Declining to Follow Its Neighbor Missouri, the Kansas Supreme Court Holds Noneconomic Damages Cap in Medical Malpractice Cases Constitutional
State Court Docket Watch, Winter 2012-2013
January 4, 2013Stephen Clark, Kristin Weinberg
The Kansas Supreme Court, in Miller v. Johnson,1 recently upheld Kansas’ statutory cap on non-economic damages in personal injury cases, including medical malpractice cases, as constitutional. Specifically, the Kansas Supreme Court held the cap, set forth in K.S.A. 60-19a02, does not violate Sections 5 and 18 of the Kansas Constitution Bill of Rights providing a right to a jury trial and a right to damages, respectively. This decision is in contrast to its neighboring state’s supreme court, which recently declared a statutory cap on non-economic damages in medical malpractice cases unconstitutional for violation of the right to a jury trial.2
In Miller, the appellant-patient sued the appellee-doctor for medical malpractice stemming from a surgery in which the doctor erroneously removed the patient’s left ovary instead of the right ovary.3 After trial, the jury found the doctor completely at fault and awarded the patient $759,679.74 in total monetary damages, including $575,000.00 in non-economic damages.4 The district court reduced the non-economic damages award to $250,000.00 as required by the limitations in K.S.A. 60-19a02.5 Both sides appealed, and the Kansas Supreme Court transferred the case from the Court of Appeals.6 On appeal, the patient raised four state constitutional challenges to the validity of K.S.A. 60-19a02.
II. Constitutional Challenges and Analysis
First, the patient argued K.S.A. 60-19a02 violates Section 5 of the Kansas Constitution’s Bill of Rights, which provides: “The right of trial by jury shall be inviolate.”7 The Miller Court acknowledged that: (a) Section 5 “preserves the jury trial right as it historically existed at common law when our state’s constitution came into existence;” (b) medical malpractice claims were historically triable to a jury; and (c) damages, including non-economic damages, were historically a question of fact for Kansas juries in common-law tort actions.8
Without much discussion of the historical nature of jury trials in medical malpractice cases or non-economic damages cases, the Kansas Supreme Court determined that K.S.A. 60-19a02 does indeed “encroach[ ] upon the rights preserved by Section 5,” but such encroachment “does not necessarily render K.S.A. 60-19a02 unconstitutional under Section 5.”9 Section 5 of the Kansas Constitution mirrors article 1, section 22(a) of the Missouri Constitution, under which the Missouri Supreme Court saw fit to declare a statutory cap on non-economic damages as an unconstitutional infringement on the right to a jury trial.10 In a strong dissent, Justice Beier took issue with the Miller Court majority’s failure to discuss the meaning of the term “inviolate” as used in the Kansas Constitution.11 The majority, however, went on to further analyze the patient’s Section 5 challenge in conjunction with her next argument.
Second, the patient argued K.S.A. 60-19a02 violates Section 18 of the Kansas Constitution’s Bill of Rights, which provides: “All persons, for injuries suffered in person, reputation or property, shall have remedy by due course of law, and justice administered without delay.”12 Specifically, she argued that by placing a $250,000.00 ceiling on noneconomic damages, the cap denies her a remedy guaranteed by Section 18.13 Kansas courts interpret Section 18 to provide “an injured party . . . a constitutional right to be made whole and a right to damages for economic and noneconomic losses suffered.”14
Acknowledging that the “legislature may modify the common law in limited circumstances without violating Section 5,” the Kansas Supreme Court held that a quid pro quo analysis applies to both Section 5 and Section 18 claims.15 A quid pro quo analysis is a two-step examination.16 First, a court must determine “whether the modification to the common-law remedy or the right to jury trial is reasonably necessary in the public interest to promote the public welfare.”17 Second, the court must “determine whether the legislature substituted an adequate statutory remedy for the modification to the individual right at issue.”18 In her dissent, Justice Beier strenuously objected to the use of a quid pro quo analysis to the patient’s Section 5 claim, noting that none of the nineteen states that have considered whether a statutory damages cap violates the right to a jury trial has applied a quid pro quo analysis to the determination.19
