Pay it forward
"We have been warmed by fires we did not build,
And drunk from wells we did not dig" ~Anonymous
There is a generation of physicians practicing in our fair state whose only experience with the medical malpractice environment has been one of relative tranquility. For many, it doesn't even make their top ten list of practice-related matters that worry them. Insurance is plentiful, the marketplace is competitive, and costs are reasonable and stable.
It wasn't always that way. Not so long ago, physicians labored under the considerable personal and financial burdens of a persistent medical malpractice crisis that lasted more than a decade and threatened access to medical care in many areas of our state. After several bitter legislative battles with trial lawyer groups, at KMS' urging the legislature finally enacted laws that represented a careful balancing of the interests of individuals to have an adequate remedy for injuries they sustain because of another's negligence, with the need for society as a whole to have access to essential health care services. The centerpiece of those laws, which was enacted in 1989, limits what juries can award for non-economic ("pain and suffering") damages.
Despite what its detractors (mostly plaintiff lawyers) say, our 25 years of experience with the cap, compared to states that have not had its stabilizing influence, underscores the value of this particular legal reform. It is essential to the continued stability of our medical liability insurance environment. It in essence turns down the temperature on the liability environment by providing a measure of insurance predictability for highly subjective and unpredictable noneconomic losses, while at the same time allowing injured patients to be fully compensated for all of their actual economic losses (wages, medical and related costs, etc.).
A little over a year ago the Kansas Supreme Court issued a long-awaited ruling which upheld the constitutionality of the damages cap. However, in upholding the law, the Court made a point of noting its concern that the cap's value had eroded over its 20+ years since enactment, and if not adjusted at some point, it could render the cap constitutionally inadequate. Which is another way of saying that if the cap isn't adjusted, the Court is likely to revisit the law and strike it down in a future case. That would be disastrous. Medical malpractice premiums would explode, probably doubling or perhaps tripling in a matter of years. Access to care in rural areas and high-risk medical services would be in jeopardy. There is no assurance that a cap struck down by the Court could be re-enacted in the future.
After spending most of my professional life first working to enact the cap, and then protecting it from attack, it feels more than a little odd to be in a position advocating that KMS take the lead in a legislative effort to adjust it. However, I believe that if we want to ensure the cap survives future constitutional challenges, it is essential that we heed the Court's admonition. It is my belief that it can be done in a way that continues to balance the rights of patients with the state's interest in preserving access to care and maintaining a stable liability insurance system. The current generation of physicians has the opportunity to preserve, for the physicians that follow them, this critical legal reform that has provided so much benefit to them and their patients.
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