The Kansas Supreme Court on Friday issued an order directing the parties to reargue their positions in a case that challenges the constitutionality of Kansas's cap on noneconomic damages. The case was originally argued before the court in 2009. Since then, Chief Justice Robert Davis died, Justice Nancy Moritz Caplinger was appointed, and Justice Eric Rosen has recused himself. The new complexion of the court may well have precipitated the order for reargument and may signal a shift in the court's long-awaited opinion. The case is being watched around the country and is another in a string of constitutional challenges to state damage caps. Some states' supreme courts, like the Illinois Supreme Court, declared its state's cap on noneconomic damages unconstitutional, while others, like Maryland's Court of Appeals, relied on the doctrine of stare decisis to declare the state's cap constitutional.
Noneconomic damage caps in medical malpractice claims come about as a result of legislation promoted by special interests primarily aligned with the medical, insurance, and business communities. Unfortunately, such caps have created significant and inexplicable disparity between tort claimants in different types of cases. In many states, individuals injured in motor vehicle accidents, for example, do not face caps on their noneconomic loss claims for pain and suffering and emotional distress damages, while medical malpractice plaintiffs in those same states face very restrictive caps on the same damage claims despite the fact that in those cases, the likelihood of longstanding and severe noneconomic injury is higher.
Although Maryland has damages caps on noneconomic loss claims in all types of tort actions, it has separate caps applicable to medical and non-medical malpractice actions. The caps applicable to medical malpractice claims in the state, however, are more limiting on claimants, particularly where wrongful death is claimed when compared to similar caps on wrongful death claims in non-medical malpractice claims.
Equal access to the courts, separation of powers (legislative versus judicial), equal protection, and the right to trial by jury are some of the legal bases upon which state cap statutes have been challenged.
We believe caps on tort claims violate the province of the jury and unfairly prejudice the rights of certain claimants over others. It is ironic that the legislators who banter about the need for a free market system when it comes to health care reform are arguing for governmental restrictions on damage awards by juries who speak for the people when awarding damages and who represent the best a free market system has to offer.