Employing the first step of the quid pro quo analysis, the Miller Court held K.S.A. 60-19a02’s non-economic damages cap is reasonably necessary in the public interest to promote the public welfare because “the potential [for the cap to lower insurance premiums] is enough.”20 Applying the second step and noting that K.S.A. 60-19a02 “unquestionably functions to deprive [the patient] of a portion of her noneconomic damages . . . ,” the Miller Court pointed out the patient did receive compensation for her loss, finding it noteworthy that K.S.A. 60-19a02 does not impose a cap on total damages.21 The Supreme Court found “the deprivation caused by K.S.A. 60-19a02, although very real, [to be] limited in scope.”22 Further, the court found the Kansas Health Care Provider Insurance Availability Act, which mandates that all health care providers maintain professional liability insurance in certain amounts, in addition to the Kansas Health Care Stabilization Fund’s excess insurance coverage requirement, “make the prospects for recovery of at least the statutory minimums directly available as a benefit to medical malpractice plaintiffs when there is a finding of liability,” which is “something many other tort victims do not have.”23
Based on precedent finding Kansas’ statutory mandatory insurance and excess coverage requirements to provide an adequate statutory remedy for the legislature’s modification of common-law remedies, the Miller Court then determined that although the legislature has not increased the cap to adjust for inflation, such failure has not “sufficiently diluted the substitute remedy to render the present cap unconstitutional” when viewed in light of the other provisions benefiting medical malpractice plaintiffs.24 Accordingly, the Miller Court held that the legislature has substituted an adequate remedy for the modification of Section 5 and Section 18’s constitutional protections, thereby rendering K.S.A. 60-19a02 non-violative of those sections.25
For her third constitutional challenge to K.S.A. 60-19a02, the patient argued the cap violates the equal protection provisions of Section 1 of the Kansas Constitution Bill of Rights, which provides: “All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.”26 Section 1 is only an issue if there is different treatment among similarly situated individuals.27 The patient argued K.S.A. 60-19a02’s cap treats women and the elderly differently. Noting that an equal protection challenge to a facially neutral statute requires a disparate impact traced to a discriminatory purpose—and finding no such discriminatory purpose—the Miller Court rejected the patient’s disparate impact challenge.28
The patient also asserted an equal protection violation claiming the statutory cap treats personal injury plaintiffs differently based on whether their noneconomic damages are greater or less than $250,000.29 Finding this assertion true, the Kansas Supreme Court had to determine the appropriate level of scrutiny to apply to the classification.30 While noting that Kansas courts have never held the right to a jury trial under Section 5 and the right to a remedy under Section 18 to be fundamental rights for equal protection purposes (therefore precluding application of a strict scrutiny standard), the Miller Court determined that because K.S.A. 60-19a02 is “economic legislation,” the rational basis test applies.31 Thus, K.S.A. 60-19a02’s statutory classification must bear some rational relationship to a valid legislative purpose.32 After applying a rational basis analysis, the Kansas Supreme Court concluded: “We hold that it is ‘reasonably conceivable’ under the rational basis standard that 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.”33
For her final constitutional attack on K.S.A. 60-19a02, the patient argued the statutory cap violates the doctrine of separation of powers because the cap “abolishes the judiciary’s authority to order new trials and robs judges of their judicial discretion by functioning as a statutory remittitur effectively usurping the court’s power to grant remittiturs.”34 The Kansas Supreme Court rejected this challenge, explaining in part that while the cap prevents a trial court from awarding more than $250,000.00, it does not prevent the trial court from granting a new trial under the rules of civil procedure.35
III. Implications of the Case
The Miller decision brings Kansas in line with the numerous other states that have upheld caps on noneconomic damages as constitutional. In light of neighboring Missouri’s recent Watts decision striking down similar caps, look for plaintiffs to employ new and creative arguments to bring Kansas medical malpractice defendants into court in Missouri. Such cases will then involve battles over jurisdiction, venue, and choice of law as they wend their way through the courts.
*Mr. Clark is founding principal and Ms. Weinberg is an associate attorney with Clark Law Firm, LLC in St. Louis, Missouri, concentrating in complex commercial litigation and state constitutional litigation. Mr. Clark also is licensed in Kansas. Mr. Clark is the President of the Federalist Society’s St. Louis Lawyers Chapter.
1 Miller v. Johnson, No. SC 99,818 (Kan. Oct. 5, 2012).
2 Watts v. Lester E. Cox Medical Centers, ___ S.W.3d ___, 2012 WL 3101657 (No. SC 91867, Mo. July 31, 2012).
3 Miller, Slip op. at 9.
4 Id. at 9
6 Id. at 11.
7 Id. at 15.
9 Id. at 16.
10 See Watts, No. SC 91867, slip op. at 10–11.
11 Miller, slip op. at 73–75.
12 Id. at 24.
14 Id. at 24.
15 Id. at 22, 25.
16 Id. at 26.
19 Id. at 76.
20 Id. at 28–29.
21 Id. at 30.
23 Id. at 31.
24 Id. at 35.
26 Id. at 35.
28 Id. at 36.
29 Id. at 36.
30 Id. at 37–38.
31 Id. at 37–38.
32 Id. at 38.
33 Id. at 40.
34 Id. at 40–41.
35 Id. at 44.