Date: 10-25-2012

Case Style: Amy C. Miller v. Carolyn N. Johnson, M.D.

Case Number: 99,818

Judge: Biles

Court: Supreme Court of Kansas

Plaintiff's Attorney: William J. Skepnek, of Skepnek Fagan Meyer & Davis, of Lawrence, argued the cause in the original argument and on reargument; Ned I. Miltenberg, of Center for Constitutional Litigation, P.C., of Washington, D.C., argued the cause in the original argument, and Trey T. Meyer, of Skepnek Fagan Meyer & Davis, of Lawrence, was with them on the briefs for appellant/cross-appellee. Lynn R. Johnson, of Shamberg, Johnson & Bergman, of Kansas City, Missouri, and Robert S. Peck, of Center for Constitutional Litigation, P.C., of Washington, D.C., argued the cause on reargument for appellant/cross-appellee.

James R. Howell and Derek Casey, of Prochaska, Giroux & Howell, of Wichita, and Lynn R. Johnson, and David Morantz, of Shamberg, Johnson & Bergman, of Kansas City, Missouri, were on the brief for amicus curiae Kansas Association for Justice.

Molly Wood, of Stevens & Brand, LLP, of Lawrence, was on the brief for amici curiae AARP; El Centro, Inc.; Kansas AFL-CIO, Kansas Advocates for Better Care, Inc.; The Disability Rights Center of Kansas; Kansas Coalition Against Sexual and Domestic Violence; and Linda Henry Elrod, Director of Children and Family Law Center of the Washburn University School of Law.

Defendant's Attorney: Bruce Keplinger, of Norris & Keplinger, of Overland Park, argued the cause in the original argument and on reargument, and John Hicks, of the same firm, was with him on the brief for appellee/cross-appellant. Steven C. Day, of Woodard, Hernandez, Roth & Day, L.L.C., of Wichita, argued the cause on reargument for appellee/cross-appellant.

Cathy J. Dean, Douglas J. Kramer, and Lauren E. Tucker McCubbin, of Polsinelli Shughart PC, of Kansas City, Missouri, were on the brief for amicus curiae Kansas Medical Society and Kansas Hospital Association.

Timothy J. Finnerty and Ryan D. Weltz, of Wallace, Saunders, Austin, Brown & Enochs, Chartered, of Wichita, were on the brief for amicus curiae Kansas Association of Defense Counsel.

Toby Crouse, Scott C. Nehrbass, and James D. Oliver, of Foulston Siefkin, LLP, of Overland Park, were on the brief for amicus curiae Kansas Chamber of Commerce.

William Rich and James M. Concannon were on the amici curiae brief pro se.

Steven C. Day, of Woodard, Hernandez, Roth & Day, LLC, of Wichita, was on the brief for amicus curiae Estephan N. Zayat, M.D.

Description: Amy C. Miller sued her doctor, who mistakenly removed her left ovary during a laparoscopic surgery intended to take the right ovary, and a jury awarded her $759,679.74 in damages. But the district court reduced that amount by $425,000 because of a state law limiting noneconomic damages in personal injury lawsuits and a posttrial ruling finding her evidence of future medical expenses insufficient. Both sides appeal, with each claiming the district court erred at various points in the proceedings.

Our initial focus is the constitutionality of K.S.A. 60-19a02, which operated to cap Miller's jury award for noneconomic damages. This statute is one of several enacted to "reform" our state's tort laws, and it has been a subject this court has visited—and revisited—in prior cases with conflicting outcomes. It represents a long-standing and highly polarizing question nationwide. See, e.g., Samsel v. Wheeler Transport Services, Inc., 246 Kan. 336, 338, 789 P.2d 541 (1990) (Samsel II) (referring to "the stormy controversy which currently surrounds the liability insurance and tort systems"); see also Kansas Malpractice Victims Coalition v. Bell, 243 Kan. 333, 354-55, 757 P.2d 251 (1988) (McFarland, J., dissenting) ("Many physicians truly believe that the legal profession is out to destroy them for personal gain. Many lawyers believe, with equal sincerity, that the medical profession is attempting, through legislation, to avoid its responsibility for harm done by its members. Companies providing medical malpractice insurance are attacked by both groups."). The continuation of this controversy no doubt contributed to the larger-than-usual volume of briefs received in this appeal from the parties and their allied interests.

In resolving the four constitutional issues in this case, a majority of the court upholds K.S.A. 60-19a02 as applied to Miller—a medical malpractice victim. A minority would hold the statute unconstitutional.

As to the trial errors alleged, we unanimously reverse the district court's decision to strike the jury's award for Miller's future medical expenses and remand the case with instructions to reinstate that award. As for the doctor's cross-appeal, it is argued the trial court erred by denying a motion for judgment as a matter of law and motion for new trial. We unanimously deny the doctor's trial error claims.

FACTUAL AND PROCEDURAL BACKGROUND

The essential facts are straightforward. Miller began seeing Dr. Carolyn N. Johnson in 1994 with a history of painful and irregular menstrual periods. In 2002, after continued suffering from severe pain in her right lower quadrant, Miller, who was 28 years old at the time, consented to having her right ovary removed. Johnson performed a laparoscopic procedure for that purpose. The surgical report, signed by Johnson, stated that the right ovary had been removed. Miller, however, continued to experience severe pain.

Three months after the surgery, Miller discovered during an examination with another doctor that Johnson had mistakenly removed her left ovary instead of the right. A different physician attempted to manage Miller's continuing pain with nonsurgical options, but the pain persisted and Miller decided to have another surgeon remove her remaining ovary. She sued Johnson for medical malpractice in 2004, alleging the doctor violated the appropriate standard of medical care. Johnson vigorously contested the lawsuit, claiming Miller's preexisting medical conditions would have required eventual removal of both ovaries and her uterus, even if the left ovary was taken first in error.

The case went to trial and a jury found the doctor completely at fault. It awarded Miller $759,679.74 in total monetary damages, comprised as follows: (1) $84,679.74 for medical expenses to date; (2) $100,000 for future medical expenses; (3) $250,000 for noneconomic loss to date; (4) $150,000 for future noneconomic loss; and (5) $175,000 noneconomic loss for impairment of services as a spouse. But the district court reduced the jury's award in two postverdict decisions. In its first ruling, the district court enforced the statutory limitation on noneconomic damages required by K.S.A. 60-19a02. This cut the jury's total award of $575,000 in noneconomic damages by $325,000 to conform to the $250,000 statutory cap. In so ruling, the district court rejected Miller's efforts to avoid the statute's restrictions by challenging its constitutionality. Miller argued the cap violated her right to trial by jury, the right to remedy by due course of law, equal protection, and the doctrine of separation of powers. The primary basis for the district court's ruling was the 1990 decision in Samsel II, which was this court's most recent decision on the issue and which the lower court was bound to follow. In addition, the district court denied Miller's request for an evidentiary hearing to attack the legislature's basis for enacting the cap. Instead, Miller filed a written motion proffering the testimony she would have submitted. Highly summarized, Miller's experts would have testified there was no empirical evidence to support a claimed medical malpractice crisis to justify the legislation, that the noneconomic damages cap has a disparate impact on women and the elderly, and that there is little support for believing that juries award damages for frivolous claims out of sympathy for a plaintiff.

In its second ruling, the district court struck the $100,000 jury award for future medical expenses. The court held that Miller offered insufficient evidence for the jury to make findings about her future medical or counseling needs, how much future care she would require, or what that cost would be over the next several decades until she reached menopause.

Combining the reductions resulting from these two determinations, the district court entered a final monetary judgment against Johnson for $334,679.74.

In rulings made against the doctor that are also the subject of this appeal, the district court denied Johnson's motion for judgment as a matter of law, which was premised on a defense claim that Miller failed to prove causation due to her preexisting medical conditions. The district court held there was sufficient evidence to support the jury's finding on causation. It further found there was no medical indication to remove the left ovary at the time Johnson performed the laparoscopic procedure and that the evidence was sufficient to show Miller experienced a variety of problems as a result of her having both ovaries removed. The district court acknowledged that Johnson presented conflicting evidence but held those inconsistencies were best resolved by the jury, which found against the doctor.

Regarding the motion for new trial, the district court rejected the doctor's argument that it had improperly prevented Miller's treating physicians from testifying that it would have been necessary to eventually remove both ovaries. Johnson claimed this evidence supported the defense theory and would have been significant to jury deliberations. But the district court disagreed and held the treating physicians' testimony was properly limited to those matters stated in their medical records, their care and treatment of Miller, and inquiries reasonably related to that treatment. Both sides appeal the rulings adverse to their respective interests. This court transferred the case from the Court of Appeals. See K.S.A. 20-3018(c) (transfer of cases on court's motion). Thereafter, we conducted oral arguments on two separate dockets. This unusual occurrence was necessitated by changes to the court's composition after the original oral arguments. Reargument was held February 18, 2011.

We address first the four constitutional attacks leveled against K.S.A. 60-19a02 by Miller, and then we will discuss the trial error claims. But before doing so, the court acknowledges the contributions to our analysis made by the parties and amici curiae. Their deeply rooted concerns about these important constitutional questions are evident, even though they disagree in the rationale that might drive the outcomes.

THE STATUTE'S CONSTITUTIONALITY

K.S.A. 60-19a02 was enacted in 1988. L. 1988, ch. 216, sec. 3. It limits the total amount recoverable to $250,000 for noneconomic loss in any personal injury action, including medical malpractice claims. "Noneconomic losses include claims for pain and suffering, mental anguish, injury and disfigurement not affecting earning capacity, and losses which cannot be easily expressed in dollars and cents." Samsel II, 246 Kan. 336, Syl. ¶ 6. The statute provides:

"(a) As used in this section 'personal injury action' means any action seeking damages for personal injury or death.

"(b) In any personal injury action, the total amount recoverable by each party from all defendants for all claims for noneconomic loss shall not exceed a sum total of $250,000.

"(c) In every personal injury action, the verdict shall be itemized by the trier of fact to reflect the amount awarded for noneconomic loss.

"(d) If a personal injury action is tried to a jury, the court shall not instruct the jury on the limitations of this section. If the verdict results in an award for noneconomic loss which exceeds the limit of this section, the court shall enter judgment for $250,000 for all the party's claims for noneconomic loss. Such entry of judgment by the court shall occur after consideration of comparative negligence principles in K.S.A. 60-258a and amendments thereto.

"(e) The provisions of this section shall not be construed to repeal or modify the limitation provided by K.S.A. 60-1903 and amendments thereto in wrongful death actions.

"(f) The provisions of this section shall apply only to personal injury actions which are based on causes of action accruing on or after July 1, 1988." (Emphasis added.) K.S.A. 60-19a02.

This was not the first restraint on noneconomic damages imposed by the legislature in common-law tort cases in Kansas. The first was enacted in 1986 and applied exclusively to medical malpractice lawsuits. K.S.A. 1986 Supp. 60-3407. It restricted noneconomic damages to $250,000 but also imposed an overall cap of $1 million for total damages. K.S.A. 1986 Supp. 60-3407(a). It further provided for annual adjustments to the noneconomic damages cap based on the consumer price index. K.S.A. 1986 Supp. 60-3407(d). This 1986 statute was enacted in response to continued efforts from health care professionals and the insurance industry to improve insurance rates for medical malpractice coverage and make insurance more readily available. K.S.A. 1987 Supp. 60-3405. In 1988, a majority of this court declared the 1986 cap on noneconomic damages unconstitutional. Kansas Malpractice Victims, 243 Kan. at 346, 352 (statute violated both the Section 5 right to jury trial and Section 18 remedy provision of the Kansas Constitution Bill of Rights). But even before the Kansas Malpractice Victims decision was announced, the 1987 legislature enacted a $250,000 noneconomic damages cap limiting recovery for pain and suffering in all other personal injury actions. L. 1987, ch. 217, sec. 1. That statute did not apply to medical malpractice actions and did not include a cost-of-living adjustment. K.S.A. 1987 Supp. 60-19a01. The following year, the legislature merged these two damages caps into the statute at issue in this case. L. 1988, ch. 216, sec. 3. The cost-of-living adjustment in the earlier medical malpractice cap was removed. Cf. K.S.A. 60-19a02; K.S.A. 1986 Supp. 60-3407(d). K.S.A. 60-19a02 now places a $250,000 limitation on noneconomic damages in all personal injury actions, including medical malpractice claims, accruing on or after July 1, 1988. K.S.A. 60-19a02(f).

