Lucas v. United States

KILGARLIN, Justice. Petitioners, al., Richard LUCAS et come This is the first case to to us questions appellate federal certified States, court. See Lucas United America, STATES UNITED (5th Cir.1986), certified, F.2d 414 questions Respondent. (5th Cir.1987). Pursuant F.2d No. C-6181. Const, V, 3-c, jurisdic- Tex. we have art. Texas. certified, questions tion to answer which are as follows: May 11, 1988. mal- Whether the limitation on medical Culver Concurring Opinionof Justice practice damages in Tex.Rev.Civ.Stat. 25, 1988. May (Ver- and 11.03 Ann. 4590i 11.02 §§

Dissenting Opinion Phillips of Chief Justice Supp.1986) non with the consistent Sept. Constitution, so, if Texas whether it liability of de- applies to limit the each recovery than of each fendant rather claimant. opinion,

For the reasons stated in this we con- answer that the limitations 11.02 11.03 article tained sections Texas 4590i violate article unnecessary Constitution. It is therefore question us answer additional us by certified to the Fifth Circuit. authority Our to answer constitutional questions federal of state law certified appellate relatively ori- courts is of recent approved gin. an voters to our state constitution which amendment V, section 3-c. The amend- became article 1,1986, January ment effective became imple- promulgated an our court thereafter by the constitu- menting rule as authorized Const, V., 3-c(b) and tion. Tex. §§ 31; Tex.R.App.P. 114. this is the Because new first to us under the case come pur- procedures, for historical certification steps briefly poses will first review we considering the court in employed and, ulti- order Fifth Circuit’s certification agreeing questions mately, to answer certified. receipt questions Upon of the certified Boyaki, Boyaki, L. & El Walter Miranda Circuit, case was docket- from Fifth

Paso, for Lucas. se- assigned in normal a number ed and Mattox, Gen., docketing Atty. Jim Austin. quential order. Notice General, Attorney was furnished Solet, Forrest, M. Irene Bruce G. Robert (the 114(f) Tex.R.App.P. Attor- required by Staff, Greenspan, Div., Appellate S. Civ. intervene). There- ney did General Eversberg, Atty., Helen M. U.S. James M. vote, court, deter- after, by majority Spears, Gen., Deputy Atty. Asst. Robert S. question and accept Div., that would Justice, mined Greenspan, Dept, Civ. U.S. time, case At that Washington, D.C., render an answer. injection negligently the was adminis- argument and the court was set for oral $498,- Lucas, parents urging who was tered and awarded the determined to allow statute, present past the unconstitutionality the of the 628.72 as the value of the though expenses they face in petitioner the United and future medical role even appealing party caring Christopher majority. for until his States of America was the Argument in detail its in the Fifth the case While the district court did not Circuit. calculation, other cause the amount of the award was allowed as before method of the court. consistent with total-offset discounting. The court also awarded perspec- put To the facts of this case $350,000.00 Christopher present as tive, quote length original from the we expenses he value of the future medical opinion of the Fifth Circuit: birthday, eighteenth his will have after Christopher When fourteen-month-old $600,000.00 present value of and as the neck and a developed Lucas a swollen earning ca- impairment of his future family outing, parents his fever after a pacity. Finally, the court awarded Chris- Army took him to the William Beaumont $1,500,000.00 pain topher for and suffer- Paso, Texas, El Medical Center near ing. The district court then reduced diagnosis army An doc- and treatment. $400,000.00 Weyth paid by award cyst determined the child had a tor in settlement of Labs to the Lucases [sic] thyroglossal duct and ordered an his a state court suit. LA, 600,000 injection of units of Bicillin apply Tex. The district court refused to and penicillin product manufactured (Vernon art. 4590i Rev.Civ.Stat.Ann. syringe by Wyeth packaged in its own dam- Supp.1986) to limit the nonmedical Laboratories. stating provision did not ages, hospital gave Christopher A nurse apply hospitals operated by the United shot in his buttock with a ¼" judgment, In an amended States. fully needle that was inserted. Christo- judg- court ordered that interest on pher’s thin father testified that he saw a paid against ment the United States be appear in line of blood the tube contain- is filed only as it accrues after a claim aspi- ing the medication when the nurse and not Comptroller General with the plunger injecting rated the before judgment. from the date of baby. ap- medication into the Blood 1304(b)(1)(A). awarded The court C. § site, peared injection at the and within a separate parents’ damages for the moments, Christopher’s legs few became suffering. pain and claims for mottled. doctors summoned. were States, F.2d Lucas v. United They baby having concluded that the was questions certified, (5th Cir.1986), F.2d allergic an reaction antibiotic Cir.1987). (5th gave injections to combat it. held that the appeal, Fifth Circuit On later, Christopher’s par- Several hours 11.02, section liability limit of article legs his were not mov- ents noticed that hospitals federally operated apply does ing usually he cried. they