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KMS awaits Supreme Court ruling on damages
05.10.10

The centerpiece of Kansas highly effective tort reforms is facing its first serious constitutional challenge since it was upheld by the Kansas Supreme Court in 1990. Even though the Supreme Court affirmed the constitutionality of the cap in a case twenty years ago, it is significant that the Court has agreed to take another look at the law.

The $250,000 cap on non-economic damages, which was enacted by the legislature in 1988 at KMS urging, is widely credited with reversing a decade-long medical malpractice crisis that gripped the state from the mid-1970s until it was passed after a long, bitter legislative fight with the trial lawyers.

The case before the court is Miller v. Johnson, a medical malpractice case which originated in Douglas County District Court. The plaintiff sued over a laparoscopic procedure performed in 2002. In 2006, the jury awarded $759,679, of which $400,000 was for non-economic, or pain and suffering, damages. The district court reduced the award for non-economic damages to $250,000, consistent with Kansas law (KSA 60-19a02). The plaintiff appealed the decision, challenging the constitutionality of the cap on non-economic damages. The plaintiff contends the cap on damages violates four provisions in the Kansas Constitution: the rights of equal protection, trial by jury, and remedy by due course of law, and the principle of separation of powers.

The importance of this case to the overall medical professional liability environment cannot be overstated. Since the enactment of the $250,000 cap on non-economic damages the professional liability situation in Kansas has been remarkably stable and reasonable compared to other states. Prior to passage of the cap, Kansas professional liability premiums paid by physicians had increased to among the highest in the country, and were threatening access to care, particularly in the rural areas. If the law is struck down, physicians and hospitals can expect their liability costs to spike upwards almost immediately. The extent of the impact is difficult to predict, but most insurance experts agree that it will be significant.

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. In that case, the only remaining option would be to seek a constitutional amendment to make it clear that the legislature has the authority to enact tort reforms. KMS Executive Director Jerry Slaughter expects a contentious fight with the trial lawyers over this issue. We are preparing for a difficult, costly campaign to get a constitutional amendment on the ballot and approved by the voters either in August or November 2010, he said. Though it would be very disruptive in the short run, if the law is struck down we will vigorously pursue a constitutional amendment, and use this opportunity to settle the question of whether the Legislature has the authority to enact sensible tort reforms, including the cap on non-economic damages, as well as other reforms that deserve consideration.

The case was heard by the Supreme Court on October 29, and a decision is expected by early 2010. None of the seven justices on the present court was involved in the 1990 decision which originally upheld the cap on non-economic damages. Only one, Robert Davis, the chief justice, was in the judiciary at that time. He was a member of the Kansas Court of Appeals. Justice Davis was appointed by Governor Joan Finney in 1993. Governor Bill Graves appointed two justices: Lawton Nuss (2002) and Marla Luckert (2003). Governor Kathleen Sebelius appointed the remaining four justices: Carol Beier (2003), Eric Rosen (2005), Lee Johnson (2007), and Dan Biles (2009).