The war on medical malpractice caps rages on. While several state Supreme Courts, most recently Missouri, have struck down laws that limited non-economic damages (pain and suffering), a majority of the Kansas Supreme Court has just ruled that the law is not unconstitutional and can stand.

The case that tested this issue involved a 28-year-old patient who was having surgery to remove an ovary. The surgeon mistakenly removed the wrong ovary. The patient then had to have a second surgery (with a different surgeon) to remove the diseased ovary, and further medical care.

The original surgeon was found at fault at trial, and the patient was awarded a total of $759,679 in damages, including $575,000 for current and future noneconomic losses, plus $100,000 for future medical bills. The judgment was then reduced to $334, 679 by the trial judge due to the state law capping non-economic damages at $250,000.

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In its decision, the Kansas Supreme Court held that the law, which was enacted in 1988, is still an adequate remedy despite the fact that the sum of money is not worth as much as it had been close to a quarter of a century earlier. In its opinion, the court held that although the cap does restrict the common law right to compensation for damages, the legislature “has substituted an adequate statutory remedy for the modification of the individual rights at issue.”

The majority opinion in the case held that the legislature had a valid reason to enact the law. “We hold that it is “reasonably conceivable” … that imposing a limit on noneconomic damages furthers the objective of reducing and stabilizing insurance premiums by providing predictability and eliminating the possibility of large noneconomic damages awards,” the majority wrote.

Two justices disagreed, and in strongly worded dissenting opinions expressed their views that that the cap on damages meant that injured patients were getting inadequate compensation for their injuries, and were being deprived of having a jury decide the amount of their compensation.