Tuesday, September 02, 2014

HAWVER: Lawmaker: You break it, you buy it

By MARTIN HAWVER, At the Rail | 3/24/2014

An interesting discussion unfolded last week during a House floor debate on a medical malpractice bill.

The bill, of course, is that idea of the Kansas Medical Society to raise the noneconomic damage cap slowly, from the current $250,000 to an eventual $350,000 for damages which, frankly, are just difficult to put a pricetag on.

An interesting discussion unfolded last week during a House floor debate on a medical malpractice bill.

The bill, of course, is that idea of the Kansas Medical Society to raise the noneconomic damage cap slowly, from the current $250,000 to an eventual $350,000 for damages which, frankly, are just difficult to put a pricetag on.

The case was that of a woman whose surgeon removed the wrong ovary, meaning that as a result of the malpractice, she can’t have children. What’s the pricetag 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 upward.

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 that 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 that 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 that accident shouldn’t have to pay the full cost of the damages.

Juries now don’t have that collateral source information.

State Rep. Lance Kinzer, R-Olathe, convinced the House that 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 that 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 wreck should pay the full cost of those bills.

There’s no suggestion in the bill that the jury in a case would reduce damages based on those collateral sources ... just it should know that the injured party has been taken care of.

Sounds like it would probably 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 that 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 a wreck. 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.

Martin Hawver is publisher of Hawver’s Capitol Report. Visit his Web site at www.hawvernews.com

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