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Archive for Wednesday, March 31, 2010

Legislative leaders concerned Lawrence court case could endanger limits on pain and suffering awards

March 31, 2010

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— Supporters of maintaining the caps in awards for pain and suffering are prepared to propose a constitutional amendment to protect those caps, a key legislator said Wednesday.

Senate Majority Leader Derek Schmidt, R-Independence, said there is concern that the Kansas Supreme Court will overturn those non-economic damage limits in a Douglas County case.

“Every Friday we watch” for decisions from the court, Schmidt said.

Timing is everything, Schmidt said. If the court overturns the caps after the legislative session is over, then legislators would be unable to get the proposed amendment on the November ballot, he said. He said some are calling for approving the amendment anyway, in case the court does rule after the session is over.

Schmidt said if those caps were overturned by the court, it would “turn the investment climate in this state south.”

The proposed constitutional amendment has been seen as a pre-emptive strike against a possible ruling in a 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 in calculating malpractice damages and infringes on 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.

The Kansas Supreme Court hasn’t indicated when it will rule.

House Concurrent Resolution 5036 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

sewersdream 3 years, 6 months ago

Coming from someone who has had an injury due to a surgeon's mistake, I will NEVER walk the same, I have two small children and will still have a chance of losing my leg. I am anxiously awaiting the news of the Kansas Supreme Court. Do I want millions of dollars for pain and suffering? No, but is $250,000 enough for P & S ??? No, not even close.

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porch_person 4 years ago

LarryNative,

it was a no-brainer and pretty offensive.

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headdoctor 4 years ago

LarryNative (anonymous) says… Putting a value on an ovary is a violation? WTF


Really?.......Really?.......Do you really have to ask why? Your comment was offensive to the woman/women. My comment copied your remark so there was no doubt who I was snapping at. That didn't leave them much choice but to pink both posts.

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Cooky_the_Cook 4 years ago

Bozo says...

Which was set in 1988 dollars. At the very least, inflation should be factored in, which would be about $434,000 by 2007. Medical inflation was at least half again as much over that period, so let's round it off at $650,000.

Cooky says...

...because "medical inflation" hurts like hell.

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feeble 4 years ago

Perhaps the above most should be slightly amended to read,

"You can see how this would drive physicians away from practicing in the state- every case, where a doctor couldn't tell their right from their left, is a potential bankruptcy because you don't know how sympathic the plaintiff will be."

I would argue that a doctor who cannot tell their right from their left deserves to be bankrupt.

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just_another_bozo_on_this_bus 4 years ago

"After you add up all of those damage amounts that can be proved with a dollar amount , the cap limits to $250k additional dollars that she can claim for pain and suffering."

Which was set in 1988 dollars. At the very least, inflation should be factored in, which would be about $434,000 by 2007. Medical inflation was at least half again as much over that period, so let's round it off at $650,000.

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pylortes 4 years ago

Hold on here... let's just clarify. Ms. Miller's damages (and any other similar plaintiff) are not currently limited to $250k with the caps. She has already received a jury verdict far in excess of $250k (I don't recall the exact number now, but I think it's 2-3 times that amount).

The $250k cap only applies to PAIN and SUFFERING ONLY. There is no limit at all to damages that can be measured by a dollar figure- ie her medical bills, her lost wages (and future lost wages) the cost of any specialized things that she needs to purchase etc. Those can add up to millions in the current system and she can currently recover that full amount.

After you add up all of those damage amounts that can be proved with a dollar amount , the cap limits to $250k additional dollars that she can claim for pain and suffering.

The reason for the caps is because pain and suffering is one of those areas where it is extremely difficult to place a dollar value on. Juries are wildly inconsistent in putting a value on pain and suffering even in similar cases. Without a cap, a jury who feels bad for a plaintiff could decide to award $100M tn pain and suffering to her if they found her sympathic enough. You can see how this would drive physicians away from practicing in the state- every case is a potential bankruptcy because you don't know how sympathic the plaintiff will be. The problem is that it's just too difficult to put a number on someone else's non measurable "pain and suffering" hence the creation of an upper limit- the caps.

In fairness, the caps were put into place in Kansas over 20 years ago in 1988 and had no inflation index in them at all. A reasonable approach would be for the legislature to increase the value of the caps and possibly tie future increases into the CPI or something. But some form of caps is needed.

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jayhawklawrence 4 years ago

The problem is that the Republican legislature, probably with directions from Washington, made the ceiling far too low.

We need to reform the system but I don't think either political party is serious enough about doing that.

They just don't care.

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WilburM 4 years ago

Whoa, Slowpounder. You're actually bringing facts into this discussion. Isn't that grounds for being hounded off the comments section?

Actually, nice point. Sometimes the basics of constitutions and law get obscured, more than a bit.

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Slowponder 4 years ago

FYI - the Georgia Supreme Court ruled last week on a similar case and found the caps unconstitutional. The Georgia Supreme Court found that the Georgia Constitution, which says, "the right to a trial by jury is inviolate," was usurped by the legislature when the Georgia Legislature passed the caps. The Court said that violated the separation of powers.

The Kansas Case is postured a little differently, but if you look at states that have the same language as Georgia (the inviolate language), in each of those states, statutory caps for pain and suffering have been found unconstitutional.

The Kansas Bill of Rights reads in Section 5: The right of trial by jury shall be inviolate.

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staff04 4 years ago

Although I certainly don't want to be the one setting the value of a person's life/limb/suffering, I could be convinced that some sort of cap system could be reasonable. $250,000 for a mistake of this magnitude sounds obscenely inadequate.

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hipgrrrrl 4 years ago

Frankly, I think a mention of the who the surgeon (OB/GYN) is that performed this surgery would be appropiate in this article. Every woman in Lawrence really ought to know who is capable of making such an inexcusable mistake.

You go, Amy. I wish you the best outcome possible.

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Steven Gaudreau 4 years ago

Putting a value on an ovary is a violation? WTF

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equalaccessprivacy 4 years ago

No limits on the amount of pain and suffering I've undergone in backwards Lawrence, so there should be none in the courts.

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equalaccessprivacy 4 years ago

No limits on the amount of pain and suffering I've undergone in backwards Lawrence, so there should be none in the courts.

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porch_person 4 years ago

Not hard to get to $250,000 in health care costs as a patient nor is it hard to get to $250,000 in legal fees during a litigation against a hospital. Hospitals, physicians, insurance companies know this. It's like a game of limit hold'em. They know they won't lose "that much" on a hand, I mean, "case". If the other player can't even make "limit", then that patient loses in the long run.

This stuff doesn't stop until realistic sanctions are in place to deter it. Right now, someone can screw up in surgery and you'd be stuck without recourse. It happened to Amy Miller. It could happen to you. Don't kid yourself. It happens.

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headdoctor 4 years ago

This comment was removed by the site staff for violation of the usage agreement.

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Steven Gaudreau 4 years ago

This comment was removed by the site staff for violation of the usage agreement.

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JustNoticed 4 years ago

Caps are nothing but protection for the powerful, in this case, insurance companies. And don't go blabbing about evil trial lawyers. Corporations should have real disincentives to do evil.

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jrlii 4 years ago

The amendment I'd like to see would be to repeal article 12 section 5 of the Kansas Constitution, and return authority over the cities to the legislature.

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