Med Mal Damage Cap Upheld by Kansas Supreme Court

Kansas Supreme Court
Seated left to right: Hon. Marla J. Luckert, Hon. Lawton R. Nuss, Chief Justice; Hon. Carol A. Beier.
Standing left to right: Hon. Dan Biles, Hon. Eric S. Rosen, Hon. Lee A. Johnson, and Hon. Nancy Moritz

Amy C. Miller sued her surgeon Carolyn Johnson, who mistakenly removed Miller's left ovary during a surgery intended to take the right ovary. A Kansas jury awarded her $759,679.74 in damages. But the trial judge reduced that amount by $325,000 because a state law limited non-economic damages to $250,000 in personal injury lawsuits. On October 5 the state Supreme Court upheld the cap in Miller v. Johnson.  The majority analogized the limits to the tradeoffs which justified the removal of workplace injuries to the administrative remedies of workers compensation.  But as the dissent pointed out those remedies do the injured worker some good by providing a sure and swift remedy.

Section 5 of the Kansas Constitution's Bill of Rights protects the right to trial by jury. It states: "The right of trial by jury shall be inviolate." That right is plainly infringed by the damages cap which abrogates the traditional power of the jury to make whole the victim of a tort.  But, the court held, there is no infringement if the Legislature provides an adequate substitute - a quid pro quo.  Here the court found that the statute compelled every physician to carry at least $200,000/claim insurance ($600,000 annual aggregate).  It also created an excess insurance fund.  The measure thus assured "the prospects for recovery of at least the statutory minimums directly available as a benefit to medical malpractice plaintiffs when there is a finding of liability. This is something many other tort victims do not have."

Justice Carol Beier, in an exhaustive dissent, rejected the holdings, saying that the quid pro quo must be one that serves the person whose individual right is infringed - not just accomplish some general societal good:

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.

JusticeLee  Johnson joined Beier's dissent - adding a populist peroration:

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. 

h/t  Torts Prof Blog