Kansas Supreme Court Upholds Damages Cap In Medical Malpractice Cases

In its opinion published on October 5, 2012, the Supreme Court of the State of Kansas (“Kansas Supreme Court”) upheld Kansas’ $250,000 cap on noneconomic damages in medical malpractice cases as constitutional. The case is captioned Miller v. Johnson, Case No. 99,818 (“Miller case”).  In the Miller case, the Plaintiff, Amy C. Miller, sued her doctor, who mistakenly removed her left ovary during a laparoscopic surgery intended to remove her right ovary, and a jury awarded her $759,679.74 in damages. Despite the jury’s verdict, the trial court reduced that amount by $425,000 because of a state law limiting noneconomic damages in personal injury lawsuits.

In its written opinion in the Miller case, the Kansas Supreme Court stated as follows:

K.S.A. 60-19a02 was enacted in 1988. L. 1988, ch. 216, sec. 3. It limits the total amount recoverable to $250,000 for noneconomic loss in any personal injury action, including medical malpractice claims. “Noneconomic losses include claims for pain and suffering, mental anguish, injury and disfigurement not affecting earning capacity, and losses which cannot be easily expressed in dollars and cents.”

Miller [the medical malpractice plaintiff] argues the statutory cap violates: (1) the right to jury trial under Section 5 of the Kansas Constitution Bill of Rights; (2) the right to remedy by due course of law under Section 18 of the Kansas Constitution Bill of Rights; (3) the equal protection provision of Section 1 of the Kansas Constitution Bill of Rights; and (4) the doctrine of separation of powers …

(1) Section 5 Of The Kansas Constitution Bill Of Rights: Miller’s “Right To Trial By Jury” Analysis

(2) Section 18 Of The Kansas Constitution Bill Of Rights: Miller’s “Right To A Remedy” Analysis

… given the jury’s historic role in determining noneconomic damages based on the facts of each case, we follow our existing caselaw and hold that K.S.A. 60-19a02 encroaches upon the rights preserved by Section 5. This encroachment, however, does not necessarily render K.S.A. 60-19a02 unconstitutional under Section 5 …

We begin our analysis by examining how this court has previously addressed the limitations on the legislative power to modify common-law rights under Section 5 by tying that determination to the substitute remedy analysis used in Section 18 right-to-remedy cases—commonly referred to as a “quid pro quo” (this for that) …

We hold that a quid pro quo analysis is appropriate for determining Miller’s Section 5 right-to-jury trial claims against K.S.A. 60-19a02 …

A two-step analysis is required for the quid pro quo test. For step one, we determine whether the modification to the common-law remedy or the right to jury trial is reasonably necessary in the public interest to promote the public welfare. This first step is similar to the analysis used to decide equal protection questions under the rational basis standard … For step two, we determine whether the legislature substituted an adequate statutory remedy for the modification to the individual right at issue. This step is more stringent than the first because even if a statute is consistent with public policy, there still must be an adequate substitute remedy conferred on those individuals whose rights are adversely impacted …

… we move next to the first step in the two-step analysis to consider whether the noneconomic damages cap is reasonably necessary in the public interest to promote the public welfare … We hold that it is …

Moving to the second step, we must determine whether the legislature substituted an adequate statutory remedy for the modification of the individual rights at issue, which in this case concerns the constitutional protections afforded to Miller by Section 5 and Section 18 … We hold that it does …

It is also noteworthy that there is no cap on total damages awarded in the verdict … Therefore, the deprivation caused by K.S.A. 60-19a02, although very real, is limited in its scope. This is a substantial consideration when deciding how adequate the substitute remedy provided by the legislature must be …

For Miller, having an available source of recovery of the statutorily mandated minimums provides her with a significant, individualized substitute remedy … a judgment that cannot be collected is worthless. So under this statutory scheme, Miller has an obvious direct benefit not available to all others. But this alone does not necessarily settle the question whether the legislatively substituted remedy is adequate. Also important is the amount of the cap; and as to this, there is a reasonable question 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 …

This leads us to Miller’s argument that the passage of time has rendered the statutory cap unconstitutional. And admittedly, 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 … But 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. As we have noted previously, “[e]ach case must be decided on its own merit, for our law does not require a complete balance and equality between the benefits conferred by statute in the place of the common-law remedy.” … We hold that the legislature has substituted an adequate statutory remedy for the modification of the individual rights at issue, which in this case concern the constitutional protections afforded to Miller by Section 5 and Section 18.

