In late October, the Kansas Supreme Court heard oral argument in a case challenging the state's $250,000 cap on noneconomic damages. The Kansas cap has been in place since its enactment in 1988. The case giving rise to the challenge involves a woman whose right ovary was removed by mistake instead of her left. Thr jury awarded $250,000 for noneconomic losses, $150,000 for future noneconomic losses, $84,680 for medical expenses, $100,000 for future medical expenses, and $175,000 for loss or impairment of services as a spouse.
On posttrial motions, however, the trial judge remitted the damages award striking the $150,000 for future noneconomic losses and the $100,000 for future medical expenses. The plaintiff challenged the judge's reduction of the $150,000 on the basis that the cap unconstitutionally infringes on the rights of the most injured invididuals and violates the separation of powers between the judicial and legislative branches of state government.
The attorneys at Belsky, Weinberg and Horowitz will continue to monitor this important case. In prior blog posts, we have discussed the unfairness of noneconomic caps. There is no reliable data supporting the connection between non-economic damage caps and decreases in medical malpractice insurance premiums. The American Bar Association (ABA) has spoken out against a national cap, basing its position on the lack of empirical data showing caps have resulted in lower insurance premiums for physicians and other health care providers. We believe, as do many other law firms and organizations, that non-economic damage caps protect those responsible for committing the wrong and disproportionately impact those who have suffered the worst injuries.