*1 July 24171. No. 1984.] [S.F. COMPANY, BANK TRUST
AMERICAN AND Administrator, etc., Plaintiff Respondent, Special GATOS-SARATOGA, INC., COMMUNITY HOSPITAL OF LOS Defendant Appellant.
Counsel Fellows, Wines, R. Wood, Thomas Robinson & & Wood and Robinson Wines, Robinson, Wood & Anderson for Defendant and Appellant. Larson, Krichman, (Los John H. Counsel Peter R. Angeles), County Huber, Counsel, Hassard, & David Deputy County E. Bennington, Rogers Willett, Corcoran, Hassard, Bond, Musick, Maureen E. Howard Charles Garrett, Horvitz, Ludlam, Greines, Peeler & & James E. Horvitz Greines Richland, John Romans, L. Poster, Horvitz, Kent G. Marjorie & Ellis J. Hiestand, Mattesich, Mattesich, Fred J. Klein, M. & James Livingston L. Reidhaar, Lichtman, E. Halvonik, L. James Donald Paul L. Savannah Pines, Pines, Alschuler, Burt & Holst, F. Grossman John Lundberg, Newell, Danner, Donald P. Wollitz, Watkins, C. Bryant & Howard Latham West, Miller, City Attorney Wheelock, Jr., E. A. Milton Natalie A. Joseph Francisco), E. Burk (San City Attorney (Berkeley), George Agnost, Curiae Owen, as Amici City Attorneys, Delventhal and J. Deputy Thomas on behalf of Defendant and Appellant. Jones, Allard, D. Allard, J. Donald & Bernard McGowan
Popelka, Howard, J. for Plaintiff and Murray A. and Michael Barber Stephan Respondent. Bashore, Richard Werchick, Sacks, Drayton, T. Ralph
Arne Leonard Glen Pollock, I. Edward Herzog, Ian D. Robert E. Bridgman, Cartwright, Aitken, Sanford M. Levine, Gage, Zetterberg, Wylie R. I. Harvey Stephen C. Franklin DeMeo, Dillingham, M. Michael F. J. Nick David Harney, of Plaintiff and on behalf and Frederick Barak as Amici Curiae Valvo Respondent.
Opinion 1975, that had
KAUS, J. problems serious May Governor—citing In in medical mal arisen a result of a increase rapid state as throughout in extraordinary insurance premiums—convened Legislature practice In to the situation.1 response, session consider measures aimed remedying Reform Act of enacted the Medical Legislature Injury Compensation 1975-1976, (MICRA) (Stats. Second Ex. Sess. chs. on several 3949-4007), which attacked the problem a statute pp. lengthy outline, In to reduce the incidence and fronts. broad act attempted governmental of medical severity malpractice injuries strengthening education, of and health and licensing discipline physicians of oversight insurance in premium care to curtail unwarranted sought providers, and es coverage insurance by authorizing programs creases alternative increases, rate and at- new review substantial tablishing to procedures insurance malpractice of medical part: stated in “The cost proclamation 1The Governor’s inability The surgeons find intolerable. many physicians to and has risen levels which endangering people the health of the to doctors obtain such insurance at reasonable rates State, many longer consequences term closing hospitals. of this and threatens the of our to hundreds of thousands seriously provided limit the care closings such could health (Second Ex. (Governor’s Sess. Leg. (May to Stats. citizens.” Proclamation 1975-1976) to tempted reduce and cost increase the efficiency of medical malpractice a litigation by number of revising rules such legal applicable litigation. This case involves a constitutional to one of the wide-ranging challenge provisions MICRA medical affecting lawsuits—a malpractice provision codified as section 667.7 of Civil Code Procedure.2 Section 667.7 provides when a medical case has sustained $50,000 more, “future or damages” for those future dam- compensation ages is to be paid periodically over the course time the plaintiff incurs losses, rather than in a sum at the time of lump payment judgment. Plaintiff attacks this “periodic payment damages” provision variety of grounds, alia, inter and contending, violates the state federal con- stitutional guarantees of due process, equal protection, right jury trial. hereafter,
As explained we have concluded that section 667.7 does not deny due or process avoid equal potential order to conflict protection. with however, right trial we by jury, conclude that the provision should be interpreted of its award require jury designate portion attributable to future As so we damages. interpreted, conclude that the pro- vision is constitutional.
I For purposes appeal, may briefly facts summarized. Late in tumor, after a brain scan had disclosed a lesion plaintiff Mary English3 admitted to defendant of Los Community Hospital Gatos-Sar- On atoga the eve of her surgery. scheduled she fainted or fell operation, in a shower stall and suffered severe burns to her hip, thigh, groin, *6 a result of overheated water. After the burns had treated and dressed her by tumor, as neurosurgeon, brain scheduled. The surgery proceeded remission, then in though of a was found to and which malignant type results in death within in all reportedly one cases. Fol- year percent release from the lowing received radiation and chemo- hospital, plaintiff therapy treatments.
Plaintiff was treated for her burn a under whose injuries by surgeon plastic burns, however, care a but gradual steady took Because of the healing place. specified, 2Unless otherwise all section are the Code Civil Procedure. references to 24, 1978, 3Mary English appeal pending. By stipulation, died on was November while this estate, American Bank and Company, special Trust her has been administrator of substituted plaintiff convenience, in this “plaintiff” action. For shall use term to both we refer Mary English to present representative and to of her interest. two more for disabled for four months and partially was disabled totally she contin- of the healed tissues blistering Intermittent breakdown and months. to occur. ued her fall in shower had led to that defendant’s
Alleging negligence for the burns, action to recover her severe brought present to plaintiff accident, trial, after the 14 months At the time of some resulting damages. blisters, and recurring by caused disability still suffered residual plaintiff cosmetic in a permanent four burn had resulted three areas scarring that reasonably probable was doctor testified that it deformity. Plaintiff’s would be followed surgery and that such future would be surgery required, Plaintiff healing. to disability proper of total and permit by periods partial following year she had not been able to work testified that accident, in 1978 because the work returning that she did not anticipate car, a and that driving her from of her left knee and leg prevented condition do it.” certainly if future were recommended she “would surgery verdict for trial, the rendered a general At the conclusion of the jury returned, $198,069.88 in After verdict defendant favor of plaintiff. time, order of an moving raised the issue for first payment periodic 667.7. trial of future damages pursuant periodic payment court, its terms denied while that the section was concluding applicable, was unconstitutional. defendant’s motion on the that the ground provision denies provision The court relied on two theories: it concluded that to health care defendants that is not equal protection granting privilege defendants, (2) it that the denies due afforded to other held provision injured by limiting of an spouse plaintiff process In light defendant in the event of the death. obligated plaintiff’s is pay sum the trial court entered lump judgment of its constitutional ruling, in the amount of the verdict. favor from that the contending primarily
Defendant now the judgment,4 appeals in error.5 with to section 667.7 are constitutional rulings respect trial court’s order, prior judgment, denying trial purports appeal also from the court’s 4Defendant appeal judgment, from periodic payments. Though reviewable motion for Witkin, (2d 904.1; (§ Procedure generally 6 Cal. ed. nonappealable. itself see order *7 62, 68, 4048-4049, 4082-4083.) Accordingly, purported ap the Appeal, pp. §§ peal from that order must be dismissed. First, that the trial appeal. two on defendant asserts 5Defendant raises additional claims $2,023.04, a of failing by pursuant stipulation to to the judgment court erred in reduce the Plaintiff concedes that the respect payments by with received parties plaintiff. Medi-Cal was suggests stipulated the reduction for stipulation, into such but that parties entered a $2,500, ambiguous record figure by the Because the is rather than lower cited defendant. court, remand, the the we direct trial on to determine stipulation, on the amount of shall the In response, plaintiff claims that the provision unconstitutional both on the relied on grounds the trial by court on additional grounds well. Numerous amicus briefs have been filed on both sides of case.
II law, At common a who at bodily suffers the hands of a injury tortfeasor has traditionally for both and future dam compensated past ages through a sum lump of judgment, at conclusion the trial. payable (2 James, & The Harper 25.2, Law of (1956) Torts Over the § however, past years, several tort that sum awards scholars—noting lump are often or dissipated by investments before the improvident expenditures injured person actually incurs future medical or earning loss expenses es—have advocated the aof legislative adoption payment” “periodic pro cedure as a would, view, reform measure which in these commentators’ id., both (See 1303-1304; benefit plaintiffs Keeton defendants. at & pp. O’Connell, Basic Protection for the Traffic Victim—A for Re Blueprint 351-358; Henderson, Automobile forming (1965) Insurance Periodic pp. Payments Bodily 734.) In the Injury Awards 66 A.B.A.J. last decade, many states have enacted authorizing periodic provisions pay ,6and, ment of in a damages of tort the National variety fields Conference of Commissioners Uniform State Laws a “Model approved Periodic Payment Judgments embodying Act” revised approach for future compensation tort damages.
