By Tucker Poling, JD
General Counsel and Vice President of Claims

The societal costs of excessive tort litigation are increasing. At the same time, the contingency fee litigation industry has enjoyed significant success in judicially undermining and politically obstructing legislative efforts to implement reasonable tort reform that protects healthcare providers and patients. While Kansas law contains some important protections, there are also opportunities for additional tort reform to maintain and improve access to quality healthcare in Kansas.

Important Protections in Kansas Law

Legal Limbo: The Kansas statute capping excessive “pain and suffering” damages awards in personal injury cases.

The current statutory cap on non-economic damages (i.e., “pain and suffering) a court may award a plaintiff in a personal injury lawsuit is $350,0000 (K.S.A. 60-19a02). However, in 2019, the Kansas Supreme Court issued the fragmented Hilburn v. Enerpipe Ltd., 309 Kan. 1127 (2019) decision, in which the Court found that the Kansas statutory cap on non-economic damages was unconstitutional as applied to a non-medical malpractice personal injury case.

Five years later, the binding scope of the Hilburn decision remains somewhat unclear and widely misunderstood. The Court did not issue a majority opinion in the Hilburn case that can be readily applied to future cases. After Hilburn, the Kansas Supreme Court’s opinions suggest that the current Court, which includes only two members who voted to find K.S.A. 60-19a02 unconstitutional in the Hilburn case, views the Hilburn ruling narrowly as precedent.

Reliable Law: The Kansas statute capping excessive non-economic awards in wrongful death cases.

A different damages cap statute, K.S.A. 60-1903, limits non-economic damages claimed by heirs in the context of wrongful death actions to no more than $250,000. In the 2021 case of Tillman v. Goodpasture, 313 Kan. 278 (2021), the Court clarified that the constitutional jury trial rights at issue in Hilburn only apply to common-law causes of action that existed at the time the Kansas Constitution was ratified. Because there was no common law wrongful death cause of action for heirs when the Kansas Constitution was ratified, the Court noted, “[those] rights do not apply to wrongful death actions.” Id. at 291-92.

Reliable Law: The Kansas statute limiting liability against municipal hospitals, clinics, and their employees.

The Kansas Tort Claims Act (“KTCA”) limits tort damages that can be awarded against municipal-owned entities (for example, county hospitals) and their employees to a total of either $500,000 or the policy limit of any applicable liability insurance policy. Recently, the Kansas Court of Appeals reaffirmed that the constitutional rationale applied in the Hilburn case does not apply to undermine the liability limitations contained in the KTCA. See Ashley Clinic, LLC v. Coates, No. 125,528, at 26-27 (Kan. Ct. App. Mar. 15, 2024).

Notable Areas of Tort Reform That Have Not Been Adopted in Kansas

1. Contingency fee reform.

The contingency fee litigation industry relies on attorney contingency fee agreements that create incentives for attorneys to pursue and extend litigation and “hold out” for excessive settlements. These fee agreements require a large percentage of any amount recovered to be paid to the plaintiff’s attorney. This means that most of any settlement or judgment often goes toward paying the fees and expenses of the plaintiff’s attorney rather than compensating the patient. Some states have sought to reduce the staggering costs of excessive attorney-driven tort litigation by creating sliding-scale limitations on the percentage of a settlement or verdict an attorney can take from their client’s monetary recovery. This area of reform has not yet gained traction in Kansas.

2. Phantom Damages.

Kansas continues to allow plaintiffs’ attorneys to present evidence of “phantom” medical expenses their injured client does not actually have to pay. Plaintiff attorneys are permitted to present medical bills at trial that reflect the amount originally “charged” for a service, prior to contractual reductions (such as those based on agreements with health insurers), write-offs, write-downs, etc. Kansas currently allows this, although defendants can also present evidence of the dollar amount accepted in full satisfaction of the payment due for services rendered for past expenses. See Martinez v. Milburn Enterprises, Inc., 290 Kan. 572 (2010).

Kansas juries are also prevented from being made aware that a third party has already compensated the plaintiff for the damages claimed in the lawsuit (such as a settlement paid by another party for the same injury) or has paid bills for medical care that the plaintiff does not have to repay. This is due to an English common law rule of evidence, adopted by American courts in the 19^th century, called the “collateral source rule.”  Many states have recognized that this rule is unnecessary in the context of modern litigation and now tends to only create avenues for unjust enrichment.

In the 1980s, the Kansas legislature attempted to modernize Kansas law in this area by passing the Collateral Source Benefits Act to limit plaintiff attorneys’ ability to claim damages already paid by third parties without the jury being made aware of those payments. However, in 1993, the Kansas Supreme Court declared the Act unconstitutional in Thompson v. KFB Ins. Co., 252 Kan. 1010 (1993). Since then, the Kansas legislature has not enacted new legislation to effectively curb abuse of the collateral source rule.

3. Inflated future care cost claims.

A major driver of excessive monetary demands in medical malpractice litigation is inflated claims for the costs of future medical care. Plaintiffs’ attorneys, who stand to take at least approximately 40% from any monetary award intended for their client’s future medical care, often hire “life care plan” expert witnesses who present inflated and unrealistic future care costs that do not reflect the amount that will actually be paid for necessary future care.

Some states have addressed this problem by limiting juries to determining only whether the defendant is liable for future care needs, with the monetary amount that will realistically be needed to actually pay for future care (taking all relevant information, including third parties’ responsibilities, into account) to be determined by the court at post-trial evidentiary hearing(s). Other states have mandated that periodic future payments for medical needs be paid only if and when the care is actually needed. Kansas law applies this type of solution in the context of workers compensation claims (see K.S.A. 44-510k) but not tort claims such as medical malpractice.