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Non-economic Losses – “Pain and Suffering” Damages Uncapped in Kansas Supreme Court Ruling

Jun 26, 2019 - Alerts by

Since 1986 there has been a cap on “non-economic losses” (pain and suffering damages) in Kansas medical malpractice cases. As recently as 2012 the Kansas Supreme Court upheld the constitutionality of K.S.A. 60-19a02. Miller v Johnson, 295 Kan. 636, 289 P.3d 1098 (2012). However, Miller was overturned Friday June 14, 2019 in Hilburn v Enerpipe Ltd. No. 112,705, — P.3d — (Kan. 2019).

In November 2010, Diana Hilburn was injured when the car she was riding in was rear-ended by an Enerpipe truck. Hilburn sued Enerpipe for negligence. The jury returned a verdict for Hilburn totaling $335,000, of which $301,509.14 accounted for her non-economic loss. Pursuant to K.S.A. 60-19a02, the non-economic damages award was reduced to $250,000 the statutory maximum for non-economic loss. Hilburn appealed.

On Friday, June 14, the Kansas Supreme Court ruled, K.S.A. 60-19a02 necessarily implicates a fundamental interest protected by Section 5 of the Kansas Constitution Bill of Rights. The court stated that a statute implicating a fundamental interest cannot be presumed valid and is subject to judicial review. Because the non-economic damages cap implicates questions of fact reserved for the jury at common law and permits the legislature to arbitrarily determine damages, the cap is unconstitutional. Kansas case law does not suggest that damage caps serve the public interest or act as a viable substitute to a jury’s non-economic damage award in personal injury actions. Therefore, the “quid pro quo” test cannot be utilized to determine the constitutionality of Section 5 infringement.

With this ruling the Kansas Supreme Court has abolished ‘caps’ on pain and suffering in Kansas. It is expected this will result in higher insurance premiums for everyone including healthcare providers. This change in law increases the potential financial exposure for defendants in litigation. Professionals, such as health care providers, may want to consider increasing their insurance limits and/or consider asset protection legal review. To discuss your practice or future plans to address these issues we recommend consulting your legal advisor.

If you have questions on this topic or other legal medical matters, contact Gregory S. Young or Mark R. Maloney at 316.267.2000.

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