Kansas recently became the eighteenth state to hold that statutory caps on non-economic damages are constitutional.  The court in Miller v. Johnson, No. 99,818 (Kan. Oct. 5, 2012) held that a Kansas statute did not violate the plaintiff’s right to a trial by jury, due process, or equal protection, nor did it violate the separation of powers.

The Miller court cited a number of familiar reasons for upholding the statutory cap on non-economic damages: reducing the cost of health care, the affordability of medical malpractice insurance, and preventing an exodus of doctors from the state.  In so holding, Kansas joins California, Colorado, Idaho, Indiana, Louisiana, Maryland, Michigan, Montana, Nebraska, North Dakota, Ohio, South Dakota, Utah, Virginia, West Virginia, and Wisconson as states that cap non-economic damages.

Just a few months before the Miller opinion, the Missouri Supreme Court in Watts v. Lester E. Cox Medical Centers, No. SC 91867, slip op. at 2–3 (Mo. July 31, 2012) ruled that Missouri’s statutory cap on non-economic damages in medical malpractice cases violated the right to trial by jury.  After trial, the jury awarded the plaintiff, Deborah Watts, $1.5 million in noneconomic damages and $3.4 million for future medical expenses.  However, the trial court reduced the noneconomic damages to the state’s statutory cap of $350,000.

The ruling of the Miller court will have an impact greater than the result for Ms. Watts.  Medical malpractice premiums in Missouri dropped almost 30% when the cap on damages was passed.  An uptick in medical malpratice lawsuits could be on the horizon.  Other courts could look to the reasoning used by the court in Watts in evaluating their own caps.  If they do, hopefully Gourley v. Nebraska Methodist Health Sys., Inc., 265 Neb. 918, 663 N.W.2d 43 (2003) will be on the short list of persuasive authority considered.  The Nebraska Supreme Court in Gourley held that Nebraska’s statutory cap on damages recoverable in medical malpractice actions does not violate the constitutional right to jury trial.  We will continue to monitor these developments and keep score on what states get it right.