Medical Malpractice Caps Ruled Unconstitutional in Kansas

A ruling by the Kansas Supreme Court over the summer is likely to result in higher malpractice insurance premiums for healthcare providers (business owners) and practitioners (doctors who earn W-2 wages). In June, the court ruled that caps on certain damages awarded by juries are unconstitutional.


In November 2010, a woman was injured after a commercial truck rear-ended the vehicle in which she was riding. She sued the company that owned the truck alleging their liability for the driver’s negligence. Diana K. Hilburn was awarded $335,000 in damages ($33,490.86 for medical expenses and $301,509.14 for emotional damages, pain, suffering, and loss of enjoyment of life). A district judge later reduced the award by more than $51,000 so it was in line with Kansas’ award cap of $250,000. The case landed in front of the Kansas Supreme Court, which ruled 4-2 that the cap hinders a jury’s ability to award appropriate damages to compensate for physical and emotional injuries.

What Healthcare Providers Need to Know

Since caps or limits on pain and suffering compensation in Kansas have been removed, you may see malpractice insurance premiums start to climb. Some strategies to protect your assets include:

  1. Consult your legal advisor. Your lawyer will be able to draft LLC and trust agreements to help protect your personal assets.
  2. Consider putting some of your financial assets into an LLC or trust. This shields your personal assets from being accessible to a medical malpractice claim.
  3. Consult your financial advisor and accountant to update your estate plan after you’ve moved assets into the trust or LLC.
  4. Review your medical malpractice insurance policy to ensure you’ve increased your malpractice limits. You should do this whether you own the business or are employed by the practice.
  5. Communicate the importance of documentation and recordkeeping to your team. If you have good records, you’ll be in a better position should a malpractice claim come your way.

It’s important for you to be proactive in assessing the implications this ruling may have on your situation. As we approach income tax filing season, consult with your Adams Brown advisor.