In 1990, a majority of this court upheld the 1988 statute's constitutionality. Samsel II, 246 Kan. at 338. Since then, this court has considered other "tort reform" statutes, as they are commonly characterized, upholding some and declaring others unconstitutional. See Bair v. Peck, 248 Kan. 824, 845, 811 P.2d 1176 (1991) (K.S.A. 40-3403[h] does not violate the right to jury trial, right to remedy, or equal protection by eliminating vicarious liability of health care providers in certain circumstances); Thompson v. KFB Ins. Co., 252 Kan. 1010, 1022-23, 850 P.2d 773 (1993) (K.S.A. 60-3802 violated equal protection by allowing evidence of collateral source benefits in personal injury cases when plaintiff sought more than $150,000 in damages); Smith v. Printup, 254 Kan. 315, 332-33, 866 P.2d 985 (1993) (K.S.A. 60-3701 et seq., does not violate right to jury trial by requiring courts to decide punitive damages); Aves v. Shah, 258 Kan. 506, 524, 527, 906 P.2d 642 (1995) (K.S.A. 40-3403[e] and K.S.A. 40-3412[c] do not violate Section 18 due process or equal protection by prohibiting bad faith actions against the Health Care Stabilization Fund); Bonin v. Vannaman, 261 Kan. 199, 217-19, 929 P.2d 754 (1996) (K.S.A. 60-515[a] does not violate Section 18 right to remedy or equal protection by setting an 8-year statute of repose for minors or persons with legal disability); Lemuz v. Fieser, 261 Kan. 936, 960, 933 P.2d 134 (1997) (K.S.A. 65-442[b] does not violate Section 18 right to remedy by abrogating corporate negligence claims against any medical care facility for allowing a physician, who is not an agent or employee, to work on its staff).

Miller argues the statutory cap violates: (1) the right to jury trial under Section 5 of the Kansas Constitution Bill of Rights; (2) the right to remedy by due course of law under Section 18 of the Kansas Constitution Bill of Rights; (3) the equal protection provision of Section 1 of the Kansas Constitution Bill of Rights; and (4) the doctrine of separation of powers. Miller urges us to revive the reasoning in Kansas Malpractice Victims, which struck down the 1986 cap and found that statute unconstitutional. Johnson counters that our 1990 Samsel II decision, which more recently upheld the current statute's constitutionality, is the binding precedent that should resolve future court rulings on this subject. The amici take various positions in concert with their respective interests, which we address when necessary.

Standard of Review for Challenges to a Statute's Constitutionality

"Courts are only concerned with the legislative power to enact statutes, not with the wisdom behind those enactments." Samsel II, 246 Kan. at 348. Our standard of review is well known. When a statute's constitutionality is attacked, the statute is presumed constitutional and all doubts must be resolved in favor of its validity. If there is any reasonable way to construe that statute as constitutionally valid, this court has the authority and duty to do so. Rural Water District No. 2 v. City of Louisburg, 288 Kan. 811, 817, 207 P.3d 1055 (2009) (citing Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 629-30, 176 P.3d 938 [2008]). Appellate courts conduct unlimited review of questions regarding a statute's constitutionality because they are issues of law. Brennan v. Kansas Insurance Guaranty Ass'n, 293 Kan. 446, 450, 264 P.3d 102 (2011).

Section 5 Analysis—the Right of Trial by Jury

Section 5 of the Kansas Constitution's Bill of Rights protects the right to trial by jury. It states: "The right of trial by jury shall be inviolate." This right is "a basic and fundamental feature of American jurisprudence." Gard v. Sherwood Construction Co., 194 Kan. 541, 549, 400 P.2d 995 (1965). "It is a substantial and valuable right and should never be lightly denied. The law favors trial by jury, and the right should be carefully guarded against infringements." 194 Kan. at 549.

Our court has consistently held that Section 5 preserves the jury trial right as it historically existed at common law when our state's constitution came into existence. State ex rel. v. City of Topeka, 36 Kan. 76, 85-86, 12 P. 310 (1886) (Section 5 means "the right of trial by jury shall be and remain as ample and complete as it was at the time when the constitution was adopted."); Kimball and Others v. Connor, Starks and Others, 3 Kan. 414, 432 (1866). And the parties correctly do not dispute that common-law tort actions, including medical malpractice claims, were historically triable to a jury. See, e.g., Kansas Malpractice Victims, 243 Kan. at 342-43. There is also correctly no dispute that the amount of damages, including noneconomic damages, was a question of fact determined by the jury in common-law tort actions. See Samsel II, 246 Kan. at 350-52, 358.

Miller argues the cap unconstitutionally supplants the jury's role in assessing damages according to the evidence adduced at trial with an arbitrary number picked by legislators. Johnson disagrees, claiming the jury's function is unimpeded by the statute because the jury is not told to award damages up to $250,000. Instead, it is instructed to determine the amount of money that will "fairly and adequately compensate" the plaintiff. See PIK Civ. 4th 171.02. Johnson further contends the statutory cap simply operates to prevent the district court from entering a judgment against a defendant that is more than $250,000 for noneconomic damages. Johnson argues this postverdict exercise does not infringe on the jury's actual function, so the right to jury trial is not implicated by the statute and there is no constitutional issue presented under Section 5. See also Justice McFarland's concurrence in Samsel II, 246 Kan. at 363 (right to jury trial does not extend to remedy phase of trial).

But we need not engage these contentions for long because our caselaw already makes clear that Miller's personal injury claims against her doctor are subject to Section 5 protections. See Samsel II, 246 Kan. at 358 (damages are a jury issue under Section 5); Kansas Malpractice Victims, 243 Kan. at 342-43 (actions for recovery of damages for negligent injury were triable to a jury under the common law, so Section 5 guarantees the right to a trial by jury in medical malpractice actions); Gard, 194 Kan. at 549 (parties entitled to jury trial as a matter of right in common law action for damages based on negligence claim). And given the jury's historic role in determining noneconomic damages based on the facts of each case, we follow our existing caselaw and hold that K.S.A. 60-19a02 encroaches upon the rights preserved by Section 5. This encroachment, however, does not necessarily render K.S.A. 60-19a02 unconstitutional under Section 5.

Our court has long recognized that the legislature may modify the common law in limited circumstances without violating Section 5. See Samsel II, 246 Kan. at 358; Kansas Malpractice Victims, 243 Kan. at 344; Manzanares v. Bell, 214 Kan. 589, 616, 522 P.2d 1291 (1974); Shade v. Cement Co., 93 Kan. 257, 260, 144 Pac. 249 (1914). And neither party challenges the legislature's authority to modify the common law without violating Section 5—an argument that would have been contrary to our prior caselaw. Instead, Miller and Johnson dispute the extent of the limitations that exist on this legislative power.

We begin our analysis by examining how this court has previously addressed the limitations on the legislative power to modify common-law rights under Section 5 by tying that determination to the substitute remedy analysis used in Section 18 right-to-remedy cases—commonly referred to as a "quid pro quo" (this for that). Our caselaw derives from decisions upholding the state's workers compensation system and no-fault automobile insurance, as well as conflicting decisions dealing with health care provider insurance availability and general tort litigation. We consider this next. In Shade, the first decision addressing Section 5, this court considered a constitutional challenge to the state's original workers compensation system, which was enacted early in the 20th century. This statutory scheme represented a significant public policy shift in how injured workers could recover for on-the-job injuries because it abolished a worker's common-law right to sue an employer or fellow employee and denied the worker the right to have a jury determine damages. See Injured Workers of Kansas v. Franklin, 262 Kan. 840, 852, 942 P.2d 591 (1997) ("In 1911, the legislature abolished a plaintiff's right to sue an employer for damages caused by the negligence of the employer. In place of this right, the legislature gave employees the Workers Compensation Act."). The Shade court expressly held that Section 5 was not an impediment to the legislature's authority to enact the workers compensation system. Shade, 93 Kan. at 260 ("The objection based upon the supposed deprivation of a right of trial by jury is equally untenable, as determined in many adjudicated cases.").

But the Shade court's holding did not articulate the analytical basis for its decision on the Section 5 challenge. This has led some post-Shade decisions and the dissenters in this case to interpret Shade as upholding the legislation solely upon an opt-out provision that permitted employees and employers to elect out of the system prior to a claim occurring. See Kansas Malpractice Victims, 243 Kan. at 344 (commenting that Shade "upheld the validity of worker's compensation legislation because coverage under the act was elective"). This view, however, can be criticized as an oversimplification of the statute. The opt-out provision in the original workers compensation law was entirely passive in nature, and its effect was not based on a knowing and voluntary waiver or affirmative consent. Instead, the law upheld in Shade abolished an injured worker's "inviolate" right to a jury trial as stated in Section 5 even though the worker had done nothing to accept the benefits under the statute or forego his or her constitutional right to a jury trial. The statute simply took away this inviolate right unless the worker performed an intentional act to preserve it by opting out of the statutory provisions. Thus, the Shade decision's influence on any Section 5 analysis cannot be as easily discarded as the dissent argues.

Regardless, the opt-out provision was removed in 1974, making the system mandatory for both employees and employers. L. 1974, ch. 204, sec. 8 (amending K.S.A. 44-505). And our more recent decisions emphasize that the Workers Compensation Act constitutionally balances the interests of employees and employers—a balance described as an adequate quid pro quo. See, e.g., Injured Workers of Kansas, 262 Kan. at 852 ("In place of [an employee's right to sue the employer], the legislature gave employees the Workers Compensation Act, which is supposed to provide a quick, set amount of money, without proof of employer negligence, for all employees injured on the job."); Rajala v. Doresky, 233 Kan. 440, 441, 661 P.2d 1251 (1983) ("The Workmen's Compensation Act removes certain common law remedies for injured employees but provides a statutory substitute therefor. This is basically a matter of public policy . . . ."). Most recently in Scott v. Hughes, 294 Kan. 403, 275 P.3d 890 (2012), this court noted the act's quid pro quo by explaining:

"The Kansas Workers Compensation Act nullifies employee common-law rights to sue in tort in exchange for guaranteed but limited recovery in an administrative system with judicial review. Covered workers no longer may exercise their common-law rights to sue employers for work-related injuries, but they can count on certain, limited compensation. The Act also makes a trade for covered employers: They need no longer fear unlimited liability on employee claims, but they must purchase insurance or otherwise provide for guaranteed payment of the compensation amounts dictated." 294 Kan. at 413.

Similar reasoning in Section 5 challenges has been applied to other comprehensive legislation impacting a litigant's common-law rights. In Manzanares, this court considered the statutory scheme commonly known at the time as the Kansas No-Fault Insurance Act. Among other provisions, the Act denied a Section 5 right-to-jury trial and recovery for pain and suffering resulting from a motor vehicle accident unless the injured party incurred more than $500 in medical services or suffered a statutorily designated injury. In deciding there was no Section 5 violation, the Manzanares court followed Shade by recognizing the legislature's limited power to modify the common law without infringing on the right to jury trial. 214 Kan. at 599 ("The decisions of this court are replete with instances of common-law rights being modified or abolished."). As the Manzanares court put it, "We have previously held the Legislature has the power to modify the common law. Section 5 of our Bill of Rights does not bar those changes." 214 Kan. at 616.

Manzanares also held that modifications of common-law rights were acceptable so long as the due process requirements of Section 18 were satisfied. 214 Kan. at 599; Kansas Malpractice Victims, 243 Kan. at 343-44 (explaining Manzanares). And it is noteworthy that no member of the Manzanares court dissented from its Section 5 holding, even though three justices wrote separately to concur with or dissent from other portions of the decision.

