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Archive for Friday, March 12, 2010

Measure seeks constitutional protection of cap on legal awards

March 12, 2010, 9:03 a.m. Updated March 12, 2010, 9:03 a.m.

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— 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.

Comments

Ron Holzwarth 4 years, 9 months ago

This makes to much sense to ever get passed.

july241983 4 years, 9 months ago

All these caps do is punish people who have been severely injured as a result of medical malpractice. They have no effect on "frivolous lawsuits" as some claim, because the caps only apply to cases where there has been proof that a doctor screwed up. And of course, as dpl correctly points out, they unfairly favor the wealthy. The people who can show economic damages like loss of income (ie - the CEO example) get more money in return than a child would, or a housewife, or a school teacher, or someone who works at a non-profit. Kill Bernie Madoff with a medical mistake, you pay pretty heavily. Kill Mother Teresa with the same mistake, that's capped at $250K. I'm sure the insurance companies love the caps though.

Mary Sucha 4 years, 9 months ago

Cost of mistaken sterilization - $250,000 Cost of protecting the insurance company profits and the incompetent doctor - priceless

SnakeFist 4 years, 9 months ago

What's the logic behind this law - if we decrease the cost of malpractice, then maybe doctors will charge less? I'd rather my doctor was more worried about committing malpractice, not less.

The best way to avoid lawsuits for malpractice is to not commit malpractice. I completely agree with july241983: the only people affected by damage caps are those who have actually shown that doctors harmed them.

Have laws capping damage awards actually reduced healthcare costs (or, perhaps I should ask, have those savings, if they exist, been passed on to consumers)?

Richard Payton 4 years, 9 months ago

I hope Miller wins because something like this happened to my wife. Every attorney we spoke with said we had a good case but wouldn't touch it due to the cap policy. If the lawyers won the case the money would go directly to the insurance company (being we were self insured). Was informed by an attorney to receive any money punitive damages would have to be awarded and that hasn't happened in Johnson County Kansas in 20 or 30 years. My wife could have died from this incompetent doctor yet he is still allowed to practice. The hospital did fire him but he moved on to another hospital in the Kansas City area.

lawthing 4 years, 9 months ago

Most attorneys do not want to take on complex cases, a cap would almost guarantee the doc's would not be sued.

Jeremy DeBoard 4 years, 9 months ago

Remove the cap, then maybe the bad doctors will get weeded out.

debba1 3 years, 10 months ago

Yep, my husband's doctor missed the fact that due to high co2 levels in his blood gases, he had been slowly suffocating. Although the doctor knew his 02 sats were very low, he let him go home from his office. 3 days later, my husband collapsed and had to be put on a ventilator. After 50 days in 3 hospitals in 3 states, 2 ambulance rides, and 1 life flight, my husband came home, albeit with short-term memory issues. The $250,000 cap makes it very difficult to find an attorney willing to take the case.

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