did when consistent with application that its was during Tests conducted the next several process equal protection claus- the due days paralysis. operation indicated An es of the United States Constitution. suspected press- to remove a tumor be 421-22; F.2d at 271. Our F.2d at ing controlling child’s on the nerves then, the limits question, is whether legs paralysis was determined that providers set out health care the result of starvation of the blood section 11.03 are con- that statute and/or blockage created nerves caused Those with the Texas Constitution. sistent injected LA direct- when the Bicillin pertinent part: provide sections artery. Tragically, paraly- ly into an permanent. sis is Liability Limit on Civil Christopher parents his sued the (a) In action on a 11.02. an Federal Tort Sec. United States under the liability claim where final health care Claims Act. The district court held that courts have divided on the judgment physician and the state rendered See, caps. constitutionality of the various provider, limit of civil or health care Insurance, e.g., Department Smith v. damages physician or liability for (Fla.1987) ($450,- 507 So.2d provider shall limited to an health care 000 limit on noneconomic violated $500,000. exceed amount not to “open provision of Florida Consti- courts” (a) (b) of this section does Subsection Hospi- Wright Page Du tution); v. Central damages apply not to the amount of 736, Ass’n, 313, 743 tal 63 I11.2d 347 N.E.2d liability claim awarded on a health care (1976) ($500,000 “special cap constituted medical, expenses necessary for the Constitution);1 in violation of Illinois law” hospital, and custodial care received be- Maurer, 120 N.H. 925, Carson v. 424 A.2d judgment required or in the future fore 825, (1980) ($250,000limit on nonec- 836-38 injury. for treatment of the damages equal protection violated onomic guaranteed by Hampshire New Constitu- Limit on Alternative Partial Olson, 270 N.W.2d 125, tion); Ameson v. Liability Civil (N.D.1978) ($300,000 ceiling violated 135-36 11.03. In the that Section Sec. event equal protection clause of North Dakota 11.02(a) subchapter of this is stricken Constitution); Duren v. Suburban Com- subchapter from this or is otherwise in- 25, munity Hospital, 24 Ohio Misc.2d 482 validated a method other than 1358, (C.P.1985) ($200,000 N.E.2d 1361-63 means, through legislative following general damages limit on violated Ohio shall become effective: constitutions); Fein v. Permanente federal liability In on a an action health care 137, Group, 38 Cal.3d Medical 211 Cal. judgment claim where final is rendered 368, 665, Rptr. 695 P.2d 679-84 against physician provid- or health care ($250,000 damages ceiling on noneconomic er, physi- limit civil v. constitutional); Johnson St. Vin- held provider past cian or health care for all Inc., 374, Hospital, cent 273 Ind. 404 and future noneconomic losses recovera- 585, (1980) ($500,000 cap N.E.2d 598-601 any injured person ble or on behalf Supervisors, upheld); Sibley v. Board of person, and/or the estate of such includ- (La.1985) ($500,000 149, 154-58 462 So.2d ing applicable past without limitation as reh’g, cap upheld) 477 So.2d modified physical pain suffering, and future (La.1985) (latter 1094, opinion or- 1109-10 anguish suffering, mental consor- equal dering conditional remand on state tium, disfigurement, other non- challenge); Prendergast Nel- protection pecuniary damage, shall be limited to an 657, son, 668-69 199 Neb. 256 N.W.2d $150,000. amount exceed (1977) ($500,000 cap upheld plurality 11.02, Tex.Rev.Civ.Stat.Ann. art. §§ joined by only judges, three opinion 11.03. The limits in both sections are not dissenting as to three others constitutional- instead or decrease absolute but increase declining reach consti- ity, judge and one depending price on the index consumer opinion merely because tutional issues Id. published by government. the federal Compare Board Jones State advisory). 11.01, at 11.04. §§ Medicine, 859, 555 P.2d 97 Idaho cert, denied, 410-16 At least thirteen states other than Texas (1977) (case damage 53 L.Ed.2d 223 provisions have enacted limitation pertinent findings fact into their medical statutes. remanded for characteristics, damage caps). Each has different constitutional attacks statute Const, Ill, ("[I]n necessary light "open where Although art. all other cases § of our 1. applicable, holding, general no local law can be made courts” one wonders whether the draft- enacted_”). prior special A for the law shall be ers of the Texas Constitution intended legislature legislature, judg- its special protec- left it to the "in to enact for the constitution ment,” laws general law could be specified to decide when tion of classes of tortfeasors. Com- Const, Const, XII, man, ("[N]o applicable. pare § Tex. art. or set of made (1873). Tex. men, appear language in the privileges, does not is entitled to exclusive but ... Const, Ill, services.”) present public constitution. Tex. in consideration of with Tex. Texas, Second, appeals litigant least three courts of restricted. must already down have struck show restriction unreasonable Baptist caps provided in article 4590i. arbitrary when balanced Texas, Hospital Ba Southeast Inc. v. purpose and basis of the statute. ber, (Tex.App. 672 S.W.2d 296 —Beaumont Votteler, (Tex. Sax S.W.2d curiam, per writ n.r.e. 1984), refd 1983). (Tex.1986); Brownsville Medi S.W.2d long recognized have Texas courts Gracia, cal Center v. victims medical a well- negligence (Tex.App. Corpus Christi refd writ — defined common law of action to sue cause Estrada, Hospital, Detar Inc. v. n.r.e.); negligently injuries inflicted them. (Tex.App. Corpus — Sax, then, undisputed. This much is Under writ); Hyde, Malone & Christi remaining inquiry the re- is whether Hobrecht, (Tex. Inc. v. recovery Lucas’ striction on “is App. writ dism’d Antonio — San arbitrary when balanced unreasonable agr.). appeals upheld Another court has against purpose the and of the stat- basis Hospital caps. Rose v. Doctors Facili the added). (emphasis ute” hold that the ties, We (Tex.App. — Dallas restriction is unreasonable and arbitrary granted). writ One federal district 4590i, and that article 11.02 and judge concluded that the Texas statute vio sections 11.03, lates both constitu unconstitutionally the state and federal limit Lucas’ Gibson, Waggoner F.Supp. tions. “remedy by of access to the courts for a Const, (N.D.Tex.1986). certifying panel I, due of law.” art. course Tex. case, however, disagrees in our as to the provision 13. that is no We note there § Lucas, 807 F.2d federal constitution. See corresponding the federal constitution to at 422 n. 2. “open guarantee. our constitution’s courts” Indeed, Mag- guarantee that is embodied begin analy- We our state constitutional na has our part Carta and been a consti- by noting findings purposes sis the and republic. since our Legislature tutional law enumerated by the 4590i, art. 1.02 Tex.Rev.Civ.Stat.Ann. § is that Our first concern with the statute (Vernon Supp.1987). on find- Based these legislature provide the has failed to Lucas ings purposes, legislature and the enacted any adequate redress substitute to obtain damages quoted the limitations in section Sax, injuries. 648 S.W.2d at his and, Sig- alternatively, 11.02 section 11.03. Power citing Middleton v. Texas & nificantly, its section 11.03 on face shows Co., 96,185 Light 108 Tex. S.W. that itself entertained Illinois, Supreme As we did the Court constitutionality doubts about reject argument any that the statute 11.02(a). liability limit of set out in section alleged supported by society to be benefits arguments for We have considered the generally: constitutionality and argue is a that there socie- Defendants caps. respect legislative With due a all quo quid pro recovery loss of tal that enactment, we nevertheless conclude that potential malpractice some victims is to liability 4590i, limits in article sections premiums by “lower insurance offset 11.03, ap- 11.02 and are unconstitutional recipients for all medical care costs lower damaged plied catastrophically malprac- pro quo quid care.” This of medical seeking “remedy by due tice victims injured seriously not extend does I, Construing sec- course of law.” article malpractice and does victim not Constitution, tion the Texas provi- bring recovery the limited serve to court has said: of the cases the rationale sion within analyzing litigant’s re- In constitutionality of the upholding the dress, litigant we that the has first note Compensation Act. Workmen’s First, be satisfy. two criteria to it must at Wright, 63 Ill.2d at 347 N.E.2d 742. litigant cognizable that has a shown “open being Although Wright was not decided common of action that is law cause Illinois Tex.Rev.Civ.Stat.Ann. grounds, courts” (10), (12) added). recovery 1.02(a)(5), (emphasis limiting expressly that held was “arbi- only in actions persons catastrophically In the context part test trary,” least of our which at negligence, injured medical we believe under Sax. limit is unreasonable arbitrary to their significant note in two of the It is that experiment recovery speculative to de- in a caps were jurisdictions liability rates termine whether insurance fact alternative remedies upheld, the article will decrease. Texas Constitution provided weighed heavily the deci- 13, guarantees meaningful were access section Hospi- In Johnson v. St. Vincent sions. to the courts whether or rates tal, high. legislature’s 404 N.E.2d at stated As to the stated are legislature responded by purpose to “assure that awards ration- “[t]he [Indiana] patient compensation fund.” creating ally damages,” to actual section related 1.02(b)(2), patient note this is a simply Louisiana enacted a statute with we compensation properly judicial power fund identical to Indiana attached Sibley government. ofSup’rs v. Board Lou- statute. branch Const, II, isiana, event, opinion mod- Tex. we 462 So.2d arbitrary (La.1985). ified, 477 So.2d hold it is unreasonable arbitrary legislature to conclude that It that the Medi- should remembered damages caps, applicable to claimants all (now 4590i) Liability Act of 1977 article cal injured, help seriously will no matter how of the Tex- was based recommendations relationship assure a rational between actu- Liability Study as Medical Professional damages amounts al and awarded. Commission, sometimes referred as Keeton, Report. sepa- Keeton in the Keeton could not Dean a Even Commission statement, any rate a was correlation between recommended victim’s conclude there damage legislative compensation statutory cap and the stated fund as substi- care, stating upon recovery. improved health purpose tute for