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Kansas high court retains 1988 damage caps

Two Kansas Supreme Court justices opposed a recent state high court ruling that leaves a controversial law unchanged. The decision affects the amount of damages Kansas medical malpractice victims receive for pain and suffering, considered to be a "non-economic" loss.

The cap set up under a 1988 state law to prevent excessive non-economic damage awards was $250,000. The constitutionality of the 24-year-old law was challenged. The state Supreme Court's new ruling makes no changes to the law or the amount of damages allowed.

The decision was based on the case of a woman who lost a healthy ovary when a surgeon removed the wrong one. The 28-year-old medical malpractice victim had to undergo a second ovariectomy to have the correct ovary removed.

A jury held the surgeon accountable for professional negligence and granted a total damages award of more than $759,000. A trial judge shrank the award to less than $335,000 because of the Kansas law capping non-economic damages. Most of the Supreme Court justices felt the cap was justified, calling it "reasonably conceivable" that predictable damage caps keep insurance premiums stabilized.

Dissenting justices felt that Kansas law affecting damage limits cheats injury victims out of deserved compensation. The State Supreme court justices in disagreement also felt juries should have the freedom to decide compensation amounts.

It seems the latest ruling has placed the desires of insurers above the unique needs of individuals who are harmed by wrongful medical practices. A woman whose one healthy ovary is mistakenly removed pays the price of fertility for a surgeon's careless error.

A jury set a price on the pain and suffering the 28-year-old woman would experience as a result of negligence. A law that is concerned with the insurance industry's response chopped the award by more than half.

Limited non-economic compensation may discourage some rightful victims from pursuing a medical malpractice lawsuit.

Source:, "Kansas Supreme Court Upholds Medical Malpractice Award Cap," Ann W. Latner, Oct. 12, 2012

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