The Kansas chapter of the National Federation of Independent Business is concerned, to say the least, by the decision made by the Kansas Supreme Court on Friday with regard to damage caps in tort cases.

“The trial lawyers caught the ambulance on Friday, following the Kansas Supreme Court’s decision,” said NFIB-Kansas State Director, Dan Murray. “It was shocking and troubling. It overturned the legislative caps on non-economic damages in personal injury and medical malpractice lawsuits, so think about pain and suffering damages. This awful decision by the Court overturns statutes that have been in place for over 30 years.”

The concern is that one imprudent jury award could kill a small business.

“Why the caps were put in place 30 years ago, is that small businesses, doctors, hospitals, they just couldn’t afford the costly liability and malpractice insurance needed to cover the risk of potential non-economic damages,” said Murray. “These could balloon into the hundreds of millions of dollars if there’s no cap.”

There never has been a cap on actual damages, so if you can prove actual damage, that can be made whole. The issue here is the ability to punish a business in the case of a misdeed or mistake.

“How can an insurance underwriter predict what an overzealous jury might award someone, in what might be a tragic accident or injury?,” asked Murray. “Over time, we have been able to calculate actual damages to the party, but how can we underwrite the risk involved in what non-economic damages are determined to be by a jury?”

Lawyers for NFIB and other pro-business groups are looking into how legislation can be drafted to better conform to the Kansas Constitution in hopes that some sort of cap can be reinstated in the 2020 session.