Fourteen years after Manzanares, this court determined that the Section 5 right to jury trial was violated in Kansas Malpractice Victims. In that decision, the majority declared unconstitutional K.S.A. 1986 Supp. 60-3407, which limited noneconomic damages in medical malpractice actions to $250,000 and total damages to $1 million and required an annuity for payment of future noneconomic loss. Kansas Malpractice Victims, 243 Kan. 333, Syl. In arriving at this outcome, the analytical model the court used applied the prior quid pro quo caselaw that developed in the areas of workers compensation and no-fault automobile insurance. Relying on Manzanares, the majority acknowledged again that the legislature had the limited power to modify the right to jury trial within the confines of due process, stating: "[T]he legislature can modify the right to a jury trial through its power to change the common law. [Citation omitted.] This power, however, is not absolute. Under Manzanares, any statutory modification of the common law must meet due process requirements and be 'reasonably necessary in the public interest to promote the general welfare of the people of the state.' [Citation omitted.] Due process requires that the legislative means selected have a real and substantial relation to the objective sought. [Citation omitted.] One way to meet due process requirements is through substitute remedies. 'We have never held one to have a vested right in the common-law rules governing negligence actions so as to preclude substituting a viable statutory remedy.' Manzanares v. Bell, 214 Kan. at 599." (Emphasis added.) Kansas Malpractice Victims, 243 Kan. at 343-44.

The court agreed that due process constraints were satisfied when the legislature provides an adequate substitute remedy, or "quid pro quo," when modifying common-law rights. And for this holding, the Kansas Malpractice Victims court referred its analysis back to Rajala, noting that although the workers compensation system removed certain common-law remedies for injured workers, it also provided a statutory substitute for those changes. 234 Kan. at 344 ("The Rajala court upheld the [workers compensation] legislation because the legislature provided, as a substitute, a viable statutory remedy."). The Kansas Malpractice Victims majority stated:

"Just as the rights secured by Section 5 are not absolute, neither are the rights secured by Section 18 [remedy by due course of law]. Over the years, the court has allowed the legislature to modify remedies when required by public policy. [Citation omitted.] However, as with Section 5, the court looks to insure that due process requirements are met and, when a common-law remedy is modified or abolished, an adequate substitute remedy must be provided to replace it." (Emphasis added.) 243 Kan. at 346-47.

In other words, Kansas Malpractice Victims, which was the first case by this court to consider a Section 5 challenge to a statutory cap on jury-assessed damages, applied a quid pro quo analysis as it found had been done explicitly in Rajala and Manzanares, and implicitly in Shade. But the difference was that the majority in Kansas Malpractice Victims determined that the legislature's substitution of remedies was inadequate—on balance—after applying the quid pro quo analytical model. This outcome, however, was short-lived.

In Samsel II, this court revisited the adequate substitute remedy issue when addressing the current statutory cap on noneconomic damages, which was applicable to all personal injury plaintiffs, including medical malpractice. The Samsel II court concluded that K.S.A. 1988 Supp. 60-19a01 did not violate a personal injury plaintiff's right to jury trial under Section 5 or the right to remedy under Section 18. The majority followed the process set out in Kansas Malpractice Victims to decide the adequacy of the substituted rights, specifically: (1) the modification must be reasonably necessary in the public welfare, and (2) "the legislature [must] substitute the viable statutory remedy of quid pro quo (this for that) to replace the loss of the right." Samsel II, 246 Kan. at 358, 361.

The difference in outcomes from Kansas Malpractice Victims is that Samsel II held that tort victims did receive an adequate substitute benefit in exchange for the legislative cap because the statute restricted a trial court's common-law power of remittitur to reduce a noneconomic damages award in excess of $250,000. Samsel II reasoned that Kansas Malpractice Victims had "left unanswered" the question of whether this limitation on the trial court's power to reduce an award below $250,000 provided a sufficient quid pro quo but concluded the two decisions were consistent in their approaches to the legal question presented. 246 Kan. at 358-59.

Moving now to Miller's right to jury trial argument, we face two questions in light of our Section 5 caselaw. First, should this court continue to use a quid pro quo analysis to determine whether the legislature properly exercised its power to modify a common-law jury trial right? If the answer to that question is yes, then we consider a second question: Has the legislature provided an adequate substitute for the jury trial right obstructed by the noneconomic damages cap? On the first question, the majority of this court holds the quid pro quo analysis should continue to apply to a Section 5 claim of encroachment on the right to jury trial to remain consistent with our caselaw. We explain that holding next.

The doctrine of stare decisis maintains that once a point of law has been established by a court, it will generally be followed by the same court and all courts of lower rank in subsequent cases when the same legal issue is raised. A court of last resort will follow that rule of law unless clearly convinced it was originally erroneous or is no longer sound because of changing conditions and that more good than harm will come by departing from precedent. Rhoten v. Dickson, 290 Kan. 92, 112, 223 P.3d 786 (2010). Stare decisis "'"promote[s] system-wide stability and continuity by ensuring the survival of decisions that have been previously approved by a court."'" Crist v. Hunan Palace, Inc., 277 Kan. 706, 715, 89 P.3d 573 (2004) (quoting Samsel II, 246 Kan. at 356). "Judicial adherence to constitutional precedent ensures that all branches of government, including the judicial branch, are bound by law." Samsel II, 246 Kan. at 356. A quid pro quo analysis in Section 5 challenges to the legislature's limitations on recovery for personal injuries has been employed by this court in varied contexts, including workers compensation (Rajala), no-fault automobile insurance coverage (Manzanares), medical malpractice (Kansas Medical Malpractice Victims), and general tort litigation (Samsel II). To retreat from that analysis now, our court would have to overrule those cases and embark on a new analytical model that would collaterally create uncertainty about the constitutionality of the Workers Compensation Act, which has been upheld since our 1914 decision in Shade, and what is now known as the Kansas Automobile Injury Reparations Act, upheld since our 1974 decision in Manzanares. See Samsel II, 246 Kan. at 361.

In addition, there is a link between Section 5 and Section 18 issues in a damages case such as this, so it seems logical when dealing with statutory caps to have Section 5 and Section 18 encroachments measured against the same standard as has been done in our prior caselaw. As discussed in greater detail below, our caselaw dealing with Section 18 right-to-remedy issues is well entrenched using a quid pro quo analysis and it simply makes sense to have the same analytical model for Section 5. After all, noneconomic damages are a subset of compensatory damages; therefore, the statutory cap impacts a plaintiff's compensatory damages, which is a category of remedy at common law protected by Section 18. Smith v. Printup, 254 Kan. 315, 325, 866 P.2d 985 (1993). Moreover, the quid pro quo model readily allows the legislature to understand that it must provide an adequate and viable substitute when modifying a common-law jury trial right under Section 5 or right to remedy under Section 18.

Accordingly, we are not clearly convinced use of the quid pro quo model was originally erroneous or is no longer sound because of changing conditions, or that more good than harm would come by departing from this precedent. See Rhoten, 290 Kan. at 112. And while our court has come to different outcomes after employing the quid pro quo analysis in Section 5 challenges, this does not detract from its viability as an analytical model to determine such challenges. See Bair v. Peck, 248 Kan. 824, 844, 811 P.2d 1176 (1991) (Adequacy of the substitute remedy as it applies to comprehensive remedial legislation must be made on a case-by-case basis.); Lemuz v. Fieser, 261 Kan. 936, Syl. ¶ 6, 933 P.2d 134 (1997) (In considering the adequacy of the quid pro quo of comprehensive legislation that substitutes a statutory remedy for one that formerly existed at common law, "no hard and fast rule can apply to all cases.").

We hold that a quid pro quo analysis is appropriate for determining Miller's Section 5 right-to-jury trial claims against K.S.A. 60-19a02. We will employ that analysis below after discussing the Section 18 challenge next.

Section 18 Analysis—the Right to Remedy

Section 18 of the Kansas Constitution Bill of Rights guarantees the right to a remedy. It states: "All persons, for injuries suffered in person, reputation or property, shall have remedy by due course of law, and justice administered without delay." This right has been found since our early caselaw to mean "reparation for injury, ordered by a tribunal having jurisdiction, in due course of procedure and after a fair hearing." Hanson v. Krehbiel, 68 Kan. 670, Syl. ¶ 2, 75 Pac. 1041 (1904).

As with Section 5, there is no dispute that Section 18 guarantees are implicated when the legislature imposes statutory caps on noneconomic damages for personal injury plaintiffs, such as medical malpractice victims like Miller. Section 18 provides "an injured party . . . a constitutional right to be made whole and a right to damages for economic and noneconomic losses suffered." Samsel II, 246 Kan. at 353. The purpose of economic and noneconomic damages is to make the injured party whole by restoring the person to the position he or she was in prior to the injury. See Samsel II, 246 Kan. at 352-53; Kansas Medical Malpractice Victims, 243 Kan. at 350 (right to a remedy is infringed by statute limiting recovery for noneconomic loss, overall loss, and forcing plaintiffs to accept their award over a number of years through an annuity contract); Neely v. St. Francis Hospital & School of Nursing, 192 Kan. 716, 720-21, 391 P.2d 155 (1964) (Section 18 applied to recovery for personal injuries suffered from negligent administration of a vaccination).

The issue here is whether the statutory cap on noneconomic damages violates Section 18 by denying Miller a remedy by due course of law because she cannot recover more than $250,000 for her noneconomic damages. We have previously employed in Section 18 challenges the same quid pro quo analysis as discussed above regarding Section 5 to determine whether the legislature provided an adequate substitute remedy for the common-law right affected. See, e.g., Manzanares, 214 Kan. at 599. In Manzanares, this court upheld the mandatory no-fault automobile insurance laws against a Section 18 attack, stating:

"While Section 18 of the Bill Rights provides a broad field for the protection of persons, property and reputation, the vested rights contained therein are subject to change by legislative power, where the change is reasonably necessary in the public interest to promote the general welfare of the people of the state. We have never held one to have a vested right in the common-law rules governing negligence actions so as to preclude substituting a viable statutory remedy for common law causes of action." (Emphasis added.) 214 Kan. at 599.

We have repeated this language, or referred back to it, on numerous occasions. See, e.g., Bair, 248 Kan. at 839; State ex rel. Schneider v. Liggett, 223 Kan. 610, 613, 576 P.2d 221 (1978). And in more recent years, the quid pro quo test for a Section 18 analysis has articulated the second part of the test as requiring an "adequate" substitute remedy instead of a "viable" statutory remedy, but there appears to be little substantive difference in the terminology. Cf. Lemuz, 261 Kan. 936, Syl. ¶ 4; Bonin v. Vannaman, 261 Kan. 199, Syl. ¶ 11, 929 P.2d 754 (1996). Accordingly, we apply next the quid pro quo analysis for both Section 5 and Section 18 purposes.

Sections 5 and 18 Quid Pro Quo Analysis

A two-step analysis is required for the quid pro quo test. For step one, we determine whether the modification to the common-law remedy or the right to jury trial is reasonably necessary in the public interest to promote the public welfare. This first step is similar to the analysis used to decide equal protection questions under the rational basis standard. Lemuz, 261 Kan. at 948. For step two, we determine whether the legislature substituted an adequate statutory remedy for the modification to the individual right at issue. This step is more stringent than the first because even if a statute is consistent with public policy, there still must be an adequate substitute remedy conferred on those individuals whose rights are adversely impacted. Lemuz, 261 Kan. at 948; Bonin, 261 Kan. at 217-18; Aves v. Shah, 258 Kan. 506, 521-22, 906 P.2d 642 (1995); Samsel II, 246 Kan. at 358, 361; Manzanares, 214 Kan. at 599.

In Samsel II, which was the last time we considered whether the $250,000 cap on noneconomic damages passed the quid pro quo test, this court held that it did in a case involving a personal injury plaintiff. And because of that, we must decide first whether we can simply accept the Samsel II rationale and perform the quid pro quo analysis to result in Johnson's favor. We are urged to do that by Johnson and several amici, but there are three principal reasons we will not rely on Samsel II for this case.

