that is permanent, painful, disfiguring or life-altering.”

While the court’s majority upheld the law’s constitutionality, its opinion noted that it was troubling that the Legislature has not increased the cap level as its value has been eroded by inflation.

“There is a reasonable question as to the continued adequacy of the $250,000 limitation that has admittedly devalued over time due to the legislature’s failure to adjust it,” according to the majority opinion written by Justice Dan Biles.

Lawrence Democrat Paul Davis, minority leader of the Kansas House, called on the Kansas Legislature to take action to address that issue.

“It is time for the Legislature to act and adjust our cap for the first time since 1987,” Davis stated in a written release. “I call upon Governor Brownback and my fellow legislators to make sure a tragedy like this never happens again when the Legislature convenes in January.”

Kansas House Speaker Mike O’Neal, a Republican from Hutchinson, released a written statement in which he praised the court’s decision.

“I appreciate the court’s affirmation of the long-standing precedent of upholding the right of the Legislature to fashion reasonable limitations on personal injury awards,” O’Neal stated.

Besides addressing the larger constitutional issue, the court’s ruling Friday reinstated $100,000 in future medical expenses for Miller that the judge had thrown out in post-trial action. Miller’s damages now include that amount for future medical expenses, $84,679 for past medical expenses and the $250,000 for non-economic damages.