On August 26th, the Health Care Stabilization Fund (HCSF) Board of Governors (BOG) held a conference call with their actuary from Willis Towers Watson. The purpose of the call was to discuss the potential financial impact of the Hilburn v. Enerpipe, Kansas Supreme Court opinion on the HCSF AND if the BOGs should consider another increase in the Fund surcharge. In their opinion, the Supreme Court ruled that Kansas caps on non-economic damages are unconstitutional. The BOGs voted earlier this year to increase the 2020 surcharge by 6% across the board prior to the Supreme Court ruling. The Board will consider this and could take action during their September 12th meeting. It is unknown if or how much of an impact the ruling will have on claim costs in the short term. It is anticipated there may be an increase in the frequency of claims, including claims against aging service providers.
The Kansas Supreme Court’s ruling has left health care providers in a state of uncertainty. The Supreme Court’s press release on the day the opinion was issued reported that it did not apply to medical malpractice. In addition, in a recent public forum of attorneys, a Supreme Court Justice indicated the Hilburn ruling did not apply to medical malpractice cases. However, most anyone who has read the opinion is unable to discern that medical malpractice cases would be exempt from the unconstitutionality of the caps.
The Kansas Legislature has taken notice of the Supreme Court’s ruling. On September 12th and October 3, the Financial Institutions and Insurance Committee will meet to discuss the Hilburn opinion and the potential impact on health care costs. On October 1st and 2nd, the Judiciary Committee will be meeting to discuss Hilburn and what could be done legislatively to “fix” the opinion.
