Pain-and-Suffering Caps Are Unconstitutional, Says Court

Wayne J. Guglielmo, MA

Disclosures

July 23, 2019

In This Article

Pain-and-Suffering Caps Are Unconstitutional, Says Court

In a decision that its critics say could have a significant impact on the state's physicians, hospitals, and other providers, the Kansas Supreme Court ruled last month that caps imposed by Kansas lawmakers on noneconomic damages in personal injury cases—including those involving medical malpractice—are unconstitutional, as the Kansas City Star[1] and other news outlets report.

In 2010, Diana Hilburn was injured when the car she was riding in was rear-ended by an 18-wheeler truck. At trial, the trucking company acknowledged its driver's negligence.

A jury then awarded Hilburn $34,000 for her medical expenses and another roughly $300,000 for noneconomic damages, which compensate a plaintiff for, among other things, pain and suffering. But the state cap that existed at the time—$250,000—cut Hilburn's award by a little more than $50,000. (The current cap, now subject to the high court ruling, is $325,000.)

Hilburn's attorney, Thomas Warner, appealed the reduction, and the case made its way to the Kansas Supreme Court. "We need to let juries decide damages rather than politicians," Warner said following the high court's decision in his client's favor.

Those on the other side of the issue are dubious. "Those caps were put on years ago to control costs in the insurance arena, to put some predictability back in insurance rates," explained Republican State Senator Rick Wilborn, chair of the Senate Judiciary Committee. "And any time you add to loss cost, you can anticipate in time, as the awards mount, that insurance rates will increase. It's that simple."

Another GOP lawmaker, Kansas House Speaker Ron Ryckman, was even more blunt: "The Hilburn case will increase the cost of liability coverage for physicians and businesses, and the cost will be borne by Kansas patients and taxpayers."

The high court's decision, however, will not affect wrongful-death cases or punitive damages.

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