First, Samsel II was not a medical malpractice case affected by the Health Care Provider Insurance Availability Act, K.S.A. 40-3401 et seq. That Act requires health care providers to carry a minimum amount of insurance in order to practice in Kansas and also makes available additional excess coverage through the Health Care Stabilization Fund. See K.S.A. 40-3402 (mandatory coverage); K.S.A. 40-3408 (excess coverage). This mandated coverage for her doctor arguably gives Miller an individualized substitute remedy in the form of a guaranteed source of recovery for some of her damages, and these same source-of-recovery provisions have been found to give other medical malpractice plaintiffs an adequate substitute remedy in other cases. Bair, 248 Kan. at 844; Aves, 258 Kan at 523-24; Lemuz, 261 Kan. at 959. This is something general tort litigants (such as the plaintiff in Samsel II) do not have, and these provisions should be considered as part of the quid pro quo analysis when applied to Miller's constitutional challenge to K.S.A. 60-19a02.

Second, the $250,000 cap on noneconomic damages has not increased since Samsel II. And as Miller points out without any real contradiction, the cap today provides less commensurate remedy than when the legislature set it in 1988. This is due, of course, to the reduction in buying power that accompanies inflation, and our court has made clear that it is possible for a substitute remedy that was adequate when originally enacted to become inadequate over time or because of changed circumstances. As we noted in Bair: "The legislature, once having established a substitute remedy, cannot constitutionally proceed to emasculate the remedy, by amendments, to a point where it is no longer a viable and sufficient substitute remedy." (Emphasis added.) Bair, 248 Kan. at 844. The same can be said for inflationary effects and legislative inaction over time when dealing with a fixed dollar amount. Samsel II does not address this, and it is a legitimate issue for reflection in this case.

Third, Samsel II premised its inquiry at step two on an interpretation of K.S.A. 60-19a02(d)'s impact on a trial court's authority to order a new trial that we cannot accept. K.S.A. 60-19a02(d) states in part that "[i]f the verdict results in an award for noneconomic loss which exceeds the limits of this section, the court shall enter judgment for $250,000 for all the party's claims for noneconomic loss." (Emphasis added.) The Samsel II court held the italicized language prohibits trial courts from awarding "less than $250,000 when higher damages are awarded by the jury." Samsel II, 246 Kan. at 362. And from that construction, the court reasoned that the cap protected personal injury plaintiffs from "conservative" judges, who might more drastically reduce a verdict below $250,000, and in that manner statutorily substituted an adequate remedy for the rights taken away by the cap. 246 Kan. at 361-62. But we hold that Samsel II erred on this point.

K.S.A. 2011 Supp. 60-259(a)(1)(C) and (D) authorize a trial court to order a new trial when it finds a verdict is the result of passion or prejudice, or is contrary to the evidence. The purpose for this authority is to allow a district court to remedy an improper jury verdict. Samsel II did not address this express statutory authority or consider whether there was any reason to believe K.S.A. 60-19a02 was intended to override K.S.A. 2011 Supp. 60-259(a)(1)(C) and (D).

As noted in the amici brief by Professors Rich and Concannon, the Samsel II analysis went beyond the plain language of K.S.A. 60-19a02(d) to speculate that the legislature intended to substitute those provisions as a remedy for the cap on noneconomic damages. For example, they point out that if a jury awards $400,000 in noneconomic damages, it is illogical to believe the legislature expected a trial court to simply reduce the award to a flat $250,000—if the trial court believed the evidence supported an award less than $250,000. Otherwise, it would mean the legislature intended for that plaintiff to receive more than the evidence supported, which is highly unlikely. And nothing in the legislative history demonstrates a trial court was not supposed to continue exercising its ordinary powers of remittitur over excessive jury awards unsupported by the evidence. Samsel II read too much into K.S.A. 60-19a02(d) . We reject this portion of Samsel II's holding.

For these reasons, we determine that Samsel II does not resolve whether an adequate substitute remedy exists for the encroachments on the Section 5 right to jury trial and Section 18 right to remedy caused by the $250,000 noneconomic damages cap set out in K.S.A. 60-19a02. Accordingly, we move next to the first step in the two-step analysis to consider whether the noneconomic damages cap is reasonably necessary in the public interest to promote the public welfare. Lemuz, 261 Kan. at 949. We hold that it is.

As noted in several of our prior cases, the legislature's expressed goals for the comprehensive legislation comprising the Health Care Insurance Provider Availability Act and the noneconomic damages cap have long been accepted by this court to carry a valid public interest objective. 261 Kan. at 949 (ensuring quality health care availability in the state is a valid legislative objective that promotes the general welfare); Bonin, 261 Kan. at 216 (affordable and available malpractice insurance for doctors and the continued availability of health care in Kansas are legitimate state interests); Aves, 258 Kan. at 526 (same); State ex rel. Schneider, 223 Kan. at 620 (same). And in Farley v. Engelken, 241 Kan. 663, 684-85, 740 P.2d 1058 (1987) (Holmes, J., dissenting), the dissent more declaratively stated that it is "clear the court has accepted the legitimacy of the state's interest in assuring the continued availability of health care to the citizenry and the legislature's determination that a medical malpractice insurance crisis exists." Johnson correctly points out that Miller does not argue the legislature's goals in making medical malpractice insurance readily available for the state's health care providers do not fall within the public interest rubric. Instead, Miller contends the cap was—and is—not necessary to achieve those goals. But it is not necessary for a court to make a factual determination whether the cap definitely would lower insurance premiums, or has lowered them. The potential is enough. Lemuz, 261 Kan. at 949 ("Peer review has the potential to lower malpractice incidents, thereby lowering malpractice rates and thereby encouraging doctors to practice in Kansas."). Given this, our caselaw generally settles the first step in the quid pro quo analysis in favor of the statute's constitutionality.

Moving to the second step, we must determine whether the legislature substituted an adequate statutory remedy for the modification of the individual rights at issue, which in this case concerns the constitutional protections afforded to Miller by Section 5 and Section 18. Lemuz, 261 Kan. at 948. We hold that it does.

We begin by considering what Miller has lost and try to put that loss in perspective with our prior caselaw and the legislation that impacts her recovery in this litigation. For Miller, the noneconomic damages cap unquestionably functions to deprive her of a portion of her noneconomic damages, which the jury awarded based upon the evidence presented at trial. Miller's loss must be viewed as being significantly more serious than deprivations found in some of our cases that previously embarked on the quid pro quo analysis. See e.g., Lemuz, 261 Kan. 936 (abrogation of corporate negligence action); Aves, 258 Kan. 506 (prohibiting bad faith actions against the Health Care Stabilization Fund); Bair, 248 Kan. 824 (eliminating vicarious liability of employer health care providers); Manzanares v. Bell, 214 Kan. 589, 522 P.2d 1291 (1974) (prohibiting suit below a minimum threshold). But she has not been left without any compensation for her loss as other plaintiffs in some of our other cases. See Bonin, 261 Kan. 199 (special statute of repose for minors and persons with legal disability); Rajala v. Doresky, 233 Kan. 440, 440, 661 P.2d 1251 (1983) (fellow employee immunity in workers compensation statutes); Neely, 192 Kan. at 716 (immunity from judgment for nonprofit hospitals).

It is also noteworthy that there is no cap on total damages awarded in the verdict. This is not true in all states, as some jurisdictions limit the total damages receivable. See, e.g., Colo. Rev. Stat. § 13-64-302 (2011) ($300,000 limit on noneconomic damages in medical malpractice actions; $1 million total cap); Ind. Code § 34-18-14-3 (2008) ($1,250,000 total cap); Neb. Rev. Stat. § 44-2825 (2010) ($1.75 million total cap in medical malpractice actions). Therefore, the deprivation caused by K.S.A. 60-19a02, although very real, is limited in its scope. This is a substantial consideration when deciding how adequate the substitute remedy provided by the legislature must be.

In addition, major statutory enactments establishing a broad, comprehensive statutory remedy or scheme of reparations in derogation of a previously existing common-law remedy may be subsequently amended or altered without each such subsequent change being supported by an independent and separate quid pro quo. Lemuz, 261 Kan. at 955 (citing Bair, 248 Kan. at 842). Our caselaw does not require us to look only to a contemporaneous quid pro quo within the same statutory enactment containing the noneconomic damages cap.

As a medical malpractice plaintiff, Miller's damages cap operates within the context of the comprehensive statutory scheme created in the Health Care Provider Insurance Availability Act. And as mentioned, the Act mandates that all health care providers—as a condition to providing health care services in Kansas—maintain professional liability insurance with an approved company of not less than $200,000 per claim, subject to not less than a $600,000 annual aggregate for all claims made during the policy period. K.S.A. 40-3402(a). It also requires that health care providers elect one of three levels of excess coverage from the Health Care Stabilization Fund, ranging from $100,000 to $800,000. K.S.A. 40-3403(l). And it requires that every health care insurer participate in an apportionment plan so that health care providers who are entitled to insurance, but unable to acquire it through ordinary methods, may obtain insurance. K.S.A. 40-3413(a). These provisions make the prospects for recovery of at least the statutory minimums directly available as a benefit to medical malpractice plaintiffs when there is a finding of liability. This is something many other tort victims do not have.

In both Bair and Lemuz, we found these mandatory insurance and excess coverage provisions gave an adequate substitute remedy for the modification of common-law remedies at issue in those cases. See Bair, 248 Kan. 824 (abrogation of corporate negligence action); Lemuz, 261 Kan. 949 (eliminating vicarious liability of employer health care providers). And in the context of our workers compensation and no-fault automobile insurance caselaw, we have found the requirement of reliable sources of partial recovery for serious injuries to be significant in the quid pro quo analysis in deciding what constituted an adequate substitute remedy. See, e.g., Rajala, 233 Kan. 440.

For Miller, having an available source of recovery of the statutorily mandated minimums provides her with a significant, individualized substitute remedy. And as pointed out by more than one amici, a judgment that cannot be collected is worthless. So under this statutory scheme, Miller has an obvious direct benefit not available to all others. But this alone does not necessarily settle the question whether the legislatively substituted remedy is adequate. Also important is the amount of the cap; and as to this, there is a reasonable question as to the continued adequacy of the $250,000 limitation that has admittedly devalued over time due to the legislature's failure to adjust it. We must consider this question next.

Miller cites the Consumer Price Index Inflation Calculator to argue that in 2007 dollars, the cap was equivalent to $142,223.37, which represents a 57 percent erosion in buying power since 1988. And we note the original 1986 cap on noneconomic damages in medical malpractice actions provided for annual adjustments based on the consumer price index. K.S.A. 1986 Supp. 60-3407(d). But this cost-of-living adjustment is no longer part of the statutory scheme. See K.S.A. 60-19a02.

Johnson urges the court to reject the argument that inflation has rendered the quid pro quo to Miller inadequate. Drawing from the language in Manzanares, 214 Kan. at 611, the doctor argues that, "'[w]hen it is seen that a line or point there must be, and there is no mathematical or logical way of fixing it precisely, the decision of the legislature must be accepted unless we can say that it is very wide of any reasonable mark.'" Johnson also points out that other states' legislative bodies have more recently considered enacting a noneconomic damages cap of $250,000, suggesting that this shows "Miller cannot establish that inflation has rendered $250,000 'very wide of any reasonable mark' in 2008." Similarly, some amici briefs point out that our legislature has considered—but rejected—increasing the cap on numerous occasions, which they argue implies a substantive determination by lawmakers that the cap remains adequate.

But Johnson's reliance on Manzanares occurs out of context. The passage the doctor recites was considering the $500 threshold the legislature set for denying a plaintiff's ability to file a claim for nonpecuniary damages. It was not considering a legislatively determined amount that would serve as the adequate substitute remedy for the deprivation of rights caused by that threshold. 214 Kan. at 611. Instead, what was decided in Manzanares to be the adequate substitute remedy was the direct benefit to motor vehicle accident victims of ready payment for certain damages that were guaranteed by the statutorily required insurance levels. 214 Kan. at 599 ("T]he Kansas No-Fault Act assures all motor vehicle accident victims of prompt, efficient payment of certain economic losses. To the extent there is a limitation on a person's ability to receive non-pecuniary damages, the rights received in exchange are no less adequate."). Johnson seriously misreads Manzanares as to this point.