(3) Equal Protection Analysis

Miller begins her equal protection attack by arguing that the cap disparately impacts women and the elderly … Miller offers nothing to show the cap was motivated by an intent to discriminate against women or the elderly … Our own review of the legislative history fails to disclose any such discriminatory purpose. We hold the cap “is not unconstitutional based solely on its ‘disparate impact.'”

… Miller contends the noneconomic damages cap should be evaluated under the strict scrutiny standard because it affects her fundamental rights of trial by jury and remedy by due course of law. But the problem with this strict scrutiny argument is that the jury trial right under Section 5 and the right to remedy under Section 18 have never been held to be fundamental rights for equal protection purposes … we agree the rational basis standard applies to Miller’s equal protection challenge. We apply it because K.S.A. 60-19a02 is economic legislation. It is well-established that statutes limiting liability and recovery of damages, like the restriction on noneconomic damages in K.S.A. 60-19a02, are considered social and economic legislation that trigger application of the rational basis test.

… Miller argues K.S.A. 60-19a02 fails to meet the rational basis standard, citing the information she proffered to the district court alleging there was no credible evidence of a medical malpractice insurance crisis or that it was caused by medical malpractice and tort litigation awards …

But … the legislative history and evidence offered by the parties and the amici show there was—and still is—conflicting evidence regarding the existence and causes of the medical malpractice insurance and liability insurance “crises” and whether there is any necessity for, or efficacy of, a cap on noneconomic damages …

The legislature enacted K.S.A. 60-19a02 in an attempt to reduce and stabilize liability insurance premiums by eliminating both the difficulty with rate setting due to the unpredictability of noneconomic damages awards and the possibility of large noneconomic damage awards …

… there is evidence within the legislative history of K.S.A. 60-19a02 demonstrating a rational basis for limiting noneconomic damages and treating more egregiously injured plaintiffs differently by the setting of a statutory cap on such damages. We hold that it is “reasonably conceivable” under the rational basis standard that imposing a limit on noneconomic damages furthers the objective of reducing and stabilizing insurance premiums by providing predictability and eliminating the possibility of large noneconomic damages awards … We hold the statutory cap of K.S.A. 60-19a02 does not violate the equal protection guarantees of Section 1.

(4) Separation Of Powers Analysis

Miller argues that the noneconomic damages cap enacted by the legislature abolishes the judiciary’s authority to order new trials and robs judges of their judicial discretion by functioning as a statutory remittitur effectively usurping the court’s power to grant remittiturs … we disagree with Miller’s characterization of the cap as a statutory remittitur … The cap is not a “statutory remittitur” because it is not conditioned on an erroneous verdict, nor is it conditioned on the prevailing party’s acceptance …

… the question presented is whether it violates the separation of powers doctrine when the legislature enacts statutes that restrict when a trial court may order a new trial in lieu of additur or remittitur …

… a court’s authority to grant a new trial is limited to the six enumerated grounds provided by the legislature in K.S.A. 60-259(a), which became effective January 1, 1964 … The balance of the applicable factors weighs against finding that the cap’s implicit prohibition on granting a new trial when an award of noneconomic damages is inadequate below the $250,000 cap significantly interferes with judicial power. Accordingly, we hold the cap does not violate the separation of powers doctrine …

The Dissents

The Kansas Supreme Court’s decision was not unanimous. One of the two dissents stated:

