Planning for Malpractice Insurance

Before purchasing malpractice insurance or planning their estates, physicians should be aware of the potential liability they may face in malpractice cases that involve injury or death. In either a personal injury or wrongful death case, there are two types of damages that a jury can award to a plaintiff: economic and non-economic.

Non-Economic Damages

In a personal injury case, non-economic damages are often referred to as “pain and suffering” damages. These are damages that are recoverable by the injured individual. In cases where the injured person has passed away, those damages may still be recovered by the deceased’s estate to the extent that the deceased suffered any conscious pain and suffering before passing away.

In 2014, the Kansas legislature began gradually increasing the cap on non-economic damages in personal injury cases. The cap on non-economic damages in a personal injury case is $300,000 for any cause of action accruing between July 1, 2014 and July 1, 2018. After July 1, 2018, non-economic damages will be capped at $325,000. And on July 1, 2022, the cap is due to increase again to $350,000.

In a wrongful death action, the family of the deceased can also recover non-economic damages. These damages include mental anguish, bereavement, and loss of companionship suffered by those bringing the lawsuit. These damages are also capped.  In a wrongful death action, a plaintiff can recover no more than $250,000 in non-economic damages.

In short, the maximum liability in non-economic damages where an individual was injured and then passed away is $550,000 ($250,000 for bereavement and $300,000 if the individual suffered conscious pain and suffering before passing away). Where a patient survives, pain and suffering damages are currently capped at $300,000.

Economic Damages

In both personal injury and wrongful death cases, parties are also entitled to recover economic damages. Unlike non-economic damages, there is no cap on what a party can recover for economic damages. Economic damages are tangible, identifiable losses that a party suffers. As one would expect, economic damages include things like medical and funeral expenses. But economic damages are broadly defined and include losses that might not immediately come to mind. In Kansas, economic damages have been defined to include loss of service, care, guidance, and compensation that reasonably could have expected to have resulted from the continuing life of the deceased. 

With that in mind, a wrongful death action can include substantial economic damages. For example, a case involving the death of a married parent of young children could result in substantial economic damages because the jury would award damages in the amount that it would expect the deceased to contribute to his wife and children over the course of his life had he survived. 

Our Takeaway

Be aware of the fact that juries can award substantial damages in medical malpractice cases, especially those involving a death. Because economic damages are broadly defined, a physician may be held responsible for a lifetime of financial support that is expected by the spouse and children that are left behind.  Insure yourself and plan accordingly so that if the worst happens, you can afford it. You should consider these factors when evaluating your level of insurance and contact Gregory S. Young or Mark R. Maloney at 316-267-2000 if you have specific questions.