Section 667.7—the provision issue here—represents Legislature’s initial adoption into periodic-payment-of-damages concept California tort law. The section—set forth full that when below7—provides generally stipulated figure judgment and to reduce that by amount. Second, defendant contends award that damage that was excessive and the trial court denying erred in damages. its motion for remittitur a new with respect a or trial and, it, Appeal Court of rejected addressed and when case before for this claim court, by People reasons stated we also conclude that the contention lacks merit. 1176].) Cal.Rptr. v. Ford Cal.3d 215-216 generally Elligett, Payment Judgments 6See The Periodic 46 Ins.Couns.J. 130. “(a) against provides: any injury damages provider 7Section 667.7 a In action or services, shall, superior health request party, judgment care a at the either enter a court ordering money damages damages judgment for future equivalent or its creditor paid part whole by periodic payments lump-sum payment or in rather if the than ($50,000) equals damages. entering award fifty exceeds thousand in future dollars judgment ordering payment damages by periodic payments, of future the court shall compensate make specific finding periodic payments as to the which will dollar amount the judgment authorizing damages. periodic pay creditor for such future As a condition to adequately ments of damages, require judgment future shall debtor who is not court post insured security adequate payment assure such awarded full judgment. Upon the court order periodic payments damages, termination of of future shall *8 $50,000 or an of obtains award in a medical action a plaintiff malpractice shall court, of either party, the on motion more for “future trial damages,” damages. of those for the periodic payment enter judgment providing remains, debtor. judgment to the security, of or much the return so as payments shall damages by periodic “(b)(1) judgment payment of fiiture ordering the the payments, of the amount specify recipient recipients payments, the of the the dollar or which period the of time over payments of or payments, interval between and the number in event to the subject be modification only be Such payments payments shall made. shall judgment the death of the of creditor. continuing “(2) exhibited judgment the the debtor has event that the court finds that (1), shall find the court specified paragraph to in pattern failing payments of make the as and, payments, periodic required in the contempt in addition to judgment the debtor of court the damages by caused all judgment creditor judgment pay the debtor to the shall order attorney’s and fees. periodic including court costs payments, to make such failure be However, earnings shall not reduced “(c) of fiiture money damages awarded loss creditor, paid but shall be by judgment of death the payments or terminated reason the of law, duty support, provided persons judgment to the creditor owed a of to whom original judgment, the immediately prior to the which rendered his death. In such cases court interest, the apportion award and may, petition any modify judgment of in the upon party unpaid damages future in accordance with this subdivision. periodic in the “(d) obligations specified all Following expiration the occurrence or shall obligation judgment payments to make further payment judgment, any of the debtor (a) any security judgment to the debtor. pursuant revert given, cease and to subdivision shall “(e) As used in this section: treatment, custody, or “(I) damages’ care damages ‘Future includes for future medical function, earnings, bodily suffering judgment and of the pain loss of fiiture loss of future or creditor. delivery property “(2) payments’ money the or other payment ‘Periodic means regular judgment the creditor at intervals. “(3) pursuant certified Division provider’ any person ‘Health care means licensed or Code, 500) or (commencing pursuant of the Professions licensed with Section Business and Act, Act, pursuant to Osteopathic Chiropractic the or licensed Initiative or Initiative Code; 1440) Safety (commencing with of Division 2 of the Health and Chapter 2.5 Section (com- clinic, pursuant to Division 2 any dispensary, facility, health or and health licensed Safety provider’ ‘Health care includes with Health and Code. mencing Section representatives provider. of a care legal health “(4) to act a health care negligent act or omission negligence’ ‘Professional means services, proximate professional which act or omission is the provider rendering in the death, are personal wrongful provided that such services within injury cause of a any not within restriction scope for which the is and which are provider of services licensed imposed by licensing agency hospital. or licensed entry “(f) Legislature enacting is intent of the this section to authorize It provide pay- for the against providers health which judgments actions care By payments lump-sum payments. through periodic ment future rather than Legislature authorizing periodic payment judgments, is the further intent of the needs of provide sufficient meet judgments compensation will utilize such courts plaintiff period for whatever injured plaintiff persons dependent and are on the an those who recovery which was necessary lump-sum eliminating potential is while windfall from a period who then provide injured an extended intended to shortly for the care of an over persons leaving judgment award to judgment paid, dies after the the balance of all Legislature that It intent of the purposes for which it was not intended. is also the judgment or- certainty with periodic payment program specified elements some future payments subject not be to modification dering judgment such judgment.” specifications original time alter might which *9 that the Explaining legislative intent is that “courts will utilize such judg ments to provide sufficient to meet the compensation needs of an injured and those plaintiff persons who are on the for whatever dependent plaintiff period while necessary eliminating windfall from a potential lump- sum which recovery to intended for the care of an provide injured over an plaintiff extended who period then dies after the shortly judgment (§ 667.7, is paid” (f)), subd. (1) that the judgment shall provides alia, inter specify, dollar amount the individual the interval payments, between payments and the of time over period which shall be payments (id., made (b)(1)), (2) subd. that the schedule shall be modifiable payment if only dies before all plaintiff (ibid.),8 are due payments if die, even does plaintiff future awarded for the portion damages loss of plaintiff’s future shall not earnings be reduced terminated but shall be to paid persons whom the owed a plaintiff duty support time of his (Id., or her (c).) death. subd. above,
As noted plaintiff—and amici behalf—con- appearing plaintiff’s tend that this periodic payment violates a number of provision constitutional We guarantees. turn first to the most fundamental the contention challenge, that the from change lump judgment sum a periodic procedure payment violates due process.
Ill Plaintiff’s due claim on the rests contention that process initially from change sum to a lump judgment periodic payment procedure violates the due process rights medical victims diminish malpractice value their ing actions without them ade an providing quate “quid defendant—and pro quo.” Although amici—stren supporting uously contest plaintiff’s factual assertion and maintain that the periodic itself, and payment provision MICRA in do fact afford general, malprac tice victims a substantial settled constitutional teach quid pro principles quo, is both for us to attempt balance the unnecessary inappropriate relative benefits and detriments of the legislation—i.e., “adequacy” its quid pro validity under the due clause. quo—in determining process
It is well established that a has no vested in a property right measure of particular and that the broad damages, Legislature possesses (See, authority modify and nature such Wer scope damages. e.g., ner v. Southern Cal. Newspapers etc. Cal.2d 129 [216 8AIthough expressly provide the statute does not what modification should follow the death, plaintiff’s Legislature contemplated context it is evident that the that a defendant’s liability continuing damages earnings future other than for loss of future would 667.7, (b)(1), (c), (f).) subject plaintiff’s termination on the death. subds. § Cal.2d 499- 252]; Gamble A.L.R.2d Feckenscher v. *10 274, 280.) 885]; Since the Cal. Tulley v. Tranor New York v. of Lochner analysis demise of the substantive due process 539], clear that the has been U.S. 45 25 S.Ct. L.Ed. under the due economic rights such constitutionality affecting measures of the justifications does not assessment clause on a process depend judicial So long for the enactment. the or of wisdom or fairness the legislation interest, policy measure is to a state rationally legitimate the related are of, enactment for for, the desirability determinations as to the need the Legislature.
Here, is provision there can be but that no serious question could Legislature related a state interest. rationally legitimate Clearly, of future conclude that a that for procedure periodic payment provides with compen further the losses will fundamental damages goal matching will in sation to ensure to an money injured plaintiff that helping paid or fact when the incurs the losses be available plaintiff anticipated expenses addition, in the In could determine that legitimately future. the Legislature a interest would be defendant’s public by limiting obligation served incurs, the so- those future that actually eliminating a damages inherit a portion called “windfall” obtained heirs when they aby plaintiff’s of a the injured person sum that was intended to lump judgment compensate he in fact never Although persons may losses sustained. reasonable as to the wisdom a disagree payment general, periodic approach with chose to the merits of the which the particular Legislature procedure adopt, the not irrational.9 provision obviously
Plaintiff that section 667.7 violates due alternatively argues a victim’s termina process rights spouse by authorizing tion of a of the award on the death of the plaintiff. future portion damage above, As conclud noted the trial court this argument, accepted apparently a has a in the full amount ing community vested spouse property right found which Any surviving spouse may damages jury. rights statutes, have in injury under personal community property judgment however, nature of and on the are on the obviously contingent judgment a cause of measure of which has authorized for such damages the state no vested in a measure injured right action. Just as victim has particular special requires a 9Although suggests any periodic payment procedure the dissent 379), (post, fashioning reality is that “prescience” anticipating future awards, lump on the basis of juries required predict future losses always sum variables, pres many anticipated losses to including inflationary then to reduce trends—and Rodriguez Douglas Corp. (See, Cal.App.3d McDonnell ent e.g., value. 399].) Cal.Rptr. 660-662 [151 short, damages, no spouse similarly has such vested right. clearly has spouse no greater constitutional than the victim to a right damage award that continues beyond the victim’s life.
IV Plaintiff next contends that even if adoption periodic payment is consistent procedure with due un- process, section 667.7 is nonetheless constitutional as a seen, denial of As we have the trial equal protection. claim, court upheld this that the statute is invalid because it concluding *11 provides “special benefit” one class of tortfeasors—medical negligent care providers—which is not afforded to other In tortfeasors. negligent theme, variant on this that den- additionally provision maintains ies equal protection to persons injured by medical malpractice, withholding from this class the benefits of sum that are awards available lump damage those who suffer mal- negligently injury inflicted outside medical course, context. The practice gist of both is that the arguments, Legis- lature acted in of section unconstitutionally limiting 667.7 to operation medical malpractice cases.
The
mid-1970’s,
claim is
no
by means a novel
one.
reaction to
medical malpractice crises
throughout
country,
state
virtually every
one or more
passed
to deal with the medical
statutory provisions
insurance
state,
varied
problem. Although legislative solutions
from state to
many jurisdictions
enactments
inter
resulting
have
challenged,
alia, as a violation of the federal
clause or a
state
equal protection
related
constitutional
provision,
ground
out med-
they
single
improperly
ical
malpractice litigants
overwhelming
differential treatment.
ma-
of courts—both state
jority
and federal—which have
to the issue have
spoken
rejected the
emphatically
contention.10
10Thecourts
23
rejected equal protection challenges
states and 3 federal
circuits
1981)
158,
(Ala.
setting.
Hospital
in this
Reese v.
403
Rankin Fite Memorial
So.2d
160-162;
744,
(1977)
750-751]; Gay
Eastin v.
Inc.
Many explain relationship, the medical field—the changing doctor-patient malpractice 384]; Beatty 875, 878-880], (1983) v. 465 S.E.2d 533 S.E.2d affd. 307 N.C. [298 [289 591-595, 586]; 586, (1981) 424 N.E.2d City Hospital 483 Akron 67 Ohio St.2d N.E.2d [424 31-32; Care, 30, Duffy King (Utah 1981) v. 635 P.2d Allen v. Intermountain Health Inc. 435, 437]; Strykowski (1977) State ex rel. Chiropractic Wn.App. Clinic 17 693 [565 434, 441-444]; Holy Hospital (1978) Cross Wilkie 81 Woods v. v. Wis.2d N.W.2d [261 491 1171-1175; Northampton-Accomack Memorial (5th 1979) F.2d DiAntonio v. Cir. 591 291-292; 1983) (8th 332- (4th Dolyak 712 F.2d Cir. Cir. 628 F.2d Fitz (See 120 contrary Carson v. Maurer Three state courts have reached a conclusion. 830-839, (N.D. 1978) A.L.R.4th]; Olson Arneson v. N.H. 925 A.2d 125, 131-136; (R.I. 1983) 87, 91-94.) Sayeed Boucher v. 459 A.2d N.W.2d rapid “liberalization” of tort cases, doctrine in medical malpractice small number of uniquely insureds over which to spread premiums, impru dent investments on insurers, of medical part and others. malpractice Keene, generally Medical Malpractice Crisis A Legis California’s lator’s Guide to the (1976) 27, Medical Malpractice 27-28.) Issue Plaintiff— and supporting the factual amici—challenge some of these ex accuracy planations invite us to determine the “true” cause of the medical mal insurance practice problems MICRA preceded and even to second-guess Legislature to whether a “crisis” existed.11 It is not actually function, however, judiciary’s reweigh facts” under “legislative lying legislative (See, enactment. Minnesota v. e.g., Creamery Cloverleaf Co. 659, 668-669, U.S. L.Ed.2d 101 S.Ct. 715] are not required [“states to convince the courts of the correctness of their legislative .”].) . . judgments Whatever the reasons for the medical mal practice insurance it is problems, clear that the thor Legislature—which oughly investigated matter through numerous audits and the hearings, like—could conclude from rationally the information before that the high insurance costs in this area particular with posed special problems respect continued availability insurance adequate coverage adequate medical care and could fashion remedies—directed to the medical malprac tice context—to meet these problems.
