Kansas Supreme Court Case Suggests Court Would Uphold Damage Cap in Wrongful Death Cases

In a recently released four to three decision, the Kansas Supreme Court upheld a statute banning a claim for wrongful birth. In the case of Tillman v. Goodpasture, the Supreme Court held the statute was constitutional and enforceable.

Wrongful birth cases are a form of medical malpractice based on the negligence of a physician in failing to identify severe and permanent defects in a fetus and/or inform the parents of such defects, thus depriving the parents of the opportunity to abort the pregnancy. Damages are typically the cost and mental anguish in caring for a severely disabled child. Kansas has a statute, K.S.A. 60-1906, banning wrongful life or wrongful birth cases. The plaintiffs in the Tillman case were parents of a severely disabled child. They brought a wrongful birth case against Dr. Goodpasture, their ob-gyn, for failing to “diagnose several structural abnormalities and defects in the fetus’ brain.” The plaintiffs argued the statute banning wrongful birth cases was unconstitutional because it violated their rights to a jury trial under section 5 of the Kansas Constitution Bill of Rights and their right to a legal remedy under Section 18 of the Kansas Constitution Bill of Rights.

The majority of the Court concluded the statute prohibiting wrongful birth lawsuits was constitutional on the argument that sections 5 and 18 of the Kansas Constitution Bill of Rights only apply to causes of action that existed at common law at the time the Kansas Constitution was enacted. Wrongful birth claims did not exist in common law at that time. Accordingly, the legislature can constitutionally ban such claims.

The Potential Effect of the Decision in the Wrongful Death Cap

In the Hilburn v. Enerpipe decision in 2019, the Kansas Supreme Court ruled the cap on noneconomic damages in personal injury lawsuits was unconstitutional because it violated sections 5 and 18 of the Kansas Constitution Bill of Rights by denying the plaintiffs a jury trial and legal remedy. This was the same argument raised in the Tillman case. The difference between the Hilburn case and the Tillman case was the plaintiff’s claim in Hilburn was based on standard negligence, a claim that existed at common law. However, the claim in the Tillman case was based on the relatively recent claim of wrongful birth that did not exist at common law at the time the Kansas Constitution was enacted.

The Hilburn decision only applied to noneconomic damages in standard negligence cases. There is a separate statute, K.S.A. 60-1903, that applies to wrongful death cases and it limits nonpecuniary (non-economic) damages to $250,000. That particular statute was not addressed in the Hilburn case because it was not a wrongful death case. After Hilburn, many questioned whether the Court would also find the wrongful death cap unconstitutional. The decision in Tillman suggests the Court, at least as presently constituted, would find the wrongful death cap constitutional and enforceable because a wrongful death claim, like a wrongful birth claim, did not exist at common law before the enactment of the Kansas constitution.