We have spoken on several occasions about damages caps in neighboring states, including Illinois and Georgia, where the courts threw out these statutes that deny plaintiffs the right to a full jury trial. Kansas is currently locked in a legal debate over the same issue, a debate that is so involved it has taken months to resolve, and is having a second round of hearings after the death of one justice and the recusement of a second.
The medical malpractice lawsuit involves a wrong-site surgery in which a doctor removed the wrong ovary from a woman. The woman was rewarded a total of $760,000 by a jury, $360,000 for past and future medical expenses and $400,000 for past and future non-economic losses. State law caps noneconomic damages in personal injury lawsuits to $250,000, so the award was reduced by $150,000.
At issue is whether the law violates the rights granted by the Kansas Bill of Rights, approved in 1859. In particular, article 5, which states, “The right of trial by jury shall be inviolate,” and article 18, “All persons, for injuries suffered in person, reputation or property, shall have remedy by due course of law, and justice administered without delay.” Because the cap prevents juries from handing down the verdicts they believe to be just, it seems that it has, to some extent, violated the right to trial by jury, because the decision about how much the plaintiff is awarded has been usurped by the legislature rather than the jury.
The law was upheld in 1990, but none of the current justices participated in that decision, and it seems that the law may be likely to be overturned.
Trial by jury is a basic right of every American, and damage caps prevent us from enjoying that right. Hopefully, the Kansas Supreme Court will see its way to making the right decision in this case and overturning this unjust usurpation of the rights and responsibilities of juries.
If you have been hurt by a doctor’s error, the lawyers of Robert W. Kerpsack, CO, LPA will fight for the full measure of compensation you deserve. To talk to one of our lawyers about your legal rights, please call or email us today.