Section 667.7 is one of a number of of MICRA which was provisions intended, in part, reduce the cost of medical insurance. By costs, such reducing Legislature to restore insurance hoped premi- ums to a level afford, doctors and could hospitals thereby them to inducing *13 resume medical providing care to all segments community, to insure that insurance would in fact be available as a for protection patients injured medical through malpractice.
Plaintiff does not—and could not—claim that section 667.7’s periodic pay- ment provisions are not related to the in- rationally objective reducing surance As indicates, costs. of MICRA legislative history one of the factors which contributed to the cost of was high malpractice insurance need for insurance to retain companies reserves to out large pay sizeable preamble 11The to MICRA Legislature major states: “The finds and declares there is a health care in crisis the State of skyrocketing malpractice premium California attributable to costs and resulting potential in a delivery system, breakdown of the health hardships severe medically indigent, economically marginal, depletion a denial of access for the physicians such as to substantially quality worsen the of health care available to citizens Legislature, this state. The acting scope within the police powers, statutory of its finds the remedy provided herein provide is intended to an adequate remedy and reasonable within foregoing safety limits what the public permit health now considerations and into the (Stats. 1975, 1975-1976, 12.5, foreseeable future.” Second p. Ex. Sess. ch. § sum awards. The of a lump adoption periodic payment procedure permits investments, insurers retain fewer reserves and to increase liquid thereby and, turn, addition, reducing costs to insurers to insureds. In of section 667.7 which for the of a portion significant termination provides future in the event of the portion remaining damage payments plain- tiff’s death is related to the insurance obviously costs. goal reducing
Thus, since there was a for the rational and basis legitimate Leg islature’s decision to to reduce insurance costs in the medical mal attempt area and since the practice of section 667.7 are related provisions rationally to that objective, did not Legislature violate equal protection principles limiting 667.7’s to medical actions.12 application malpractice amici,
A number of that the of MICRA theorizing primary purpose to contain the care, overall costs of medical contend that section 667.7— and, by inference, logical all of be held MICRA—should unconstitutional on the basis of statistics which indicate that the overall costs medical and care rose hospital in the MICRA’s considerably years since enactment. This contention is First, riddled with fundamental flaws. the legislative history of MICRA does not that the intended suggest to hold down the Legislature overall costs of medical care but instead demonstrates—as we have ex- plained—that Legislature to reduce the cost of hoped medical malprac- insurance, tice so that doctors would obtain insurance for all medical pro- cedures and would indeed, resume full in this amici’s practice; sta- respect tistics that MICRA suggest was in fact successful. The statistical information before indicated, however, Legislature insurance costs amounted to only (see, a small of overall medical costs percentage e.g., Assem. Select (June Com. on Medical Malpractice Preliminary Rep. 49), and thus in an era substantial inflation—as the late experienced
1970’s—even the total elimination of insurance could premiums reasonably overall cost of reduce the medical expected care.
Second, cannot, event, the rise in medical and in any costs hospital prop- erly 667.7, attributed to a failure of section the section has never since fully implemented. The trial court’s decision in this case was appar- the first ently judicial on the and in view of its ruling finding question, review, 12Although urge gov several amici apply the court to a stricter standard of erning authorities—both federal and traditional “rational relation state—establish that the ship” (See, applicable Study standard is e.g., Group here. Carolina Env. Duke Power Co. v. (1978) 59, 595, 624-625, 2620]; Cory 438 U.S. 93-94 L.Ed.2d 98 S.Ct. v. Shierloh [57 8]; Cal.Rptr. 29 Cal.3d Merlo 438-439 629 P.2d Brown v. [174 855, 862, 505].) Cal.3d fn. 66 A.L.R.2d not been widely has unconstitutionality, payment procedure periodic on the effectiveness do not shed any light Thus amici’s statistics enforced. reform. of the statutory a measure constitutionality and most
Finally, fundamentally, on a court’s assessment does not depend under the clause equal protection As Justice measure’s provisions. success or failure empirical Co., su Creamery in Brennan Minnesota.v. explained recently Cloverleaf the Act “Whether 449 U.S. L.Ed.2d pra, 670]: fact Pro the Equal is not the legislative objectives] question: will promote [the could Legislature tection Clause is our conclusion that satisfied [state] italics.) .” (Original have decided that . . . . . . rationally might so] [it] [do the infor but that—from As we have there can be no question explained, en decided that the could rationally mation before it—the Legislature argu Amici’s objective. cost reduction actment serve its insurance might ment is misguided. medical between treatment addition to challenging disparate inflicted injury, plaintiff victims of negligently victims and other
malpractice limit the periodic payment of section 667.7 which also attacks the provisions $50,000 or with future damages to those victims procedure on a determi $50,000 based The threshold more. Legislature adopted aof in the implementation costs involved nation that the administrative would not be that such a procedure award would mean periodic payment broad has Legislature efficient for smaller future claims. damage cost determinations, “line-drawing” these kinds of economic leeway making $50,000 has certainly threshold and the “classification” from resulting a rational basis. not deny protec- does equal 667.7 we conclude that section
Accordingly, tion.
V on the consti- 667.7’s impact to section Plaintiff’s next contention relates I, Const., (Cal. art. tutional trial. right jury § on the roles enacted, ambiguous precise As section 667.7 is somewhat court would play jury that the Legislature contemplated which hand, it the one On judgment. the formulation of a periodic payment ultimate decision- remains the the jury from the statute apparent is to fashion (2) court “total damages,” maker of the plaintiff’s *15 award, the dollar designating details of the periodic payment the specific
375 amount the interval and the between payments, payments period 667.7, over (§ (b)(1).) time which the are to be subd. On made. payments hand, however, other clear the statute does not make whether it is the or the court of the “future jury which is to determine the amount damages” rd.13 component overall awa Plaintiff contends that the trial that the jury guarantee requires jury fix the amount it only of future but also make damages special findings that any on of a subsidiary may issue that affect the structuring periodic payment schedule. Defendant role is to only takes the that the establish position jury’s damages, total and both that thereafter is the court that determines amount attributable to future and damages establishes periodic payment schedule. Defendant that under authority maintains the court’s its proposed interpretation does not trial. infringe right jury
Our
on the
prior decisions
limited
constitutional
provide only
guidance
trial
a
defined
jury
question.
number of cases have
the constitu-
Although
jury
tional
trial
common
as
that
law at the time
right
essentially
existing
v. One 1941 Chevrolet
(see,
Constitution was
e.g., People
adopted
Coupe
Pac. Transportation
832];
Southern
Cal.2d 283
P.2d
[231
Co. v. Superior
Court
912]),
Cal.App.3d
Cal.Rptr.
in Jehl Southern Pac. Co.
upheld of the additur unknown at validity procedure—a device common “ that the ‘does not law—explaining constitutional adher- provision require ence letter of common law and better suited practice, procedures new to the efficient administration there is no justice be substituted may if history 13Defendant language legislative contends that of section 667.7 demon Legislature that the strate intended the court to make this determination. Defendant relies on fact that ultimately provided, an earlier the bill enacted as MICRA version of that was part, entering ordering damages, jury future judgment payment “[i]n or court, in jury, specific finding the event without the trial is shall make as to the amount periodic judgment dollar which creditor payments compensate will for such (1975-1976 damages” (Assem. future Bill No. as amended June Assem.J. Sess.) that, (italics added), enacted, language Second Ex. but was amended to any court jury provide simply specified delete reference to the shall make the that the 667.7, (§ finding. (a).) out, however, the initial plaintiff points subd. As sentence of section provides simply payment to be ordered periodic judgment 667.7 that a “if the award fifty ($50,000) damages,” equals suggesting exceeds thousand dollars that the future damages attributable to of the overall part amount future will be determined as determination award,” following and the sentence which de “the sentence of section 667.7—the interpretation necessarily fendant relies—is not inconsistent with for it defines the such an making finding periodic role as specific payments court’s “a as to the dollar amount added), (italics will compensate damages” implying which such future ... Thus, independently designated. amount ambiguous “such” on this has been we find the statute point. *16 ’ trial. . . . The jury guarantee the substantial impairment of features of in of trial trial the California at the time to jury operates Constitution has of certain Once a verdict jury. submission issues require returned, however, to prohibit the effect of the constitutional is provision 828-829.) (Ital- (Id., with the improper jury’s pp. decision.” interference added.) ics
Because tort were not to at common judgments subject periodic payment law, no direct in guidance determining an historical provides perspective and in payment the roles court permissible jury implementing periodic Thus, before us whether basically the constitutional procedure. question the statute—authorizing of the trial proposed defendant’s interpretation fix the to subject court to amount of future damages periodic payment- to an features of a amounts substantial impermissible “impairment or to with the decision.” jury’s trial” an interference jury “improper Neither cited but the closely point, light has party any authority construed avoid all doubts familiar that a statute should be to as principle (United Gen. v. Delaware & Atty. to its States ex rel. constitutionality 848-849, Co. 407-408 L.Ed. Hudson U.S. 527]), to require we conclude that section 667.7 should interpreted S.Ct. to that is to compensate the the its verdict intended jury designate portion this future section 667.7’s “fu damages. procedure, Under plaintiff roles: it identifies the figure ture a number of crucial damage” plays to dam past that the has determined as attributable jury present amount in an an amount be entitled receive imme which will ages, plaintiff (2) it sum at the determines lump judgment, diate time payment the case will be periodic applicable whether payment procedure are found to or exceed equal on whether future not—depending damages $50,000. solely If were left on the amount of future finding court, which the the award seriously jury court underestimate might incurred, has already intended for losses which compensation fair statutory purpose affording thereby significantly undermining and the of damages. of losses payment correlation between the sustaining future has thus damages—and Once the has amount jury designated believe to periodic payment—we identified amount of damages subject 667.7, (b)(1), to fashion court’s under section subdivision that the authority does not constitu- infringe details of a schedule periodic payment notes, function court’s tional trial. As defendant right jury courts in the disburse- is similar exercised authority regard long well-established a number of ment of the of a under proceeds judgment death (See, wrongful apportionment schemes. statutory e.g., § [court Code, control heirs]; 3600-3603 individual Prob. recovery among §§ [court *17 over of in of and incom- disbursement favor minors proceeds judgment the Plaintiff cites no decision to contention that petent persons].) support the exercise of is with the judicial authority incompatible jury such limited Jehl, trial and the in 66 Cal.2d guarantee, supra, additur procedure—upheld 821—affords a court latitude in the plaintiff’s considerably greater fixing ultimate damage recovery.
