Kansas Supreme Court hearings resume: wrongful birth lawsuits, worker compensation

Gavel On Book, Mgn Image

Release from the Office of Attorney General Derek Schmidt:

TOPEKA – (September 15, 2020) – Attorneys with the office of Attorney General Derek Schmidt will argue this week for the Kansas Supreme Court to uphold two state statutes against constitutional challenges as the court resumes operations disrupted by the COVID-19 pandemic.

The hearings will be held virtually as the seven-member Court resumes its operations for the fall term, which began Monday with arguments in three cases.

“It is important that the wheels of justice begin turning again, and I appreciate the Supreme Court taking up these important cases,” Schmidt said. “The pandemic has disrupted so much, but it is essential we all find ways to keep vital public services operating. We will continue to do our work of defending duly enacted state statutes against legal challenges to their validity.”

On Wednesday, the Office of Attorney General will defend the state’s 2013 statute that prohibits lawsuits claiming wrongful birth or wrongful life. The case challenges the constitutionality of the statute, which prohibits filing a civil action for failure of a physician or other person to identify before birth a medical abnormality in a child born with severe birth defects. The law was upheld by the Riley County District Court in in 2017 and the Kansas Court of Appeals in 2018. The lower courts ruled that the law is constitutional because there was no right to sue for wrongful birth in 1859 at the time the Kansas Constitution was adopted. The hearing in Tillman and Fleetwood v. Goodpasture is set for 1:30 p.m. Wednesday.

The second case is an appeal of a lower-court ruling that overturned provisions of the state workers’ compensation laws adopting medical guidelines for monetary awards to injured employees. The Office of Attorney General intervened in Johnson v. U.S. Food Service to defend the statute that adopts the Sixth Edition of the American Medical Association Guides to the Evaluation of Permanent Impairment. The Kansas Legislature amended state workers’ compensation laws in 2015, updating from the Fourth Edition of the AMA guide issued in 1993 to the Sixth Edition released in 2007. The Kansas Court of Appeals held that the statutory change violated the plaintiff’s due process right to seek a remedy for injuries. Under Kansas law, the attorney general has the right to intervene in any case challenging the constitutionality of a duly enacted statute. The hearing is set for 11 a.m. Thursday.

In addition, the Office of the Attorney General is leading or assisting county or district attorneys in multiple criminal appeals being heard by the Supreme Court this week. Livestreams and video archives of the court’s arguments can be viewed at kscourts.org.