Putting a price tag on damages
Published on -3/25/2014, 10:13 AM
Interesting discussion during that House floor debate on the medical malpractice bill last week.
The bill, of course, is that idea of the Kansas Medical Society to raise the noneconomic damage cap slowly, from $250,000 to an eventual $350,000 for damages which, frankly, are just hard to put a price tag on.
The case was that of a woman whose surgeon removed the wrong ovary, meaning as a result of the malpractice, she can't have children. What's the price tag for that noneconomic loss? The court said the $250,000 cap on damages is legal, but doesn't feel right, and ought to be moved upwards.
Well, that was the basis for the bill, and there wasn't a lot of opposition to raising the cap.
But a sidelight of that bill was language that would allow juries to hear the victim of damages in any sort of lawsuit had "collateral sources" or some other source of compensation for the damages caused by someone else.
The result? Possibly a jury could determine if an injured party in any sort of action -- say, a car wreck with a drunk or texting driver -- has insurance, he or she would be made whole by their insurance, so the person who caused the accident shouldn't have to pay the full cost of the damages.
Juries now don't have that collateral source information.
Rep. Lance Kinzer, R-Olathe, convinced the House it shouldn't matter whether the victim of someone else's negligence or mistake has other sources of compensation: You cause the damage, you pay for all of it. It's a personal responsibility deal. You break it, you buy it.
Kinzer told the House it shouldn't matter whether your house is insured or not if someone sets fire to it. The person who started the fire should pay for the whole house. Or, if you are injured in a car crash and have insurance to cover your medical bills, well, the person who caused that accident should pay the full cost of those bills.
There's no suggestion in the bill the jury in a case would reduce damages based on those collateral source ... just it should know the injured party has been taken care of.
Sounds like it probably would make it cheaper to crash into a rich person's car than a poor person's car, if the victim's insurance is going to take care of the damages, doesn't it? A jury could factor in the rich or well-insured victim will get a new car anyway, while the poor person will become a pedestrian, so the well-insured victim doesn't need as much in damages.
This isn't just car crashes. It's mistaken legal advice that puts a client's investments at risk, or the apartment owner whose stairway is rotted.
The collateral source rule might just pare damage payments for those at fault -- or their insurers -- in an accident. Or not. But it would be floating around there in the jury room where it probably shouldn't.
We'll see how that amendment fares in the Senate, which had passed the bill that included the now-removed collateral source language.
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of Topeka, Martin Hawver is publisher of Hawver's Capitol Report.