Miller v. Johnson

Johnson, J.,

concurring in part and dissenting in part: I wholeheartedly join with Justice Beier’s concurrence and dissent and fully embrace her well-reasoned legal analysis. I write separately only to share some of my observations about K.S.A. 60-19a02, viewed through the lens of practicality and common-sense, rather than constitutional jurisprudence. For simplicity, I will use the term “doctor” to refer to all medical care providers covered by the statute.

As I understand it, the rationalization for imposing the statutory cap (Cap) on recoverable noneconomic damages in a medical mal *728 practice action was to address a perceived crisis created by the nonavailability and high cost of medical malpractice insurance. It would seem abundantly clear that the reason that an insurance company would quit writing policies in Kansas or would raise premiums to an exorbitant level is that the amount of money the company had to pay out in claims was too high in relation to the amount of premiums it had collected from its policyholders, i.e., the insurance company was not malting a suitable profit selling medical malpractice insurance in Kansas. Supposedly, then, doctors did not want to practice in Kansas because of the limited availability and high cost of malpractice insurance. So the legislative solution to the doctor shortage (or threat of a doctor shortage) was to establish the Cap, the apparent purpose of which was to fix a limit on the amount of money that a medical malpractice insurer would have to pay on each claim, thereby helping the company make more money and perhaps enticing it to lower its premiums and maybe attract more doctors to this state. Regardless of whether one believes that the “crisis” existed, the legislative “fix” to the stated problem is illogical and counterproductive, as well as making a statement that Kansas citizens do not possess sufficient intelligence, wisdom, and judgment to perform the duties of jurors.

First, I believe it is important to review when a medical malpractice insurer will be called upon to pay a claim under such a policy. Consistent with all liability insurance, a medical malpractice claim is only payable where the doctor is legally liable for a patient’s injuries. A doctor is legally liable—commits malpractice—only when the doctor fails to exercise an appropriate degree of care and skill. If the' doctor has not been careless or medically inept, the doctor has not committed malpractice for insurance purposes, even if the patient suffers a horribly bad result. And who says what degree of care and skill the doctor must satisfy to avoid a malpractice claim? Other doctors practicing in the same field as the defendant doctor set those standards.

In other words, malpractice insurance companies only have to pay for injuries that are caused by an insured doctor’s carelessness or ineptitude, as measured by other doctors. I am convinced that Kansas enjoys an abundance of wonderfully skilled, careful, and *729 professional doctors. But just as we observe in the legal profession, some practitioners are simply incapable or unwilling to consistently perform in compliance with the minimum standards of the profession. One would naturally expect that group of perennially un-derperforming doctors to he responsible for a disproportionate number of the egregiously injured patients being paid by malpractice insurers.

Perhaps, then, a more effective means of solving a malpractice insurance crisis would be to address its root problem and reduce the number of doctors who are chronically careless and/or unskilled. That is the tack the legislature took when it determined there was a crisis of too many alcohol-related highway deaths. It passed tougher driving under the influence laws to try to get the drunks off of Kansas roads. Why not try to get the unskilled and careless doctors out of their Kansas offices and hospitals?

That course of action would have the added benefit of reducing the number of malpractice claims. In contrast, the Cap only addresses the amount of damages to be paid in any one claim. A particular doctor could suffer any number of malpractice judgments in any timeframe, thus exposing the malpractice carrier to the possibility of paying multiple $250,000 noneconomic claims. How is that effective to reduce the overall cost of malpracticing doctors?

For a method of achieving an actual solution to the stated crisis, one need only look at how automobile liability insurance carriers operate. Those companies perform an underwriting function each policy renewal to separate the bad risks from good risks, looking at certain factors such as the number of accidents the insured driver has caused. A driver labeled as a bad risk will not be offered a policy at normal rates, but rather will have to pay a substantial premium on a “high-risk” policy for minimum coverage. If that person cannot afford the exorbitant premiums, he or she simply cannot legally drive a vehicle. The very careful driver—one with a long histoiy of driving without an accident—will be rewarded with a preferential policy, providing such things as a good-driver discount or a disappearing deductible. In other words, good drivers do not subsidize the bad drivers’ insurance. Likewise, the injured *730 persons are third-party victims, not parties to the bad drivers’ automobile insurance contracts, and they should not have to subsidize the bad drivers’ premiums through a reduction in compensation.

