Health care officials support increasing cap on pain and suffering

By Scott Rothschild

TOPEKA — Officials representing doctors and hospitals on Friday said the state needs to increase the $250,000 cap for noneconomic damages to victims of medical malpractice but take its time doing it.

“That is probably something we are going to have to do in the next couple of years, to address the adequacy of the cap,” said Jerry Slaughter, executive director of the Kansas Medical Society.

His comments were made during a meeting of the Health Care Stabilization Fund Oversight Committee. In October, the Kansas Supreme Court, in a Douglas County case, upheld the constitutionality of the $250,000 cap on what are called noneconomic damages, or generally pain and suffering.

The case dealt with Amy Miller of Eudora, who in 2002 went in for surgery for removal of her right ovary. Dr. Carolyn Johnson, of Lawrence, removed her left ovary by mistake. A jury awarded Miller $400,000 for pain and suffering, but that was knocked back down to $250,000 because of the cap, which was set in 1988.

Slaughter said if the amount of the cap isn’t increased, the state Supreme Court may take another look at the issue. In the 5-2 decision, Justice Dan Biles, writing for the majority, said the failure to increase the cap in more than 20 years was troubling, but imposing a limit on noneconomic damages “furthers the objective of reducing and stabilizing insurance premiums by providing predictability and eliminating the possibility of large noneconomic damages awards.” But opponents of the cap say it infringes on the basic right of a trial by jury under the Kansas Constitution.

After the ruling, the AARP, Kansas AFL-CIO and Kansas Advocates for Better Care issued a statement, saying, “A one-size-fits-all cap is no substitute for the wisdom of a citizen jury.”

Just two months before the Kansas decision, the Missouri Supreme Court struck down a cap on damages in that state. In that 4-3 ruling, the Missouri court said that state’s $350,000 cap was “unconstitutional to the extent that it infringes on the jury’s constitutionally protected purpose of determining the amount of damages sustained by an injured party.”

Tom Bell, president and chief executive officer of the Kansas Hospital Association, said he supported an increase in the cap in Kansas.

“We just need to figure out what that amount is, and go about doing it,” he said.

Bell and Slaughter praised the Kansas court’s decision, saying it helped stabilize the health care system. Bell said the ruling will help Kansas recruit doctors and researchers.

Slaughter said the Medical Society wanted to bring in stakeholders and discuss the cap through 2013 and provide legislators with a proposal to increase it in 2014.

Dick Bond, chairman of the Health Care Stabilization Fund Oversight Committee, said he hoped the cap could be increased as soon as possible, “otherwise you’re going to be back in court again.”

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