Farley v. Engelken

59,314 No. Roger Individually Farley, L. and as Administrator of the Es Appellant,

tate of Lana S. Farley, M.D., Engelken, Susan Community Hospital 1, Appellees. District No. 59,338

No. minor, minor, by and Danielle Ditto, Ditto, Heather through Douglas Ditto, Cheryl individually and as natural guardians and next friends of Heather Ditto and Danielle Ditto, Appellees, v. Center, Appel Shawnee Mission Medical lant. 59,591

No. Charley Ridge, Appellee, Barker, M.D., Appellant. v. Pat

(740 1058) P.2d Opinion July 1987. filed argued Rice, Schroer, Rice, P.A., Topeka, and was of the cause M. of Frank Farley. appellant Roger L. for the brief Palmer, Goodell, Stratton, Topeka, Stratton, & Wayne of T. of Edmonds firm, cause, Linenberger, was with him argued of the same and Marta Fisher M.D., Community Hospital Engelken, appellees and Susan on the brief for District No. 1. Enochs, Austin, Brown, Chrtd., Oliver, Wallace, Saunders, and P. of Michael Saunders, Park, cause, Jr., argued and Michael and Frank of Overland J. firm, appellant Dutton, for Shawnee was with him on the briefs of the same Medical Center. Mission Dickerson, Vasos, City, argued Kugler Vasos, of Kansas & W. of Donald Dickerson, firm, Sidney Shapiro, Stephen A. of the same G. of cause and Park, Johnson, Lawrence, Lynn were with him on brief for Overland R. of and appellees and Danielle Ditto. Heather Ditto Forker, Suter, Pierce, Myers, Pierce, Reynolds, & O’Neal of of E. Kenneth Barker, appellant Hutchinson, argued for Pat and was on briefs the cause M.D. Hutchinson, Howell, argued Stanley Juhnke, of the cause and R. of Juhnke Charley Ridge. appellee the brief for

and was on Eberhardt, Wichita, Siefkin, Elliott, Foulston, & of Jerry Powers G. firm, Kerwick, Kansas Stephen were on the brief amici curiae of the same M. Hospital Society Kansas Association. Medical P.A., Skaer, McDonald, Tinker, Quinn Herrington, Fisher, & E. Randall Wichita, Arnett, Pratt, firm, and Debra and Carlin the same were on the J. J. brief for curiae Kansas amicus Association of Counsel. Defense Emerson, Six, Barber, Six, Zinn, Springer Lawrence, Fred N. & Murray, firm, Mitchell, special Thomas V. of the same and Derenda assistant J. attorney general, Topeka, Bell, on the were brief for amicus curiae Fletcher Kansas Commissioner of Insurance Administrator Kansas Health Care Stabilization Fund. opinion of the court was delivered interlocutory appeals Three Herd, in medical J.: suits have been consolidated for a determination of the constitu tionality (hereafter 60-3403). of K.S.A. 1986 In Farley Engelken, al., 59,314, et Case No. the district court of County upheld constitutionality Pottawatomie of the statute appealed. cases, Ditto, the other al. et Center, 59,338, Shawnee Mission Ridge Medical Case No. Barker, 59,591, Case No. the district County courts of Johnson County and Barber found the statute to be unconstitutional and the appealed. defendants have in Plaintiffs all three cases are united in asserting interest in the unconstitutionality of the statute collectively throughout and will be referred to opin ion plaintiffs. as As provider the various health care defendants asserting likewise united in constitutionality interest they collectively the statute will be referred to as defendants. conflicting

In addition in our decisions state district courts, a authority division of also exists in the federal trial courts Ferguson Garmon, of Kansas. Supp. (D. In 643 F. 335 Kan. 1986), by through Wigglesworth, and Crowe Crowe 623 (D. Supp. 1985), F. Judge Judge Kan. Chief O’Connor and Kelly upheld constitutionality statute, Coburn while in by through Agustin, Supp. (D. Coburn v. 627 F. Kan. 1985), Keltner, (D. 1985), and Fretz v. 109 F.R.D. 303 Kan. Judges Theis Saffels the statute found unconstitutional. primary question

The presented appeal is whether 60-3403 violates the clauses the Kansas and United Rights. States Constitutions and Kansas Bill Section abrogates statute was enacted in 1985 and the common-law “any malpractice liability collateral source rule in medical ac- tion.” prevent- The collateral source rule is a rule common-law evidence, ing summarized introduction of certain (1977), “[p]ayments § (Second) 920A of Torts Restatement party injured from other conferred on made to or benefits liability against the tortfeasor’s are not credited [which] sources they the harm which the although part all or a cover Holleman, 781, Syl. 233 Kan. is liable.” In Allman v. tortfeasor stated the rule as: ¶ 667 P.2d 296 we provides that benefits received “The source rule collateral wrongdoer wholly independent collateral to the will not of and from a source wrongdoer.” damages recoverable from the otherwise diminish commonly as collateral source ben- payments are known Such Supp. 60-3403 is the successor payments. or K.S.A. 1986 efits 60-471, this court which was found unconstitutional K.S.A. Services, 237 Kan. 701 P.2d Wentling v. Anesthesia Medical provides: K.S.A. 1986 offsetting payments; payments and amounts “Evidence of collateral source effect, action, any malpractice liability admissibility; (a) evidence In paid paid or to be to or for the amount of reimbursement or indemnification Medical, following (1) shall admissible: benefit of a claimant under (2) disability coverage except coverage; life or insurance or other insurance compensation, military plan, employment wage contin- benefit workers’ service plan program plan, program or other benefit social welfare benefit uation provided by law. “(b) a claimant is of reimbursement or indemnification of When evidence may present (a), pursuant evidence of to subsection the claimant admitted paid right reimbursement or indemnification secure to such amounts recovery subject subrogation rights. right a lien or to which the extent malpractice action, “(c) damages determining the trier of fact in a medical duplicate (1) damages awarded will reim- consider: The extent to which shall (a); (2) specified in subsection the extent bursement or indemnification by or such reimbursement or indemnification offset amounts which specified (b). in subsection apply any pending brought “(d) provisions or of this section shall action The 1, 1985, July regardless the cause of action accrued.” of when on or after unconstitutionally creates a that the statute Plaintiffs assert compen- litigation, insured or otherwise plaintiffs class of in tort differently who are malpractice plaintiffs, treated sated medical malprac- litigation. plaintiffs from all other tort benefit the collateral source plaintiffs not receive the of tice do that benefit. It is also plaintiffs do receive rule while all other tort defendants, litigation tort creates a class of the statute asserted subject rule, providers, health care who are not to the while all subject Defendants, other tort defendants are to the rule. on the hand, the statute is other assert constitutional and that the clas- legislature’s authority sifications created are within the in seek- remedy ing problem public to a of extreme interest.