Thus, we conclude when to require that section 667.7 is interpreted to to jury designate amount of future which is subject periodic damages payment, section does not conflict right jury with constitutional trial.
VI Finally, contends that if can be construed to plaintiff even section 667.7 eliminate any should be struck provision still right-to-jury-trial problem, down as for unconstitutionally “void ambiguity unworka vagueness, because it bility,” leaves as to how a trial questions unanswered court many is to actually formulate a schedule without the ben comprehensive payment efit of very detailed a special structuring verdicts. In jury periodic payment in schedule of the light statutory objective “provid[ing] compensation sufficient to meet the injured needs an ... for whatever plaintiff period 667.7, is necessary” (§ will, course, (f)), subd. be court necessarily guided by trial, the evidence of future introduced and the diffi damages of the culty court’s will task inevitably thus with the nature of vary future involved in a in damages There is section given nothing case. 667.7, however, which resort to the verdict precludes special procedure section of future and—particularly when elements are damage dispute—we think trial courts would be liberal use well advised permit of the special verdict that of the so the individual procedure components future jury’s damage award can be and the ascertained periodic payment schedule can be As in the knowledgeably established.14 comparative negli (see field Li gence v. Yellow Cab Co. Cal.3d 393]), Cal.Rptr. A.L.R.3d we believe reliance on the special (ibid.) verdict “can be of invaluable assistance” procedure to the court in this realm. 14Although scope special vary necessarily pre verdicts will with the evidence case, particular sented generally we that it jury believe would wise to
designate portion damage compensate plain future award which is intended tiff for earnings. figure importance loss future This will become of crucial the event 667.7, plaintiff judgment fully that the dies before paid, because subdivision (c) provides earnings—unlike components for future the other future dam ages—must paid plaintiff’s continue to be to a dependents plaintiff’s after the death. event, that the no its claim authority any provides support in the provide proper uncertainties which inhere statute
remaining may basis down on with other innovative striking procedures its face. As instance and doctrines—for first example, comparative negligence—in trial will in time-honored case- courts deal with novel that arise problems fashion, in the will remain available aid by-case courts appellate (Cf. in the scheme. statutory familiar common law task of in the filling gaps *18 Co., 826-827.) Li v. Yellow Cab supra, Cal.3d at pp.
VII As The of case. question disposition remains as to the proper outset, noted at the did not the matter of periodic defendant raise payments the made until after the had returned its jury jury verdict. As consequence, of no as to the amount of future and finding plaintiff damages deprived the the structuring to seek additional verdicts to guide opportunity special of a interim Because has died the payment schedule. periodic plaintiff not (see ante), obviously fn. a new trial at this would granting point with restore the status ante. to determine it is quo Although impossible the the court how would have the how certainty jury damages apportioned would trial indicate that plain have scheduled the evidence at did payments, Thus, tiff had a short to assume that life seems reasonable expectancy. least bulk of would been attributed either damages past the have Under these or to the of which survived. time period circumstances, would best served justice we conclude that the interests of the trial court’s sum award. by upholding lump is order payments from the the motion appeal denying periodic (See remand, trial shall reduce ante.) dismissed. On court fn. ante.) fn. in accordance with of judgment parties. the stipulation its own In all Each shall bear other is affirmed. respects, judgment party costs on appeal. J., J.,*
Broussard, Grodin, J., concurred. Feinberg, to the benefits MOSK, provides I dissent.This legislation imprudent J. at the victim. wrongdoer his expense effect
First, that the detrimental I with the view disagree majority’s victims is irrelevant Code Civil 667.7 on malpractice Procedure section Second, while I concur with to a unconstitutionality. determination of Chair Appeal sitting assignment under *Retired Associate of the Court of Justice person of the Judicial Council. that the rational standard to majority test is relationship appropriate I to MICRA on apply evaluating equal grounds, challenge protection with its to the with disagree legislation, conclusion as purpose failure to consider certain information in deciding equal statistical issue. protection true, hold,
It that the is not majority required Legislature law provide pro as a condition the common quid quo diminishing rights However, of tort victims. detrimental effect of legis consideration lation on a of wheth class is irrelevant to determination disadvantaged er the members of due A class have law. deprived process cases, number the constitutionality of statutes passing imposing victims, disabilities on certain of tort relied on the categories presence or absence of a quid affected a factor pro quo class as detrimentally in their (See, determinations. Env. e.g., Study Duke Power Co. v. Carolina *19 (1978) 59, 623, 2620]; 438 Group 595, U.S. L.Ed.2d 98 New 93 S.Ct. [57 York Central R.R. Co. v. White 243 U.S. 201 L.Ed. 247]; 37 (3d S.Ct. 554 1977) Hurst v. Triad Cir. F.2d Shipping Co. 1243-1244; see (4th also v. United 422 Carr States Cir. F.2d
1007, 1011; Learner, 143.) Medical Malpractice Harv.J.Legis. Indeed, the absence of victims was held to quid pro quo malpractice render unconstitutional a limit monetary on the amount recovery (Wright v. Central DuPage Hospital Association Ill.2d N.E.2d 736, 742-743, 80 566]) A.L.R.3d and a applicable statute limitations only (Tex. 1983) are malpractice (Sax victims who minors v. Votteler 667.) S.W.2d the Although the hospital claims are fair to mal periodic payments incurred, practice victim because are out as are paid they court, assumes that a for future will be structuring payments damages, prescient enough with the future condition of predict unerring accuracy the and the rate of for decades into If inflation the future. perhaps the victim’s condition deteriorates so that treatment medical or custodial care costs more than the amount set forth in schedule of he the payments, is unable to obtain the additional sums because the sched required payment ule is fixed. Even if his condition remains as it is predicted, impossible foresee in advance the rate at which future medical costs will increase. For a number of such a years, substantially costs have rising pace higher than the (Health (U.S. inflation general rate. United States—1981 Dept. Services, Research, Health & Service, Human Health Office of Pub. Health Statistics & Technology)
By victim of access the whole amount of the depriving malpractice investment, judgment by awarded the trier of fact and the from its benefits future con- the entire risk that section 667.7 him places upon unpredictable to meet of his injury inadequate will render sequences periodic payments tort every for the except needs. This is alleviated victims problem his use the entire plaintiffs may medical all other malpractice; prevailing and the therefrom needed. by amount awarded judgment earnings (f) that the While 667.7 eliminates possibility subdivision were if there funds of a victim would obtain “windfall” malpractice heirs death, the time his availability at the by judgment remaining awarded has funds well due to the fact the statute may prevented such needs require. from of the as his using victim entire amount judgment statute, which are those would Under the sums retained insurer expenses a financial valve to victim safety unexpected provided Thus, is the course of life. insurer connected with his his injury during statute, by retaining which obtains a windfall under wrongdoer for the most—of the funds which judgment some instances some—perhaps awarded to the victim. has course, the arrangement dissipation
Of periodic payment prevents so that continued compen- funds awarded victim of However, receives in full payment is assured. who injured party sation and he annuity an may, also assure continued income may purchasing addition, flexibility by derive growth acquiring liquid, income-pro- *20 funds investments with some of the awarded. ducing short, action with a in a wrongdoer malpractice In section 667.7 provides his victim. to advantages without advantages compensating substantial Next, to the un- I with as explanation purposes disagree majority’s thrust major this unfair of burdens and benefits. distribution derlying of goal” to be the “fundamental of the majority’s opinion appears inwill injured plaintiff 667.7 is to “ensure that to an money paid section a “wind- when incurs future expenses prevent fact be available” he dies award of a victim who before his lump-sum fall” to heirs malpractice 369.) majority, at (Maj. According is exhausted. ante opn., p. “immediate impetus” merely provided crisis” “malpractice so-called victims. to malpractice initial of this reform application general for the of section 371.) turns the purpose ante at This p. approach (Maj. opn., calling Legis- Governor’s proclamation on its head. Neither the 667.7 mention these session, the measure into nor the preamble lature special cites various com- While the MICRA. justification majority as for goals reforms that such may other for the proposition mentators and authorities viewed the desirable, itself there is no indication that Legislature
381 premature of amounts recovered tort or a dissipation plaintiffs possible “windfall” to their heirs which the was general as a problem Legislature meeting by adopting solution. “piecemeal”
Almost all which have of constitutionality decisions upheld legislation victims have diminishing rights malpractice justified on the legislation ground that its to alleviate a “malpractice purpose crisis,” and some decisions which have reforms invalidated malpractice (Arne- done so because they concluded that such a crisis did not exist. (N.D. 136; son (1983) v. Olson 270 N.W.2d Boucher v. Sayeed — — (1976) R.I. 93], A.2d Jones v. Board Medicine see State [459 399, 412-416].) 97 Idaho 859 [555
A second reason advanced justification for the classi- majority fication made section 667.7 is that it to reduce cost of was intended insurance, for premiums malpractice who had inducing doctors thereby withdrawn their services because the rise in practice, resume premiums and to encourage doctors to carry insurance. ante malpractice (Maj. opn., view, my MICRA, 667.7, was, in purpose including stead, to lower con premiums purpose reducing taining cost medical care A number of other cases from public. jurisdictions recognize this containment of overall medical costs as main objective legislation (See, (1983) similar MICRA. Rabon e.g., Gay v. 280 5 836, 838]; Ark. S.W.2d Pinillos v. Cedars Lebanon Hospital [652 (Fla. 1981) 365, 367; Corp. 403 (La. 1978) So.2d Everett Goldman v. 1256, 1266; So.2d Attorney General v. Johnson Md.
A.2d
78-79];
fn.
at pp.
Nelson
Prendergast v.