limitations legislature lacking. Report adequate Keeton 51-52. The data Keeton at that id. at 38. One 7; independent Report chose follow recommendation. at study that there is no rela- has concluded question We also whether the restric- damage tionship cap and increas- between tions in sections 11.02 and 11.03 are reason- reducing [thereby es insurance rates purposes able when balanced care], given that less health available legislature, and bases statute.2 The brought all claims over than .6% enacting apparently article did not Sumner, The Dollars and Sense $100,000. malpractice intend strike at frivolous Insurance, Malpractice (Aft Hospital 1.02(a)(2) it suits for found section that 1979). Books legitimate filing “the health care liabili- ty contributing supported in our decision to claims Texas is a factor We are damages caps in affecting professional article medical strike down added). legislature reasoning of (emphasis rates” the Florida Su- 4590i $450,- invalidating preme did that a “medical insur- Court that state’s find damages. ceiling on ance crisis” had been created and “sat- noneconomic that Insurance, Department Smith isfactory coverage insurance of- ... [was] (Fla.1987). appellees price,” Like ten at then not available but it So.2d Smith, in our case “adoption of certain the medical defendant stated that modifica- medical, insurance, totally legal argues legislature has not in the and that tions merely an action but may may not have a cause of systems ... abolished re- charged cap placed on the insurers for rates effect therefore, and, liability coverage.” has not denied professional covered However, Votteler, contained neither purpose 667. that statute Sax we said that statute, findings predecessor comparable a limitation of a nor basis Tex.Ins.Code 5.82, legitimate. recovery damage in article 4590i. Ann. art. were 648 S.W.2d at provide can and often do addition- right to the courts. tutions of access arguments. rejected these rights of Florida al for their citizens. The federal pointing out that the constitu- After first constitution sets the floor for individual right to the courts must be tional of access rights; state constitutions establish right of trial conjunction read in ceiling. Recently, have not state courts by jury, the court stated: hesitated to look to their constitu- own granted court is for the Access to the protect rights. This tions to individual redressing plain- A purpose injuries. of that court has been in the mainstream for, jury e.g., tiff who receives a verdict movement. $1,000,000, has not received a constitu- states, Tex- Like the citizens of other legisla- injuries if the tional redress of adopted state constitutions to ans have arbitrarily, caps statutorily, and ture governmental power guaran- restrict add, Nor, jury recovery. we because the powers re- rights. The tee individual being arbitrarily capped, is the verdict rights guaran- stricted and the individual receiving plaintiff the constitutional ben- reflect present in the constitution teed jury of a trial as we have understood efit values, customs, and traditions. Texas’ Further, right. if the vitality, independent Our constitution has cap recovery may constitutionally at power duty to and this court has the $450,000, reason there is discernible guaranteed protect the additional state why recovery it could enforcing rights By our of all Texans. $50,000, perhaps figure, other some constitution, provide Texans with we $1,000, or even $1. strength- individual their full Smith, Compare 1088-89. 507 So.2d at en federalism. (W.D. Búlala, F.Supp. Boyd v. (citations Va.1987) ($1,000,000 damage cap at 338-39 LeCroy, violated omitted). seventh amend- jury trial under and footnote Constitution) (prior opin- ment to the U.S. legislature’s concern We understand the $750,000 cap ion in same case held that prob- health care attempting to solve the Virginia jury trial under violated during middle of the perceived lems 789). well, F.Supp. at Constitution as Nevertheless, agree with the 1970’s. we reasoning opinion is from the Smith Supreme Court of New statement “open courts” entirely consistent with our simply unrea- Hampshire: “It is unfair and Hanlon, analysis LeCroy supporting impose the burden of sonable (Tex.1986). legisla- LeCroy involved solely upon those industry the medical care to the courts tive interference with access severely injured and persons are most who fees, filing much of by way of increased compensation.” most need therefore general revenue which went to the state’s Maurer, 120 N.H. A.2d Carson v. Clearly this was not a total abolition fund. (1980).3 Nevertheless, the of the of access. opinion, in this For the reasons stated under held the fee increases invalid Const, question is that to the certified our answer 13. 