In short, if the problem to be solved here really is the availability and cost of medical malpractice insurance, a solution exists that would place the burden on those directly responsible for tire problem rather than on their victims. The overall quality of medical care for Kansas citizens would be enhanced because unskilled and careless doctors would be priced out of the malpractice insurance market and unable to practice legally in this State. In contrast, the Cap creates the ultimate irony: Chronically inept and careless doctors are encouraged to locate in Kansas and continue to maim and injure their patients, because those injured patients will help subsidize affordable malpractice premiums through an artificial and arbitrary reduction in collectible damages. Remembering that doctors who exercise the appropriate level of skill and care do not commit malpractice and do not create malpractice insurance crises, one has to wonder whether the legislative goal in fixing the Cap was to increase the availability of doctors who frequently get sued. That is the effect, if not the intent, and I am amazed that the electorate in Kansas is content to let that circumstance continue.

Another concept that I find incomprehensible is the argument that the Cap is needed in order for insurers to have a limit on their exposure. The majority repeats the defense argument that the Cap is needed to “[eliminate] both the difficulty with rate setting due to the unpredictability of noneconomip damages awards and the possibility of large noneconomic damage awards.” Miller, slip op. at 39. This is a rationalization that must be addressed lest it hoodwink the uninformed. Malpractice insurance policies, like other liability insurance policies, provide for limits of liability. The term “limit of liability” means exactly what it says: a fixed limit on the amount that the insurance company will have to pay in the event of a loss. In other words, the company is protected against an unpredictably high noneconomic jury award by its contract requiring it to pay only the limit of liability for which a premjum was charged. That is why tire higher the limits of liability on a policy, the higher the insured’s premiums. Moreover, “unpredictability” is the touch *731 stone of insurance; companies never know when a tornado or hailstorm may hit a particular Kansas town or when an insured driver may cause a 20-car pile-up on Interstate 70. In short, I fail to discern any unique actuarial dilemma for a medical malpractice liability risk. Likewise, as previously noted, the Cap does not provide any stability to the overall exposure of insurers, because it does not prevent multiple, successive claims against a doctor. For instance, a doctor with four malpractice incidents on which the Cap applied could present claims for noneconomic damages totaling a million dollars. How does a Cap make that more predictable?

What I do discern is that the Cap will protect a malpracticing doctor against an excess judgment, over and above the insurance policy limits of liability, which might be collectible against the doctor s personal assets. Perhaps that is a risk to be avoided, but, if so, I would prefer that the Cap proponents be candid about this purpose.

Finally, to state the obvious for us in tire legal profession, the amount of noneconomic damages that will compensate a malpractice victim is determined by a jury composed of regular Kansas citizens—not by a “liberal activist judge” or a “greedy plaintiff s attorney.” Our friends and neighbors who are doing their civic duty of serving as jurors, and who have no personal interest in the outcome of the case, assess the evidence and fix the amount of damages that are appropriate. Having been called to jury duty myself, I am offended by the legislature’s suggestion that Kansas citizens cannot be trusted to determine the appropriate amount of damages on the facts before them. It is at least curious that those legislators who crow about serving in the “people’s body of government” would effectively disenfranchise the people they represent by negating their votes as jurors.

Unfortunately, the most affluent and advantaged people in our society often get what they want at the expense of the least fortunate among us whose voice is not loud enough to be heard. Sometimes, juries and the courts will act as life preservers for these burdened minorities. Today, in my view, this court has incorrectly and unnecessarily limited jury involvement and allowed a segment of unfairly burdened Kansans to drown while maintaining higher *732 profits for insurance companies and lower expenses for doctors. Shame on us.