TOPEKA—A five-member majority of the Kansas Supreme Court today upheld the constitutionality of a Kansas statute limiting a medical malpractice plaintiff's jury award for non-economic damages to $250,000. The Kansas legislature enacted the damages limitation in 1988 as part of an effort to restrict personal injury lawsuits based on a belief that a statutory cap would reduce medical malpractice insurance rates and make insurance more readily available to physicians and others in the state. Two justices dissented from the majority decision.
The medical malpractice plaintiff, Amy C. Miller, sued Dr. Carolyn N. Johnson in Douglas County District Court for mistakenly removing her left ovary during a surgery intended to take the right ovary. The jury found the doctor at fault and awarded Miller $759,679.74 in damages. But $575,000 of that award was for noneconomic loss subject to the $250,000 limit, so the trial judge lowered the judgment to comply with the statute. Non-economic loss typically includes pain and suffering, mental anguish, injury and disfigurement not affecting earning capacity. Miller appealed and challenged the statute's constitutionality, as well as the judge's post-trial ruling that reduced her claim for future medical expenses. Dr. Johnson also appealed, claiming Miller failed to prove malpractice caused her injuries and that the trial judge improperly restricted expert witness testimony.
In the court's majority decision, Justice Dan Biles acknowledged that the constitutionality of statutory caps on jury awards was "a long-standing and highly polarizing question nationwide." He noted two other Kansas Supreme Court decisions had reached contradictory results on the subject in 1988 and 1990. But in the decision filed today, the majority held that K.S.A. 60-19a02 did not violate a medical malpractice plaintiff's right to a jury trial, right to remedy by due course of law, right to equal protection under the law, or the separation of powers doctrine under the Kansas Constitution.
Justices Carol A. Beier and Lee A. Johnson dissented in part. They would have held that the statutory cap violated Miller's constitutional rights to trial by jury and remedy by due course of law, while reserving judgment on the equal protection challenge. All seven members of the court agreed the statute did not violate the constitutional separation of powers doctrine.
In another portion of the decision that drew unanimous agreement, the Supreme Court reinstated $100,000 in future medical expenses the jury awarded Miller that had later been struck by the trial judge in post-trial rulings. The Supreme Court held there was sufficient evidence to support the jury's determination for those future medical expenses. The Court's decision means Miller's damages award will be set at $84,679.74 for medical expenses incurred up to trial, $100,000 for future medical expenses, and $250,000 for noneconomic damages. The Supreme Court unanimously rejected Dr. Johnson's arguments in her appeal. It remanded the case to Douglas County District Court for further proceedings to conform to the Supreme Court's decision.
On the constitutional challenges, the majority of the court held that "Our court has long recognized that the legislature may modify the common law in limited circumstances," as long as the legislature provides an adequate substitute remedy or quid pro quo. The majority said retreating from that holding now would call into question the constitutionality of the state's longstanding Workers Compensation Act and the Kansas Automobile Injury Reparations Act, which establishes no-fault insurance. The decision relied in part on the statutory cap's relationship to the Health Care Provider Insurance Availability Act. That Act requires that all health care providers maintain liability insurance with designated levels of excess coverage. It further requires every health insurer to contribute to a plan that covers health care providers who cannot acquire insurance through ordinary methods.
While upholding the constitutionality of the statute, the court's majority cautioned that the legislature's failure to increase the $250,000 cap in the more than 20 years since it was first adopted was "troubling" because inflation had eroded its value by 57 percent. "There is a reasonable question," the majority decision stated, "as to the continued adequacy of the $250,000 limitation that has admittedly devalued over time due to the legislature's failure to adjust it."
In an unusual occurrence, this case was argued to the Supreme Court on two separate dockets, first in 2009 and then 2011 because of changes to the court's composition while the case was pending. After 2009, Justice Eric S. Rosen recused and Senior Judge David S. Knudson sat in his place, while then Chief Justice Robert E. Davis retired following an extended illness and Justice Nancy Moritz was appointed by the governor to fill that vacancy.