Topeka 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.