Kansas liability cap faces high court challenge

The constitutionality of the $250,000 limit on noneconomic damages in all personal injury cases previously had been upheld by the state Supreme Court.

By Amy Lynn Sorrel — Posted Nov. 30, 2009

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Kansas' stable medical liability climate could come unhinged if a long-standing cap on noneconomic damages is overturned, state physicians warned.

A constitutional challenge to the $250,000 cap, which applies to all personal injury cases, stands before the state Supreme Court after justices heard oral arguments on Oct. 29.

The case stems from a $759,000 jury verdict in 2006 to Amy C. Miller, who underwent an oophorectomy that allegedly went awry. The physician involved denied any wrongdoing. A trial judge later reduced the award to the state's cap.

The high court directly took up Miller's appeal of the ruling, in which she contends that the award limit infringes on the jury's role in determining damages and violates the separation of powers between the Legislature and the judiciary, among other claims. The Kansas Assn. for Justice, a trade group for state trial lawyers, filed a friend-of-the-court brief in the case, Miller v. Johnson, backing those arguments.

Physicians say the law limiting noneconomic damages strikes a balance between ensuring access to medical care and ensuring patient rights.

Kansas Medical Society Executive Director Jerry Slaughter credited the cap, passed in 1988, with keeping the state's medical liability climate steady for two decades and keeping doctors in practice. Before the cap was passed, a period of rising rates forced many physicians to leave. KMS also filed a brief in the case.

Slaughter said the cap was part of a comprehensive set of reforms aimed at guaranteeing fair compensation to patients. For example, there is now an additional patient compensation fund, and all physicians are required to carry liability insurance.

"You have to look at the sum total of our law. It recognizes that if we want good medical care in our state, we have to provide some stability in our medical-legal environment or we simply won't be able to assure those services will be available," he said.

The cap's constitutionality was upheld once before by the high court in a 1990 decision, Samsel v. Wheeler.

Miller's attorney, William J. Skepnek, said the statute does not provide an adequate remedy for seriously injured patients and makes it difficult for many legitimate, often expensive, claims to get to court.

"It creates a de facto privilege [for doctors], and constitutionally we abhor the idea that any class or group are exempt from the law or responsibility for what they do," Skepnek said.

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