Kansas Lawsuit Damages Cap Could Increase Periodically

By JOHN HANNA | February 28, 2014

Kansas would allow greater damages in personal injury lawsuits but change some evidence rules in ways favored by business and medical groups under legislation that advanced Wednesday in the state Senate.

Senators gave first-round approval on a voice vote to a bill that increases the state’s cap on non-economic damages, such as pain and suffering, in personal injury cases. The cap is now $250,000. Und the legislation, it would increase to $300,000 in July, $325,000 in July 2018 and $350,000 in July 2022.

The Senate is expected to approved the plan on a final vote Thursday and send it to the House.

The Kansas Chamber of Commerce, the state’s largest business group, is backing the measure because of its other changes. Those include giving judges discretion to limit testimony from purported experts and allowing juries to consider whether people suing over their injuries have insurance or other forms of compensation. But attorneys representing people filing personal injury lawsuits argue that the changes will shield wrongdoers from being held accountable.

Efforts to raise or eliminate the cap on non-economic damages have failed because of opposition from medical groups and the business communities, which fear that insurance companies would increase premiums, particularly for medical malpractice coverage, making Kansas less business-friendly. But the state chamber and other business groups haven’t had enough backing to revise evidence rules as they want, either.

But legislators are feeling pressure to raise the limit on non-economic damages because of a Kansas Supreme Court ruling in October 2012 medical malpractice case challenging the cap. The court said the limit was constitutional, but the majority opinion also said it was troubling that the cap hadn’t been adjusted since its enactment in 1988 to account for inflation.

Senate Judiciary Committee Chairman Jeff King, an Independence Republican, said the decision sent a pretty clear warning shot.”

“This cap, while constitutional in 2012, given inflation, would not be constitutional forever,” King said. “his is really a response to that.”

The Kansas Medical Society, seeking to preserve a cap, approached legislators about raising it. But the Kansas Chamber – influential in the GOP-dominated Legislature – doesn’t support an increase without changes in evidence rules.

“Increasing the caps, that is increasing the cost of doing business, and that’s why we have asked for the two additional provisions to be included in the bill, to help offset some of that increase,” said Eric Stafford, a state chamber lobbyist.

But Callie Denton, executive director for the Kansas Association of Justice, the state trial lawyers’ group, said the bill is “a net win” for the Kansas Chamber, as well as for wrongdoers and their liability insurance companies.

“It’s not going to help people who’ve been injured through no fault of their own,” she said.

The first change in evidence rules would reverse a policy of not having juries hear whether alleged injury victims already have losses covered by insurance or other sources. Critics of the “collateral-source” rule contend it results in double payments for injuries.

However, Denton said the change doesn’t account for how an insurance payout affects a victim’s future premiums – or how defendants rely on insurance themselves to pay damages. Also, she said, juries should focus on how much a defendant is at fault, not on “accounting.”

Backers of the provision dealing with expert witnesses said Kansas is laxer than most other states, allowing “junk” science in testimony. But Denton said the current standards have worked for decades, and parties understand them.

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