Kan. SC upholds cap on noneconomic damages

John O'Brien Oct. 5, 2012, 12:52pm


TOPEKA, Kan. (Legal Newsline) - The Kansas Supreme Court has upheld a $250,000 cap on noneconomic damages in medical malpractice cases.

The Kansas legislature passed the cap, which limits awards for pain and suffering, more than 20 years ago. Amy Miller, a woman who sued after her doctor removed the wrong ovary, challenged the constitutionality of the cap.

The justices heard arguments three years ago, then reheard them in February 2011. They upheld the cap in a 5-2 vote.

Justice Dan Biles authored the majority opinion. He noted the focus on the case.

"This statute is one of several enacted to reform our state's tort laws, and it has been a subject this court has visited - and revisited - in prior cases with conflicting outcomes. It represents a long-standing and highly polarizing question nationwide," he wrote.

"The continuation of this controversy no doubt contributed to the larger-than-usual volume of briefs received in this appeal from the parties and their allied interests."

It was the second time the cap has been upheld. The first came in 1990.

Miller was awarded a total of $759,679.74 in damages, but then-Douglas County Circuit Court Judge Stephen Six reduced the $575,000 noneconomic damages award to comply with the cap. Six later served as the state attorney general from 2008-11.

This summer, the Missouri Supreme Court struck down the state's cap on noneconomic damages in medical malpractice cases, ruling that it violates a right to jury trial by taking the power to determine a proper amount of damages out of a jury's hands.

Mississippi's cap is also being challenged. A federal court asked the state Supreme Court for its opinion on the cap's constitutionality, and a state judge ruled it unconstitutional in April in another case.

In 2011, the West Virginia Supreme Court upheld a cap. The Illinois and Georgia supreme courts struck their states' caps down in 2010.

From Legal Newsline: Reach John O'Brien at jobrienwv@gmail.com.

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