Kansas has become the latest state to uphold limits on damages in medical malpractice cases. On October 5, the Kansas Supreme Court ruled that the state’s $250,000 limit on pain and suffering damages did not violate the Kansas Constitution.

The case involved plaintiff Amy Miller, who sued Dr. Carol Johnson for removing the wrong ovary. A jury had awarded Miller about $760,000 in 2006, but a trial judge reduced that amount by more than half, mainly citing the damages cap passed by the Kansas Legislature in 1988.

The Kansas Supreme Court ruled, 5-2, in a109-page decision that the limit on damages did not violate the separation of powers doctrine. The court, in an opinion written by Justice Dan Biles, said the Legislature’s failure to raise the cap since 1988 was a concern, but that lawmakers’ inaction did not mean that the statute was unconstitutional.

“Admittedly, the legislature’s failure to increase the $250,000 cap on noneconomic damages over the more than 20 years since it first set that amount is troubling to this court,” Biles wrote. “But despite our concern, we cannot say at this time that the legislature’s failure to increase the statutory cap has sufficiently diluted the substitute remedy to render the present cap clearly unconstitutional.”

Kansas joined the states whose courts have grappled with the issue recently. Last year, the West Virginia Supreme Court upheld that state’s $250,000 cap for pain and suffering damages. In August, the Missouri Supreme Court struck down its $350,000 cap.

Most states have some form of damages caps in medical malpractice cases, according to the American Medical Association. Courts in at least 17 states have upheld these caps, but those in at least 12 have overturned them. Some of the states that had seen their caps stricken have since retooled those laws, including Ohio, Texas and Wisconsin.

The attorney for Miller was William Skepnek, a solo practitioner in Lawrence, Kan.

“Our Supreme Court has chosen not to enforce the Constitution,” Skepnek said. “The government has decided that jurors, that ordinary people, aren’t intelligent enough to make decisions like that.”

John Hicks, one of the attorneys for the physician, said that the court “got it right.”

Damages awards are a public policy matter, he said. “It’s something the Legislature is better suited to deal with. If the Legislature wants to act, it will.” Hicks is an attorney at Norris & Keplinger in Overland Park, Kan.

Dissenting was Justice Carol Beier, who agreed with the majority that the law did not violate the separation of powers doctrine, but who asserted that the decision violated Miller’s right to a trial by jury. Also dissenting was Justice Lee Johnson, who argued that medical malpractice insurance, not a cap on damages, was the way to solve any crisis caused by big damages awards.

Filing amicus briefs for the plaintiff were the AARP, the Kansas AFL-CIO, the Disability Rights Center of Kansas and the Kansas Coalition Against Sexual and Domestic Violence.

Filing amicus briefs for the defendant were the Kansas Medical Society, the Kansas Association of Defense Counsel and the Kansas Chamber of Commerce.

Contact Leigh Jones at ljones@alm.com.