The Fourteenth Amendment to the United States Constitution provides “deprive any person life, liberty, shall no state of or law; property, process deny without due person of nor jurisdiction equal within protection its of the laws.” The counterpart equal protec- Kansas to the Fourteenth Amendment Rights tion clause is found in Sections 1 and 2 the Bill Constitution, provide: Kansas which Equal rights. “§ possessed equal 1. All men are and inalienable natural life,

rights, among liberty, pursuit happiness.” which are and the power; privileges. “§ political power people, 2. Political All is inherent in the governments authority, and all free are founded on their and are instituted for special privileges their and benefit. No or immunities shall ever granted legislature, may altered, repealed by which not be revoked or body; power agency.” the same and this shall be exercised no other tribunal or provisions given While these two much the same effect as the relating clauses of the Fourteenth Amendment process to due Bauder, (Henry of the law 213 Kan. 752-53, [1974]), 518 P.2d 362 Bill Section Kansas Rights referring only political has been construed as privileges property rights. equal protection challenge and not to When an involving personal property rights, raised po individual rights, proper litical constitutional section to be considered is Stephens Snyder Clinic Rights. Section 1 of the Kansas Bill of Assn, 115, 128, (1981). Kan. P.2d equal protection grounds, a statute

When is attacked on general presumed constitutional, rule is that the statute is party attacking prove the burden is the statute on other Only involving “suspect wise. “fun cases classifications” or presumption constitutionality dis damental interests” is the placed placed party asserting the burden constitutionality compelling to demonstrate state interest the classification. Gumbhir v. Kansas State Board justifies Pharmacy, 231 Kan. cert. 507, 521, 646 P.2d 1078 of denied 459 U.S. 1103 legislative reviewing enact-

merits, judge merits or wisdom of does not sit to the court challenged act; statute limited review of court’s reasonable, arbitrary, not and are are whether classifications White, City Wichita v. justified by legitimate state interest. words, (1970). 408, 409, does the Kan. 469 P.2d In other justify the classification means? legislative end issue, legal principal let us review turning to the Before founding Equality concept equality. was yet, original rights, Constitu- fathers as one man’s natural equal protection guarantees. Rights contained no and Bill of tion in adoption Amendment It until of the Fourteenth wasn’t formally guaranteed people equal 1868 that Constitution However, protection laws. the Fourteenth Amendment of the equal treatment only guarantee the states. The applies dependent interpretation the due law is under federal Amendment, equal no process the Fifth which contains clause of 642, 618, Shapiro Thompson, 394 U.S. protection See clause. Sharpe, 600, (1969); Bolling v. 22 L. 2d 89 S. Ct. 1322 Ed. S. Ct. 693 U.S. 98 L. Ed. it is exception, equality

While is the rule and classification equality readily complete treatment apparent that numerical persons impossible, particularly pluralistic, in diverse for all Thus, society types of classifi- such as the United States. some they though create as well inescapable even burdened cation law, by application classes. Classification benefited Thus, very nature, class. preference creates to the benefited its However, discriminatory. discrimination under classification is instance, equal protection prohibited. proper rules is not For require person to drive motor a state to license a blind does merely good with vision. Nor because licenses those vehicle sanitary equal regulating protection prevent the state from does regulate such condi- where it does not conditions restaurants many shops. with illustrations repair go We could tions persons proper under cir- unequal treatment of showing government. On the operation is essential cumstances types of hand, clause forbids some other articulate has thus been to problem court’s classification. The sepa- differentiations can principles constitutional differentations. rated unconstitutional from

669 The United Supreme States Court has varying utilized stan dards in distinguishing constitutional from unconstitutional currently It recognizes applies classification. three stan dards, scrutiny,” or “levels analyzing equal scrutiny claims. The standard of increases with perceived importance right or interest sensitivity involved and the tests, classification. Of the three articulated the least strict is the “rational” or “reasonable” test. Mary basis In McGowan v. land, 420, 393, 366 U.S. 6 L. Ed. 2d 81 S. Ct. 1101 court discussed the rational basis test: permits scope “[T]he Fourteenth Amendment the States a wide discretion enacting groups differently laws which affect some of citizens than others. The safeguard only grounds constitutional is offended if the classification rests on wholly objective. irrelevant legislatures to the achievement of the State’s State presumed power despite to have acted within their constitutional the fact that, practice, inequality. statutory their laws result in some A discrimination reasonably may justify will not be set if aside state of facts be conceived to it.” 366 U.S. at 425-26. judicial The next level review in cases is of origin. more recent This intermediate level of review is termed “heightened scrutiny” applicable “quasi-suspect” clas- requires It statutory sifications. substantially classification to legitimate legislative further a purpose. standard, Under this justification greater statutory for the classification than is re- quired analysis shown, under the rational basis must be includ- ing a relationship direct between the classification and the goal. Boren, 190, state’s Craig 197, 397, v. 429 U.S. 50 L. Ed. 2d (1976). S. 97 Ct. 451 Gender-based classifications have been subjected Reed, scrutiny, 71, to middle-level v. Reed 404 U.S. 30 225, (1971); L. Ed. 2d 92 S. Craig Boren, 190, Ct. 251 v. 429 U.S. Brown, as have legitimacy, 1, those based on Pickett 462 U.S. 372, (1983); 76 L. Ed. Gordon, 2d 103 S. Ct. 2199 Trimble v. 430 762, 31, (1977); U.S. 52 L. Ed. 2d 97 S. Ct. 1459 and Mathews v. Lucas, 495, 651, 427 U.S. 49 L. Ed. 2d 96 S. Ct. 2755 most critical level of examination under current protection analysis scrutiny,” is “strict which applies in cases involving suspect race, ancestry, classifications such as alienage, rights expressly and fundamental implicitly guaran- by teed rights recognized Constitution. Fundamental

670 Stone, 289, U.S. L. voting, Hill v. 421 44 Court include (1975); 172, 1637, 422 U.S. 1029 Ct. reh.

Ed. 2d 95 S. denied Connecticut, 479, 14 510, U.S. L. Ed. 2d 381 privacy, Griswold 1, Virginia, 388 U.S. 18 (1965); marriage, Loving 85 S. Ct. 1678 Oklahoma, (1967); 1010, S. Ct. 1817 Skinner v. L. 2d Ed. travel, 1655, (1942); and 535, 62 S. Ct. 1110 86 L. Ed. U.S. 600, Ed. 89 S. Ct. Thompson, U.S. 22 L. 2d Shapiro v. the Court (1969). Suspect classifications Florida, U.S. L. race, McLaughlin v. 13 Ed. 2d include (1964); ancestry, v. 332 U.S. 222, Oyama 85 S. Ct. 283 California, 249, (1948); alienage, v. 633, 68 S. Ct. 269 and Graham 92 L. Ed. Richardson, 534, (1971); 91 365, 29 U.S. L. Ed. 2d S. Ct. 1848 403 356, 220, Ed. 6 S. Ct. Hopkins, v. 118 U.S. 30 L. 1064 Wo Yick test, scrutiny” it must demonstrated (1886). Under the “strict necessary compelling is a to serve state that the classification Shapiro interest, Thompson, it is v. otherwise unconstitutional. Thus, of is shifted from proof U.S. at 634. burden 394 validity ordinary presumption of of to defendant and statute reversed. illustrates, scrutiny review the level of to be

As the above constitutionality the statute. For applied often determines the of levels a detailed discussion of three of more scrutiny, by through Wigglesworth, v. 623 see Crowe Crowe F. at Supp. 702-03. scrutiny which the issue of standard must be now turn to

