Kansas’s damages cap: struck down in 2019
For thirty years Kansas capped non-economic damages in injury cases. In Hilburn v. Enerpipe Ltd. (2019), the Kansas Supreme Court struck the cap down, holding that K.S.A. 60-19a02 violated the state constitutional right to jury trial. Since Hilburn, personal injury plaintiffs, including families in medical malpractice cases, face no statutory ceiling on non-economic damages, and economic damages were never capped. A Kansas jury values a catastrophic birth injury in full: the life-care plan, lost earning capacity, and the child’s human losses beside them.
The counterweight in Kansas is not a cap but a clock, and for children it is shorter than most families expect.
Deadlines and the eight-year outer limit for children
The Kansas malpractice statute of limitations is two years from when the injury was or should have been reasonably ascertainable, inside a four-year repose (K.S.A. 60-513(a)(7), (c)). Minority tolling exists, but K.S.A. 60-515(a) closes it with a firm sentence: no action by a person under disability may be brought more than eight years after the act. For an injury at delivery, a Kansas birth injury claim is generally extinguished at the child’s eighth birthday. The claim does not revive at adulthood or at a later diagnosis, and the parents’ own claims run on the plain two-year rule. The layering of these clocks is exactly what our statute of limitations guide untangles; the answer for your family comes from the records, early.
Screening panels and the Health Care Stabilization Fund
Two structural features shape Kansas cases. First, either party may request a medical malpractice screening panel (K.S.A. 65-4901), an advisory, pre-trial review of the merits by health care professionals; the step is optional, and no panel is required before filing. Second, and more consequential for families: Kansas requires health care providers to carry malpractice coverage and layers the Health Care Stabilization Fund (K.S.A. 40-3401 et seq.) above it, paying judgments and settlements beyond the primary policy. In a catastrophic birth injury case, the Fund’s participation is a practical assurance that a meritorious claim is not chasing an empty policy, and it adds a procedural party whose rules experienced Kansas counsel navigate routinely.
Building a Kansas birth injury case
A difficult delivery can injure a baby even when the medical team did everything right, and that alone is not malpractice. The claims that proceed rest on preventable failures documented in the chart: fetal distress without a timely response, a delayed cesarean, mismanaged shoulder dystocia, or newborn jaundice left untreated. At the center of these cases sit hypoxic-ischemic encephalopathy (HIE), cerebral palsy, and Erb’s palsy arm injuries. Kansas deliveries concentrate in Wichita’s high-volume maternity hospitals and the Kansas City-area systems, and military families at Fort Riley or Fort Leavenworth delivering in federal facilities fall under the Federal Tort Claims Act’s separate two-year rule.
Birth Injury Advocate brings together Banville Law (New York and Washington, D.C.) and The Weitz Firm, LLC (Pennsylvania and New Jersey). Neither is licensed in Kansas. When you contact us about a Kansas delivery, we connect your family with the alliance’s vetted network of local birth injury attorneys: Kansas-licensed lawyers who try cases in the post-Hilburn landscape and work with the Stabilization Fund’s procedures. The consultation is free of charge, with fees paid only from a recovery.
Kansas removed its cap but kept its eight-year limit for children. If a delivery left you with questions, the free records review answers them while the claim is still alive.
Frequently asked questions
How long do I have to file a birth injury lawsuit in Kansas?
Two years from when the injury was reasonably ascertainable, inside a four-year repose (K.S.A. 60-513); for children, K.S.A. 60-515(a) bars any claim more than eight years after the act. A claim for an injury at delivery generally ends at the eighth birthday.
Does Kansas cap damages in birth injury cases?
No. The Kansas Supreme Court struck down the non-economic damages cap in Hilburn v. Enerpipe Ltd. (2019) as violating the right to jury trial. Economic damages were never capped.
What is the Kansas Health Care Stabilization Fund?
A statutory fund (K.S.A. 40-3401 et seq.) that sits above Kansas providers’ mandatory malpractice coverage and pays qualifying judgments and settlements beyond the primary policy, a practical assurance that meritorious catastrophic claims can actually be paid.
Sources
- K.S.A. 60-513(a)(7), (c): two-year limitation and four-year repose for malpractice actions.
- K.S.A. 60-515(a): minority tolling; absolute eight-year limit after the act.
- Hilburn v. Enerpipe Ltd., 309 Kan. 1127 (2019): striking down the K.S.A. 60-19a02 non-economic cap.
- K.S.A. 65-4901: medical malpractice screening panels.
- K.S.A. 40-3401 et seq.: Health Care Provider Insurance Availability Act and Stabilization Fund.
This page is for general education and is not legal advice; statutes and cases are cited by name and number so you can verify them, and deadlines depend on facts specific to your case. Legal statements reflect the reviewing attorneys’ professional experience. Attorney advertising. Prior results do not guarantee a similar outcome.