LEGISLATION
The majority of the Court concluded the statute prohibiting wrongful birth lawsuits was constitutional on the argument that Sections 5 and 18 of the Kansas Constitution Bill of Rights only apply to causes of action that existed at common law at the time the Kansas Constitution was enacted . Wrongful birth claims did not exist in common law at that time . Accordingly , the legislature can constitutionally ban such claims .
THE POTENTIAL EFFECT OF THIS DECISION ON THE WRONGFUL DEATH CAP In the Hilburn v . Enerpipe decision in 2019 , the Kansas Supreme Court ruled the cap on noneconomic damages in personal injury lawsuits was unconstitutional because it violated sections 5 and 18 of the Kansas Constitution Bill of Rights by denying the plaintiffs a jury trial and legal remedy . This was the same argument raised in the Tillman case . The difference between the Hilburn case and the Tillman case was the plaintiff ’ s claim in Hilburn was based on standard negligence , a claim that existed at common law . However , the claim in the Tillman case was based on the relatively recent claim of wrongful birth that did not exist at common law at the time the Kansas Constitution was enacted .
The Hilburn decision only applied to noneconomic damages in standard negligence cases . There is a separate statute , K . S . A . 60-1903 , that applies to wrongful death cases and it limits nonpecuniary ( non-economic ) damages to $ 250,000 . That particular statute was not addressed in the Hilburn case because it was not a wrongful death case . After Hilburn , many questioned whether the Court would also find the wrongful death cap unconstitutional . The decision in Tillman suggests the Court , at least as presently constituted , would find the wrongful death cap constitutional and enforceable because a wrongful death claim , like a wrongful birth claim , did not exist in common law before the enactment of the Kansas constitution .
Elizabeth ( Beth ) joined KAIA in July 2018 after working at an independent insurance agency for 13 years . A licensed attorney , Beth oversees KAIA ’ s market access program , E & O program , as well as its legal services and lobbying efforts .
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