Ruling upholding Kan. cap on damages called unjust

TOPEKA, Kan. -- An attorney for a Kansas woman who challenged a limit on damages for pain and suffering in lawsuits says a state Supreme Court ruling against his client is unjust.

Attorney William Skepnek said Friday he's disappointed the state won't trust juries to determine what represents adequate compensation for people who are injured.

Kansas law limits damages for non-economic losses such as pain and suffering to $250,000 in personal injury lawsuits.

Skepnek represents Eudora resident Amy Miller. She sued her doctor after the doctor removed the wrong ovary during surgery in 2002.

A jury in Douglas County awarded Miller nearly $760,000, but a judge reduced the award because of the cap.

Skepnek said Friday's ruling means people who are hurt will continue to be undercompensated by the courts.

THIS IS A BREAKING NEWS UPDATE. Check back soon for further information. AP's earlier story is below.

Kansas can continue to limit pain and suffering compensation awards in personal injury lawsuits to $250,000, the state Supreme Court ruled Friday, upholding a lower court decision that slashed damages offered to a woman whose doctor removed the wrong ovary from her in 2002.

Eudora resident Amy Miller appealed a Douglas County district judge's decision to cut the nearly $760,000 in damages she received in a medical malpractice lawsuit in 2006, an award that included $575,000 for non-economic losses.

Business and medical groups urged the justices to uphold the 1988 law, arguing that it keeps insurance premiums affordable and creates a better economic climate.

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. Still, in Friday's ruling, the court rejected arguments from Miller's attorneys that the cap violated the Bill of Rights of the Kansas Constitution. One section says the right to trial by jury shall be "inviolate," and another guarantees the right to "remedy by due course of law."

However, the court returned the case to Douglas County with an order that the district court reinstate $100,000 in damages awarded by the jury for Miller's future economic losses, which the judge also rejected.

In Friday's 5-2 ruling, the Supreme Court acknowledged that the cap affects rights guaranteed by the Bill of Rights but said the justices have long recognized that legislators can take such a step if an "adequate substitute remedy" is provided. It said that in Miller's case, the substitute is a state law requiring doctors to carry malpractice insurance, creating a guarantee that awards against them will be paid.

The justices also noted that Kansas has no cap on awards for economic damages, as some other states do. The majority said it wasn't fully convinced that the 1990 ruling was incorrect, even though it is "troubling" that the cap on non-economic damages hasn't increased to account for inflation since the law's enactment.

The dissenters, Justices Carol Beier and Lee Johnson, said the cap violates the state constitution's Bill of Rights.

"The majority's decision to uphold the cap flows from what I believe to be its misunderstanding and underperformance of this court's duties to police legislative infringement of Kansas citizens' constitutional rights," Beier wrote in a separate opinion.

Miller did not immediately return a telephone message seeking comment. Attorney William Skepnek also wasn't immediately available to comment.

Groups such as the AARP, the Disability Rights Center of Kansas and the state's Coalition Against Sexual and Domestic Violence joined Miller's attorneys in arguing that the cap discriminates against women, the elderly and the disabled. They argued that non-economic damages tend to make up a larger percentage of their awards in lawsuits because their wages tend to be lower or they're retired.

The court rejected those arguments as well. In the majority's opinion, Justice Dan Biles wrote that it's "reasonably conceivable" that the cap stabilizes insurance premiums.

According to the American Medical Association, more than half of the states limit non-economic damages. In July, the Missouri Supreme Court struck down that state's $350,000 limit on non-economic damages in medical malpractice lawsuits.

The ruling follows years of frustration among conservative Republicans with the Supreme Court's decisions on a range of cases, fueling unsuccessful efforts to change how members of the state's appellate courts are selected. Currently, a nominating commission screens applications for openings in the appellate courts and picks two or three finalists for the governor to consider, with no role for legislators.


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



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