Medical malpractice cases are complicated in all states, not just Kansas. With all of the medical and legal issues involved, you'll most likely need the help of an attorney experienced in handling these types of cases. But it's also helpful for a potential plaintiff (the person filing the lawsuit) to understand some of the most important laws that will affect any Kansas medical malpractice case, including the time limits for filing the lawsuit, the roles of the medical malpractice screening panel and settlement conference, and the rules on damages awarded in successful claims. Read on to learn more.
Kansas, like all states, has laws on the books setting deadlines for filing lawsuits in the state's civil court system. These laws, called "statutes of limitations," set different time limits depending on the type of case you want to file. The statute of limitations for a medical malpractice case in Kansas gives a potential plaintiff two years to file a lawsuit against a health care provider.
In most cases, the two-year clock starts running on the date the date of the injury, but Kansas applies what's known as the "discovery rule" in medical malpractice cases. Under that rule, the plaintiff has two years from the date of the health care provider's alleged negligent act or, if it's impossible to discover the injury until much later, the plaintiff has two years from the date he or she should have reasonably been expected to know of the provider's error. But Kansas also has a four-year "statute of repose" for medical malpractice lawsuits, which says that a patient can't apply the "discovery" extension more than four years after the date of the medical error. So, even if you couldn't have known about the medical error at any point during the four years after it occurred, you're still barred from filing a medical malpractice lawsuit once those four years are up.
(Kansas Statutes § 60-513 (2022).)
Many states, as part of tort reform efforts, have erected a number of hoops that a potential plaintiff in a medical malpractice case must jump through before actually filing the lawsuit. Unlike some of those states, though, Kansas does not require any pre-filing notice of intent to sue or an "affidavit of merit" from an expert witness prior to filing. But Kansas does have some other barriers a potential plaintiff must overcome before filing a medical malpractice claim.
Kansas law provides for a special review panel process to evaluate the merits of medical malpractice claims. In Kansas, the court must convene what's called a "medical malpractice screening panel" if any party to the lawsuit requests it, which they can do either before or after the lawsuit is filed. That means that if the defendant health care provider (or the judge in the case) asks for a review, the case must go before the panel before the lawsuit can proceed—even if the plaintiff doesn't want to go through the process.
The panel will include one health care provider selected by the plaintiff, one provider selected by the defendant, one provider selected jointly by both parties, and an attorney selected by the court to act as the panel's chairperson. The panel will review all of the evidence in the case and, within 180 days of convening, issue a written report addressing two questions:
The report and any dissenting opinions will be admissible as evidence in any subsequent lawsuit, and any party to the suit may call the panel members to testify at the trial.
It's important to note that the statute of limitations is "tolled" (the legal term for "paused") from the time a party requests the panel's review until 30 days after the panel issues its decision. At that point, the clock starts to run again.
(Kansas Statutes §§ 65-4901 through 65-4908 (2022).)
At least 30 days before a medical malpractice trial, Kansas law requires the court to convene a "settlement conference" in an attempt to resolve the case. The trial judge or a designee will oversee the conference, and all parties with authority to settle the claim must attend, "unless excused by the court for good cause."
(Kansas Statutes § 60-3413 (2022).)
Kansas statutes authorize "caps" (or limits) on noneconomic damages in all personal injury cases (not just medical malpractice cases). Noneconomic damages include compensation for harder to quantify injuries such as pain and suffering, anxiety, sleeplessness, and disfigurement. The cap for cases accruing on or after July 1, 2018 and before July 1, 2022 was set at $325,000 (and was to increase to $350,000 for cases accruing on or after July 1, 2022). But in June 2019, the Kansas Supreme Court ruled that these damage caps are unconstitutional, meaning that they are no longer in effect. (Hilburn v. Enerpipe Ltd., 309 Kan. 1127 (2019).)
Economic losses were never subject to the state's statutory damage cap. Economic damages include compensation for past and future medical treatment, lost income and earning capacity, and any other damages that can be captured by an objective dollar amount. There is no limit on these damages, although Kansas law states 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 Statutes § 60-3408 (2022).)
To understand how Kansas's medical malpractice laws apply to your potential claim, it might be time to discuss your situation with an attorney. Learn more about meeting and working with a medical malpractice lawyer.