We attempt rely plaintiffs 60-3403. Roth and defendants applied to Services, 503, upon 237 Kan. Wentling v. Medical Anesthesia 60-471, the (1985), prede 939 where we held K.S.A. 701 P.2d 60-3403, Wentling, this court cessor unconstitutional. Judge opinion in quoted length at Theis’ Doran some from 1981), (D. finding K.S.A. Priddy, Supp. 534 F. Kan. 60-471 stated, majority unconstitutional, “A of the members of and then by with reached agreement are in the conclusions court this 237 Kan. at 516-18. The conclusion reached Judge Theis.” Theis, by majority, analyzing was that in approved Judge scrutiny . . . apply “must a is‘not 60-471 the court K.S.A. ” (quoting at Trimble v. a 534 F. Gor one.’ toothless that, 762). don, Judge U.S. Theis concluded because of the statute under affected important nature review apply stringent standard of review, must more the court Thus, Wentling, the rational basis test. applied than that under applied heightened scru- stating, we specifically so without While we are tiny the United States Constitution. test under issue, as hereinafter demon- here with the same concerned adequate, strated, separate, affords the Kansas Constitution Therefore, we federal Constitution. greater rights than the this case Sections 1 and clearly expressly decide 1032, Long, 463 U.S. Rights. Michigan Bill See the Kansas 1201, 77 L. Ed. 2d 103 S. Ct. 3469 holding Wentling, other considerations

In addition to our scrutiny analysis appropriate in heightened would indicate instance, Rights Bill Section 18 of the Kansas case. For injuries person, reputa- suffered in provides persons, that all law, tion, remedy by due property, shall have a course of justice delay. administered without Faler, 237 Kan. 697 P.2d 870 we

In Ernest right granted the nature in Section 18. The considered specific facing issue in Ernest was whether K.S.A. 8, 2)§ (repealed ch. was 2-2457 L. unconstitutional on process that it results in a denial of due law and basis required person damaged of the law. K.S.A. file, days pesticide application from a to within 60 after the date discovered, damage county was a written statement with the attorney damaged that he had been in order to maintain a civil damages. action to recover (now Justice) court, Prager, writing Chief for the first

Justice applied considering reviewed the various tests when whether a statute clause and noted that in offends “suspect inter- involving cases classifications” or “fundamental adopt analysis, ests” the an attitude of active and critical courts requiring the nature affected the courts to consider of established, by govern- legislation, the classification and the at necessitating mental interests the classification. Kan. 129-30. The reasoned: court right in this case is the constitu- “The of involved fundamental remedy injury person property by right a an or due course tional to have for of 18, § right Rights provides law. This in the Kansas Bill of injuries reputation property, persons, person, in or shall have

that all for suffered 1904, law, delay. justice remedy by without administered due course of a Krehbiel, law,’ term, ‘remedy by was defined in Hanson of due course 670, 75 Pac. 1041 follows: Kan. ‘ rights, law,” 18 of the bill of by as used section “Remedy due course of having jurisdiction, by injury, a tribunal reparation ordered for means the ” (Emphasis hearing.’ 131. 237 Kan. at procedure and after a fair course of due added.) impair plaintiffs’ right to a does not argue 60-3403 Defendants damages still sue and recover remedy plaintiffs can because Kansas; thus, no fundamental provider against a health care a med- Admittedly, 60-3403 does not eliminate is affected. right However, impairs right bring victim’s suit. malpractice ical full jury the victim is not entitled to remedy if a determines his because the victim has re- compensation from the defendant independent sources. ceived benefits from the issue of whether 60-3403 violates While we do not reach a Rights, right Bill we find that the Section 18 of the Kansas malpractice remedy against person a victim medical sufficiently by threatened wronged him is persons who than test. require higher standard of review the rational basis higher scrutiny applying The rationale level of Restrictive Med- Learner, is well stated particular legislation Malpractice Compensation Schemes: A Constitutional ical Liberties, “Quid Quo” Analysis to Individual Pro Safeguard compares Legis. Harv. Learner J. political powerlessness the class of future medical “suspect” “semi-suspect” clas- victims to that of traditional minorities, women, illegitimates, aliens. e.g., sifications — He reasons that certain similar characteristics group lack (e.g., justify political disorganization) treating future cohesiveness similarly politically powerless, victims to other judicial semi-suspect protection through classes who receive an critically scrutiny legislation affecting enhanced their indi- rights. vidual Learner concludes: legislative balancing process unduly “When the skewed the structural inability coalitions, political class to form active must be burdened counter-majoritarian legislative sensitive to its role as a monitor of institutional

legitimacy. political powerlessness of future medical victims judicial arguably justifies semi-suspect protec- class their status as a entitled to against majoritarian subjugation rights.” p. tion of individual 189. jurisdictions We further note that which have other considered equal protection challenges under the Fourteenth Amendment abrogating statutes collateral source rule in medical mal practice applied rigorous scrutiny cases have a more also than applied example, under the rational basis test. For Carson Maurer, 925, (1980), 120 N.H. 424 A.2d 825 Hamp the New that, Supreme right shire Court held while the to recover for injuries right Hampshire, is not a fundamental in New right against “sufficiently to be indemnified important require imposed that the restrictions on those subjected rigorous judicial scrutiny to a more than allowed under the Supreme rational basis test.” 120 N.H. at 931-32. The Court of North Dakota also used an scrutiny intermediate level of Olson, to hold a similar statute invalid Arneson v. 270 N.W.2d (N.D. 1978). The court there noted this intermediate test required correspondence a “close statutory between classifica legislative goals.” tion and Graley 270 N.W.2d at 133. See also Satayatham, Op. 316, 320, (1976), Ohio 2d 343 N.E.2d 832 where the question Ohio court held the crucial is whether there appropriate is an governmental suitably interest furthered treatment; differential Medicine, v. State Board Jones Idaho 555 P.2d 399 in which Court of Idaho determined the standard of review was whether the stat ute reflected reasonably public purpose conceived whether the establishment of the classification had a fair and substantial relation to the governmental achievement of the objective purpose. Further, two federal district courts of applied Kansas have a heightened scrutiny level finding unconstitutional. See through Coburn Coburn Agustin, Keltner, 627 F. and Fretz v. 109 F.R.D. 303 (D. 1985). Kan. worthy

It is also of mention that in all of the above-mentioned (except Jones) cases abrogating courts held statutes collateral source Jones, rule unconstitutional. re- manded questions the case for pertinent determination of to the equal protection challenges. 97 at 877. Idaho recognize courts,

We that a number facing the issue now us, before opted apply have stringent the less rational basis 674 576, 570 P.2d 744 116 Ariz. See, v. e.g.,

test. Eastin Broomfield, Corp., So. 2d Hospital 403 v. Cedars Lebanon (1977); Pinillos 219, 497 N.E.2d 763 Burris, 2d 1981); 113 Ill. (Fla. 365 Bernier Ctr., N.W.2d 293 Medical (1986); Rudolph v. Iowa Methodist 1980). (Iowa 550 applied a previously has that this court recognize

