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Feb. 18, 2011
TOPEKA In an unusual move, the Kansas Supreme Court today held a second round of arguments in a complex medical malpractice case in which the injured party seeks to overturn a 25-year-old state law that caps damage awards for pain and suffering.
Justices heard more than three hours of arguments in the case of Miller v Johnson, peppering attorney teams from both sides with a broad range of questions dealing with everything from the proper limits of legislative power to the ramifications of a reversal for the state's workers compensation system and no-fault insurance.
The court usually allows each side about 30 minutes of argument as was done when it first heard this case in October 2009. But nearly everything about the case has been unusual, including the amount of time the justices have taken to consider it.
One judge of the seven involved in the initial hearing, Chief Justice Robert Davis, has since died and been replaced. A second justice who sat for the first hearing, Eric Rosen, later recused himself without explanation. His substitute on the bench is retired appeals court Judge David Knudsen.
The case raises weighty constitutional questions and also prompts justices to re-examine the validity of a 1990 decision by the Kansas Supreme Court that upheld the law after it met its first major challenge in a case involving a man crippled after his car was struck head-on by a semi truck. None of the current judges was on the court when that case, Samsel v Wheeler Transport Services, was decided.
The case now before the court has potential ramifications for the state's medical community, with doctor and hospital groups claiming malpractice insurance premiums would skyrocket, if the court strikes down the law which caps awards for pain and suffering in malpractice or personal injury cases at $250,000.
Not at issue are the facts in the case which was filed on behalf of Amy Miller, who at the age of 28 had a healthy ovary mistakenly removed by Dr. Carolyn Johnson.
In 2006, a Douglas County jury awarded Miller $760,000 in damages - $360,000 to cover past and future medical expenses and $400,000 for past and future non-economic losses, commonly referred to as "pain and suffering."
The district court judge - future Attorney General Steve Six - reduced the award for pain and suffering by $150,000 so that it wouldn't exceed the cap set in state law.
Juries are not informed of the cap when they are deliberating or returning their verdicts and awards because the law prohibits that. But the law requires judges to later adjust downward jury awards exceeding the cap.
The case was appealed and in April 2009, the Supreme Court took the somewhat unusual step of reaching down to the appellate court and pulling it onto its docket. The state's high court now has had the matter before it for approaching two years.
Kansas Bill of Rights
The arguments heard Friday centered on articles 5 and 18 of the Kansas Bill of Rights, which was approved by the state's founders in 1859.
Article 5 is short and to the point: "Trial by jury. The right of trial by jury shall be inviolate."
Article 18 is slightly longer: "Justice without delay. All persons, for injuries suffered in person, reputation or property, shall have remedy by due course of law, and justice administered without delay."
Miller's attorneys - William Skepnek, Lynn Johnson and Robert Peck - argued that the Legislature in passing the cap law violated those articles by abrogating a judge and jury's power to settle awards as they deem just and that the Kansas Supreme Court when it upheld the law in 1990 was incorrect, perhaps influenced by the politics of the day.
"The Samsel court made the wrong decision that the Legislature can abrogate a constitutional right," Johnson told the justices. "And Samsel saying it can doesn't make it so. There was no basis for the Samsel court's decision."
But attorney Bruce Keplinger, representing Dr. Johnson, said Samsel was a proper ruling and that if there is a problem with the law it is for the Legislature to change, not the courts.
"If the system is to be changed," he said. "That is for the Legislature. The Legislature has this function."
Attorney Steve Day also argued for Dr. Johnson, saying the cap law didn't limit the right to a jury trial or the jury's ability to establish the facts of a case or decide it. He made the point that the constitution doesn't require that juries determine sentences in a criminal trial or set damage awards.
The justices found inconsistencies in arguments from each side and the attorneys faced a barrage of questions from the bench particularly from Justices Carol Beier, Lee Johson and Judge Knudsen. The only justice who asked no questions was Dan Biles, a former Kansas Democratic Party activist. Democrats count trial lawyers among their major supporters and trial lawyers oppose the damages limit.
Last year, anticipating the court likely would strike down the law, the Kansas Medical Society presented a proposed constitutional amendment to the Legislature that would allow jury award limits if the Legislature and voters approved the changes.
The resolution was later recognized as premature and withdrawn.
Jerry Slaughter, executive director of the Kansas Medical Society, said he couldn't guess which direction the court will go on the case based on questions the justices asked Friday.
"It was hard for me to tell from the questions if they're leaning a particular way or not," he said. "My guess is they're not going to have a ruling before the Legislature adjourns so we're probably looking at the session of 2012 before we'd been in a position to do anything. I suppose they could have a decision that would allow the Legislature to tweak the law, but if they strike it down the only solution is to amend the constitution. Unfortunately, for now, we're just kind of stuck in this waiting period and there's absolutely nothing we can do about it."
The justices gave no indication when they might deliver a decision.