TOPEKA — The Georgia Supreme Court has ruled that a $350,000 cap on noneconomic damages in medical malpractice cases violates that state’s constitution.

“The very existence of the caps, in any amount, is violative of the right to a trial by jury,” Chief Justice Carol Hunstein wrote in the 20-page decision last month

A similar case is pending before the Kansas Supreme Court.

Those on either side of the Kansas case said the Georgia decision is likely to have little bearing in the decision Kansas justices reach.

Nervous about the outcome

But the Georgia and Kansas constitutions each state that the right to a jury trial is inviolate and supporters of capping non-economic damage awards in Kansas are nervous enough about the outcome here that they had introduced in the Legislature a proposed constitutional amendment intended to help keep or restore the cap on the law books should the Kansas judges throw it out.

The Kansas case, Miller v. Johnson, involves a young woman who had the wrong ovary removed during surgery.

A Douglas County jury awarded the woman $760,000 in damages - $360,000 for past and future medical expenses and $400,000 for past and future non-economic losses.

Then-District Court Judge Steve Six reduced the non-economic damages to $250,000, the most allowed by state law. Six is now Kansas Attorney General.

In the Georgia case, Atlanta Oculoplastic Surgery v. Nestlehutt, a 70-year-old woman was left disfigured after facelift surgery.

The woman and her husband were awarded $1.3 million. The award included $900,000 for pain and suffering, which was reduced to $350,000 in keeping with the state’s cap on non-economic losses.

"Inviolate"

In both the Georgia and Kansas cases, the victims’ attorneys argued that the respective state constitutions state an individual’s "inviolate" right to a jury trial and that caps written into law by Legislature's violate that right.

Both states’ legislatures enacted caps – Kansas in 1988, Georgia in 2005 - in an effort to stabilize malpractice insurance markets and hold down health care costs.

The victims’ attorneys argued that concerns over malpractice insurance and health care costs do not trump an individual’s right to a jury trial.

The Kansas case went to the state Court of Appeals in January 2008. The Kansas Supreme Court moved the case to its docket in April 2009 and heard oral arguments in October 2009 but a decision still hasn't been released.

“That’s a long time,” said Jerry Slaughter, executive director of the Kansas Medical Society, which pushed hard for the cap when it was enacted and insists that removing the cap would cause malpractice premiums to soar to the point that many doctors would choose not to work in Kansas.

Last month, the medical society drafted and proposed House Concurrent Resolution 5036, which amend the Kansas Constitution in ways that would give the Legislature the power to limit non-economic damages.

Initially, Slaughter said he wouldn’t push the resolution until after the court issued its decision. He’s since changed his mind.

“We’re going to encourage the Legislature to adopt the resolution,” he said Wednesday. “We don’t want to preempt the court in any way, but they’ve had this for a long time and we’re to a point now where the Legislature has gone home on first adjournment. We’re running out of time.”

"A very large issue"

Senate Majority Leader Derek Schmidt, R-Independence, supports the cap and Tuesday he predicted that the debate over the resolution would be "a very large issue in the wrap-up session," which begins April 28.

Schmidt said if the justices rule against the gap, "Kansas would take a giant step backwards."

Schmidt is a candidate for Attorney General. Republicans tend to support the cap, which Democrats generally oppose.

The resolution would need to pass both the House and Senate by a two-thirds margin before being placed on a statewide ballot for decision by voters.

Brad Prochaska, a Wichita attorney and president of Kansas Association for Justice, formerly known as the Kansas Trial Lawyers Association, said the resolution sought by the medical society is misguided.

“Both the Kansas and Georgia state constitutions say the right to a jury trial ‘shall be inviolate. The wording is the same,” Prochaska said.

In the Georgia ruling, he said, the court noted that if it were to allow a $350,000 cap, legislators could, if they wanted, lower the amount to “$50,000 or $1,000 or $1.”

“The issue is whether the cap violates the right to a jury trial – a right considered inviolate in the state constitution,” Prochaska said, “It doesn’t matter what the cap is.”

"Teeny, tiny effect"

Prochaska said he had no way to gauge what effect the Georgia ruling might have in Kansas.

“It might have a teeny, tiny persuasive effect – not too much because some other state may say caps are OK, another state may say they’re not OK,” he said. “That said, I’m sure the Kansas Supreme Court will make its own decision. It’s not going to be influenced by what another state does or doesn’t do.”

Sen. John Vratil, R-Leawood, an attorney and member of the Senate Judiciary Committee, said he’s “not going to get worked up” beforehand about what the Kansas Supreme Court might decide.

“I hear people say the court is going to rule one way or the other – for the cap or against the cap,” he said. “But there are any number of things the court could do. It could say the cap is alright but $250,000 isn’t enough. It could say the amount has to be adjusted for inflation. It doesn’t have to be one or the other.”

Vratil said he supports the state’s cap on non-economic damages, but would vote against the proposed constitutional amendment.

“If we’re not careful – with all the amendments everyone’s talking about passing – we’re going to have a constitution that looks like a garbage truck,” he said.