382 me, or the it seems to “medically “economically marginal,” indigent” a rise in cost of such a threat. whereas the overall medical care would pose The made was that could assumption by Legislature provide insurers save the cost of pro- insurance at lower rates if could malpractice they insurance, would then such and that these lower rates viding premium costs, in on to the in the form medical or at least of lower passed public containment such costs. exists between the that there a assumption significant relationship in
reduction and a containment medical premiums meaningful malpractice Yet, lies at heart of a comparison costs MICRA. general public between the amount of such and the cost care premiums hospital of the that this prem- the enactment demonstrates years following legislation ise is erroneous. Association, curiae, in a the California
According Hospital amicus the cost of of the state’s study premiums paid by hospitals, had risen the enactment dramatically insurance before MICRA, 1, $1 1976, coverage so for that October million charge month, $4 a day. bed was roughly $124.31 for each or occupied hospital 1981, $93.46 a month Premium were lower charges amounting only bed, for the same amount of each coverage occupied approximately for $3 a day.1 enacted, hos average daily charge MICRA year (U.S. $217 in a in California was community hospital day.
pitalization U.S., Commerce, Statistical Abstract of the table No. p. Dept, $547 had an (1981).) daily, risen By average charge hospital (Cal. Health Facil. year. increase of more over the previous than percent Data, 82-5, Com., Q. 4th Fin. & Utilization No. Rep. Aggregate Hospital of more than 20 Quarter A-1.) Another increase (Apr. first of 1981 and the first quarter occurred between the percent quarter charge average daily so that the latter period, hospitalization 6,000 they doctors explains in California and the hospitals 1Amicus that 420 of the 650 hospitals claims through exchange insured insurance which furnishes the employ are an in the mal hospitals directly reflected experience service for a fee. The claims of these them, directly *22 are from the savings passed or losses practice premiums paid by any since exchange through the are not insured exchange hospitals. hospitals to the affected which operated by government by they of the are are self-insured either virtue fact that hospitals Commercial they by companies are themselves. because insured owned since 1975. hospital market in California virtually have abandoned insurance insurers
383 (Id., 82-8, Quarter $620. amounted to No. 1st 1982 Rep. (July 2A-1.) at p. short, while of the state’s for most malpractice premiums hospitals MICRA,
declined 25 in enactment percent years following cost of rose These costs are hospitalization dramatically. signifi- spiraling cant in the total for medical care because assessing ex- expense hospital constitute penditures more than 40 cents of dollar on medical every spent care, a far of the higher than other overall cost. segment any component (Health (U.S. Services, United States—1981 of Health & Human Pub. Dept, Service, Health Research, Office of & Health Statistics table Technology) 203.) No. p. course,
We do not that the imply, charge malpractice premiums no in the cost of plays part It is obvious from the hospitalization. figures above, however, set forth that the cost effect of the former on the latter is best, negligible since 1975 has demonstrated the fal- experience of the lacy Legislature’s that the reduction of assumption pre- miums paid by would hospitals result a containment of hos- meaningful costs.3 pital
But, claims the we are majority, from these matters precluded considering because “the of a constitutionality measure under the clause equal protection does not on a court’s depend assessment of the success or failure empirical true, measure’s provisions.” ante at It is never- (Maj. opn., p. theless, that a number of cases have relied on events enactment following of a statute in that it holding violates or other constitutional equal protection because the principles on which the assumption legislation premised has ceased to exist.
In Brown v. Merlo 506 Cal.3d Cal.Rptr. 505], 66 A.L.R.3d we held invalid as a denial of equal protection a statute which denied automobile recovery against nonpaying passengers driver negligent the statute reasoning, might part, although daily charges including hospitals, 2These are study hospitals, based on a of 552 state Kaiser hospitals, Foundation If these additional hospitals, hospitals. Shriners’ and dental considered, special average daily quarter facilities are for the hospitalization cost of first (id., 82-8, 15, 1982) $488 of 1982 would day Rep. (July p. at A- No. 1st Quarter (id., 2), 82-5, 15, 1982) $431 day and for Rep. (Apr. 4th at A- No. Quarter 2). majority opinion 3The page widely states at 374 that section 667.7 has not been enforced constitutionality. provisions because of doubts as to its Presumably, applies to other MICRA as I find majority’s prior well. this observation statement that inconsistent with MICRA reducing malpractice premiums. has successful the cost of
384
it
related
rationally
protection
when was enacted
justified
availability
the widespread
from the
of their passengers,
hosts
“ingratitude”
for the dis-
eliminated this justification
insurance in later
liability
years
recover
against
who were entitled to
tinction between those passengers
been inval-
The
statute has
driver and those who were not.
guest
negligent
(1974)
v.
(See,
Thompson Hagan
in other
on
basis.
e.g.,
idated
states
1365, 1368-1369];
(1974) 213 Kan.
v. Bauder
Henry
Milnot v. Richardson Company F.Supp. dairy interstate of imitation milk and products prohibiting shipment [statute in in conditions occur marketing violated view of protection changes equal con Court upholding after earlier decision of United States Supreme ring statute]; Ill.2d 338 v. McCabe People stitutionality [275 409, 413, un marijuana 50 A.L.R.3d N.E.2d 1149] [classification violated der for sentence 10-year mandatory equal protection law providing effects of marijuana]; in view of recent information nature and regarding 729, 732-733, (1976) 32 A.2d Anonymous State v. Conn.Supp. [355 with certain dangerous drugs pen of marijuana 740-741] [classification knowl basis of state of “present violated on alty equal protection purposes of the drug].) edge” regarding properties information be considered may passing
The rule that postenactment
with
to constitu-
of a statute has been invoked
constitutionality
respect
case,
In a recent
this court
tional
other than equal protection.
provisions
on the
to hold unconstitutional a statute challenged
such reasoning
applied
United
of contracts in violation of the
that it
impaired
obligation
ground
Public
(Sonoma County Organization
States and California Constitutions.
296, 311
Cal.Rptr.
Sonoma
23 Cal.3d
County
Employees
on the existence
1].)
P.2d We observed that a law which depends
ceases or if
be invalid if the emergency
of an
it
emergency
uphold may
when
that
the law was valid
passed,
the facts have
even
changed
though
exists
still
upon
whether
“always,
judicial
exigency
open
inquiry
a court is not
the law
and that
which the continued
operation
depends,”
after enactment
from
matters which occurred
precluded
considering
also,
it invalid.
later events render
statute
order
decide whether
57, 83,
6, 38,
L.Ed.2d
52-53
Leary v. United States
395 U.S.
marijuana
users knew
[statutory
S.Ct.
presumption
1532]
fol-
information developed
on basis of
held irrational
imported
part
543, 547-
enactment];
(1924) 264 U.S.
Chastelton
v. Sinclair
lowing
Corp.
*24
841, 843,
548
L.Ed.
44
ini-
S.Ct.
whether emergency
[question
[68
405]
court];
tially
still continued remanded to lower
see the
justifying legislation
398,
seminal case of Home
& L. Assn. v. Blaisdell
290 U.S.
Bldg.
413, 431,
442
1481];
L.Ed.
54
Abie
S.Ct.
88 A.L.R.
State Bank
[78
690, 701,
Bryan
252].)
v.
282
51
U.S.
L.Ed.
S.Ct.
[75
Olson,
Of
interest are Arneson v.
270 N.W.2d
particular
supra,
Boucher
Sayeed,
v.
supra,
existed when legislation requiring submission of claims to malpractice enacted, liability panel was first there was no crisis at the time the legis- lation was crisis, amended. Absent court, such a held the the requirement that malpractice plaintiffs submit their claims to such a denied them panel equal (459 protection. 93.) A.2d at p.
The Florida cases considered the of a statute constitutionality requiring to submit plaintiffs claims to a medical mediation malpractice liability panel. Initially, Florida Court held the statute constitutional on Supreme its (Carter face. (Fla. v. Sparkman 805-806.) 335 So.2d Four years later, however, itself, the court reversed that the statute had holding proved “unworkable and inequitable due practical operation,” thereby denying process plaintiffs (Aldana (Fla. 1980) actions. v. Holub So.2d Substantially same occurred in sequence Pennsylvania. The Supreme Court of that state refused initially to declare unconstitutional a statutory requirement that a submit his case to arbitration malpractice litigant an (Parker v. panel. Children’s Hospital Philadelphia Pa. 932, 938-940].) A.2d After several with the years experience pro cedure, however, the court held that the in the arbitration lengthy delays to trial right of their constitutional denied malpractice litigants
process
(Mattos arbitration unconstitutional.
and held the statute requiring
jury,
190, 195].)
(1980)
We are aware of two cases which only statute uncon- held the One these of a provision payments. periodic mal- against that it discriminated unreasonably the ground stitutional their property them of the right dispose plaintiffs deprived practice Maurer, 825, 836), the other upheld v. while (Carson A.2d supra, rea- challenge, an constitutionality equal of the provision against protection term long that it a claimant who required was intended benefit soning Wilkie, 434, 443).4 (State ex 261 N.W.2d supra, care rel. Strykowski the consti- Thus, which have considered the cases from other jurisdictions not in their results. to MICRA are consistent tutionality legislation similar justify could just logically The rationale majority employed if served to victims of recovery abolition any right from their the public induce recalcitrant doctors to withhold services *26 I which indicated at to this carry my legislation, and insurance. opinion, victim, of his is outset at the benefits merely wrongdoer expense unconstitutional denial of of the law. as a equal protection J.,* concurred.
Rattigan, BIRD, ignores C. J. Today’s majority opinion dissent. respectfully I have, not time that victims in the lessons This is the first tort history. “crisis,” of a constitutional In the late rights. face of their deprived states, 1930’s, California, 1920’s and enacted many including panic legis lation to relief restricting the automobile obtain right guest passengers v. Methodist (See from inflicted harm. Iowa Medical negligently Rudolph (Iowa 550, (dis. J.), Ctr. N.W.2d 561 C. opn. Reynoldson, (1973) 216, 217; 1, 23 Drake ch. citing L.Rev. Stats. § 1580.) It was not until 1973 this court this constitutional recognized violation and invalidated automobile statute as guest applied negli injured guests. Brown v. Merlo 8 Cal.3d gently 212, 66 505].) it today’s opinion, appears A.L.R.3d With majority that once again years will and victims of will pass many negligence undergo without relief will be rec injury rights before their constitutional adequate ognized respected. Re- Medical periodic payment Compensation of the provision Injury (hereafter Proc., con- MICRA) (Code 667.7)1
form Act violates the Civ. § Strykowski significantly 4The statute It re considered is different than 667.7. $25,000 future to a be quires expense paid medical of more than be fund to awards incurred, periodic expenses is payments disbursed until the amount exhausted or are patient dies. by sitting assignment the Chair Appeal *Retired of the Court of under Associate Justice person of the Judicial Council. noted, statutory Civil otherwise all are to the Code of Procedure. 1Unless references stitutional guarantees (Cal. trial by jury the laws. equal protection Const., I, 16, 7, IV, 16.) art. art. §§ §
I. Section 667.7 medical victims their constitutional deprives to a trial. right jury Under that section the possesses power judge nullify jury’s award even the award is though entirely prop- er. A defendant who fails to convince the a second chance before jury enjoys This judge. violates the essence of the procedure very trial right jury.
