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Challenge to Kansas Damages Cap

Constitutional challenge to Kansas' Damages Cap

Nationwide, both the legal and medical communities await the ruling of the Kansas Supreme Court on the proper constitutional limits of the legislature to limit caps on non-economic damages. The current law, enacted in 1988, limits jury awards for non-economic damages to a maximum of $250,000, regardless of any higher amount the jury may award.

The case involves 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. The Supreme Court originally heard the case in 2009. Later, one of the justices died. Another recused himself for reasons unspecified. In another unusual step, the case was re-heard by the Court on February 18, 2011.

If it strikes down the cap, the Court's decision could drastically alter the legal landscape. As it stands, the value of every medical malpractice case is greatly affected by the cap. It is more difficult to find an attorney willing to take personal injury cases where the earning capacity of the plaintiff is low, or where the medical expenses incurred as a result of the medical negligence are moderate. Without an experienced trial lawyer, a plaintiff's chances of prevailing in court against defense attorneys are severely impaired.

Consider, for example, the case of a young woman whose face is permanently disfigured as a result of medical negligence. Her medical expenses incurred for corrective purposes may be $100,000. The "non-economic" damages a jury may award could be several thousand dollars. Nevertheless, under the current law, the judge would be forced to reduce the award to the amount of the cap, $250,000.

In another example, a doctor's negligent surgery requires the amputation of a previously healthy leg. The cost of follow-up medical services may be less than $50,000. To be made whole, the plaintiff's "non-economic" damages may be several thousand dollars, as a jury may decide. Again, the judge would be forced under the current law to reduce the award to $250,000.