Obstetric Negligence

Non-Economic Cap Under Attack – Constitutionality Pending Before Supreme Court

There is a major case pending before the Kansas Supreme Court seeking a ruling that the $250,000.00 cap on non-economic damages is unconstitutional. Amy C. Miller and Kevin Miller v. Carolyn N. Johnson, M.D., Docket No. 99818 is awaiting decision by the Kansas Supreme Court. In Miller, a jury awarded $400,000.00 in non- economic damages to a young mother from whom the defendant removed the wrong ovary during a surgical procedure to remove a diseased ovary. The non-economic damage award was reduced to $250,000.00 pursuant to K.S.A. 60-19a02.

Following post-trial motions, the Millers appealed contending the non-economic damage cap was un- constitutional. Specifically, they contend K.S.A 60- 19a02: (1) violates their right to trial by jury (arguing the right is inviolate and requires a jury determine the actual amount of damages – not the legislature); (2) violates their guarantee of a remedy by due course of law (arguing the statute did not pro- vide a commensurate remedy for an abrogated right when the statute was enacted in 1988 and provides even less of a commensurate remedy today); (3) infringes upon the in- herent and exclusive powers of the Kansas Supreme Court; (4) violates the fundamental separation of powers; and, (5) violates equal protection under the law (arguing the statute violates the constitutional guarantees of due process and equal protection). Millers further contend that Samsel v. Wheeler Transport Services, Inc., 246 Kan. 336 (1990) (wherein the Kansas Supreme Court held K.S.A. 60-19a02 constitutional) was wrongly decided, did not address other constitutional issues and is therefore unconstitutional.

On appeal, Johnson contends K.S.A. 60-19a02: 1) does not violate an injured person’s right to a jury trial; 2) does not violate remedy by due process of law; 3) was and is reasonably necessary in the public interest to promote the general welfare of the public; 4) provided a sufficient quid pro quo when enacted in 1988 and continues to do so; and, 5) does not violate constitutional guarantees of separation of powers and equal protection under the law. Johnson further contends that Samsel is controlling precedent and the Court need look no further.

Amicus briefs were filed by Kansas Association for Justice, AARP, Disability Rights Center of Kansas, Kansas AFL- CIO, Kansas Coalition Against Sexual And Domestic Violence, Washburn Professors James Concannon and William Rich, Kansas Association of Defense Counsel, Kansas Hospital Association, Kansas Medical Society and Kansas Chamber of Commerce. The briefing and analysis by all is quite extensive and interesting.

Of interest is the fact that several other states’ appellate courts have recently found non-economic caps to be unconstitutional on language similar to that contained in the Kansas Constitution – declaring the right to a jury trial inviolate, thereby prohibiting the state from statutorily capping damage awards absent a constitutional amendment. Of further interest is the fact that a Bill was introduced during the recent legislative session seeking a resolution to allow the citizens of Kansas to vote on an amendment to the Kansas Constitution to allow the legislature to pass laws that cap awards for non-economic damages!

The case was argued on October 29, 2009. If you would like to listen to the oral arguments, you can go to www.kscourts.org/Kansas-courts/supreme-court/arguments. An opinion has not yet been issued. This is certainly one decision to watch for.


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