“Trial an jury inviolate and shall secured to all ... right .” Const., (Cal. I, context, art. In the civil guarantee constitutional § embodies the common law jury trial as existed at time the right (Southern Constitution was adopted. Transportation Superior Pac. Co. Court 912].) Cal.App.3d Cal.Rptr. Although does guarantee adherence the letter of require rigid common law “ it does practice, prohibit any impairment ‘substantial features (Jehl trial.’” jury v. Southern Pac. Co. 66 Cal.2d 828-829 [59 *27 276, 427 P.2d Cal.Rptr. Jehl].) 988] [hereafter The determination of by the is one such “substantial fea- damages jury ture” the It trial. is well jury guarantee established that the constitutional the entitles in a on the parties personal action to injury jury finding quan- (See tum of damages. Langdon Superior v. Court Cal.App. 72]; 43-44 P. Farrell Ontario 353- City Cal.App. Indeed, 740].) P. it has been said that “in a case a jury civil determination of the quantum very is the essence substance right by (Comment, the trial Remittitur Review: Constitution- jury.” ality Efficiency Liquidated Unliquidated Damage and and Cases 376, 389.) 43 U.Chi.L.Rev. 667.7,
Under section the makes the initial award of How- jury damages. ever, $50,000 in cases or more in “future involving damages,” awards of must, the court of the either order that this upon request by party, portion award be The amount and schedule of these paid installments. periodic 667.7, determined (§ is court. subds. payments jury the but the (a), (b)(1).) Further, in the dies before receiving event that plaintiff award, full determine court must what the award attrib- portion ante, 377.) (See Only utable loss of future at earnings. maj. p. opn., (c), (f); see 667.7, (b)(1), (§ subds. death. survives portion plaintiff’s ante, 8.)2 maj. at fn. p. opn., be construed provide to the statute should majority,
According the award. determination component of the jury damages” “future ante, con contrary that a concede maj. at They impliedly opn., rea (Ibid.) For render the defective. constitutionally struction would statute 393-395), majority’s sons later in this (seepost, pp. explained opinion intent of the wording legislative construction the clear contrary However, 'in the majority’s there is a fundamental flaw statute. far more approach. construction, neverthe- 667.7 section
Accepting arguendo majority’s the majority less to the contrary, violates trial jury guarantee. holding trial. to a ignore right jury the actual of the statute on the impact plaintiff’s 667.7, numer- To fulfill role under the trial court must resolve its ous Each injury. issues of fact the nature of the plaintiff’s concerning these relief monetary issues can be decisive the amount of determining Even small will to the tort victim. actually by the tortfeasor paid in the variations in the court’s can amount large findings produce disparties Indeed, the jury rivals that of actually court’s paid. factfinding power in its actual on both defendant. impact plaintiff
First, court must over which make a finding period alone, factfinding will suffer future On this issue the court’s injury. the bulk can victim from power prevent receiving jury award.
The has award- best The jury illustrated case. problem by hypothetical $100,000 ed on its will live suffer based conclusion that the plaintiff hand, court, The that the injury injury for three on the other finds years. in 10 will the payments be over instead of and schedules spread years $10,000 after receiving annual installments of each.3 The then dies plaintiff of $30,000. three seven years pay- installments totaling remaining ments—which, the under the jury’s paid plain- would have findings, of tiff or her in the hands the prior to his death—would instead remain ante, 366-367, 667.7, page majority opinion, 2For of at the full text section see the footnote 7. case, 3Where, require judge discretion present as in the the trial does exercise his (§ 625), knowing special jury interrogatories way specific no the verdict or he has of calculating by jury the in its award. conclusions reached the course 667.7; (§ ante, defendant. short, maj. 8.)4 see at fn. the opn., would court the of the deprived plaintiff award. percent jury Such deprivation will be common under section 667.7. Whenever the court overestimates life the the found the will be span jury, plaintiff of a deprived substantial of the award. For in the portion jury example, case, above hypothetical a court error of one the only year would deprive of 25 of the plaintiff percent award.5 jury
The potential for defeating the award is jury augmented necessity for a court finding as to needs within timing plaintiff’s period finds, If the injury. court that the will contrary to the needs jury, plaintiff’s less at the end, of the may than at be beginning period plaintiff when deprived jury award it is most needed.6 The court must also as to the second-guess jury’s finding expected rate inflation over the If the is a period compensation. period long one, a small variation in could in findings difference produce significant Center, actual recovery. The Medical opinion Florida Inc. Von (Fla. There, Stetina App. So.2d is instructive on this point. court invalidated a resembled periodic payment provision closely 677.7, reasoning defective provision constitutionally since it provided no method for the court to reconstruct the jury’s finding toas future damages (Id., before 1028- value. discounting present pp. Center, Like the statute in Florida Medical section 667.7 authorizes court to convert jury’s discounted into periodic award payments.
farOf greater is the significance portion court’s role what determining of the award is majority attributable loss of future As the earnings. “[tjhis will recognize, become of crucial in the event that figure importance simplicity, 4For any this example plaintiff’s assumes that the award does not include compensation earnings. any discounting for loss of future It also consideration of omits below, explained inflation. As inclusion of the extent these variables further demonstrates power court’s jury to alter the award. $75,000 dying, plaintiff 5Before would have received three annual installments $25,000 $25,000, award, remaining jury each. The with the percent of the would remain defendant. 6If, disease, example, degener degenerative has the rate of contracted a *29 specific, will hotly example ation become a the a contested issue of fact. To make more finding obviously likely on when the be a plaintiff legs is to lose the use of or arms would and, major therefore, timing periodic payments. determinant of her of the his or needs 667.7, (§ (f).) years judgment—as predicted subd. plaintiff For the who two after is disabled jury—but payments disability years the whose will not for another because reflect that five contrary finding, jury of the court’s deter it is of small that the made the initial comfort mination the total award. 667.7, section because fully dies the is paid, the before plaintiff judgment other the earnings—unlike for future (c) provides subdivision plaintiff’s paid continue of future components damages—must ante, 14.) fn. at p. (Maj. death.” opn., after the plaintiff’s dependents im- “crucial” to mention the potentially the omit Unfortunately, majority guarantee. trial jury of this court in their discussion finding pact 667.7, the short, specific components under timing In A who loses defendant will on added importance. take plaintiff’s injury winning atward jury gut before the will have an jury opportunity thus presents specter these The statute on issues before judge. law, of fact essential issues a court of entering disputing adversary parties court’s action, upon ultimately to a common law cause of and depending outcome. of fact—not the determine findings jury’s—to factfinding of the court’s The fail to the immense confront majority impact Instead, referring with the issue by on the award. jury they dispense powers law; the additur in the to three elsewhere analogous assertedly practices Jehl, of mone- 821), administration (see 66 Cal.2d court supra, procedure Code, 3600 (Prob. tary § relief awarded minors and incompetent persons in- among death recoveries wrongful et and court seq.), apportionment (§ 377). dividual heirs of sec-
However, magnitude these analogies only supposed highlight involves of these situations tion 667.7’s intrusion function. None jury law. direct common rights guaranteed infringement has moved for after the only plaintiff additur procedure employed determined is “clearly new that the award jury’s trial and the court has (Jehl, the court 832.) At that point, 66 Cal.2d at inadequate.” supra, p. increase order the defendant either to a court-determined may accept (Id., at or to on the issue of damages. award a new trial undergo fn. First, crucial respects.
This differs from section 667.7 in two procedure until after both binding parties the court’s determination does not become for a moving to them. rejected determinations available jury Similarly, award. trial, the initial jury new chooses forego determination, the option defendant declines the court’s accepting contrast, for court-determined a new trial. section 667.7 jury By provides any and without prelim- of either periodic payments upon request party error. inary finding jury
Second, and more fundamentally, the additur a rel- procedure represents ative expansion held law. procedural rights at common As noted above, the Constitution embodies the common In jury law to trial. right additur, upholding the Jehl noted court that under the common law party a did not enjoy any to a right (See reassessment of a by second jury. Jehl, supra, 66 Cal.2d 830-831.) at The pp. first determination was jury’s (Id., 831.) Hence, conclusive. at common p. law, under the in Jehl would verdict, bound the initial however On by inadequate. balance, the additur an procedure in the represented plaintiff’s improvement over position had been what at common law. contrast,
By section 667.7 cuts back on law to directly the common right jury trial. As the majority tort were not to acknowledge, judgments subject ante, periodic payment at common law. Plaintiffs maj. opn., to enjoyed right sum lump payment by amount awarded Hence, jury. far from being incidental an in the to improvement rights victims, medical malpractice section 667.7 creates a new court power to defeat jury award. to majority’s citations the Probate Code death stat- wrongful no
ute are more do helpful. These not affect the provisions quantum damages paid by defendant Nor does either of them plaintiff. on intrude proceeding was covered the common law right jury Hence, trial. it is not on neither has ever been surprising challenged trial jury grounds in a reported case.
Probate Code section 3600 et authorize the to administer seq. court judg- ments received minors and After disbursements incompetents. making for the costs action, the court either turns over the expenses remainder to a or guardian conservator or holds it for the benefit of the or minor (Ibid.; Witkin, (8th see also 6 of Cal. incompetent. Summary Law ed., Child, 103E, 231-232.) Parent and no supp.) In case does pp. § the court reduce amount of the with the defendant judgment provide a refund.