713 S.W.2d Tex. malpractice dam- on medical the limitation opinion LeCroy also con- 338-42. Our ages in Tex.Rev.Civ.Stat.Ann. unique- explained importance and cisely 11.03, with and is inconsistent rights: 11.02and constitutional ness of state §§ I, section of article violative cannot sub- state constitutions While ques- The additional Texas Constitution. guaranteed by the tract from is moot. Constitution, certified to us state consti- tion United States possible be discovered protect it was health tion before that in its efforts to 3. We note harm, legisla- perceived open provision); providers Sax v. Vot- care from courts violated provisions teler, (Tex.1983) (depriving in article 4590i ture included other S.W.2d 661 pass muster. have failed to constitutional negligence cause of action of a medical minor Nelson, (Tex.1985) Neagle S.W.2d 11 See (terminating provision). open violated negligence cause of ac- a medical GONZALEZ, J., dissenting affordability adequate and files a medical insurance; professional opinion. (5) the situation a medical has created C.J., PHILLIPS, dissenting opinion to malpractice insurance crisis in the State filed. Texas; GONZALEZ, Justice, dissenting. (6) this crisis has had a material ad- I dissent. The issue is not the wisdom delivery verse effect on the of medical cap, fairness of the but whether Texas, including sig- and health care in proper bears a reasonable relation to a availability nificant reductions of legislative purpose. hold that the would medical and health care services to the recovery limitation on of nonmedical dam- people of Texas and a likelihood of fur- ages Equal either the Pro- does not violate future; ther reductions in the guarantees tection or the Due Process (7) the crisis has had a substantial im- forth in which are set the Texas Constitu- pact physicians hospitals on the and tion. physicians Texas and the cost to and hospitals adequate malprac- for History Legislative Findings and dramatically tice insurance has risen Legislature the Texas enacted price, impact patients with cost and legislation creating the Texas Medical Pro- public; Liability Study fessional Commission. The (8) the direct cost of medical care to study function of the Commission towas patient public and of Texas has mate- why physicians, hospitals, the reasons and rially rising increased due to cost of mal- providers experienc- other health care were practice protection physi- insurance for ing tremendous increases in in- hospitals Texas; cians and premiums. surance The Commission held (9) the crisis has increased the cost of hearings, gathered evidence and submitted directly through medical care both fees legislature recommendations to the that re- indirectly through additional services convened 1977. The con- provided protection against future majority sidered minority and several re- claims; suits and defensive medicine ports before it enacted The Medical Liabili- has in increasing pa- resulted cost ty Act, Improvement Insurance found tients, private insurers, and the state and in TEX.REY.CIV.STAT.ANN. art. 4590i general has contributed to the inflation Keith, (Vernon Supp.1988). The Texas that has marked health care in recent Liability Medical Im- Insurance years; provement Act—A Survey Analysis (10) satisfactory coverage insurance History, its Construction and Consti- adequate amounts of insurance in tutionality, 36 Baylor L.Rev. this area is often not available at provides: The Act Legislature of price; State Texas that: of finds (11) the combined effect of the defects (1) the of liability number health care medical, insurance, legal sys- and (frequency) claims has increased since problem public tems has caused a serious 1972 inordinately; respect availability both with to the of (2) filing legitimate health care coverage high being and to the rates liability claims in contributing Texas is a charged by profes- insurers for medical affecting professional factor medical lia- liability physi- sional insurance to some rates; bility cians, providers, hospi- health care (3) being paid tals; the amounts out in- judgments (se- surers in and settlements (12) adoption of certain modifica-

verity) have likewise increased inordi- medical, insurance, legal tions in the time; nately period in the same short cur- systems, the total effect of which is (4) undetermined, may the effect or not rently of the above has caused charged by public problem in availability serious an effect on the rates starting liability point As a in our constitutional professional medical insurers insurance; it cannot be overem- review article phasized that: have been these (13) verified facts Liability the Medical begin presumption with a of validi- [W]e Professional Commission, created Study Legisla- which was presumed that the ty. It is to be Legislature. For further unreasonably the 64th has not acted or arbi- ture legisla- of these facts amplification opinion, trarily; and a mere difference report adopts findings differ, ture minds could where reasonable the commission. striking basis for down not a sufficient arbitrary legislation or unreasonable. 4590Í, TEX.REV.CIV.STAT.ANN. expediency of the law is The wisdom (Vernon 1.02(a) Supp.1988) (emphasis § Legislature’s prerogative, added). strong presumption ours.... There is a purposes the Act are to: The stated cor- Legislature understands and that (1) frequency and se- reduce excessive rectly appreciates the needs of its own liability verity of health care claims prob- people, that its laws are directed to through improvements and reasonable by experience, and lems made manifest insurance, modifications in the are based its discriminations tort, systems; practice adequate grounds. (2) of those claims decrease the cost Davis, (Tex. Smith S.W.2d rationally that awards are and assure Votteler, see also Sax v. 1968); 648 S.W.2d damages; related to actual (Tex.1983). presumption (3) do so in a manner will applies constitutionality “whether basis any unduly a claimant’s restrict grounded in due attack is constitutional necessary to deal with the more than Whitworth protection.” process equal crisis; (Tex.1985). 