Medical liability caps face court challenge in Kansas

The Kansas Supreme Court will hear arguments for the second time in a medical liability case centering on whether noneconomic damage caps in the state are constitutional.

The case stems from a 2006 district court ruling that awarded $759,679 to a 28-year-old woman who had the wrong ovary removed during surgery. Obstetrician-gynecologist Carolyn Johnson, MD, acknowledged the mistake after a subsequent scan found the error, according to court documents. The patient, Amy Miller, later had the correct ovary removed.

Of the total award, $400,000 went toward noneconomic damages, which a judge lowered to $250,000 based on a state damage cap established in 1988. William Skepnek, Miller's attorney, appealed the reduction, contending the cap was unconstitutional because juries should have ultimate authority deciding cases without government interference.

The case will be re-argued on Feb. 18 because of changes to the Supreme Court bench since the first hearing, according to the high court. Those changes include the death of Chief Justice Robert E. Davis and the recusal of Justice Eric S. Rosen.

Physician organizations and others have been waiting for an appellate ruling since the case was first heard in 2009. It is the first major constitutional challenge to Kansas' cap since the Supreme Court upheld it in 1990, according to the Kansas Medical Society.

At this article's deadline, KMS officials had not returned calls seeking comment. In a statement issued in May 2010, the medical society said, "If the court invalidates the law, it will most likely be difficult, if not impossible, for the Legislature to correct any constitutional problems by passing additional laws."

Before the cap, liability premiums for Kansas physicians were among the highest in the country. Rates were threatening access to care, especially in rural areas, according to the medical society.

Skepnek believes defeating the cap would be a victory for Kansas citizens.

"I think this case is about individual liberty being protected from the reach of big government," he said. "The idea [in the Bill of Rights] was the jury is the ultimate protector of individual rights."

The legal challenge is one of many across the country in recent years. The Georgia Supreme Court in 2010 struck down the state's $350,000 cap on noneconomic damages, finding it unconstitutional. The Missouri Supreme Court the same year ruled in favor of retaining that state's cap. The Illinois Supreme Court, meanwhile, declared unconstitutional its noneconomic damage cap of $500,000.