Further, the court’s to act in the interest of minors and power incompe- tents Code, derives from the Probate not Since there was the common law. no common law to trial right right by jury probate proceedings, generally (Estate exists when only granted by statute. Baird 1078]; Cal. P. Bundy see also re Cal.App. 468-471 P. trial does jury right apply 811] [constitutional Thus, et guardianship Probate Code section 3600 unlike proceedings].) seq., 667.7, do not common law trial. impinge right jury
393 to distribute the court the death statute authorizes Similarly, . wrongful task, (§ 377.) In this performing heirs the of the deceased. damages among factual or resolve any of damages the court does not reduce the quantum Indeed, it has said the defendant. between the and dispute plaintiff may which the plaintiffs no in the division defendant has interest “[t]he them, of the themselves, damages for be made may make or which among ” (1920) 184 Cal. Co. (Robinson v. Gas etc. recovered. Western States for Moreover, the cause of action it 39].)7 P. should noted Witkin, (See Summary statutory origin. death is wrongful exclusively Torts, 3082-3083.) (8th Although of Cal. Law ed. pp. § Code, distributing role in not in the Probate court’s is codified role related to its general of is among closely award the heirs the deceased not above, are generally As noted probating probate estates. proceedings trial covered jury guarantee. reasons,
For court’s to schedule periodic all above trial power violates earnings and due to loss of future determine payments damages victims. jury rights trial medical malpractice on flaws, for an intrusion addition those fatal section 667.7 provides impliedly acknowledge function that even the jury’s factfinding majority
to be “future As damages.” unconstitutional—court determination of crucial “this a number of majority recognize, figure ‘future damage’ plays as roles: it has determined attributable jury identifies amount that an which the will be entitled amount past present damages, plaintiff judgment, to receive an immediate sum at the time lump payment (2) it will be determines whether the applicable periodic payment procedure or are found to damages equal case whether future not—depending $50,000. If were exceed on the amount future finding court, left the award solely the court underestimate might seriously has which the intended for which the jury losses compensation incurred, statutory already thereby undermining purpose significantly a fair and the correlation between the losses affording sustaining payment ante, 376.) at damages.” (Maj. opn., p. the statute “construing” majority to avoid attempt problem First, find statute jury they determination future damages. require ante, 374.) (See they Then apply to be ambiguous. maj. opn., p. each “The adversary parties in relation to other. heirs are considered to be 7The heirs, yet by all the for death is one to be exercised statutory wrongful cause action ... one, (Watkins Nutting 17 Cal.2d joint single one and one.” an indivisible 384].) Hence, bring separate actions the heirs to provision there is no bring against or to actions each other. that a principle statute should be construed avoid as to doubts its consti- id., tutionality. at *32 this
Unfortunately, well-intentioned construction is untenable. The statute makes only one specific reference the allocation of functions factfinding on the issue of future damages: “In the entering ordering judgment pay- ment of future damages by periodic the court shall payments, make a spe- cific finding as to the dollar amount which will com- periodic payments 667.7, pensate [plaintiff] (§ (a), for such future subd. italics damages.” added.)
The However, maintain majority that this sentence is ambiguous. leg- islative history eliminates any potential for The Assem- misunderstanding. bly deleted from the bill that would have for the language provided jury determine future damages. version, its initial proposed section 667.7 that “the or provided jury court, in the event the trial is without a shall make a jury, specific finding
toas the dollar amount of periodic which will payments compensate (Assem. 1, for [plaintiff] such future damages.” Bill No. as amended June 6, 1975, 13 (1975-1976 Sess.) Assem.J. added.) Second Ex. italics p. the bill Subsequently, was amended to delete reference any jury. Instead, the 667.7, court was directed to (§ make the subd. required finding. (a).)
Nevertheless, the claim that is majority legislative history inconclu- sive. on the They rely 667.7, (a), first sentence subdivision which states that periodic are “if the payments ordered award equals exceeds fifty ($50,000) thousand dollars in future assert damages.” They that this clause suggests that “the amount to future damages attributable will be determined as determination the overall of ‘the part award.’” ante, at (Maj. 13.) opn., p. fn.
The majority’s reliance this clause At time misplaced. bill was amended to for a court provide determination periodic payments, did (See clause not mention Bill future Assem. No. damages. 11, 1975, Assem.J., Hence, amended June 86.) at supra, at pp. the bill point, provided for court determination of future unambiguously damages.
An examination of amendments no indication subsequent gives legislative intent to The change directive. first sentence amended (See (1975-1976 Sess.) three times Senate. Second Sen.J. Ex. 129, 175.)8 ordering for altered the change preconditions Each pp. aof ibid.) leg indication gave any No periodic change payments. between the judge intent to functions factfinding islative reallocate relied damages,” and “future combination of the terms “award” jury. 11, two after all months August did not until majority, appear upon Moreover, the two (Id., reference to the had been deleted. jury 107, 129.) (Id., at terms were added at different times. pp. that these incremental
It as does the credulity majority, strains to argue, intended to were adjustments preconditions periodic payments *33 trial de- alter the directive that the court Assembly’s unambiguous In far-fetched theory. my termine future I cannot endorse such a damages. view, it. the in to save majority have redrafted the statute their attempt conclusion,
In the effective control gives jury, section 667.7 judge, be over the of that will medical monetary actually relief quantum paid loses victims A defendant who before jury tortfeasors. malpractice the majority’s will have a second chance before the Even under judge. statute, scheduling construction of the court’s pe- factfinding powers riodic attributable to of loss payments determining damages portion well-established tort earnings unconstitutionally right infringe upon addition, victims to a jury section 667.7 authorizes finding damages. the court to determine the used the basis for “future damages” figure which admit be impliedly even periodic payments—a finding majority within The encompassed jury majority’s attempt trial guarantee. evade this defect the statute determination “construing” jury require of future is the Assembly’s rejection untenable view of damages express would enacted construction. language Clearly, their proposed trial section 667.7 violates the guarantee by jury. constitutional times, provided periodic payments 8At to be ordered: various first sentence (1) within three payment particular payments completed . is not to . if of such 1, years (Assem. Bill rendering after the award.” No. as amended calendar the court 11, 1975, Assem.J., 86.) supra, p. June at particular completed “. . to be within three payment payments of such is not .if award, years or exceeds rendering equals calendar after the of the or if the award one court 25, 1975, (Assem. ($100,000).” hundred thousand dollars Bill as amended June No. Sen.J., 107.) supra, p. at payment particular payments completed “. . if the not to be within three . of such award, years equals fifty or exceeds rendering calendar after the if the award court 27, 1975, Sen.J., (Assem. ($50,000).” thousand as amended June dollars Bill No. 129.) supra, p. at ($50,000) in future fifty “. . dam- equals . if award or exceeds thousand dollars 175.) Sen.J., (Assem. 11, 1975, supra, p. at ages.” August Bill No. as amended
II. MICRA was enacted in to a medical re- response “crisis” malpractice from sulting rising (Stats. 1975, malpractice insurance premiums. Second Ex. 1975-1976, 12.5, Sess. ch. p. periodic payment pro- § (§ 667.7) vision seeks to alleviate this “crisis” of the bur- by shifting part den from negligent healthcare and their insurance providers to a companies small group injured victims severely medical who suffer malpractice $50,000 or more future damages.
Plaintiff argues that section 667.7 violates protection equal guarantee of the California Constitution. That section divides tort vic- personal injury classes; tims into two medical victims all other malpractice personal tort injury victims. Medical victims are not entitled to full Instead, amount their jury awards. their compensation depends upon 667.7, court-determined (§ schedule of (a).) subd. If vic- payments. these tims die awards, before remainder, their full forfeit the receiving they minus (§ 667.7, (b), (c), (f); attributable to future earnings. subds. see ante, maj. 8.) If opn., fn. the court fails to predict accurately *34 needs, timing victim’s will not be available it compensation when is ante, (See 366, 6; needed Mosk, most. at fn. see also dis. J. at opn. 379-380.) pp.
Section 667.7’s classification of tort victims is a paralleled by correspond- ing classification tortfeasors. Personal injury tortfeasors are divided into classes; two (i.e., medical tortfeasors doctors and other health- care and all other providers) tortfeasors. Medical personal injury malprac- tice are tortfeasors from the exempted rule that a general personal injury Instead, must be judgment paid in immediately a sum. are lump they per- mitted to pay in In judgment installments. the event that the plaintiff dies before the are payments these are completed, tortfeasors relieved of their obligation complete for loss of payments except (§ future 667.7, (b), (c), (f).) subds. There is earnings. the stat- nothing ute to or prevent tortfeasor its insurance carrier from un- retaining paid portion the victim’s award for its own use. private applying equal guarantee, is not this court’s role to protection matter, assess the desirability of enactments. a legislative general As “[t]he that, Constitution even absent some reason to infer presumes antipathy, improvident decisions will eventually be rectified democratic process and that judicial intervention is no matter how un- unwarranted generally we think wisely may branch has acted.” political (Vance Bradley 939], U.S. omitted.) L.Ed.2d 99 S.Ct. fn. Only branch intervene. the judicial when the malfunctions should political process Political Process Review the National (See Judicial and generally Choper, (1980).) Distrust (1980); Ely, and Democracy serves scrutiny separate
The distinction between strict and lowered chal- bulk of constitutional from the likely cases to warrant intervention class, If interest of the affected a fundamental burdens lenges. legislation in the structurally disadvantaged if the burdened is which is or one group for that the interests of then there reason concern process, is political Hence, strict not may process. considered group adequately (Serrano v. 18 Cal.3d judicial Priest scrutiny applied. 929].) 557 P.2d Cal.Rptr. classification, the probability
Absent fundamental interest or a suspect in the political pro- that a classification results from a harmful breakdown cases scrutiny. cess is to warrant strict Such call sufficiently great Accord- judicial deference legislative factfinding policy judgments. bear a only under lowered a classification need “substantial ingly, scrutiny, rational” to a relation state constitutional legitimate purpose pass Merlo, 872-873, 882.) muster. Brown v. Cal.3d supra, pp. Plaintiff concedes that affect a fundamental section 667.7 does not interest Nevertheless, burden a the discrimination class. it is suspect argued Various by section 667.7 warrants inher- judicial scrutiny. careful imposed characteristics of the burdened it from ad- adequately ent group prevent its extraordinarily interests It is an small vancing process. political Its to be out to “crisis.” mem- *35 burden of singled carry general group be, $50,000—may victims with future of over bers—malpractice damages here, in the Membership as was disabled. physically mentally is involuntary. group random, that members will ensuring
The is “selected” at its group enacted, time MICRA was isolated from one another. At the scattered of were to were unaware that fact. the individuals who make up group Thus, of an individ- they could not defend themselves. From the viewpoint time, with of at that the risk of victim becoming ual malpractice $50,000 There no incentive to in coali- engage over was infinitesimal. building tion or lobbying.
Now, individuals, but there is the harm has fallen a few identifiable incentive The Legislature generally little for them to reform. legislative seek concerns; tort victims seek retroactive injured deals with prospective which short, legislators In 667.7 is one relief. burdened group might few, out for single if any, treatment with discriminatory political consequences.