What the majority fails to appreciate is that what may have been a mere common-law right to jury trial on the day before ratification of Section 5 was no longer a mere common-law right from ratification onward. Ratification expressed the people’s choice to elevate the common-law right to jury trial to enumerated constitutional status. That status put it beyond everyday legislative meddling. The people entrusted juries with the task of deciding damages. The legislature’s unwillingness to do so—because it has been persuaded by one side with a dog in the fight—requires endorsement by the people before it can enjoy the force of law …

The statute’s cap on noneconomic damages violates plaintiff Miller’s right to jury trial. Even if I accepted that Section 18’s quid pro quo test is met, which, as discussed in the next section, I do not, the test cannot excuse impairment of this inviolate, individual constitutional right …

Under the quid pro quo test, if a statute abolishes or restricts a remedy protected by Section 18, it is unconstitutional unless (1) the modification was reasonably necessary in the public interest to promote the general welfare of the people of the state; and (2) the legislature has provided an adequate substitute remedy for the right that has been abolished or limited …

Can the adequate substitute remedy requirement be satisfied with benefits that accrue to society in general or must there be an individual quid, i.e., a direct benefit to each person in the class forced to surrender a remedy? … Many of our precedents suggest that a substitute remedy must provide a direct benefit to individuals … I would hold today that an adequate substitute remedy is one that provides an individual benefit to each person in the class of plaintiffs whose constitutional right to remedy is impaired. Section 18 protects an individual right—the right of every person to the remedies that existed at common law for injuries to his or her person, property, or reputation …

The requirement of an individual quid also is imperative because the first step of the Section 18 quid pro quo test focuses only on the public necessity for the legislation. Standing alone, it provides no protection for the individual right at stake. It is only the second step of the test that ensures the right to remedy cannot be “wholly sacrificed to the popular will.”

I would hold that the legislature has failed to provide any substitute remedy—much less an adequate one—in exchange for its elimination of plaintiff Miller’s right to her award of noneconomic damages greater than $250,000.

In a separately written dissent, it was stated:

In short, if the problem to be solved here really is the availability and cost of medical malpractice insurance, a solution exists that would place the burden on those directly responsible for the problem rather than on their victims. The overall quality of medical care for Kansas citizens would be enhanced because unskilled and careless doctors would be priced out of the malpractice insurance market and unable to practice legally in this State. In contrast, the Cap creates the ultimate irony: Chronically inept and careless doctors are encouraged to locate in Kansas and continue to maim and injure their patients, because those injured patients will help subsidize affordable malpractice premiums through an artificial and arbitrary reduction in collectible damages. Remembering that doctors who exercise the appropriate level of skill and care do not commit malpractice and do not create malpractice insurance crises, one has to wonder whether the legislative goal in fixing the Cap was to increase the availability of doctors who frequently get sued. That is the effect, if not the intent, and I am amazed that the electorate in Kansas is content to let that circumstance continue …

Finally, to state the obvious for us in the legal profession, the amount of noneconomic damages that will compensate a malpractice victim is determined by a jury composed of regular Kansas citizens—not by a “liberal activist judge” or a “greedy plaintiff’s attorney.” Our friends and neighbors who are doing their civic duty of serving as jurors, and who have no personal interest in the outcome of the case, assess the evidence and fix the amount of damages that are appropriate. Having been called to jury duty myself, I am offended by the legislature’s suggestion that Kansas citizens cannot be trusted to determine the appropriate amount of damages on the facts before them. It is at least curious that those legislators who crow about serving in the “people’s body of government” would effectively disenfranchise the people they represent by negating their votes as jurors.

Unfortunately, the most affluent and advantaged people in our society often get what they want at the expense of the least fortunate among us whose voice is not loud enough to be heard. Sometimes, juries and the courts will act as life preservers for these burdened minorities. Today, in my view, this court has incorrectly and unnecessarily limited jury involvement and allowed a segment of unfairly burdened Kansans to drown while maintaining higher profits for insurance companies and lower expenses for doctors. Shame on us.

Click here to read the Miller case in its entirety (including the dissents).

If you may be the victim of possible 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 be willing to investigate your medical malpractice claim for you.

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This entry was posted on Saturday, October 6th, 2012 at 11:54 am. Both comments and pings are currently closed.

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