We further constitutionality malprac- uphold the test to “rational basis” See, Snyder Clinic e.g., Stephens legislation. tice “crisis” and State ex rel. 115, 631 P.2d Ass’n, Kan. How- 223 Kan. 576 P.2d Liggett, Schneider distinguishable present from the ever, these cases both of case. constitutionality Kansas upheld the Liggett,

In this court against physician’s com- Insurance Act Health Care Provider practi- with low-risk combining high-risk physicians plaint that rights. Liggett court his tioners violated involved in the “fundamental interest” there is no determined Therefore, the profession. in medicine or other practice of protection challenge must defendant’s concluded the court relationship” test. by the traditional “rational gauged distinguishable from the instant clearly Liggett Kan. at 618. classify or question Liggett did not legislation case as the malpractice. victims medical burden imposing a upheld legislation shorter Stephens, In the court brought against health care period tort actions limitation However, the court did not consider providers as constitutional. appropriate. In- heightened standard of review was whether a stead, Liggett support application for its simply cited distinguishable Stephens test. is also of the “reasonable basis” Stephens did legislation this case at issue not from since remedy injured party obtaining a from the prevent an from full period in which negligent Instead, it limited the time tortfeasors. brought. an action could be

Finally, while we are aware the United States Court classifications, very heightened scrutiny limited applied and thus are interpreting we are the Kansas Constitution supremacy the federal bound clause of Constitution. review, Having appropriate standard of we determined equal protection clause question now turn to the of whether the statutory abrogation is violated the Kansas Constitution malpractice actions. in medical source rule the collateral the interests of question, we must balance to resolve order (insured victims of compensated otherwise class the burdened (negligent health class malpractice) and the benefited insurers) goal legislation the the their with providers and care care). Finally, we must quality and health (to insure available substantially legiti- further a the classifications whether decide objective. legislative mate persons a Supp. singles out class of

K.S.A. 1986 60-3403 providers) preferential (negligent health care for organizations particularly tortfeasors. This not extended to other treatment professional is relieved of account- narrow class of defendants compensa- ability actions when a received for their through other means. tion the disadvan-

An examination of the effect of compensated medi- class—insured or victims of taged otherwise medi- malpractice provides cal stark contrast. These victims of — claimants, malpractice, are denied cal unlike other tort wronged person persons from who have compensation the effect, credit gives negligent provider health care a them. damage inflicts on its victim in the against provider the the independent contractual amount of the value of the victim’s Thus, damage of need rights. the statute renders the one award loss. compensation than actual for rather Graley by Satayatham, pointed As out the Ohio court satisfactory for such Op. 2d at there can be no reason Ohio unequal The Ohio states: separate treatment. obviously argued compelling governmental is ‘no interest’ unless it be “There public partly any segment in financial distress be at least relieved of that accountability requirement negligence. for To financial its articulate absurdity, every type profession or its for at one time or another demonstrate times, undergoes government business difficult and it is not business of class, medical, provide by depriving manipulate the law so as to succor to one by another, malpracticed patients, mandated professions, remaining it is Even with the area of notable constitution. given profession by special the medical these statutes consideration subject lawyers malpractice given to or dentists or others who are suits.” Hammer, commentary Kenyon Similar relevant is found 69, 84, where 142 Ariz. 688 P.2d 961 Court required medi- unconstitutional a statute of Arizona held brought years within three malpractice cal actions to be from injury. date of The court reasoned: course, may argued, high premiums that the cases work “It that, therefore, special hardship physicians and statute of an economic necessary ‘relief should be sustained as a measure’ for health care limitations argument. importantly, providers. premise factual such an More We doubt the however, compelling legitimate we believe that the state has neither nor society providing segment by depriving interest in economic relief to one to, wronged remedy by, judicial system. those have been of access If who any profession, industry hypothesis approved, such a were once business or experiencing difficulty beneficiary special legislation could be made the by designed adversity limiting its to ameliorate economic access to the courts system, they damaged. guar- those whom have Under such our constitutional eroded, gradually until this state antees would be became no more than a playground privileged exactly for the and influential. We believe this is what designed prevent.” (Emphasis added.) guarantees those were K.S.A. 1986 60-3403 is one of several statutes enacted ongoing attempts in 1985 and 1986 in its to deal with the so-called medical insurance crisis. See Supp. through legislative K.S.A. 1986 60-3401 60-3414. The purpose in enacting the statutes is set forth in K.S.A. 1986 60-3405, which states: professional liability “Substantial increases in costs of insurance for health providers availability affordability. care have created crisis of This situation

poses availability quality a serious threat to the continued in of health care welfare, public Kansas. In the interest health and new measures are required professional liability to assure that affordable insurance will be avail- providers, injured parties able Kansas health care to assure that receive adequate compensation injuries, quality for their and to maintain the of health care in Kansas.” Thus, by abrogating the collateral source rule in medical actions, malpractice legislature has attempted to reduce or verdicts, thereby eliminate effectuating a reduction liability in premiums. premiums insurance A reduction will allegedly availability insure the quality continued of health care in this state. legislature’s

While the purpose enacting may 60-3403 have quality care, been to availability increase health application of such a counterproductive. major statute is It is a legislate quality hand, contradiction to for health care one statute, hand, negligent in the same to reward while on other observed, at least has if providers. health care As one court profession formerly, is less than medical accountable relaxation may public standards with the the victim. of medical occur Further, Graley Satayatham, Op. 74 Ohio 2d at 320. while the may liability premiums effect of 60-3403 be to lower insurance class, may it in an the benefited also result increased insurance victims, insurers, injured general and the burden on the their public. reasoning Hampshire of the Court of New Maurer, 939-40, Carson 120 N.H. at instructive on this point: that, presents ‘[a]bolition [collateral source] “We first note of the rule . . . injured party’s company may required result that an

anomalous insurance compensate though fully negligent the victim even tortfeasor is insured. Not only patently against insurer, may does abolition discriminate the victim’s it eventually parties.’ result in an increased insurance [Citation burden on innocent Thus, although 1979) may (Supp. omitted.] RSA 507-C:7 I result in lower providers, may insurance rates health care also increase the cost general public they potential of insurance for members of the because victims negligence. of medical “Finally, although operates place the collateral source rule so as to some plaintiffs position alleged wrong, in a better financial than before the its abolition will result in a windfall to the defendant tortfeasor or the tortfeasor’s insurer. Moreover, expense plaintiff, this windfall will sometimes be at the because many plaintiff paid ‘in instances the for these [collateral] benefits in the form wages fringe . . . concessions in the he received because of such benefits.’ Thus, payments represent employment [Citation omitted.] when the collateral benefits, price public 1979) (Supp. for the benefit derived from RSA507-C:71 paid solely by malpractice plaintiffs.” will be

