The Cochran Firm Legal Blog

In 1988, the Kansas legislature believed that Kansas was being overrun by frivolous lawsuits and enacted a type of tort reform that is commonly advocated, placing a $250,000 cap on noneconomic damages awarded in lawsuits. According to advocates of the reform, it was necessary to stop runaway juries and jackpot justice from stifling the Kansas economy. (Never mind that the main effect of damage caps is to increase profitability of insurers and not to improve the economy, according to numerous studies that looked at tort reforms in Kansas and dozens of other states.)

The cap has remained on the books since then, but starting Thursday it will be facing a constitutional challenge. The source of the challenge is a small-town woman who went in for surgery in nearby Lawrence, only to come out with the wrong ovary removed. She sued the doctor for medical malpractice. The doctor's main defense of the lawsuit was that the second ovary probably would have had to be removed anyway, so no harm, no foul. The jury did not buy the defense and awarded the woman for $759,680, including $84,680 for past medical expenses, $100,000 for future medical expenses, $175,000 for loss or impairment of services as a spouse, $250,000 for pain, suffering, disability, and $100,000 for future pain, suffering, and disability.

Leaning on the damage cap, a District Court judge struck the $150,000 for future pain, suffering and disability, and the $100,000 for future medical expenses, prompting the woman's attorneys to take their challenge to the Kansas Supreme Court. The argument is that the damage cap is unconstitutional for two reasons. First, it violates the separation of powers because it represents the legislature usurping powers reserved for the judicial branch. Second, the cap is unconstitutional because it puts a special burden on people who have suffered the worst injuries.

Wrong-site surgery is an egregious surgical error, and this lawsuit highlights how even modest lawsuit verdicts can be significantly decreased, no matter how bad the mistake on the part of the doctor.

The medical malpractice attorneys at The Cochran Firm are prepared to fight for people injured and suffering as a result of a doctor's error. To learn more, please contact us today for a free case evaluation.

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