Further, commercial, it is argued affected interest is personal, in character. Alteration of a tort personal injury remedy affects victim’s to live free—to right the extent of negligently the effects possible—from Court, inflicted In the injury. words State Washington Supreme “[t]he to be indemnified right personal injuries ... cases funda- many mental to injured to continue to person’s physical well-being ability (Hunter live a decent life.” v. North Mason School Wn.2d High 848].) P.2d Plaintiff maintains that an interest of this mag- nitude invokes equal concerns than those protection greater involving purely commercial matters. it is that this court some Accordingly, urged apply form “intermediate” scrutiny classifications affecting personal injury tort victims.
The majority correctly decline the invitation to a new level of adopt equal scrutiny. This court has protection avoided the carefully confusing prolif eration of tests advanced (See United States Court. Hawkins Supreme Court Superior v. 22 Cal.3d 607-610 Cal.Rptr. (conc. Bird, J.).) opn. C. Since no classification or suspect 916] fundamental interest is case, involved the rational present relationship Merlo, test Brown applies. at fn. supra, p. Cal.3d Unfortunately, majority go past further. contradiction to the prac- court, tice they reduce rational test to a rubber relationship stamp. “ view, In their the test is satisfied if ‘could Legislature rationally decided’” that the would statute promote legislative objectives. (Maj. ante, omitted.) italics This test consideration opn., any precludes actual impact legislation. It both the char- challenged ignores acter the burdened and the class nature the interest at stake. 667.7 without either majority proceed uphold section recognizing the vulnerable position of medical victims or the potentially Instead, to limit crippling they attempt impact inadequate compensation. *36 their of It be noted abstract the classification. should inquiry logic that the to own majority They fail live to their test. do consider facts up ante, 373-374.) (See that upholding legislation. maj. opn., pp. favor Their evidence judicial “restraint” is limited to a refusal to consider factual against of the statute. rationality of alone,
As a matter of treatment medical abstract logic disparate malpractice victims bears a to the asserted relationship pur- rational clearly
399 in damage reduction any could conclude Legislators rationally poses. of victims’ elimination it a few hundred dollars or total payments—be Thus, total elimina- to remedy—might tend reduce malpractice premiums. as a or unconstitutional tion of the would be as constitutional remedy just well repre- burdening group, minor reduction. And a large classification one burdening be as in the would treated same political sented process, mal- few hundred but such as a vulnerable nonsuspect politically group victims. practice of under the version majority’s
To invalidate discriminatory legislation conclude that test, the rational this would court relationship Cohen acted it. As Felix observed “irrationally” Legislature passing formalism, test, taken this type his classic of Lochner-era critique legal sitting judg- would make of our courts commissions seriously, “lunacy and, occasionally, of legislators judicial ment mental upon capacity (Cohen, and the Functional Approach brethren.” Transcendental Nonsense it 809, 819.) as as today Colum.L.Rev. That observation is apt was when written. under relationship
The reductionist variant the rational test majority’s interme logic mines of the two-tier This court’s approach. rejection retains scrutiny relationship diate is sensible so the rational test only long scrutiny. critical to fulfill the functions of lowered enough gen power court, (conc. supra, Hawkins v. 22 Cal.3d at erally, Superior opn. Bird, J.).) C. on of the rational test is to a check purpose put power relationship Legislature to harmful burdens defenseless impose politically clearly Justice Robert Jackson reasons the test’s groups. explained “[Tjhere he no more effective existence over 30 when said: years ago and unreasonable than practical guaranty against arbitrary government that the law which would a mi officials require principles impose upon must the door nority generally. Conversely, nothing opens be imposed and choose action so as to allow those officials arbitrary effectively pick escape a few to whom will thus only they legislation polit apply were if numbers retribution that visited them might larger ical upon 106, 112-113 New 336 U.S. affected.” York (Railway Express Jackson, 533, 539-540, J.), (conc. quoted S.Ct. opn. L.Ed. 463] Com. court in Steel v. Public Utilities United States Corp. 1381].) incisive This Cal.3d 611-612 Cal.Rptr. of the burdened doubt vulnerability statement leaves no size and burden (is few”) extent of the imposed and the composed “only group to a determination (does it harm the affected are essential seriously group) *37 400
toas whether or not a particular enactment raises concerns addressed by the rational test. relationship concerns,
Consistent with these this court has considered both the extent Merlo, (see, supra, Brown v. burden imposed 8 Cal.3d e.g., 866) and the basic fairness or unfairness of classification dis- Coml. (See, Communications v. Public Util. Com. advantaged group. e.g., (1958) 512, 50 Cal.2d 513].)9 524 P.2d [327
Furthermore, California
have
courts
been
to invalidate
relatively quick
statutes
remedies for
affecting
inflicted
negligently
personal
injury—statutes
that may
Brown
(See,
severe
on
impose
burdens
defenseless
e.g.,
groups.
Merlo,
supra,
855;
v.
8
Cooper
Bray (1978)
Cal.3d
v.
By
legislation
only the commercial
interests of volun-
affecting
defined
tarily
has almost
groups
invariably
The sole recent
upheld.12
factors,
9It
permitting
should be noted that in
consideration of these
the California courts
surreptitiously
have not
equal
introduced the intermediate test into
protection doctrine. The
contrast,
importance of the
By
state’s interest is not assessed.
scrutiny questions
intermediate
whether a
substantially
“important
classification is
related to
governmental objectives.”
(Craig
(1976)
397, 407,
451].)
v. Boren
429 U.S.
197
L.Ed.2d
97 S.Ct.
[50
principal problem
requires
with this test is that it
impor
courts
evaluate the relative
effect,
legislative objectives.
tance
various
is “no
test
more than an ad hoc evalu
(Note,
of the worth of each
Refining
ation
controverted statute.”
Middle-
Methods of
(1983)
Scrutiny
1501, 1504-1505.)
61
Tier
Tex.L.Rev.
jurisdictions
rigorous
10Other
also
approach
personal injury litigation,
taken a
striking
guest
down automobile
legislation.
statutes and medical
Jenkins &
Schweinfurth,
Injury Compensation
Medical
Equal
Act: An
Protection
California's
Reform
(1979)
829, 867,
Challenge
Schweinfurth],
52
&
So.Cal.L.Rev.
895-897
Jenkins
[hereafter
cited.)
cases
11See,
e.g., Newland
Cal.Rptr.
v. Board
Governors
401 Com. Public Utilities v. Corp. States Steel to be United exception appears There, however, 169, 629 P.2d (1981) 603 Cal.Rptr. 1381]. 29 Cal.3d [175 case. the disposition to constitutional essential analysis be ex- cannot of cases of these two groups treatment contrasting Merlo, supra, v. In Brown rationality. of abstract on the basis solely plained guest the automobile 855, 882, court invalidated 8 Cal.3d example, differential The statute’s injured guests. statute as to negligently applied re- rationally as being riders was defended treatment guests paying (Id., at collusive suits. of preventing state purpose lated legitimate have concluded could 872-873.) rationally Clearly, Legislature pp. customers. were paying collusive suits than were more to likely bring guests over- However, of all automobile guests the classification this court found institute who actually to those disability inclusive: “Instead of its confining and burdens suits, such persons reaches out beyond collusive the provision (Id., 877.) Accord- at p. of honest automobile guests.” number great clause. to violate the equal protection the classification was held ingly, (Ibid.) Brown, 667.7’s classification
Like the classification invalidated $50,000 is overinclu- of more than of all tort victims with future damages related to rationally this classification is majority, sive. According (See insurance premiums. Legislature’s purpose lowering malpractice ante, 373.) The assume that majority casually savings maj. opn., will be used to due to and reduced recoveries periodic payments However, no (Ibid.) requiring MICRA contains provision reduce premiums. from them insurance There is nothing prevent carriers pass savings. Hence, bur- section 667.7 for their own use. retaining proceeds private whose due to hardship periodic dens not those victims only those whose but also will be converted into lowered premiums, payments insurance will to swell the coffers of the companies. sacrifices go Indeed, MICRA’s principal pro- to information compiled according retained pre- of each insurance carriers devote at least percent ponent, Mal- Keene, Medical mium dollar to litigation expenses. California’s Issue the Medical Malpractice in A Guide to Crisis practice Legislator’s (as opposed personal characteristics volving involuntary classes defined noneconomic economic) by the mentioning permissive test advocated In the interests. recent cases pursue certain mainly by choice of its members majority, the affected class was defined (See, activities, e.g., Exxon purely financial. and the interests affected were commercial 2296, 2308]; 514, 497, 103 S.Ct. L.Ed.2d Eagerton Corp. U.S. L.Ed.2d 672 [68 451 U.S. Equalization & Southern L. I. Co. v. Bd. Western Creamery 449 U.S. Co. 514, 533, 2070]; v. Clover 101 S.Ct. Minnesota Leaf 715].) 101 S.Ct. L.Ed.2d *39 (Warren 29.) Hence, & Merritt edits. it can be that a expected major portion due to reduced recoveries medical savings malprac- tice victims will go defend the tortfeasors in future litigation—not Further, reduce malpractice premiums. is estimated that another substan- tial portion of each retained dollar on the administra- premium expended Schweinfurth, (Ibid.; tive of insurance Jenkins & expenses company. supra, So.Cal.L.Rev. at p. classification is also “A tortfeasors over-inclusive. citizen or class
of citizens not be immunities may not granted on privileges granted same Const., I, terms to all (Cal. (b).) citizens.” art. subd. Section § 667.7 medical provides tortfeasors with a malpractice special exemption from the rule that general tortfeasors must negligent pay personal injury in a judgment sum. lump This treatment is to those special granted only tortfeasors who use the resulting savings promote purpose statute by reducing premiums, but also to those who utilize the savings their own benefit.
In conclusion, section 667.7 severe burdens a small and imposes po- litically vulnerable group severely injured medical victims. malpractice These burdens are imposed any guarantee without that the savings resulting will be used to further the statutory insur- purpose reducing malpractice ance premiums. section
Conversely, 667.7 medical tortfeasors a grants malpractice special from the exemption obligations negligent owed tortfeasors generally their This victims. benefit to those savings extends who retain resulting use, for their own as well as to those who on the the form pass savings of reduced Hence, insurance 667.7 burdens premiums. an overinclusive class tort victims benefits an overinclusive class tortfeasors. This is not the “substantial and rational” relation between clas- sification and that is legislative purpose under required equal protection Merlo, guarantee (Brown the California Constitution. 8 Cal.3d supra, 872-873, 882.) at pp. J.,* concurred.
Rattigan, assignment by Appeal sitting *Retired Justice of under the Chair Associate the Court person of the Judicial Council.