Thus, places heavy only upon injured burden not potentially but also victim’s insurer Further, true, general public. if it is as the has deter mined, exists, that a health remedying care “crisis” the burden of placed solely upon that crisis should not be the shoulders of malpractice Rather, appropriately victims. it more should fall causing those negligent provid crisis —the health care agree. See, by ers. A number of courts e.g., through Coburn and 995-96; v. Agustin, Supp. Coburn 627 F. at and Crowe through v. Wigglesworth, Supp. Crowe, Crowe 623 F. at 706. In Kelly Judge states: level, persuaded is at all this discrim- fundamental this Court “On more goals. Regarding inatory legislation is that it will achieve its stated needed or malpractice need, cavalierly crisis the ‘obvious’ medical defendants refer to profession, apparently

justifying legislation. clear to the medical this What is so industry, respective lobbyists, Legislature and the is a matter insurance their deep growing as well a a number of commentators of concern to Court remedy country. Legislature’s across the In the haste to other courts situation, or, likely, ignored the fundamental cause it has overlooked more verdicts, so-called crisis: it is the unmistakable result not excessive but of added.) malpractice by providers.” (Emphasis excessive health care K.S.A. in a point We further out that under case liability, involving malpractice products col- both medical lateral evidence would be admissible in the source products liability portion of the trial and inadmissible jury erase portion. Since would be unable to the collateral purposes, source evidence once admitted for separate juries trial with each would have to be bifurcated issue, creating justice an unworkable administration under comparative principles. fault attempt jury

K.S.A. 60-3403 is a not so subtle to alter civil trials contrary guarantees. to constitutional

We conclude classifications created 60-3403 treat both negligent providers differently health care and their victims from persons similarily substantially other situated and do not further legitimate legislative objective, contrary law. Supp. We hold K.S.A. 1986 60-3403 unconstitutional under the equal protection Rights clause the Rill of the Kansas Constitution. 59,314 reversed,

The trial court’s decision in Case No. 59,338 59,591 affirmed, decisions Case Nos. and the three proceedings cases are remanded for consistent with this opinion. J., concurring: agree I with the Court that K.S.A. 1986

Lockett, 60-3403 violates the clause of the Rill of Rights of the Kansas Constitution and is therefore unconstitu- However, tional. I do not endorse a further division of the approach equal protection analysis by traditional two-tier adoption “heightened scrutiny,” nor do I believe such an adoption necessary to reach the court’s result. system, declaring our common-law a decision court, is based of several devices

parties on one available to the maxim, doctrine, statute, precedent, as a a a public such or policy. power legislature representative

The as the direct of the people legislature public first allows the policy. to determine legislature public policy Where the has declared clearly, may only constitutionality. courts determine its leg- Where the statutory provisions unequivo- islature enacted that do not cally public interpret state the policy, may courts the inten- legislature. tion of the clearly If fails to state policy, public then in a proper controversy a court case and may legislature’s declare the vagueness. statement void for If the legislature fails public policy, only or refuses to state the then may the public courts determine the policy. role in equal protection of the courts cases is to determine constitutionality legislation which classifies similar groups

of individuals In unequally. cases, some the classification itself designated “suspect.” others, as while classification is suspect, right the individual affected is denominated “fundamental”. If rights the case involves fundamental or sus- pect classifications, legislation subject will judicial be to strict scrutiny, only and will prevail justified by if “compelling state hand, interest.” On the other state regulation bearing upon rights subject classifications not so denominated are rigor- to less judicial scrutiny. legislation ous pass Such will the constitutional if the purpose test of the fair classification has a and substantial relation object legislation, to the so that all persons similarly alike, shall circumstanced or if treated it bears a rational relationship objective state sought that is to be advanced operation legislation. thé The litmus test merely depends upon right whether the isor not fundamental or whether suspect. classification is or is not

A fundamental right only exists if explicitly implicitly guaranteed by the Constitution. The court here has that the implicated question the statute in cannot be designated as scrutiny fundamental and that strict is not the proper level analysis in this Instead, case. the court chooses to adopt analysis, third level “heightened scrutiny,” as a basis striking down the Citing statute. the United States 190, Ed. 2d Boren, 50 L. Craig 429 U.S.

Court decision scrutiny heightened states that Ct. the court 97 S. “substantially further a statutory to requires classification embody a “direct well as to legislative purpose” as legitimate goal.” the state’s and relationship classification between Supreme the United States agree I do that decisions not scrutiny be clearly a third level of to Court have established states, Rather, dissent equal protection cases. applied in scrutiny has intermediate Court has restricted beyond involving gender cases extend the doctrine declined to illegitimacy. Massachusetts Bd. Retirement Mur See 520, (1976) 307, (age), 49 L. Ed. 2d S. Ct. 2562 gia, U.S. Center, Inc., 473 U.S. Living and Cleburne Cleburne retardation). (1985) (mental Ed. 105 S. Ct. 3249 L. 2d applies to case with a rule of evidence The instant deals providers. Since it injured by negligent health care tort victims right, any a or suspect class or fundamental does involve illegitimacy, I that the gender based believe discrimination on However, applied. even relationship rational test should test, equality tenets of fairness and must not and under this basic legislation analyzed Even in forms of cannot be abandoned. test, we still seek the relationship under the rational must assur- relationship that the classification at issue bears a fair to a ance legitimate public purpose. by injured negligent

Those who are the act of tortfeasor form separate Supp. 60-3403, By enacting class. K.S.A. 1986 has, effect, legislature split by making this class victims of tort solely in payments collateral source admissible cases evidence of unjust involving patently negligence. victims of medical It is injured by single providers unfair to care out those health juries payments allow such cases to consider collateral source potentially reduce awards. Equal justice requires injured by who all another’s negligent equal right compensation to act have an from the negligent tortfeasor, regardless any classification that the legislature attempted impose. has are not correcting We legislature, performing are simply duty we our constitutional deciding separate that the tort creation classes of victims based classification of tortfeasor is unconstitutional. The powers separate judiciary. legisla- from the If the change ture wishes to the rules of abrogating evidence rule, may applied collateral do so if it equally source all injured by negligent who are acts of another.

Finally, I believe it is incumbent point out that K.S.A. 1986 ambiguity 60-3403 contains an inherent pro- which could application. (a) duce difficulties in Subsection states: any malpractice liability action, “In evidence of the amount of paid paid reimbursement or indemnification or to be to or for the benefit of a following (Emphasis supplied.) claimant under shall be . . . admissible (b) Subsection states: “When evidence of reimbursement or indemnification of a claimant is admit- pursuant (a), may present

ted subsection claimant evidence of amounts paid right (Emphasis supplied.) secure to such . . . .” reimbursement

Thus, the payments by admission of evidence of the claimant to type secure appears permissive of reimbursement and discretionary while admission of evidence of collateral source payments the is mandatory. written, claimant As the statute interpreted could give judge particular be a a in case the discretion admit or exclude evidence payments. of s unlikely It is that the intent of the legislature enacting in statute was to greater upon confer upon defendants than plaintiffs. J., joins foregoing the concurring opinion.

Allegrucci, dissenting: respectfully I principal dissent from the Holmes, J. and concurring opinions and the resultant holding decision (hereinafter K.S.A. 1986 simply 60-3403) 60-3403 uncon- violating stitutional as Rights. the Kansas Bill of outset, At the in litigants, counsel, fairness to the and the bar of Kansas, upon I feel is incumbent this court upon to comment procedural the morass which languish caused these cases to in the bowels the court for over seven months. These cases were initially argued 4, 1986, to the December in and the normal opinion course of events an would have been forthcom- ing in approximately original six appeals weeks. The these in cases sought determination of whether 60-3403 was unconsti- violating tutional as process the due clauses of the United States and Kansas February 20, Constitutions. On determined, sponte, that the sua majority this court

1987, sup- that should submit counsel reargued cases should is unconstitu- issue of whether briefs on the plemental Thereafter, reargued the case was vague and indefinite. tionally finally forthcoming. 1987, is now decision on March is unconsti- that issue whether statute interesting It is indefinite, was of such momentous tutionally vague and ago, is not mentioned in than five months even importance less only cursory consideration in opinion receives principal concurring opinion. upon opinion purports to be based Although principal Rights,” it asserts Bill of also 18 of the Kansas “Sections of whether 60-3403 violates that do not reach issue “we is Rights.” Bill As there no further 18 of the Kansas Section only I can due clause in Section process mention of the solely equal opinion upon protection assume that the relies Rights. Bill I in 1 of the Kansas cannot clause found Section clauses of agree that 60-3403 a violation Rights Bill the United States either the Kansas Constitution. opinion, arriving in at the decision that 60-3403 principal unconstitutional, only the federal constitu- has abandoned statute, evidently they conceding tional attacks merit, prior also, my opinion, abandoned Kansas lack but repetitive, question being appeals law. these Without too modify power the effect of collateral legis- rule cases. The source of evidence medical lature, continuing attempts its mal- alleviate crisis, practice determined 60-3403 was insurance warranted necessary attempt its legislative to maintain desired objective quality health care in Kansas. continued Supp.

K.S.A. 1986 60-3403 is one of several statutes enacted in malpractice 1985 and 1986 to deal with the so-called medical Supp. through See K.S.A. insurance crisis. 60-3401 60-3414. enacting legislative purpose The the statutes is forth in set 60-3405, K.S.A. 1986 which states: professional liability increases “Substantial in costs insurance for health providers availability affordability. care have created a crisis of This situation poses availability quality a serious threat to the continued care health public welfare, Kansas. In interest of the health new measures are required professional liability to assure that affordable insurance will be avail- providers, injured parties able to Kansas health care to assure that receive adequate compensation injuries, quality for their and to maintain the of health care in Kansas.” through While 60-3414 were enacted in it is clear legislative history from the of the 1985 statutes that the same concerns, considerations, purposes were considered legislature in adopting 60-3401 through 60-3404 as are reflected in 60-3405. unavailability The claimed and excessive cost of medical malpractice insurance and its asserted detrimental effect quality and availability of medical care in Kansas is not a recent development. early As as problems of obtain- ing and maintaining malpractice affordable medical insurance legislature came before the and in 1975 and 1976 the first legislation addressing problem was enacted. See State ex rel. v. Liggett, 610, 611, Schneider 223 Kan. 576 P.2d 221 The legislation earlier obviously has not been effective in controlling the costs malpractice of medical insurance premiums have skyrocket. continued to The providers health care and their malpractice companies insurance waged have fight a continuous before each session of the legis- secure additional lation directed at specific problems. their The statute now before the court is one of those enacted to problems. address those theory adoption behind the 60-3403, which modifies the common-law collateral source rule in medical cases, is jury that if the is advised that malpractice plaintiff already been paid costs, his wages, medical lost or other items of traditional tort damages payments those will probably not be duplicated by jury verdict, in its resulting in lower verdicts in medical malpractice cases. The lowered verdicts will result in payments by lower insurance carriers who in turn will then premiums lower the pro- have become many hibitive in cases. It is claimed that if the lower verdicts do premium not result in reductions, they will stop at least or slow down the ever-increasing premiums charged by the insurance carriers. I,

Even though along with some court, other members of this may have statutes, serious doubts that these particular and in 60-3403, accomplish will sought by results legislature, validity of the statute based the this court to determine

is not for Moody Board propriety. its upon personal opinions of our (1985), Comm’rs, 237 Kan. 67, 697 P. County 2d 1310 Shawnee of the court stated: exclusively necessity expediency legislation wisdom, propriety, and of “The laws, otherwise legislative will invalidate Courts matters for determination. statute be constitutional, consider the members of the court do not because the may interest; upon the be public the members of court what the views of in the province right subject wholly the nor the of courts to It is not [are] the immaterial. interest, touching legislation public as that is a wisdom the determine the of legislative Kan. at 74. which courts cannot interfere.” function with interpretation and limited en- Our function a court only legislature, the and if a the laws enacted forcement of clearly may an act we strike down statute is unconstitutional ánd beliefs must not be legislature. personal the Our views legislative acts. Suffice it consideration allowed to control our say, history in the legislative of 60-3403 included record the Farley Engelken consists of some 422 this court before legislative committees had voluminous appropriate pages. The written, evidence, arguments posi- and presenting oral providers and their insurance carriers tions the health care favoring legislation groups opposing and those of various legislation. Regardless personal opinions of members court, this had before considerable evidence may way an supporting conclusion that 60-3403 effective legislative objectives. justices accomplishing the desired supporting principal opinion have taken it themselves propriety determine of the statute and to wisdom “counterproductive,” contrary conclude the statute to the Moody so, many In doing dictates of earlier cases. ignores decision the record before court. in State ex rel. Schneider v.

Our Liggett, decisions Kan. Ass’n, Stephens Snyder Clinic 230 Kan. P.2d accepted legitimacy make it clear the assuring availability state’s interest the continued citizenry health care to the the legislature’s determination that a Beyond insurance crisis exists. recognition legitimate assuring of a adequate state interest public, health care for the court has also legislation application limited in its malpractice to medical ac- subject and shall tions constitutional be the rational basis position judgment test. The is in court no to now substitute its legislature that the to the propriety as of the statute. That is not appellate the an function of court. Liggett, constitutionality

In the court examined the of the Kansas Health Care in light physi- Provider Insurance Act aof complaint combining high-risk cian’s that physicians (surgeons, anesthesiologists, etc.) practitioners (family with low-risk doc- tors, general etc.) practitioners, equal protection violated his rights. Liggett equal protection also claimed an violation re- sulted from the profes- failure the statute to include other sionals, i.e., dentists, lawyers, upheld and nurses. The court statute, stating: equal opinion by including are of high “We that is not offended together. practitioners

risk low risk found the medical health affecting providers care crisis was although all health care this in state primary impact specialists high fell on in practicing risk areas. new Even doctors beginning difficult, in risk impossible, low fields were to find it if not to obtain addition, coverage. In practitioners high evidence showed that low risk needed specialists provide comprehensive risk patients. in order to care for their Were coverage high fields, specialists insurance unavailable for the in risk the evi- professionals dence indicates these either would leave the state would soon quit practice, causing general quality a in decline the overall health care in available this state. legislative “The insurance commissioner testified before committees that the pool providers high practitioners insurance had include low risk as as well risk program actuarially or the entire would unsound. We therefore find the purposes physicians of the act and the classifications of within the act were accomplish purposes.” as a related means to those 223 Kan. at 620. Stephens, court was called to decide the constitu- tionality 60-513(c) K.S.A. in the face anof challenge. imposed period The statute a shorter of limitations for malpractice actions medical cases than other tort actions and adopted was a as result the “medical insurance crisis.” The maintained the statute created a classifica- arbitrary, tion which discriminatory, was without rational basis. The applied the “reasonable test and basis” found providers” differentiation between “health care and other acceptable. (now tortfeasors Justice) Prager, Chief writ- Justice ing court, for the said: history study legislative of the medical from have concluded “We that amendments to legislation session enacted in satisfy requirements basis’ test and of the ‘reasonable K.S.A. respect persons distinguishing providers care from other health classification purpose health rational relation to bears a to the statute of limitations way, find there legislation in another we enacted in 1976. Stated care objective assuring existing legislative con- relation between reasonable quality K.S.A. 60-513 to state and the amendment of health care tinued against years brought to four for tort actions the statute of limitations shorten 60-513, providers. not violate K.S.A. amended in does health care protection guarantees. attempt legislature’s the to assure to 60-513was “The 1976 amendment K.S.A. combating rapidly rising quality the cost of health care Kansans continued for increasing un- malpractice the reluctance of insurance insurance and medical principal professionals. One of the causes of underwrite medical derwriters to unavailability malpractice insurance was the increased costs and of tail,’ length negligent conduct, ‘long time after the the or the attributed to discovery injury filing of suit thereon. Medical for the allowed against liability arising malpractice policies insure from conduct while insurance tail,’ ten-year discovery period, ‘long policy is in effect. Because of prior statute, premiums being possibil- to were calculated include the under ity up years policies in effect to ten earlier. With increased of claims on being filed, underwriting malpractice malpractice claims number of medical leaving malpractice policies unprofitable, the medical became with underwriters result, procure As that be unable market. a it was feared doctors would to insurance, pay premiums, unwilling or would be to exorbitant and would leave to practice discovery period was considered outside of this state. Reduction of the availability malpractice compromise assure continued the obvious injured public protecting parties’ causes of action. The insurance while solving malpractice problem depth interest in the medical is discussed in Liggett, clearly ex rel. 223 Kan. 610. That discussion shows State Schneider against dealing that there with actions is a reasonable basis for providers involving in a other health care manner than cases different (Emphasis added.) 230 Kan. at 130-31. tortfeasors.” statute, It if would seem that a based the same obvious court, totally now eliminates classifications before constitutional, person’s remedy 60- cause action and then also constitutional. interesting principal opinion attempts It is that the note that, distinguish Stephens upon being basis statute of case, recovery limitations it did limit the then relies 69, 84, upon Kenyon Hammer, 142 Ariz. 688 P.2d 961 case, proposition limitations that shortened statute of attempts legis- The 60-3403 is unconstitutional. to discredit the objectives statute, cases, prior lative in view of our are not persuasive, my opinion. long recognized equal

It has that protection been the test of process and due of law under the Kansas Constitution is the same Henry Bauder, as that under the United States Constitution. 751, 752-53, (1974); 213 Kan. 518 P.2d 362 Tri-State Hotel Co. v. Londerholm, 748, 759, 195 Kan. 408 P.2d 877 prin however, cipal opinion, authority, baldly without citation of states, separate, Kansas adequate, “[T]he Constitution affords greater rights Constitution,” than the federal goes then apply higher scrutiny” on to “a level than the rational basis appears test. It position principal opinion to be the that “higher some standard required of review” is because medical comparable claimants are to the traditional “sus pect” minorities, women, illegitimates, classifications of aliens as in various decisions of the United States “ Thus, opinion Court. advocates that this ‘court must be sensitive its counter-majori institutional role as a ” legislative tarian legitimacy,’ may monitor of whatever that mean. I must confess I do not know. The instant case does not “suspect” involve a classification of individuals nor does it impairment involve such an by Rights

afforded Section 1 the Bill of Kansas of is violated. What nothing change procedural 60-3403 does do is than more Holleman, 781, 789, rule of evidence. In Allman v. 233 Kan. 667 (1983), validity P.2d 296 a case in which the the court rule, Herd, of the collateral source the author of the Justice herein, principal opinion illustrates, stated: “As the definition merely species relevancy the collateral source rule is of the is, nothing procedural doctrine.” That it is more than a rule of evidence, by law, person’s remedy does not bar a due course of equal protection and does not violate of the law. challenge presented ap-

A similar to that in the case at bar 576, peared in Eastin v. 116 Ariz. 570 P.2d 744 Broomfield, (1977), where the had it a statute similar 60-3403. before to II, § prohibited 31 the enactment Art. of Arizona Constitution of “limiting damages laws the be recovered caus- amount of to for XVIII, § ing injury any person,” the death and Art. 6 of provided right damages inju- that of action to recover for “[t]he

688 the recovered shall not abrogated, and amount

ries shall never be statutory Obviously, Arizona limitation.” the subject to be than of the provisions are far more restrictive those constitutional abroga- petitioners in Eastin claimed Rights. Bill of The Kansas malpractice in actions source rule medical tion of the collateral prohibitions. these The Arizona violated constitutional decision, arguments, stat- Court, rejected these in a unanimous ing: purpose the the true of the of this rule to inform factfinder of extent “The inequity

plaintiff windfall The s in order to the recoveries. economic loss avoid plaintiff resulting judgments will doubt reflect a setoff for the benefits the no already judgments mal- would reflected in lower received these lower be premiums, objectives legislation. practice insurance one of the of the It should way plaintiffs’ benefits in no noted that admission into evidence of collateral by jury guarantees any damages in the awarded the trier of fact. The reduction may ignore making its as to the still choose to the collateral benefits decision by plaintiffs.” damages at sustained the 116 Ariz. 585. the It was also asserted that statute violated constitutional process law. The court to and due contentions, stating: merit found no to these deprive the medical “Abolition of the collateral source rule does not process any property protection by due clause interest claimant of accorded only application States is the rule to United Constitution. Nor deny arbitrary to mal- actions and unreasonable as to so by practice was claimants the laws. The rule intended legislature give damages jury the true sustained extent By scaling jury thereby. the size verdicts the amount of collateral down received, legislature reasonably plaintiff may have could assume benefits premiums This was of the for the reduction would follow. one reasons step time, proceed addressing itself to Act. ‘one at a is entitled legislative phase problem mind.’ most acute to the seems 489, 461, Co., 483, 465, Optical S. Ct. 99 L. Ed. Williamson v. Lee U.S. 563, (1955).” at 585. 116 Ariz. Bell, 214 Kan. P.2d Manzanares court, discussing challenge a Section 18 Act, stated: No-Fault Insurance totally abolish the “The No-Fault Act before court does common-law injury; right recovery right damages personal for nor does abolish right provide a recover actual loss. It does limitation on to economic anguish non-pecuniary pain, suffering, The losses mental inconvenience. liability concept, prospectively tort and in no

Act the common-law modifies retroactively is a accrued common-law of redress. There manner affects plethora authority person any law, that ‘[N]o has a vested interest in rule of entitling unchanged him insist that it shall to remain for his [Citation benefit.’ Accordingly, may occurring passage omitted.] a ‘citizen find that events after place position' legally such a statute him in a different from that which he would ” they occupied passage have had occurred before of the statute.’ 214 Kan. at 599. Manzanares equally

The rationale in is applicable upon legislative attacks enactments. No class of indi- viduals has a right common-law or vested constitutional particular procedure. rule of court K.S.A. 1986 merely procedural alters a recognized rule of evidence as by this Holleman, court in Allman v. 233 Kan. 781. The statute does not suspect create a class vague which is entitled height- to some scrutiny ened considering test when whether violates the equal protection guarantees Rights. of the Kansas Bill of

If it can procedural be said that a rule of evidence affects a right, subjects constitutional heightened the rule to scrutiny, every strict procedure then rule of and evidence must subject Obviously to the same test. that cannot be the law. opinion Even concurring correctly recog- Lockett Justice heightened scrutiny nizes that proper not the test. pointed principal opinion, As out in the 60-3403 has been by at considered least four different federal district judges They split in Kansas. attempts have two and in their two proper determine applied test to be statute and whether reviewing statute constitutional. After the Kansas federal district court cases which had considered 60-3403 and its Ferguson predecessor, 60-471, O’Connor, Judge K.S.A. Chief Garmon, (D. 1986), 643 F. Supp. Kan. split opinion among judges obvious his court and stated: dissonance, Unfortunately, “To this we must add our voice. our conclusion disharmony. respect Judges Saffels, will not resolve the With all due Theis and that, law, employ we believe under the we must the rational basis test. large part unanimity “Our conclusion is based on the with which the courts appeals applied uphold have the rational basis test to all sorts of statutes that malpractice plaintiffs differently plaintiffs. treat medical than other tort Second, Fourth, Fifth, Ninth, and, Eighth, significantly, the Tenth Circuits have agreed applies all the rational basis test statutes that draw such a Abrams, (2d 1986) (applying classification. See Gronne 793 F.2d Cir. uphold requires pre-trial screening rational basis test to a New York statute that Canale, malpractice claims); Montagino (5th of medical 792 F.2d 554 Cir. 1986) (applying uphold the rational basis test to a Louisiana statute that sets a 690 claims); malpractice v. medical United statute of limitations for lower Hoffman States, 1985) (9th (applying uphold a 767 1431 Cir. rational basis test F.2d malpractice in medical actions statute that limits noneconomic losses California (10th 1984) $250,000.00); (applying Cavanaugh, 741 F.2d 318 Cir. Brubaker uphold a statute that sets a statute of basis test to Kansas lower rational claims); Mayo Clinic, malpractice 691 F.2d 405 for limitations medical Jewson 1982) uphold (8th (applying a statute Cir. the rational basis test to Minnesota that claims); DiAntonio v. a statute of limitations for sets lower (4th 1980) (ap- Hospital, Northampton-Accomack Memorial 628 F.2d 287 Cir. provides pre-trial uphold Virginia plying test a statute that for the rational basis claims). screening of medical are, course, particularly guided “We the Tenth Circuit’s decision in noted, test, just applied the basis As we the court there rational Brubaker. hesitation, provides that a shorter statute of limitations without to a Kansas statute against against providers other 741 F.2d health care than tortfeasors. for actions plaintiff Surely, sue if the time within which a must 318. a statute shortens scrutiny, losing only claim need meet minimal statute that avoid his entire by jury merely payments to of collateral source be considered allows evidence exacting faces more standard. no Coburn, Theis, appeals “Judge that the courts of have made Nonetheless, being ‘unhelpful’ those cases as their views clear. he dismissed ‘they applied test without ‘scant assistance’ because the mere rational basis heightened scrutiny required.’ was 627 F. at consideration of whether has, Although perhaps Judge Supreme agree with Theis that the Court 992. we occasions, stringently applied it basis test more than has on recent rational Center, traditionally, City Living (see, e.g., Cleburne v. Cleburne 473 done so 432, 105 3249, 87 expressly L. Ed. 313 the Court has denied U.S. S. Ct. 2d blurring tripartite it of review under law.

that was level Moreover, appeals significant it that the omitted.] we deem courts [Citations heightened discuss, recognize, less form of rational have refused to much basis test enunciated in Coburn. Supreme summarily “Finally, Court dismissed a we note that in 1985 the Supreme in Fein v. the California Court Permanente 368, relevant decision 665, 137, Rptr. appeal Group, 211 Cal. 38 Cal. 3d 695 P.2d Medical Fein, 214, 892, 106 the state 88 L. Ed. 2d S. Ct. 474 U.S. dismissed determining that the California basis test supreme used the national damages health statute, recovery and allows care of noneconomic limits payments, is source constitutional. of collateral providers introduce evidence appeal want of a substantial Supreme dismissed the Court States The United question. S. Ct. 214. federal explicitly summary ad- did not “Admittedly, dismissal Court’s Nonetheless, Court’s decision was appropriate. of review is which level dress 2281, 332, 344, Miranda, (see 95 S. Ct. merits, 422 U.S. ruling, Hicks on the protection argument (1975)), did 2289, s that the 2d 223 45 L. Ed. question. that ‘inferior Court warned pose federal a substantial that if has branded a had the view the Court federal best adhere to courts unsubstantial, except developments question when so doctrinal remains Hicks, (quoting S.Ct. Port 422 U.S. at at 2289 indicate otherwise.’ Authority, Authority v. Port York Holders Protective Committee New Bond (1967)). develop have been 263 n.3 Because there no doctrinal F.2d interim, unpersuaded by Judge attempt Theis’ ments in the and because we Fein, distinguish warrant we that medical classifications conclude only scrutiny that such and thus the court need assure itself minimal that rationally legitimate purpose.” at state 643 F. related to a classifications 339-40. that, appeal, in the various in the now oh and I note cases also courts, the nu- Kansas district none of cases the federal from constitutionality judges who have merous considered scrutiny heightened strict applied traditional 60-3403 have doing so now. principal opinion is incorrect in scrutiny tests. The Rights require that the Kansas Bill of does not Section 1 of subjected scrutiny or even new form to strict to some 60-3403 be scrutiny recognized any appellate court. heightened not Lockett, I briefly concurring opinion Turning of Justice proper test is and that agree him that rational basis with “height- asserting the principal opinion is incorrect in so-called legislature abolish scrutiny” agree test. I also that the could ened evidence, rule, all merely a rule being collateral source I do not might apply. be difficult to tort cases and that 60-3403 we have agree departure from earlier decisions in which that our proper is legitimate objective nothing long ago bridge crossed this case. That was prior determinations. change our occurred to test to proper basis test is the my opinion It is the rational as a apply determining whether 60-3403 unconstitutional the laws process due of both violation I am also of Kansas federal Constitutions. under both appro- a reasonable relation to opinion that the statute bears uncon- objectives sought therefore priate legislative the Kansas guarantees of either as a violation of stitutional States Constitution. Rights Bill or the United dissenting JJ., join foregoing McFarland, Miller opinion.

Case Details

Case Name: Farley v. Engelken

Court Name: Supreme Court of Kansas

Date Published: Jul 17, 1987

Citation: 740 P.2d 1058

Docket Number: 59,314, 59,338, 59,591

Court Abbreviation: Kan.