Moreover, the "wide of any reasonable mark" standard from our caselaw referenced by Johnson derives from the rational basis standard applied in equal protection cases. See, e.g., Peden v. Kansas Dept. of Revenue, 261 Kan. 239, 258-59, 930 P.2d 1 (1996) (discussing equal protection); State ex rel. Schneider, 223 Kan. at 619. And while we already give deference to the legislature in step one of the quid pro quo analysis when determining whether a modification to a common-law right is reasonably necessary in the public interest to promote the public welfare, the analysis in step two is a more stringent test. And the issue is whether there is an adequate substitute right in the place of the Section 5 and Section 18 rights diluted by the legislation—not whether the legislature acted wide of any reasonable mark. To give the same deference to legislative decision-making at the second step of the quid pro quo test as the first would reduce the analysis to one step. The protections afforded by Section 5 and Section 18 are not simply aspirational statements easily vulnerable to legislative encroachment. Samsel II, 246 Kan. at 348 ("Our constitution does not make this court the critic of the legislature; rather, this court is the guardian of the constitution . . . ."); Tri-State Hotel Co. v. Londerholm, 195 Kan. 748, 760, 408 P.2d 877 (1965) (same).

As to the fact that there are other states with a $250,000 cap on noneconomic damages and other jurisdictions that recently considered setting a cap at that amount, our review of other states' legislation shows it is difficult to accurately—and fairly—compare what other states do in this regard. For example, there are wide variations in specific provisions, such as method of computation, statutory exceptions for permanent disfigurement or gross negligence, annual adjustments for inflation, and applicability per occurrence, per claimant, and per defendant. See Hubbard, The Nature and Impact of the "Tort Reform" Movement, 35 Hofstra L. Rev. 437, 497-99 (Winter 2006) (attempting to summarize various state caps provisions and providing examples of the unique variations and ranges involved). We find Johnson's argument based on other states' legislation unpersuasive.

This leads us to Miller's argument that the passage of time has rendered the statutory cap unconstitutional. And admittedly, the legislature's failure to increase the $250,000 cap on noneconomic damages over the more than 20 years since it first set that amount is troubling to this court. To be sure, the legislature has periodically increased other statutorily mandated limits on liability. For example, the legislature has increased an employer's liability for workers compensation benefits under K.S.A. 44-510f. Cf. L. 1974, ch. 203, sec. 16 ($50,000); L. 1979, ch. 156, sec. 8 (increasing employer's liability to either $75,000 or $100,000); L. 1987, ch. 187, sec. 8 (increasing it to $100,000 and $125,000 respectively); L. 2011, ch. 55, sec. 10 (increasing some benefit limits to $130,000 and $155,000). The legislature has also increased the limits on damages recoverable in wrongful death actions under K.S.A. 60-1903. Cf. L. 1984, ch. 214, sec. 1 ($100,000 limitation on nonpecuniary loss); L. 1998, ch. 68, sec. 1 (increased to $250,000 limit on nonpecuniary loss). The legislature has also tied a fixed dollar amount to a consumer price index in other circumstances. See, e.g., K.S.A. 20-2609 (adjusting judicial retirement benefits after disability benefits by considering consumer price index for urban consumers); K.S.A. 74-4927 (same for public employees retirement system).

But despite our concern, we cannot say at this time that the legislature's failure to increase the statutory cap has sufficiently diluted the substitute remedy to render the present cap clearly unconstitutional when viewed in light of the other provisions in the Act that directly and exclusively benefit a medical malpractice plaintiff. As we have noted previously, "[e]ach case must be decided on its own merit, for our law does not require a complete balance and equality between the benefits conferred by statute in the place of the common-law remedy." KPERS v. Reimer & Koger Assocs., Inc., 261 Kan. 17, 39, 926 P.2d 466 (1996). We hold that the legislature has substituted an adequate statutory remedy for the modification of the individual rights at issue, which in this case concern the constitutional protections afforded to Miller by Section 5 and Section 18.

Equal Protection Analysis

Equal protection rights derive from Section 1 of the Kansas Constitution Bill of Rights, which states: "All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness." Section 1 and the Fourteenth Amendment to the United States Constitution provide virtually the same protections. Board of Miami County Comm'rs v. Kanza Rail-Trails Conservancy, Inc., 292 Kan. 285, 315, 255 P.3d 1186 (2011). An equal protection analysis has three steps.

The first is to determine the nature of the statutory classification and whether that classification results in arguably indistinguishable classes of individuals being treated differently. The Section 1 Equal Protection Clause is only implicated if there is differing treatment among similarly situated individuals. Kanza Rail-Trails Conservancy, 292 Kan. at 315. The party challenging the statute's constitutionality has the burden of demonstrating he or she is similarly situated to others treated differently. State v. Huerta, 291 Kan. 831, 834, 247 P.3d 1043 (2011). The second step examines the rights affected by the classification because the nature of those rights dictates the level of scrutiny applied to justify the classification. There are three levels of scrutiny: (1) the rational basis standard to determine whether a statutory classification bears some rational relationship to a valid legislative purpose; (2) a heightened or intermediate scrutiny to determine whether a statutory classification substantially furthers a legitimate legislative purpose; and (3) the strict scrutiny standard to determine whether a statutory classification is necessary to serve some compelling state interest. Kanza Rail-Trails Conservancy, 292 Kan. at 316. The final step requires determining whether the relationship between the classifications and the object desired to be obtained withstands the applicable scrutiny. 292 Kan. at 316.

Miller begins her equal protection attack by arguing that the cap disparately impacts women and the elderly. And in the amici brief submitted by AARP et al., this argument is expanded to allege the cap has a disproportionate impact on children, racial and ethnic minority groups, and low-income persons. But as Johnson correctly points out, a facially neutral statute challenged under equal protection on the basis it has a discriminatory effect requires "not only that there is a disparate impact, but also that the impact can be traced to a discriminatory purpose." Montoy v. State, 278 Kan. 769, 771, 120 P.3d 306 (2005) (quoting Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 272, 99 S. Ct. 2282, 60 L. Ed. 2d 870 [1979]). If we simply jump to that latter point, Miller offers nothing to show the cap was motivated by an intent to discriminate against women or the elderly, and neither does the AARP et al. Our own review of the legislative history fails to disclose any such discriminatory purpose. We hold the cap "is not unconstitutional based solely on its 'disparate impact.'" Montoy, 278 Kan. at 771.

Next, Miller argues the statutory cap treats personal injury plaintiffs differently based on whether their noneconomic damages are higher or lower than $250,000. This is obviously true. A plaintiff who sustains less serious injuries is entitled to full compensation, while a plaintiff who sustains more than $250,000 in noneconomic damages is not. Therefore, step one is satisfied.

Moving to step two regarding the nature of the right affected and the level of scrutiny required, Miller contends the noneconomic damages cap should be evaluated under the strict scrutiny standard because it affects her fundamental rights of trial by jury and remedy by due course of law. But the problem with this strict scrutiny argument is that the jury trial right under Section 5 and the right to remedy under Section 18 have never been held to be fundamental rights for equal protection purposes. And while Miller cites Gard v. Sherwood Construction Co., 194 Kan. 541, 549, 400 P.2d 995 (1965), for the statement that the right to jury trial is "a fundamental feature of American jurisprudence" and Adams v. St. Francis Regional Med. Center, 264 Kan. 144, 173, 955 P.2d 1169 (1998), for a statement that the right to a remedy is fundamental, these cases do not concern equal protection and neither supports declaring such rights "fundamental" for equal protection purposes. Thus, Miller's rationale for applying strict scrutiny is not persuasive.

But we also take issue with Johnson's claim that the rational basis test obviously applies based on our previous caselaw. For this claim, Johnson relies on language in Samsel II in which the court considered whether the cap met the "reasonably necessary" prong of the quid pro quo analysis. But neither Samsel II nor Kansas Malpractice Victims addressed whether the noneconomic damages caps in controversy violated equal protection. See Samsel II, 246 Kan. at 337, 363 (court's decision addressed only Sections 5 and 18); Kansas Malpractice Victims, 243 Kan. at 352 ("We agree with the trial court that it makes no real sense to apply an equal protection argument analysis . . . when the result in the case is controlled by Sections 5 and 18 of the Kansas Bill of Rights."). We decline to read such a holding into the Samsel II court's analysis when addressing constitutional challenges not expressly addressed in that decision. Nevertheless, and for different reasons, we agree the rational basis standard applies to Miller's equal protection challenge. We apply it because K.S.A. 60-19a02 is economic legislation.

It is well-established that statutes limiting liability and recovery of damages, like the restriction on noneconomic damages in K.S.A. 60-19a02, are considered social and economic legislation that trigger application of the rational basis test. See, e.g., Duke Power Co. v. Carolina Env. Study Group, 438 U.S. 59, 83, 98 S. Ct. 2620, 57 L. Ed. 2d 595 (1978) (statute limiting licensed nuclear power plants is "classic example" of economic regulation because it "accommodate[s] the 'burdens and benefits of economic life'" and the rational basis test applies); KPERS v. Reimer & Koger Assocs., Inc., 261 Kan. 17, 41-43, 927 P.2d 466 (1996) (applying rational basis standard because statutory liability limitations for parties entering KPERS settlement agreement are social and economic legislation); Leiker v. Gafford, 245 Kan. 325, 363, 778 P.2d 823 (1989) (statute capping nonpecuniary damages in wrongful death action is economic legislation reviewed under rational basis standard). To satisfy the rational basis standard under step three of the analysis, the statutory classification must bear some rational relationship to a valid legislative purpose. Kanza Rail-Trails Conservancy, 292 Kan. at 316. The party attacking a statute as facially unconstitutional for failing to satisfy the rational basis standard has the burden to negate every conceivable rational basis that might support the classification challenged. Downtown Bar and Grill v. State, 294 Kan. 188, Syl. ¶ 10, 273 P.3d 709 (2012). Miller argues K.S.A. 60-19a02 fails to meet the rational basis standard, citing the information she proffered to the district court alleging there was no credible evidence of a medical malpractice insurance crisis or that it was caused by medical malpractice and tort litigation awards. From this, she argues no rational relationship exists between the statutory cap on noneconomic damages and the legislature's objective of curing the medical malpractice insurance and liability insurance "crises" by lowering malpractice and liability insurance premiums.

But as we stated above in discussing the quid pro quo analysis, the legislative history and evidence offered by the parties and the amici show there was—and still is—conflicting evidence regarding the existence and causes of the medical malpractice insurance and liability insurance "crises" and whether there is any necessity for, or efficacy of, a cap on noneconomic damages. See Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 464, 101 S. Ct. 715, 66 L. Ed. 2d 659 (1981) ("Where there was evidence before the legislature reasonably supporting the classification, litigants may not procure invalidation of the legislation merely by tendering evidence in court that the legislature was mistaken."); United States v. Carolene Products Co., 304 U.S. 144, 154, 58 S. Ct. 778, 82 L. Ed. 1234 (1938) ("[if] it is evident from all the considerations presented to Congress, and those of which we may take judicial notice, that the question is at least debatable[,] . . . that decision was for Congress, [and a] finding of a court arrived at by weighing the evidence . . . can[not] be substituted for it"). See also Downtown Bar, 294 Kan. at 198 (citing Peden, 261 Kan. at 263) (legislative choice may be based on rational speculation unsupported by evidence or empirical data).