194, 197 Bynum, (4) hospi- physicians, make available demonstrating constitutional The burden of tals, providers pro- health and other care party assailing the invalidity rests on the against potential liability through tection Hill, statute. Robinson reasonably the insurance mechanism at Craddick, Smith v. (Tex.1974); rates; affordable (Tex.1971). (5) medical and health make affordable care more accessible and available to the Equal Rights Texas; citizens of Amendment to the Unit- The Fourteenth (6) make modifications in the certain provides that Constitution medical, insurance, ed States legal systems “[n]o any person deny to within shall ... State determine or not there order to whether equal protection of the jurisdiction its charged by an effect on rates will be CONST, XIV, 1. amend. laws.” professional liability insurers for medical Constitution states Similarly, the Texas insurance; and men, they form a free when that “[a]ll make certain modifications rights....” equal compact, have social they health care liability laws as relate to CONST, TEX. liability only and an intention claims apply to not extend or protection analy- equal Under traditional laws to such modifications scrutiny sis, judicial levels of different legal system or other area of the Texas type of individ- depending upon the applied tort law. to has chosen the State ual through legislative classification. affect TEX.REV.CIV.STAT.ANN. art. protection clause 1.02(b) (Vernon equal Supp.1988).1 Under § majority 1. has done? What deference or as the status should our court give findings? just these ignore Should we them

695 466,101 66 L.Ed.2d Amendment, S.Ct. this Court has U.S. Fourteenth original). in (emphasis analysis: a 659 previously applied two-tier general rule is that when the classi- [T]he regulation is a local economic Where regulatory the state fication created grounds, protection we challenged equal infringes fundamental scheme neither legislative defer “to determinations must inher- rights interests nor burdens an or statutory desirability particular to the of as protection class, equal ently suspect Dukes, v. New Orleans discrimination.” analysis requires that the classification 49 rationally legitimate related to a state be (1975). L.Ed.2d 511 interest. short, may not sit as a judiciary University Interscholastic v. Sullivan or super-legislature judge to the wisdom (Tex.1981). 170, 172 League, desirability legislative policy determi- Thus, legislative if does classification neither in areas that affect nations made suspect right or not affect a fundamental a along proceed fundamental nor class, only rationally be related to a it need ..., suspect local economic lines legitimate pass in order to state interest discrimina- sphere, it is the invidious See Vance v. Brad- muster. constitutional act, tion, wholly arbitrary which can- 939, 942-43, ley, 59 S.Ct. consistently stand with Four- apply L.Ed.2d this same We teenth Amendment. protection two-prong analysis equal (citations 303-04, 96 S.Ct. at 2517 Id. at I, clause contained Article Section 3 omitted). reasoning applies Spring Branch the Texas Constitution. equal rights provision of equal force to the Stamos, I.S.D. S.W.2d I, 3 of the Texas Constitu- Article Section (Tex.1985). tion. plaintiff accorded a sue to injury tort for an is not fundamental Due Course Sibley v. Sup’rs See Board of right. I, 19 of Article Consti- Section Louisiana, opinion 462 So.2d provides: tution modified, 477 So.2d (La.1985). Ac- deprived state No citizen of this shall cordingly, scrutiny appropriate level life, privileges liberty, property, applied to be this case is whether immunities, manner disfran- classifications drawn article 4590i are chised, except the due course of the rationally in- legitimate related state of the land. law Whitworth, 197; terest. See 699 S.W.2d at CONST, I, 19. TEX. Branch, Spring I, Article Section Fourteenth Article 4590i creates two classifications. the United States Constitu- Amendment to First, section 11.02 a distinction be- draws legis- on the impose restrictions tion similar malpractice tween medical claimants and CONST, 19; Lively lature. TEX. Second, other tort claimants. within Texas, Ry. K. & T. Co. v. Missouri claimants, class Mellinger (1909); 545,120 Tex. S.W. there a distinction drawn based Houston, (Tex.1887); City S.W. $500,000. damages whether exceed Under & v. Tex. Indem. State Massachusetts test, Life say the rational basis I cannot Ins., (Tex.App.