Topeka ? A measure before the Legislature would put into the Kansas Constitution the power of legislators to limit non-economic damages in personal injury cases.

The proposed constitutional amendment has been seen as a pre-emptive strike against a possible ruling by the Kansas Supreme Court in a Douglas County medical malpractice case.

Amy Miller, of Eudora, has challenged state law that caps non-economic damages, such as pain and suffering, to $250,000. In 2002, Miller went in for surgery for removal of her right ovary, but her left ovary was removed by mistake.

Miller claims the $250,000 cap, approved by the Kansas Legislature in 1988, is unconstitutional because it usurps the jury’s role n calculating malpractice damages and infringes in the separation of powers between the courts and Legislature.

But groups representing physicians, insurance companies and businesses support the cap, saying it provides consistency to the legal system.

Miller’s appeal is before the Kansas Supreme Court, which hasn’t indicated when it will rule. Legislators who support the cap have said that if the court overturns them on constitutional grounds, then the Legislature should ask voters to amend the constitution to allow for the caps.

The measure is House Concurrent Resolution 5036. It would amend the Kansas Constitution by saying the Legislature may enact laws limiting the amount of non-economic damages awarded for any claim for personal injury.

If approved by two-thirds of the House and Senate, the measure would be on the November ballot for Kansas voters to decide.