The legislature enacted K.S.A. 60-19a02 in an attempt to reduce and stabilize liability insurance premiums by eliminating both the difficulty with rate setting due to the unpredictability of noneconomic damages awards and the possibility of large noneconomic damage awards. See Report of the Citizens Committee on Legal Liability, pp. 5-7, 64 (1986) (insurers were setting premiums based on worst-case scenarios, resulting in high premiums and unavailability because some were reluctant to assume the liability risk); House Judiciary Committee Minutes, March 3, 1987 (testimony concerning the difficulty insurers had setting rates because noneconomic damages are unpredictable and limitless; the possibility of large awards hinders settlements; and reasonable cap would stabilize cost and availability over the long term); House Judiciary Committee minutes, January 21, 1986, January 22, 1986, and January 23, 1986 (testimony concerning effects of the severity of medical malpractice insurance claims on premium increases and unavailability of insurance; problems included the unpredictability of large awards, which hampers insurers' ability to accurately predict losses and price their product accordingly; a cap on damages was necessary to stabilize premium rates and bring more insurers back into the market); Report on Kansas Legislative Interim Studies to the 1986 Legislature, pp. 846, 847 (Table VIII) (1985) (actuaries presented evidence concerning effect of various caps on Fund surcharges; estimated that a $1 million total cap with a cap of $500,000 on noneconomic damages could reduce Fund surcharge for 1986-87 by 3 percent and by 10 percent for 1987-88).

And although the applicable standard does not require it, there is evidence within the legislative history of K.S.A. 60-19a02 demonstrating a rational basis for limiting noneconomic damages and treating more egregiously injured plaintiffs differently by the setting of a statutory cap on such damages. We hold that it is "reasonably conceivable" under the rational basis standard that imposing a limit on noneconomic damages furthers the objective of reducing and stabilizing insurance premiums by providing predictability and eliminating the possibility of large noneconomic damages awards. See Downtown Bar, 294 Kan. at 195-99. We hold the statutory cap of K.S.A. 60-19a02 does not violate the equal protection guarantees of Section 1.

Separation of Powers Analysis

"The doctrine of separation of powers is not expressly set forth in either the United States or Kansas Constitutions. However, it has long been recognized that the very structure of our three-branch system gives rise to the doctrine." State v. Beard, 274 Kan. 181, 185, 49 P.3d 492 (2002). "[T]he doctrine of separation of powers is an inherent and integral element of the republican form of government . . . ." Van Sickle v. Shanahan, 212 Kan. 426, 447, 511 P.2d 223 (1973). Miller argues that the noneconomic damages cap enacted by the legislature abolishes the judiciary's authority to order new trials and robs judges of their judicial discretion by functioning as a statutory remittitur effectively usurping the court's power to grant remittiturs. We disagree.

In State ex rel. Stephan v. Kansas House of Representatives, 236 Kan. 45, Syl. ¶ 5, 687 P.2d 622 (1984), this court held that the legislative branch impermissibly intruded upon the executive branch's power by enacting a statute giving the legislature control over administrative rules and regulations. We struck down the offending legislation, stating: "The doctrine of separation of powers is an outstanding feature of the American constitutional system. The governments, both state and federal, are divided into three branches, i.e., legislative, executive and judicial, each of which is given the powers and functions appropriate to it. Thus, a dangerous concentration of power is avoided through the checks and balances each branch of government has against the other. [Citations omitted.] Generally speaking, the legislative power is the power to make, amend, or repeal laws; the executive power is the power to enforce the laws; and the judicial power is the power to interpret and apply the laws in actual controversies. [Citation omitted.]" State ex rel. Stephan, 236 Kan. at 59.

And while these general descriptions of the power held by a branch of government suggests each occupies a separate sphere, "[i]n reality, there is an overlap and blending of functions, resulting in complementary activity by the different branches that makes absolute separation of powers impossible." State ex rel. Morrison v. Sebelius, 285 Kan. 875, 883, 179 P.3d 366 (2008). Therefore, we have held that a usurpation of powers exists when one branch of government significantly interferes with the operations of another branch. And to make this determination, a reviewing court considers: (1) the essential nature of the power being exercised; (2) the degree of control by one branch over another; (3) the objective sought to be attained; and (4) the practical result of blending powers as shown by actual experience over a period of time. State ex rel. Morrison, 285 Kan. at 884.

Article 3, section 1 of the Kansas Constitution establishes the source and extent of the judicial power that Miller contends is abrogated by the noneconomic damages cap. It states:

"The judicial power of this state shall be vested exclusively in one court of justice . . . . The supreme court shall have general administrative authority over all courts in this state." Kan. Const. art. 3, § 1. This provision makes clear that judicial power is exclusively vested in the unified court system, but it does not define what constitutes "judicial power." Our caselaw has traditionally summarized the term as "the power to hear and determine a cause and the rights of the parties to a controversy, and to render a binding judgment or decree based on present or past facts under existing laws." State v. Mitchell, 234 Kan. 185, 194, 672 P.2d 1 (1983). In addition, the constitution grants this court administrative authority over the Kansas court system, which has been described as the power to "promulgate and enforce reasonable rules regulating judicial administration and court procedure as necessary for the administration of justice." Mitchell, 234 Kan. at 194.

But before turning to the merits of Miller's separation of powers argument, we address first Johnson's threshold contention that this court already ruled against Miller on this challenge in Samsel I—the preliminary opinion released to inform the parties of the case's outcome before the full Samsel II opinion could be prepared and filed. Johnson refers in isolation to the Samsel I answer to the certified question posed by the federal court: "Neither the original nor the amended version of 60-19a01 violates the Constitution of the State of Kansas." (Emphasis added.) Samsel v. Wheeler Transport Services, Inc., 244 Kan. 726, 727, 771 P.2d 71 (1989). Johnson then stretches this court's simple advisory to argue that by so broadly stating the statute did not violate the Kansas Constitution, this court "presumably" considered whether the statute violated the separation of powers and determined it did not. Such an argument, however, denies reality and ignores this court's more complete analysis that followed in Samsel II, which clearly stated the constitutional claims the court reviewed. Samsel II did not address separation of powers. It held only that the statute did not violate Sections 5 (right to jury trial) and 18 (right to remedy by due process of law). Samsel II, 246 Kan. at 363. The doctor's attempt to seize on the general language in Samsel I to extend its holding to the four corners of the Kansas Constitution is without merit.

Returning now to the arguments Miller advances, she contends K.S.A. 60-19a02 violates separation of powers because it abolishes the judiciary's authority to order new trials if the jury's award is inadequate, and because it is an inflexible cap that robs judges of their judicial discretion by functioning as a statutory remittitur effectively usurping the court's inherent, exclusive, and constitutionally protected power to grant remittiturs. Miller specifically argues that the cap "completely abolishes judicial discretion to award noneconomic damages in any amount above or below $250,000." Johnson counters that the court's authority to grant remittitur or order a new trial exists only in the absence of a statute to the contrary and that "a general modification of the damages recoverable in personal injury cases is within the legislative power, not the judiciary." The doctor also notes that a majority of courts considering this issue have held damages caps do not violate separation of powers.

Miller's claim that K.S.A. 60-19a02 violates separation of powers because it unconstitutionally limits the trial court's authority to order a new trial unless remittitur is accepted is premised upon this court's holding in Samsel II that K.S.A. 60-19a02 prohibits a trial court from entering an award for less than $250,000, even if the evidence supports less. We overruled the Samsel II court's analysis as to this issue in our quid pro quo discussion above, so this claimed violation of separation of powers is without merit. K.S.A. 60-19a02(d) imposes a cap on noneconomic damages that prevents the trial court from awarding more than $250,000, but it does not prevent a trial court from granting a new trial when permitted by K.S.A. 2011 Supp. 60-259 and the evidence.

As to Miller's second argument that K.S.A. 60-19a02 violates separation of powers because it is an "inflexible cap" that robs judges of their judicial discretion, we hold this argument to be without merit because we disagree with Miller's characterization of the cap as a statutory remittitur. The power of remittitur is incident to the power to grant a new trial after the verdict is determined to be excessive under K.S.A. 2011 Supp. 60-259 because it is based upon prejudice, passion, or insufficient evidence. When a verdict is excessive for any of these reasons, the trial court as a matter of law refuses to accept it and offers the prevailing party the option of a reduced verdict more in line with the evidence. And if the party refuses, the court orders a new trial. Dixon v. Prothro, 251 Kan. 767, 770, 840 P.2d 491 (1992). The cap is not a "statutory remittitur" because it is not conditioned on an erroneous verdict, nor is it conditioned on the prevailing party's acceptance. We hold that Miller's second argument is without merit. Miller's third argument is that the cap violates the separation of powers doctrine because it can prevent a trial court from ordering a new trial unless the losing party accepts an increased award through additur when the jury awards less than $250,000 and the evidence supports a greater award. But that assertion is not entirely true. The trial court may still order a new trial so long as the losing party accepts a higher award up to the $250,000 limitation. It would only be when a trial court sought to use additur or remittitur to create an award greater than $250,000 that the statutory cap intercedes to prevent it.

In this respect, K.S.A. 60-19a02 does create some limitation on when it would be sensible for a trial court to exercise its authority to order a new trial under K.S.A. 2011 Supp. 60-259 in lieu of additur or remittitur. If the verdict is greater than $250,000 and the court determines that, as a matter of law, the verdict would be more in line with the evidence if reduced to another dollar value greater than $250,000, the court will forgo ordering a new trial because the cap would render such effort futile. Similarly, it would be pointless for the trial court to order a new trial unless the losing party consents to a higher verdict through additur of more than $250,000.

It is this de facto restriction on the trial court's exercise of the power to order a new trial in lieu of additur or remittitur that is at the heart of Miller's separation of powers claims. But Miller overlooks that this judicial power depends upon the trial court's determination that the jury verdict is inappropriate on some basis. This means that the question presented is whether it violates the separation of powers doctrine when the legislature enacts statutes that restrict when a trial court may order a new trial in lieu of additur or remittitur.

The powers to grant a new trial or offer additur or remittitur originally stemmed from the common law. See Samsel II, 246 Kan. at 359 (discussing the court's common-law authority to grant a new trial when the verdict is inadequate). But since the enactment of the Code of Civil Procedure, the statutory basis for granting a new trial is exclusive. Thus, a trial court has no jurisdiction to grant a new trial for a reason not provided in the statute. See, e.g., Mettee v. Urban Renewal Agency, 219 Kan. 165, 167-68, 547 P.2d 356 (1976). And, as this court noted in Samsel II, at one time the new trial statute prohibited granting a new trial because a verdict was inadequate, which as a practical matter prohibited a trial court from ordering a new trial in lieu of additur. Samsel II, 246 Kan. at 359 (citing G.S. 1901, 4755). In Railway Co. v. O'Neill, 68 Kan. 252, 254, 74 P. 1105 (1904), this court recognized the legislature could "regulate the matter of the granting of new trials" in this manner.

The long-standing legislative influence in these matters weighs against finding the separation of powers doctrine is violated by K.S.A. 60-19a02 when considered in light of the four factors articulated in State ex rel. Morrison v. Sebelius that guide consideration of whether the doctrine was violated. The legislature has exercised some control over the judicial power to grant a new trial if a party does not accept the court's offer of additur or remittitur over many years. In actual experience, this has not yielded significant adverse results.

Finally, and as we have already noted, the judiciary has "tolerated" the legislature's regulation of the court's power to grant new trials since at least 1904, when the court in Railway Co., 68 Kan. at 254, recognized that the legislature could "regulate the matter of the granting of new trials," including the power to prohibit new trials based on the inadequacy of an award of damages. This court has also recognized that a court's authority to grant a new trial is limited to the six enumerated grounds provided by the legislature in K.S.A. 60-259(a), which became effective January 1, 1964. Mettee, 219 Kan. at 168; L. 1963, ch. 303, sec. 60-259. The balance of the applicable factors weighs against finding that the cap's implicit prohibition on granting a new trial when an award of noneconomic damages is inadequate below the $250,000 cap significantly interferes with judicial power. Accordingly, we hold the cap does not violate the separation of powers doctrine.

