Court upholds medical malpractice cap

Decision lets stand a 25-year-old law limiting jury awards in malpractice cases

1 | Courts, Health Care Delivery

— The Kansas Supreme Court today upheld a 25-year-old law capping the amount of damages for pain and suffering that juries can award to victims of medical malpractice. Doctor groups had warned that malpractice insurance premiums would soar, if the law were struck down.

The court's 109-page decision was delivered by Justice Dan Biles.

It was the second time the court has upheld the law, which capped jury awards to victims for "non-economic" damages at $250,000. In 1990, the 1988 law was supported by a majority of the court in the case of Samsel II.

The law limits pain-and-suffering awards in medical malpractice and personal injury cases.

Justices concluded that there was "rational basis" in the Legislature's decision to limit the awards in order to reduce or stabilize malpractice insurance premiums.

Wrong ovary removed

The case, Miller v. Johnson, involved a Douglas County woman who had the wrong ovary removed by her doctor in 2002.

Amy Miller sued Dr. Carolyn Johnson in 2004 and in 2006 was awarded almost $760,000 by the jury for damages. That amount was reduced by $425,000 by District Court Judge Steve Six, citing the state law capping non-economic damages at $250,000. The law requires that juries not be informed of the cap but that judges reduce awards that exceed the limit. Six also rejected $100,000 awarded by the jury for Miller's future medical expenses, citing insufficient evidence for them.

In today's decision, the justices unanimously found that the $100,000 award for future medical costs rejected by Six should be reinstated.

“I’m glad they reinstituted the future medical claims, but I’m disappointed in the decision about the caps,” said Bill Skepnek, an Lawrence attorney who represented Miller in the case.

Skepnek was taking depositions in Wichita when the decision was released. He said he had not had time to read the decision but had heard from others who had.

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KHI News Service file photo

Justice Carol Beier listens during a second round of oral arguments in the case of Miller v. Johnson.

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“I can’t – or shouldn’t – say much,” he said, “because I haven’t had the opportunity to read the full opinion. I’ve just skimmed the key parts.”

Miller's attorneys argued, among other things, that the Kansas Constitution states that a person's right to trial by jury shall be "inviolate," and that the cap imposed by the Legislature infringed on that right.

But the justices concluded that the Legislature's goal of holding down insurance premiums was a reasonable trade-off, though they expressed concern that the cap had not been adjusted since the law was first passed. Lawyers for Miller had argued that inflation had significantly diminished the value of a $250,000 award compared to what it would have been in 1988.

“The court was divided and the justices were really troubled – and I don’t blame them – by the fact that the $250,000 cap, when imposed on the Miller verdict, was about 57 percent of what $250,000 was at the time of enactment of the statute in 1988," said Lee Smithyman, president of the Kansas Bar Association.

Doctors pleased with result

"Obviously, we're very pleased by the outcome," said Jerry Slaughter, executive director of the Kansas Medical Society, a doctors' group that had pledged to seek a constitutional amendment restoring the cap if the court had struck it down.

Slaughter said the cap on damages was the primary factor in "providing the relative tranquility and stability we've had in the medical malpractice environment," since the law was passed.

Another benefit of the decision, he said, was that it was more comprehensive in responding to the constitutional questions than the earlier court ruling and settled "once and for all," that the law was constitutional.

House Speaker Mike O'Neal, a Hutchinson Republican, also praised the decision.

AARP, Kansas Advocates for Better Care and the AFL-CIO were among those who criticized the ruling:

"As long as caps remain the law, all Kansans do not have the hope or the right to the full protection of justice in cases involving medical negligence, nursing home care, violence and abuse, unsafe and dangerous products, auto injuries and many other cases where serious injury results," spokespersons for the three groups said in a joint prepared statement.

Strong dissent

Justices Carol Beier and Lee Johnson wrote strongly worded dissents objecting to the majority's conclusion that the cap was constitutional.

"The majority's decision to uphold the cap flows from what I believe to be its misunderstanding and underperformance of this court's duty to police legislative infringement of Kansas citizens' constitutional rights," Beier wrote.

"Today, in my view, this court has incorrectly and unnecessarily limited jury involvement and allowed a segment of unfairly burdened Kansans to drown while maintaining higher profits for insurance companies and lowers expenses for doctors," Johnson wrote. "Shame on us."

Adjusting the cap?

House Minority Leader Paul Davis, a Lawrence Democrat, called on the Legislature and Gov. Sam Brownback to adjust the cap when lawmakers convene again in January.

"Ms. Miller had to wait six years to be compensated for her injuries solely because of the behavior of a greedy insurance company," Davis said. "This should not happen in Kansas or anywhere."

The Legislature’s as well as the court’s readiness to revisit the issue remains to be seen.

“They had as good a plaintiff as I can imagine,” said Bill Rich, a constitutional expert at the Washburn University law school, referring to Miller. “Someone who had the wrong ovary will be affected by that for the rest of her life. But that’s not an economic damage; it’s a personal loss that can’t be measured in economic terms. Yet the idea that her loss would be capped as such a relatively low level is somewhat shocking."

Rich said he doubted the court would be hearing similar, non-medical malpractice challenges to the cap on non-economic damages anytime soon.

“They could, but it’s unlikely,” Rich said. “That is unless the court decides to show its concern over the cap’s continuing to not to be raised, or if there’s a change in the membership on the court. It’s pretty clear that the justices were divided in this (Miller) decision.”

Related stories

The Kansas Supreme Court now has taken more than three years to decide a case of major importance for the state’s medical providers

Samsel: $250,000 isn't enough

Kansas’ cap on pain-and-suffering awards is not unique

The legal history of Kansas caps

Where Kansas doctors get malpractice insurance

Health Care Stabilization Fund building reserves for looming lawsuit decision

Defensive medicine costs billions of dollars annually

If court throws out caps, medical society has a constitutional amendment ready



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