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March 2, 2010
TOPEKA Last month, the Illinois Supreme Court overturned that state’s five-year-old cap on non-economic damages in medical malpractice cases.
The cap, the court ruled, was unconstitutional because it violated the separation-of-powers doctrine.
A case similar to the one that prompted the Illinois ruling is now before the Kansas Supreme Court.
Whether the Kansas court follows the Illinois court’s lead when it decides Miller v. Johnson is anyone’s guess.
“I’d caution against prognosticating what the Kansas Supreme Court will do,” said Miles Zaremski, a Chicago-area attorney who specializes in health care issues and whose portfolio includes personal injury defense work.
Zaremski is a past chairman of the American Bar Association’s Standing Committee on Medical Professional Liability.
"No rhyme or reason"
“Each state’s laws are different, each case is different,” Zaremski said. “I’ve been following this issue for 37 years now and, really, I have to say there’s no rhyme or reason for why one state upholds the cap and another doesn’t. It all depends on how a state’s court chooses to interpret its state constitution.”
Zaremski noted that while the cap was ruled unconstitutional in Illinois, caps have been upheld in Ohio and Texas.
About half the states, he said, have caps on non-economic damages. The limits vary.
In Illinois, the cap on non-economic damages was $500,000 against a physician or other health care professional and $1 million against a hospital and its affiliates.
The Illinois case, Lebron v. Gottlieb Memorial Hospital, involved a 4-year-old girl who suffered a severe brain injury during a Caesarean section delivery.
In Kansas, non-economic losses have been capped at $250,000 since 1986 but are being challenged in Miller v. Johnson, a case involving a young woman who had the wrong ovary removed during surgery.
Similar cases challenging caps also are pending before the supreme courts in Missouri and Georgia.
Defense attorneys have argued that caps were needed to stabilize the medical malpractice insurance market, rein in health care costs and ensure access to affordable health care.
“The question, then, becomes: Have the caps done that?” Zaremski said. “The answer is no, not in a significant way. There’s been quite a bit of research that’s shown that caps on non-economic damages have not reduced health care costs in any meaningful way.
“Look at California,” he said. “California has the oldest cap of any state in the nation – since 1974 – and its health care costs are astronomical.”
At the same time, Minnesota, a state without a cap, isn’t losing its doctors to states with caps.
Zaremski said he was speaking objectively, not on behalf of plaintiff’s attorneys or the American Bar Association. Much of his career, he said, has been spent representing medical providers.
“I’m not a plaintiff’s attorney,” he said. “I don’t represent injured parties, but I am an individual who can be influenced by research.”
Research, he said, has shown that caps have, in fact, resulted in fewer lawsuits and, in turn, fewer awards.
“If you’re an attorney and you’re looking at a $250,000 cap on non-economic damages, you’re not going to take anything but the very best case because it’s very expensive to litigate,” Zaremski said. “It’s a matter of business.”
Many state legislatures – including Kansas’ – enacted caps in the 1980s in an effort to stabilize doctors’ insurance premiums.
But that stabilization, Zaremski said, hasn’t lowered the system’s overall costs and premiums have continued to rise, though, perhaps, not as fast as they might have.
Once or twice a decade
Historically, Zaremski said, there has been a malpractice “crisis” once or twice in every decade, dating back to the 1960s.
In the 1980s, he said, insurance companies weren’t making money and, in fact, were leaving the market.
“But we tend to forget that all of this coincided with a financial crisis in terms of the stock market and return on investment,” he said.
The nation’s improving economy, he said, had as much or more to do with stabilizing premiums as did caps on non-economic damages.
For years, he said, plaintiffs’ attorneys have argued that if caps on non-economic damages haven’t lowered malpractice premiums and ensured access to health care, legislatures have no business limiting jury verdicts.
Almost every state’s constitution includes language specifically guaranteeing the right to a jury trial. Some states’ supreme courts – including Kansas’ -- have allowed the legislature to modify that right, others have not.
“A court can do what it’s inclined to do,” Zaremski said. “By that, I mean both sides have good arguments. But there’s another doctrine at play here, it’s called the separation of powers doctrine. It says the constitution was enacted by – in this case – the people of Kansas and that the court should go way, way out of its way not to declare something unconstitutional.
“It says the only time a court should do that is when there just isn’t any other way,” he said. “Whether the justices on the Kansas Supreme Court believe they’ve reached that point, I don’t know.”