The Kansas Senate has taken the initial step to increase the $250,000 cap on noneconomic damages in all personal injury actions, including medical malpractice cases, that was enacted in 1988 but had not increased since then despite inflation. The original Kansas cap on noneconomic damages in medical malpractice cases in the amount of $250,000 that was enacted in 1986 provided for annual adjustments based on the consumer price index (K.S.A. 1986 Supp. 60-3407(d)), but the cost-of-living adjustment was eliminated in 1988 (K.S.A. 60-19a02).
The Senate’s motivation is the 2012 decision by the Kansas Supreme Court that upheld a challenge to the cap but stated, “the legislature’s failure to increase the $250,000 cap on noneconomic damages over the more than 20 years since it first set that amount is troubling to this court … [b]ut despite our concern, we cannot say at this time that the legislature’s failure to increase the statutory cap has sufficiently diluted the substitute remedy to render the present cap clearly unconstitutional when viewed in light of the other provisions in the Act that directly and exclusively benefit a medical malpractice plaintiff.” See our blog posting on October 6, 2012 entitled, “Kansas Supreme Court Upholds Damages Cap In Medical Malpractice Cases.”
In light of the Kansas Supreme Court’s concern that the cap not has not been increased since 1988, the Kansas Medical Society has stated its support of an increase in the cap in order to protect the cap from being possibly struck by the Kansas Supreme Court sometime in the future. However, the Kansas Chamber insists that any increase in the cap be accompanied by changes in the rules of evidence in medical malpractice cases.
On February 26, 2014, the Kansas Senate gave a first-round voice vote approval to a Senate bill that would increase Kansas’ $250,000 cap on noneconomic damages in personal injury actions, including medical malpractice cases, to $300,000 on July 1, 2014, to $325,000 on July 1, 2018, and to $350,000 on July 1, 2022.
The Senate bill also provides, “If a witness is testifying as an expert, upon motion of a party, the court may hold a pretrial hearing to determine whether the witness qualifies as an expert and whether the witness’s testimony satisfies the requirements of subsection (b) of K.S.A. 60-456 … The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing or trial. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible into evidence in order for the opinion or inference to be admitted.”
The Senate bill would also amend the collateral source rule by removing the words “in excess of $150,000” in the following statute (K.S.A. 60-3802): “In any action for personal injury or death, in which the claimant demands judgment for damages [in excess of $150,000], evidence of collateral source benefits received or evidence of collateral source benefits which are reasonably expected to be received in the future shall be admissible.”
If you or a loved one may have been injured by medical malpractice in Kansas or in another U.S. state, you should promptly consult with a Kansas medical malpractice attorney or a medical malpractice attorney in your state who may investigate your medical malpractice claim for you and represent you in a medical malpractice case, if appropriate.
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