— S.W.2d 104 Bd. rationally is not statute related to writ). The standard Austin 1.02(b). purposes stated section challenges on sub- for constitutional review “Whether its the Act will [achieve fact grounds for both the process due stantive goals] question: Equal stated is not the process due clauses is and federal state Protection Clause if the satisfied ... follows: rationally could decid- Legislature have are seen ed” that a passed If of nonmedical the laws proper Minne- relation goals. would those reasonable effectuate Co., arbitrary nor Creamery are neither sota Clover Leaf purpose, However, requirements presents discriminatory, the of due twined. this case a question process slightly are satisfied.... different because section right 4590i 11.02 Article leaves York, Nebbia v. New intact; wholly right of re- access (1933). S.Ct. 78 L.Ed. partially dress is restricted. following Accordingly, apply I would Thus, presents important this case two I, standard of review under Article Section legis- questions impression. Does a first 19 of the Texas Constitution: whether the partially lative enactment which restricts caps in a reason- article 4590ibear right trigger protections redress proper legislative pur- able relation to a I, so, of Article If is the Section 13? what standard, say I pose. Under this cannot appropriate ap- standard of review to be provisions the limitation of plied? I, our violate Article Section 19 of state constitution. I interprets have found no case which pro- open provision independently courts

Open Courts tecting litigant's right a of redress. I am guarantee in process mindful, however, The other due of the text of our Consti- open provi- Texas Constitution is the provision: “every person shall tutional ... sion, provides which as follows: remedy by due course of law.” TEX. have CONST, agree I with the open, every per-

All courts shall be I, majority protections of Article lands, that the him, injury son for an done in his legislative enact- Section 13 do extend to goods, person reputation, shall have restrict ments allow free access but which remedy by due course law. agree appropri- redress. I further that the CONST., I, guar- TEX. 13. Similar legis- ate standard of review is whether antees are found in the constitutions of outweighs purpose lative for the statute Braden, thirty-seven other states. 1 G. partial litigant’s consti- diminution of a Constitution the State Texas: An right tutionally-guaranteed of redress. Comparative Analysis Annotated and however, vigorously disagree, the ma- appropriate jority’s implication that I, provides sepa- Article Section 13 two standard of review includes the existence guarantees: rate and distinct all courts (individual quid of a reasonable substitute open, (2) every person shall be shall prerequisite pro quo) as a constitutional remedy injury by due course statutory validity. category guarantees law. The former “access,” right category while the latter Review Standard guarantees opin- No of “redress.” juncture depart that I from It is at this indepen- ion of this court has discussed the register my majority opinion, and dis- redress; rather, guarantee dent the fo- challenged statute here restricts sent. The analysis cus of our those has been totally abrogate recovery.2 I but does not impose impos- enactments which article hold that section 11.02 of would sible or unreasonable conditions on a liti- Article Sec- 4590i is constitutional under gant’s right of access to the courts. It is tion 13. abrogation of course entire obvious that an recently the stan- articulated of access results an entire denial of Thus, extent, reviewing constitutionality of redress. to that of dard abrogates inextricably the individual’s access and redress are inter- a statute which discussed, Middleton, ac- gate common law cause of 2. As will be Le- a well-defined neither bohm, Sax, requires presents nor this case an individual a much less this case tion. Because However, quid pro quo. cogent argu- interference, if even I submit the cor- level of intrusive do in ment can be made that these authorities require responding does not standard of review substitute, require fact an individual none of quo; quid pro the existence of an individual partially legislation these cases deal with Lebohm, pro quo quid is sufficient. societal contrary, restrict redress. To these deci- S.W.2d at 955. totally sions construe enactments which abro-

697 Votteler, right 648 ist in the one instance and not in the of access. In Sax (Tex.1983) S.W.2d 661 we noted: other. right bring to a well established [T]he at 561. then could be Id. How Middleton be common law cause of action cannot authority that reasonable rem- substitute effectively the abrogated edy constitutionally required that is when showing legislative the absent a that ba- interpret legislative did decision not even outweighs for the the denial sis statute acts as modifications of non-intentional right constitutionally-guaranteed the of I, protections of triggering the Article Sec- test, applying we of redress. In It simply tion 13? cannot. general the purpose consider both the guarded majority the is in its lan- While liti- and the extent to which the statute implied guage, today’s opinion the basis in gant’s right is of redress affected.... striking down the limitations analyzing litigant’s right to re- the perceived is a lack of a reasonable substi- dress, litigant the has first note that we impairment litigant’s for the tute the First, satisfy. to be two criteria it must right of I believe this re- redress. that litigant cognizable that has shown the quirement can be harmonized our test being of action is commonlaw cause making set out Sax existence Second, litigant must restricted. quid quo a pro an individual in deter- is show that restriction unreasonable factor mining statutory deny- whether the scheme arbitrary against the or when balanced ing constitutionally-guaranteed right purpose and basis of statute. is redress reasonable.

