The House Judiciary Committee on Monday introduced a resolution to amend the state constitution to give the Legislature power to limit non-economic damages in personal injury cases.
The resolution was drafted and proposed by the Kansas Medical Society.
For several weeks, medical society officials have been telling legislators they think there’s a good chance the Kansas Supreme Court will overturn the state’s $250,000 cap on non-economic damages in malpractice cases.
“What we didn’t want to have happen was for the Supreme Court to take another three or four weeks to render its decision and then, all of sudden, we'd have to try to get something through both chambers when everything is so hectic,” said Kansas Medical Society Executive Director Jerry Slaughter. “So what we did today was get the housekeeping stuff out of the way. It’s there if we need it. If we don’t need it, it can die there, too.”
A proposed constitutional amendment would need to pass both the House and Senate by a two-thirds majority vote before being presented to voters to decide on a statewide ballot.
In October, the court heard oral arguments in Miller v. Johnson, a Douglas County case involving a surgeon who removed a young woman's left ovary instead of the right ovary.
A jury awarded the woman $400,000 in non-economic damages, also known as ‘pain and suffering.’
Due to the cap written into state law the verdict was cut to $250,000.
“Amy Miller had a hysterectomy, so at the age of 29, she’s menopausal,” said Bill Skepnek, Miller’s attorney.
The $250,000 cap, Skepnek argued, interfered with Miller’s constitutional right to a jury trial. The Kansas Supreme Court is now considering the merits of that argument.
Slaughter says the cap is needed to hold down medical malpractice costs.
If the court upholds the cap, Slaughter said the medical society is likely to let the issue lie; if it rules the cap unconstitutional, the society will push forward with its proposed amendment.
As proposed, it would give the Legislature the authority to enact a cap.
If the court doesn’t rule on the case “by the middle of April,” Slaughter said, there’s a good chance the medical society will ask lawmakers to pass the resolution rather than wait until the 2011 legislative session.
“They heard the case in October,” he said of the court. “If they were going to uphold the cap, I can’t imagine it would take the court six months to do it. In April, they will have had the case six months.”
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