TRIAL ERROR CLAIMS

We address next the parties' claims that the district court erred in posttrial rulings. Miller argues the trial court erred by striking the jury's $100,000 award for future medical expenses by granting Johnson's motion to alter or amend the judgment. Johnson argues through a cross-appeal that she was entitled to judgment as a matter of law because Miller failed to prove causation of damage for the negligence allegations. Alternatively, Johnson argues she was entitled to a new trial based on three evidentiary errors. We begin by deciding Miller's claim that the jury's $100,000 award for future medical expenses should be reinstated.

Miller's Future Medical Expenses

The district court granted Johnson's motion to alter or amend the judgment, striking Miller's $100,000 jury award for her claimed future medical expenses. The court held that Miller offered insufficient evidence for the jury to make findings about her future medical or counseling needs, how much future care she would require, or what that cost would be over the next several decades until she reached menopause. Miller challenges that ruling, pointing out that the district court denied a similar claim during trial when the doctor raised it in a motion for directed verdict. By granting Johnson's motion to alter or amend judgment, the district court changed its position more than a year after the evidence had been heard.

Miller argues substantial competent evidence supports the jury's verdict by citing the trial testimony of Dr. Richard Derman and Dr. John Spiridigliozzi, along with Miller's medical records and bills. Miller argues the jury could have estimated the reasonable cost of her future medical expenses using the testimony and medical bills admitted into evidence. She also notes the award provides only $2,000 a year for her future health care and is reasonable given Miller's age and life expectancy. Johnson counters that this evidence is too conjectural or speculative to form a reasonable basis to measure Miller's future medical needs and the expenses required to meet those needs.

Standard of Review

The decision to grant a motion to alter or amend a judgment pursuant to K.S.A. 2011 Supp. 60-259(f) is within the district court's sound discretion and will not be disturbed on appeal unless there is an abuse of that discretion. Exploration Place, Inc. v. Midwest Drywall Co., 277 Kan. 898, 900, 89 P.3d 536 (2004); Mitchell v. City of Wichita, 270 Kan. 56, 66-67, 12 P.3d 402 (2000). Judicial discretion is abused if judicial action is: (1) arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (2) based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based. State v. McCullough, 293 Kan. 970, 980-81, 270 P.3d 1142 (2012) (quoting State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 [2011]). In this case, we must focus our attention on the third inquiry—whether the trial court's ruling was based on an error of fact concerning the detail within Miller's evidence of her future medical expenses.

Sufficiency of the Evidence for Future Medical Expenses

In assessing the doctor's motion to alter or amend the jury's $100,000 award for future medical expenses, the district court was required to stay within certain parameters, which this court articulated in McKissick v. Frye, 255 Kan. 566, 591, 876 P.2d 1371 (1994), as follows:

"In a negligence action, recovery may be had only where there is evidence showing with reasonable certainty the damage was sustained as a result of the negligence. Recovery may not be had where the alleged damages are too conjectural or speculative to form a basis for measurement. To warrant recovery of damages, therefore, there must be some reasonable basis for computation which will enable the trier of fact to arrive at an estimate of the amount of loss."

Within these constraints, we must examine the medical records and billings submitted to the jury and consider the trial testimony of Miller's experts to determine whether there was a reasonable basis for the jury to compute Miller's future medical expenses.

Miller begins by noting Derman's testimony on her future medical needs. Derman is an obstetrician gynecologist with a practice "focused on preventive health care." And his expertise is with women who are becoming menopausal and postmenopausal. Derman testified in part:

"[DERMAN] . . . [B]ased upon [Miller's] history and her symptoms I determined that she would need long term estrogen therapy and because of the need to have estrogen therapy she would be regulated to long term blood thinners or Coumadin, which means that she would be getting approximately monthly blood draws [and] would be seeing the hematologist for frequent visits. That she would continue to see the gynecologist at least a couple of times a year, in terms of her—both her quality of life issues the tight traction or changing doses and needs of her hormones, the issues associated with sexual dysfunction. I also said that she possibly would require some visits with an endocrinologist to check out thyroid function. . . . I was concerned about shifting body weight. Difficulty in weight loss being certain that we were to monitor her good and bad cholesterol and triglyceride. . . . I was concerned with long term blood thinners, and the fact that she went through surgical menopause, that there might be an increased risk of bone loss and osteoporosis. I talked about the importance of getting what we call a bone test or DXA test, as well as, getting her routine mammography and all of her immunizations up-to-date, as well as her need for psychiatric or psychological consult. I think somewhere . . . I pointed out the fact that her internist may want to get an echocardiogram, but people who have these types of conditions, these types of genetic effects may have a propensity of showing false blood clots, and in the valves of the heart, develop small clots. So, pretty much that is a summary of what I indicated would be necessary for [Miller]."

Derman explained that Miller would be dealing with being menopausal and postmenopausal, with the associated symptoms of hot flashes, insomnia, mood swings, and vaginal dryness for approximately 20 years longer than an average woman in the United States. He also discussed Miller's long-term consequences with respect to a unique blood condition, including his estimate that her blood clotting risk was approximately 60 times that of an average woman. Derman also believed Miller would need continued estrogen therapy over the next 20 to 30 years, and as a result of her blood condition would require a blood thinning agent.

Johnson's defense counsel, on the other hand, had Derman admit during cross-examination that some of Derman's recommendations applied to all women. That exchange stated:

"[DEFENSE COUNSEL]: And these are test[s] that you say that in your opinion [Miller] needs in the future, the evaluation an[d] visits?

"[DERMAN]: Yes.

"[DEFENSE COUNSEL]: Some of those things. Perhaps not as frequently and perhaps not as soon, but some of those things you recommend for all women?

"[DERMAN]: That's correct.

"[DEFENSE COUNSEL]: So, you're not trying to tell the jury only because of her condition does she need a mammogram?

"[DERMAN]: No.

"[DEFENSE COUNSEL]: Or because only because of her condition she would need a DEXA?

"[DERMAN]: But the DEXA would be done earlier.

"[DEFENSE COUNSEL]: [O]f the test that you mentioned which would you recommend to any wom[an], although maybe not as soon or not as frequently?

"[DERMAN]: Well . . . certainly a pelvic examination, a gynecological test and mammography. I would recommend to all of my patients a DEXA test at one point."

Later in the trial, Spiridigliozzi, a psychologist, provided additional testimony about Miller's future medical needs, stating:

"[SPIRIDIGLIOZZI]: Well, I think that [Miller] would benefit from seeing a professional psychologist or someone that is trained; has experience or expertise in dealing with anxiety disorders. . . . I think that she can probably use a medication evaluation too. So she could see a psychiatrist, I think that could help her reduce her anxiety[.] . . . "Marital counseling clearly to help her and her husband deal with some of the things that have come up for them. . . . How to deal with early menopause for a wom[an]. . . . And eventually maybe the marital therapy could also incorporate the children, and become family therapy at some stage because she does say that she's very short with the children. . . . [S]he could [also] benefit from seeing a nutritionist or dietician.

"I think also she could learn more about her condition and maybe see a physical therapist, perhaps, or an occupational therapist."

With respect to the need for treatment with a psychologist, Spiridigliozzi estimated such therapy with a licensed doctoral-level psychologist at an approximate cost of $120 per hour. Spiridigliozzi also testified that the intensity and frequency of family therapy and occupation or physical therapy would depend on Miller's progress with her one-on-one counseling. Spiridigliozzi further testified that in his professional judgment, Miller was unlikely to improve with her anxiety disorder without professional assistance.

With this expert testimony as a foundation, the final element in Miller's case for future medical expenses came from her medical records and bills that reflected her course of treatment both before and after her left ovary was mistakenly removed when she was 28 years old. Miller argues these components when viewed together gave the jury a sufficient understanding to use her medical bills and records as indicative of what the reasonable costs of her future medical expenses would be. Miller then notes that $2,000 annual average over the remainder of her life expectancy, without any adjustment for inflation, is neither excessive nor without any basis in the evidence.

In McKissick, this court upheld an award of $30,000 for future medical services based solely on a chiropractor's testimony that the plaintiff would require weekly treatment at a cost of $34 per visit. Similarly, in Cott v. Peppermint Twist Mgt. Co., 253 Kan. 452, 466, 856 P.2d 906 (1993), this court upheld a jury's award of damages for future medical expenses even though the experts who testified at trial could not agree on the plaintiff's future medical needs. And because both expert theories were supported by some evidence showing the costs associated with their corresponding medical treatments, this court concluded that each jury had a reasonable basis for computation of the award and was not based on mere speculation. Both of these decisions establish that the jury has a reasonable evidentiary basis to calculate future medical services if there is evidence of costs and testimony about possible future services. Certainty about the exact future services an individual will need is not required.

In Smith v. Massey-Ferguson, Inc., 256 Kan. 90, 116, 883 P.2d 1120 (1994), this court approved a jury award for future medical expenses based largely upon medical expenses incurred to date. The evidence in Smith is comparable to the evidence Miller offered and that the jury accepted as credible. For example, the jury was aware of Miller's life expectancy and expert opinion regarding both her short-term and long-term future medical needs and had detailed information about her medical expenses incurred since both of her ovaries were removed—resulting in surgical menopause. The cost information included expenses for office visits and some of her medications. Taken together, the evidence provided a general range of costs similar to what was used in Smith to form an adequate evidentiary basis. See 256 Kan. at 116-17. In addition, the jury was aware of Spiridigliozzi's specific testimony about Miller's need for psychological services, the possible duration, and costs ($120 per hour) typically associated with that therapy.

The district court erred by determining there was an insufficient factual basis for the jury's future medical expenses award. It mischaracterized Derman's testimony as being only about "possible" future needs, when Derman testified as to Miller's actual medical and therapeutic needs without equivocation. Similarly, the district court miscast Spiridigliozzi's testimony as being speculative concerning the benefits Miller would receive from future psychological services, when the doctor actually testified Miller would benefit from such services. In this manner, the testimony offered by Derman and Spiridigliozzi was similar in character to the expert's testimony in McKissick. See 255 Kan. at 591-92 (chiropractor testified plaintiff "'would have to have treatment about once a week right up until she could either overcome [the injury] or it would gradually get worse, and we may have to slide it up where it would be twice a week treatment program'"). Finally, when deciding that Miller had offered no evidence as to costs, the district court did not consider the medical records and billings offered into evidence, which Miller explained was a component of her future medical expense claims.

We hold that the district court based its ruling to alter or amend the judgment on factual mischaracterizations of the evidence and a failure to consider all the evidence Miller presented to support her claim for future medical expenses. The district court premised its decision to strike the jury's award on these errors of fact. The district court's posttrial order constitutes an abuse of discretion under our standard of review. We remand the case to the district court with instructions to reinstate the jury's $100,000 award for future medical expenses.

Johnson's Motion for Judgment as a Matter of Law

Johnson filed a motion for judgment as a matter of law under K.S.A. 60-250, arguing that Miller failed to prove causation because Miller's medical condition often requires the removal of both ovaries. The district court denied the doctor's motion, holding that there was sufficient evidence to create a jury question. More specifically, the district court found the evidence sufficient that there was no medical indication to remove Miller's left ovary at the time Johnson performed the laparoscopic procedure and that Miller experienced a variety of problems as a result of having both ovaries removed. The district court conceded in its posttrial ruling that the evidence offered by both sides conflicted as to these points but held those inconsistencies were best resolved by the jury, which found against the doctor.

Standard of Review

When ruling on a motion for judgment as a matter of law under K.S.A. 60-250, the district court must resolve facts and inferences reasonably drawn from the evidence in favor of the party the directed verdict is sought against. If reasonable minds could reach different conclusions based on the evidence, the motion must be denied. An appellate court applies a similar analysis when reviewing the denial of a motion for judgment as a matter of law. The motion's consideration becomes a question of law if no evidence is presented on an issue or if evidence is undisputed and the minds of reasonable persons may not draw differing inferences or arrive at opposing conclusions. Deal v. Bowman, 286 Kan. 853, 858, 188 P.3d 941 (2008).

