Document Category:
State: Kansas
Subject Matter: Non-Economic Damages
Document Title:
Comments:

I have had a chance to quickly go through the decision ofMiller v. Johnson issued by the Kansas Supreme Court this
morning.  The decision, issued nearly three years after it was
originally argued, surprisingly bucked the trend in other states that
have been striking down such damage caps.  Specifically,
the Kansas Supreme Court found that a medical malpractice plaintiff’s
Constitutional right to a jury trial was not infringed by a statutorily
created $250,000 cap on non-economic damages under K.S.A. 60-19a02 for
all personal injury actions.  The Court determined
that there was an adequate quid pro quo between the damage cap
and the protections provided to the citizens of the state by the Health
Care Insurance Provider Liability Act that had been implemented at the
same time as the current damage cap.  This
Act requires that all “health care providers” carry additional mandated
insurance coverage overseen by the Kansas Health Care Stabilization
Fund.  This Act provides something that the Court concluded was a
benefit to public welfare because it ensured continued
availability of health care to the citizens and ensures an adequate
substitute remedy due to the availability of a higher recovery due to
available insurance proceeds.

While obviously a
greatly helpful decision for those deemed to be “health care providers”
under the Health Care Insurance Provider Liability Act, the decision
appears to be very troubling for the long term care
industry as it has long been excluded from being designated as a
“health care provider” under this Act.  Specifically, the Court inMiller states:

 

As a medical malpractice plaintiff,
Miller’s damages cap operates within the context of the comprehensive
statutory scheme created in the Health Care Provider Insurance
Availability Act. And as mentioned, the Act mandates that
all health care providers—as a condition to providing health care
services in Kansas—maintain professional liability insurance with an
approved company of not less than $200,000 per claim, subject to not
less than a $600,000 annual aggregate for all claims
made during the policy period. K.S.A. 40-3402(a). It also requires that
health care providers elect one of three levels of excess coverage from
the Health Care Stabilization Fund, ranging from $100,000 to $800,000.
K.S.A. 40-3403(l). And it requires that every
health care insurer participate in an apportionment plan so that health
care providers who are entitled to insurance, but unable to acquire it
through ordinary methods, may obtain insurance. K.S.A. 40-3413(a). These
provisions make the prospects for recovery
of at least the statutory minimums directly available as a benefit to
medical malpractice plaintiffs when there is a finding of liability.This is something many other tort victims do not have.

 

Unlike physicians and
hospitals, Kansas does not mandate coverage for the long term care
industry under the Health Care Insurance Provider Liability Act.  The
industry’s exclusion from being a designated “health
care provider” under the Act has been a longstanding issue in the
state.  Unfortunately, efforts to allow the LTC industry to be
designated as a “health care provider” under the Act have been
unsuccessful.  Now it appears that this exclusion from the Act casts
real doubt on whether the Court if presented with a negligence action
involving a skilled nursing facility, assisted living facility, or
senior living facility would find there to be an adequate quid pro quo
to warrant the application of the non-economic damages
cap.  Specifically, the Court would appear to be strongly indicating
that it would not find plaintiffs in personal injury cases not involving
“health care providers” under the Act to have received an adequate
benefit from the statutory damage cap to warrant
its application.

Although only time will
tell what impact this decision will have on the Long Term Care industry
in Kansas, this seeming victory for health care providers does not
appear to be a victory for all in the medical/nursing
field.

I will be happy to try and answer anyone’s questions about this decision.

Jeff K. Brown
Logan Logan & Watson, L.C.
8340 Mission Road, Suite 106
Prairie Village, KS 66206
(913) 381-1121
(913) 381-6546 fax
jbrown@loganlaw.com
http://loganlaw.com

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Document Author: Kansas Supreme Court
Firm/Company: Jeff K. Brown
Document Date: October 5 2012
Search Tags: Damages Kansas
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