Malpractice caps being challenged in Kansas

Is it constitutional to cap medical malpractice claims? If in deciding the case of Miller v. Johnson--a case in which a young woman had the wrong ovary removed during surgery--Kansas follows Illinois's lead by determining that such a cap is unconstitutional, a precedent would be set and other states could follow suit. The result could be higher malpractice insurance premiums for physicians. The Illinois Supreme Court decided last month that the state's cap was unconstitutional due to breaching the right to separation of powers.

"Each state's laws are different, each case is different," says Miles Zaremski, a Chicago-area attorney and a past chairman of the American Bar Association's Standing Committee on Medical Professional Liability. "I have been following this issue for 37 years now, and, really, I have to say there's no rhyme or reason for why one state upholds the cap and another doesn't. It all depends on how a state's court chooses to interpret its state constitution."

For example, Ohio and Texas kept medical malpractice insurance caps. Currently, half of U.S. states retain caps on noneconomic damages, according to Zaremski.

Since 1986, Kansas has retained a cap of $250,000 for malpractice insurance claims. This amount for non-economic damages is being challenged by Amy Miller, a woman who had her left ovary removed during a surgery that was set to remove her right ovary. Later, Miller required the right ovary to be removed, after also incurring unnecessary surgery on her appendix. In Missouri and Georgia, cases challenging caps are under way for their supreme courts.

In these cases, defense attorneys contend caps are necessary to keep the medical malpractice insurance market steady, curb healthcare costs and provide access to cost-effective healthcare. According to Zaremski, research has demonstrated that caps do curtail the number of lawsuits and lower award amounts.

"A court can do what it's inclined to do," Zaremski says. "By that, I mean both sides have good arguments. But there's another doctrine at play here, it's called the separation of powers doctrine. It says the constitution was enacted by--in this case--the people of Kansas and that the court should go way, way out of its way not to declare something unconstitutional."

To learn more:
- read these Kansas Health Institute articles here and here