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July 16, 2012
TOPEKA Kansas’ legal cap on the amount juries can award for “non-economic damages” in cases of medical malpractice or personal injury is not unique.
At least 27 states have similar limits on damages for “pain and suffering.” And in at least 16 states, courts have ruled that the caps were constitutional.
In recent years, however, at least 11 states have seen their caps overturned.
In February 2010, the Illinois Supreme Court found that state’s limit on non-economic damages was unconstitutional. The caps in Illinois were considerably higher than the $250,000 limit in Kansas. There, the cap was $500,000 for awards against doctors and $1 million for awards against hospitals.
In March 2010, the Georgia Supreme Court overturned that state’s $350,000 cap, saying it violated an individual’s right to a jury trial.
Georgia’s Constitution, like the Kansas counterpart, declares the right to trial by jury “shall remain inviolate.”
So far, the lifting of the Georgia cap hasn’t produced a spike in malpractice premiums there.
“It’s true, we did lose the cap on non-economic damages in 2010,” said Donald J. Palmisano Jr., executive director with the Medical Association of Georgia. “But the cap was just one of a number of tort reforms that were passed in 2005 and that, since then, have improved the practice environment in Georgia. We have more physicians coming into the state, we have more liability carriers and we have fewer claims filed.”
Whether that trend would be reversed by the court ruling remains to be seen, he said.
“The cases that would be affected by the 2010 ruling are just now entering the pipeline,” Palmisano said. “It’ll probably be a year or two before we know what the impact will be.”
Robert Peck, an appellate attorney and president of the Center for Constitutional Litigation in Washington, D.C., cautioned against reading too much into the Georgia and Illinois rulings.
“What we’re seeing are waves,” Peck said. “A number of states in the late 1980s started striking down these caps, and then new caps were passed. And then in the mid- to late 1990s there was another wave of states striking them down or upholding them. This (Illinois and Georgia) is the latest wave.
“It should not be called a trend because it seems to go back and forth,” said Peck, who presented oral arguments on behalf of Amy Miller during the Kansas Supreme Court’s second hearing of Miller v. Johnson.
Just as each state’s constitution is different, no two caps are exactly alike, he said.
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