Analysis of the Motion for Judgment as a Matter of Law

Johnson argued to the district court after the verdict that the evidence at trial proved Miller suffered from chronic pelvic pain, which was a preexisting condition that often required removal of both ovaries and the uterus. Johnson asserted that because Miller suffered from this preexisting condition, it was outside a juror's common knowledge and experience to determine whether removal of Miller's right ovary as planned with the first surgery would have resolved Miller's problems without later removal of her left ovary. Johnson concluded that Miller failed to prove causation because no one testified that Miller's "left ovary would not have been removed even if her right ovary had been removed [as originally planned]." In response, Miller argued that Johnson's logic was flawed because the evidence at trial proved she would be functioning well with one ovary had Johnson removed the right ovary as intended. The district court denied Johnson's motion for judgment as a matter of law, concluding:

"Miller presented evidence through Dr. Andrew Brill that it was below the standard of care to remove the left ovary when the indication and planned surgery was for the right ovary. [Brill] testified that there was no indication for removal of the left ovary. . . . Dr. Richard Derman testified that once both ovaries were removed, Miller would experience a variety of problems, all related to the fact she did not have any ovaries. Miller established, through expert testimony, negligence and causation. Dr. Johnson presented alternative expert testimony; however, that testimony was not followed by the jury."

On appeal, the doctor continues to press the same argument made to the trial court. Johnson claims that because of Miller's preexisting medical conditions, both of her ovaries and uterus needed to be removed eventually, even if the left ovary was mistakenly taken first. The doctor argues Miller had the burden to prove that her left ovary would never have needed to be removed. Miller responds that it is sufficient she proved there was no medical justification to remove her left ovary.

To establish a medical malpractice claim, a plaintiff must show: (1) the health care provider owes the patient a duty of care and was required to meet or exceed a certain standard of care to protect the patient from injury; (2) the health care provider breached this duty or deviated from the applicable standard of care; (3) the patient was injured; and (4) the injury was proximately caused by the health care provider's breach of the standard of care. Puckett v. Mt. Carmel Regional Med. Center, 290 Kan. 406, 420, 228 P.3d 1048 (2010).

Johnson argues Miller failed to establish the proximate cause of injury element. There are two categories of proximate cause: causation in fact and legal causation. To demonstrate causation in fact, a plaintiff must prove a cause-and-effect relationship between the defendant's conduct and the plaintiff's loss by presenting sufficient evidence from which a jury could conclude that more likely than not, but for the defendant's conduct, the plaintiff's injuries would not have occurred. Puckett, 290 Kan. at 420. Miller points to the testimony of her expert witness, Dr. Andrew Brill, and to the defendant doctor's testimony as establishing that there was no medical justification for the removal of her left ovary.

This court's review of that testimony shows Miller is correct. Brill repeatedly responded to counsel's questions by testifying there was no medical reason or justification for Johnson to have removed Miller's left ovary. Likewise, Johnson agreed with Brill's assessment that there was no medical justification for removal of the left ovary. And the district court correctly noted that Johnson's expert witnesses offered a contrary view regarding Miller's preexisting medical conditions, but this simply led to a jury question of fact that got resolved against the doctor. We hold that the district court did not err in denying Johnson's motion for judgment was a matter of law.

Johnson's Motion for New Trial

The final issue concerns the district court's rejection of Johnson's motion for new trial. Johnson argued she was entitled to a new trial because the district court: (1) prevented two of Miller's treating physicians from testifying that it would have been necessary to eventually remove Miller's left ovary; (2) prevented cross-examination of a plaintiff's expert regarding professional disciplinary actions; and (3) permitted questioning of Miller about Johnson's statements in certain pleadings in which Johnson denied liability. We will address each in this order.

Standard of Review

Granting a new trial under K.S.A. 60-259(a) is within the trial court's discretion, and that ruling will not be disturbed on appeal unless that discretion was abused. City of Mission Hills v. Sexton, 284 Kan. 414, 421, 160 P.3d 812 (2007). As discussed above, judicial discretion is abused if judicial action is (1) arbitrary, fanciful, or unreasonable; (2) based on an error of law; or (3) based on an error of fact. McCullough, 293 Kan. at 980-81.

Treating Physicians' Testimony

Johnson argues the trial court abused its discretion by restricting the testimony of Drs. Daniel Stewart and Christopher Lynch. Both doctors took over Miller's medical care after Miller's left ovary was mistakenly removed in 2002. Johnson argues on appeal that these two treating physicians should have been permitted to testify that Miller would eventually have had both ovaries removed anyway because of her preexisting medical conditions. The point of the testimony apparently was to support Johnson's argument that Miller was not damaged by Johnson's surgical error. This was a hotly contested issue before, during, and after trial.

The question first was presented as a pretrial motion in limine in which Miller objected to the proposed testimony after learning about it shortly before trial. Miller claimed Johnson had failed to properly disclose the proposed testimony during discovery, which violated prior court orders. Miller also argued that, as treating physicians, Stewart and Lynch could not offer such testimony without full expert disclosure because those opinions were outside of what was incidental to the doctors explaining their care and treatment of Miller.

The record does not provide us with the district court's pretrial ruling on the motion in limine, but it does suggest the trial court indicated it would preliminarily limit the doctors to testifying only about those matters stated in their medical records, their care and treatment of Miller, and inquiries reasonably related to that treatment, with an understanding to return to the issue as testimony developed at trial. This handling is consistent with the usual accepted trial court practice for considering motions in limine. See Manhattan Ice and Cold Storage, Inc. v. City of Manhattan, 294 Kan. 60, 69-70, 274 P.3d 609 (2012) (summarizing a district court's discretion and necessary considerations when ruling on a pretrial motion in limine).

As expected, the issue resurfaced at trial when the first doctor appeared to testify. At that time, the district court had a lengthy colloquy with counsel outside of the jury's presence during which the matter was reargued. The district court then held it would not allow either doctor's testimony that the ovary Johnson removed would have needed to be removed eventually. The district court gave two reasons for its ruling. First, the court found that its pretrial orders had obligated Johnson to disclose the proposed testimony from these two doctors sooner than actually occurred—about 1 month before trial. The court found this violation of its discovery schedule and order had prejudiced Miller's ability to address the proposed testimony because the disclosure came after much of the expert discovery. Second, the district court held the limitations on these two physicians' testimony derived from K.S.A. 60-226(b)(6). At the time of Miller's trial that statute provided:

"(6) Disclosure of expert testimony.

"(A) A party shall disclose to other parties the identity of any person who may be used at trial to present expert testimony.

"(B) Except otherwise stipulated or directed by the court, this disclosure, with respect to a witness (i) whose sole connection with the case is that the witness is retained or specially employed to provide expert testimony in the case or (ii) whose duties as an employee of the party regularly involves giving expert witness testimony, shall state the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.

"(C) These disclosures shall be made at the times and in the sequence directed by the court. . . .

"(D) Unless otherwise ordered by the court, all disclosures under this subsection shall be made in writing, signed and served. Such disclosures shall be filed with the court in accordance with subsections (d) of K.S.A. 60-205 and amendments thereto."

After trial, Johnson argued the district court had mistakenly restricted the testimony from Stewart and Lynch, that the limitation was prejudicial to the verdict against Johnson, and that a new trial should be ordered. In denying the motion for new trial, the district court simply referred back to its earlier decisions regarding this testimony and reaffirmed the rationale explained at that time, stating:

"As treating physicians the Court limited these doctors' testimony, pursuant to K.S.A. 60-226(b)(6), to matters set forth in their records, their care and treatment of Miller and subjects that were reasonably related to that treatment. After review and consideration of the Court's previous decision in limine to exclude this testimony as well as consideration of Dr. Johnson's current motion, Dr. Johnson's motion for new trial is denied."

On appeal, Johnson argues she is entitled to a new trial because K.S.A. 60-226(b)(6) applies only to expert witnesses "whose 'sole connection with the case is that the witness is retained or specially employed to provide expert testimony . . . .'" And from that perspective, Johnson contends K.S.A. 60-226(b)(6) did not apply to the testimony of Stewart and Lynch because they were Miller's treating physicians. In the alternative, Johnson argues her supplementation of expert disclosures was timely filed under K.S.A. 60-226(e)(1), providing Miller with sufficient time to address the new testimony to be offered.

Although both parties invite us to delve more deeply into the statutory disclosure requirements for opinions that may be given by treating physicians, we find that the district court's order may be upheld on other grounds. The first justification, which is founded upon the trial court's interpretation of its own pretrial orders concerning the parties' discovery obligations, is sufficient to affirm the ruling denying the new trial. As the district court noted, it held conferences with the parties shortly before the scheduled trial and Johnson did not indicate that this subject matter would be addressed by these two witnesses. The court further noted that Johnson should have disclosed the proposed testimony even earlier pursuant to its case management order through the required witness factual summaries. The district court also specifically found that Miller was prejudiced by this delay because her expert witnesses' trial testimony had already been secured and Johnson's dilatory disclosure resulted in "unfair surprise." K.S.A. 60-237(c) provides that a party's failure to disclose witness information required by a court's scheduling order entered pursuant to K.S.A. 60-226(b)(6)(C) precludes that testimony unless the court finds the failure was substantially justified or harmless. In this case, the district court found neither exception supported the delay. An abuse of discretion standard applies to decisions made under K.S.A. 60-237(c). Divine v. Groshong, 235 Kan. 127, 142, 679 P.2d 700 (1984). Additionally, we have always held that a trial court is vested with broad discretion in supervising the course and scope of discovery. In re Care & Treatment of Hay, 263 Kan. 822, 839, 953 P.2d 666 (1998).

In the doctor's appellate briefs, Johnson does not address how, or even whether, the trial court misinterpreted its own scheduling orders or erred in its determinations that Johnson failed to comply with those orders, had no justification for such failure, and that the failure prejudiced Miller. Our own review of the record shows the district court had entered scheduling orders requiring disclosure regarding the substance of witness testimony. We are convinced the district court acted well within its discretion in limiting the doctors' testimony because of Johnson's failure to comply with the previously entered discovery schedule.

Limitation of Expert Cross-examination

Johnson next argues in very general terms that the district court erred by preventing her from cross-examining one of Miller's expert witnesses regarding that witness' medical license. Johnson claims this questioning would have been relevant to that witness' credibility. In denying a new trial on this basis, the district court specifically ruled this did not prejudicially affect Johnson and did not rise to the level of granting a new trial.

The first obvious problem with Johnson's argument is that it is not adequately briefed or argued. Johnson does not cite to the record on appeal where she entered her trial objection to demonstrate the issue was preserved, and she cites no legal authority supporting her argument. And Johnson does not address in any manner the district court's holding that no prejudice resulted from this claimed error. We find the two paragraphs of Johnson's brief inadequate to properly raise this issue on appeal. Claims made in passing without argument or citations to authority are deemed waived and abandoned. Frick Farm Properties v. Kansas Dept. of Agriculture, 289 Kan. 690, 714, 216 P.3d 170 (2009). We hold that Johnson has inadequately presented this issue on appeal for this court's consideration of it.

Questioning Miller about Johnson's Legal Pleadings

Johnson does only slightly better than the previous issue at briefing her claim that Miller should not have been questioned about the impact on her of Johnson's general denial in the legal pleadings that medical malpractice had been committed. Johnson contends only generally that the evidence was irrelevant and "highly prejudicial," but she offers no caselaw support or deeper discussion as to how the admission of this testimony—in the context of the other evidence—adversely impacted the jury's outcome or denied Johnson a fair trial.

We note again that the district court specifically found no prejudice from the admission of this testimony, and Johnson's only contention to this court is the bald counter that the evidence was "highly prejudicial." Any effort to demonstrate prejudice would necessarily include consideration of the other evidence presented at trial and Johnson has not attempted to make this showing. This is insufficient to argue such an issue to this court. As with the previous claim, we hold Johnson has waived it.

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See: http://www.kscourts.org/Cases-and-Opinions/opinions/SupCt/2012/20121005/99818.pdf

Outcome: Affirmed in part, reversed in part, and remanded with directions.

Plaintiff's Experts:

Defendant's Experts:

Comments: