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Kansas court upholds limits on damages in lawsuits

JOHN HANNA, Associated Press
Friday, 5 Oct 2012 | 11:33 AM ET

TOPEKA, Kan. -- Kansas will continue to limit compensation for pain and suffering to $250,000 in personal injury lawsuits following a state Supreme Court ruling Friday in the case of a woman whose doctor removed the wrong ovary from her in 2002.

Amy Miller, a hospital records worker from the northeast Kansas town of Eudora, had challenged the cap in her appeal of a Douglas County district judge's ruling in her medical malpractice lawsuit against her doctor. A jury awarded her nearly $760,000 in damages in 2006, but the judge cut the amount by more than half, largely because of the state's cap on non-economic damages.

Business and medical groups in Kansas had urged the court to uphold the cap, arguing that it keeps medical malpractice and other types of insurance affordable and creates a better economic climate. The limit also has strong support in the state's Republican-dominated Legislature, which has refused to increase it or eliminate it in the past.

Even though Friday's ruling satisfied business groups and their political allies, it's not likely to slake GOP conservatives' desire to give legislators and the governor more influence over how appellate court members are selected. The Supreme Court faced criticism because the case had been on appeal since 2008.

Critics of the cap, who included AARP and advocacy groups for the disabled and domestic abuse victims, had hoped for a ruling similar to one in Missouri in July, when that state's highest court struck down a similar limit on non-economic damages in lawsuits. The Kansas justices expressed misgivings in their 5-2 decision about their state's cap but still upheld the policy, in place since 1988.

The Kansas court ruled in Miller's favor on some issues, validating the malpractice and ordering the lower court judge to reinstate $100,000 in damages for future economic losses that he'd rejected. But William Skepnek, one of her attorneys, said the result remains surprising and "unjust" for Miller, a mother of two who at 38 is unable to have more children.

"It's really a shame that we don't trust juries and we're just going to make sure that people who are badly hurt are undercompensated," Skepnek told The Associated Press.

The high court already upheld the law in a 1990 ruling, but none of the seven current justices were on the court at the time. In the majority opinion, Justice Dan Biles said it's "troubling" that legislators haven't increased the cap in nearly a quarter century to account for inflation and other changes.

Yet the majority rejected arguments from Miller's attorneys that the cap violated a section of the state constitution's Bill of Rights declaring the right to trial by jury "inviolate," and another guaranteeing the right to "remedy by due course of law." The dissenters were Justices Carol Beier and Lee Johnson.

House Speaker Mike O'Neal, a Hutchinson Republican and an attorney who helped write the law, said the policy on damages has been well-settled. He said it stabilized insurance costs which once posed "a threat to the delivery of health care."

According to the American Medical Association, a majority of states limit non-economic damages in lawsuits.

"This is a long time to wait, but I'm not going to criticize the court for not reaching a decision in a prompt fashion," said O'Neal, who's stepping down in January and has been hired as president and CEO of the powerful Kansas Chamber of Commerce, which backed the cap.

The anti-tax, small-government group Americans for Prosperity was less charitable. It endorsed the result, but state director Derrick Sontag said it's "inexcusable" for the court to have taken so long to rule.

He said the lack of ruling until now pointed to a need to change the current process for selecting appellate court members. A nominating commission screens applicants for appellate court positions, selecting two or three finalists for the governor, with no role for legislators.

Meanwhile, Skepnek said Miller continues to face health issues.

She initially agreed to surgery to remove her right ovary after suffering from abdominal pain since childhood. Her doctor, Carolyn N. Johnson, removed the left ovary instead, and Miller's pain persisted.

Later, Miller had her right ovary removed as well, ending the pain. But Skepnek said she faces a lifetime of hormone therapy and must take blood thinners to avoid clots, which results in easy bruising and other health issues.

"As a man, how would you feel about being castrated? For a woman who loses her ovaries, it's the same thing," Skepnek said. "That limits the quality of your life. That affects your happiness."

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The case is Amy C. Miller v. Carolyn N. Johnson, M.D., No. 99, 818.

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Online:

Kansas Supreme Court: http://www.kscourts.org

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Follow John Hanna on Twitter at www.twitter.com/apjdhanna