With some of the strictest medical malpractice damage caps in the country, and an option that lets a party request that a medical screening panel review a case at the onset of litigation, Kansas’s medical malpractice laws are not particularly plaintiff-friendly. Tort reform has taken root in Kansas, and has been met with both enthusiasm and support. As a result, Kansas has a very distinct set of medical malpractice laws and associated procedures. Read on to learn more.
The statute of limitations in a medical malpractice case in Kansas is two years from the date of injury, or two years from the date on which the injury should have been reasonably discovered. Kansas also has a a four-year "statute of repose" for medical malpractice lawsuits, which says that a patient can’t rely on any "discovery" extension once four years have passed since the date of the medical error. So, even if the medical error wasn't "reasonably ascertainable" at any point during those four years, you're still barred from filing a medical malpractice lawsuit.
Kansas does not require any pre-suit notice of intent to sue, and also does not require an affidavit of meritorious claim or certificate of merit from an expert witness prior to filing.
However, a court must convene a medical screening panel in a malpractice question if either party requests it. The court can also convene a review panel on its own. The panel includes one health care provider selected by the plaintiff, one selected by the defendant, one selected jointly by both sides, and an attorney selected by the court. The panel then determines whether the defendant met the requisite medical standard of care and whether the plaintiff’s injuries were, in fact, caused by the defendant’s alleged malpractice. The written report and any dissenting reports may then be used as evidence in subsequent litigation.
Expert testimony is required to establish that a health care provider was negligent, unless the lack of reasonable care is obvious even to a layperson. Medical malpractice expert witnesses in Kansas must devote 50% of their professional time, in the two years preceding the incident giving rise to the case, to clinical practice in the same profession in which the defendant is licensed.
Kansas has capped non-economic damages in all personal injury cases (not just medical malpractice cases). Non-economic damages include compensation for "pain and suffering," anxiety, worry, sleeplessness, scarring, disfigurement, and other negative effects of the malpractice. The amount of the cap depends on when the right to file the lawsuit "accrued." In the context of a medical malpractice lawsuit, that usually means the date on which the underlying medical error was committed:
Juries are not told of this cap, and judges reduce any award in excess of the cap prior to entry of a judgment. In wrongful death cases, damages are capped at $250,000 except for cases involving pecuniary loss sustained by an heir. So if you file a case on behalf of a deceased loved one, and have experienced a monetary loss yourself because of the alleged wrongful death, the cap may not apply.
Remember that non-economic damages do not include losses for past and future medical treatment made necessary by the malpractice, past and future lost income and lost earning capacity, and any other damages that can be captured by an objective dollar amount. There's no limit on these economic damages, although Kansas Statutes section 60-3408 says that any jury verdict for "future economic losses" must specifically spell out the time period over which payment for such losses will be necessary.
Kansas allows punitive damages in medical malpractice cases. Punitive damages are limited to the defendant’s highest gross income in the prior five years or $5,000,000 -- whichever is less. In cases where it is determined that the defendant profited from the negligence committed, the court has the power to award punitive damages in the amount of one and a half times the profit, even if it exceeds $5,000,000. Judges, not juries, determine the amount of punitive damages, and punitive damages are not available in wrongful death cases.