Id. at 666.3 emphasized language It must be that the While we have referred to the nonex- Sax, which refers substitution of a in cases istence reasonable substitute remedies, other is from Lebohm borrowed holding legislative certain un- enactments Galveston, constitutional, City has of v. S.W.2d this court fallen short Yet did not hold- requiring existence of an individual Lebohm limit its pro quo in quid ing order to constitu- of an survive substitution individual Rather, attack. at (citing remedy. tional Id. Middleton court rec- expressly Co., Light v. Texas Power & quid quo S.W. is ognized pro that an individual S.Ct. unnecessary quid pro quo if ex- a societal affd (1919)). L.Ed. 527 It must be noted that ists: open the court Middleton viewed the may ac- legislative Thus it seen that be provision merely proscribing leg- withdrawing common-law remedies tion wrongs. islative abolition of intentional for well-established common-law causes Middleton, 560; Tool Co. S.W. Reed “lands, injuries action for one’s (Tex.1980). Copelin, 610 reputation” goods, person or is sustained legislature modify could Not substituting it only when is reasonable rule the common law of contrib- abolish remedies, when it a reason- other negligence, utory entirely it could abolish power police in the exercise able negligence altogether: general interest of welfare. word, If, Legislature] may in a de- [the added). (emphasis at 955 Id. contributory negligence shall clare that required expressly never has defense, may longer no be it not also quo past; quid pro an individual declare, purely injuries, as to accidental unquestionably restrain now do so would longer negligence action- shall legislature’s ability duty to effect may change If is also defensive able? change through enact- rules, social also common law it not guar- Article Section does change liability? rule ment. a common law a common Legislature the continued existence of power cannot ex- antee Thus, redress, completely abrogated. Although Id. at 667. Sax refers to the bring rather a "redress” undisputed is an "access” case than that the child’s Sax established common law cause of action case. well proscribes action, given injured awards to those of of but the excess law cause caps, are payouts the insurance more readi- or unreasonable impossible of an creation ly predict- calculable. in turn a allows vindi- to access or redress to impediment erected, al- able rate structure to be thus recognized justiciable substan- a and cate lowing on policies to be health care written provision The right. open was tive could providers who otherwise not afford rights, to never intended create new policies the rates exorbitant associated with to elevate the common nor was it intended so- of undeterminable risk. resultant to stature. law constitutional quid quo in cost pro cietal is the decrease in the malpractice insurance of medical 4590i, 11.02 Article Section Sax and and state the increased availabili- Sax, determining the for the Under test suggest there ty of health care. I further constitutionality an indi- of a restriction of quid quo the pro is an because individual right to is whether redress vidual’s pro- caps providers to enable health care outweighs legislative the statute basis for place. in the first Without cure insurance constitutionally-guaran- the denial coverage, adequate it was reasonable Sax, 648 S.W.2d at teed of redress. plain- Legislature to conclude that Krusen, also Nelson 678 S.W. 665. malpractice case would tiff a medical City Hanks v. Port (citing 2d at 922 damages recovery at all with no suffer Arthur, 121 Tex. (1932) 48 S.W.2d 944 insolvent, de- against judgment-proof an Odessa, McCrary v. City 482 S.W. recovery of all I submit that a fendant. test, (Tex.1972)). applying 2d “In this a on expenses, medical costs and general purpose both we consider $500,000 Index ad- plus a Consumer Price extent to which the statute damages, is than justment other better affected.” Sax litigant’s right to is redress Thus, a recovery zero. while potential a withdrawing Legislative action re- should not be substitute reasonable restricting remedy law will be common quired for modifications substituting action, is suggest sustained if it reasonable I is in fact there causes of I Le- (citing quid pro quo this case. remedies. Sax other at 665 sufficient Cali- agree position taken with the bohm). purposes the stated I believe Supreme Court: fornia and Insur- enacting Liability the Medical principles required [Ejven process if due Improvement ance Act demonstrates support stat- pro quo” to “quid some reasonably acted under ute, say be difficult it would standard. malprac- preservation of a viable medical purposes of the stated of article Two industry in this state tice insurance to: 4590i are for the detriment adequate benefit not an hospi- (4) physicians, make available malpractice imposes legislation pro- tals, providers other health care plaintiffs. through against liability potential tection Group, Medical Fein Permanente reasonable the insurance mechanism at Cal.Rptr. n. Cal.3d rates; affordable n. n. 695 P.2d health affordable medical and make more accessible and available care litigant’s determining whether Texas; citizens arbitrarily unreasonably or of redress restricted, distinct characteristics four First, TEX.REV.CIV.STAT.ANN. emphasized. must be article 4590i (Vernon Although 1.02(b) an Supp.1988). is allowed claimant the medical pro quid quo not constitution- ex- individual medical past future all to recover Secondly, these ally required, submit nonetheless limitation. penses without $500,000 of cap in up purposes two reveal that recover plaintiff legisla- damages. Thirdly, the provides 4590i both section 11.02 of article nonmedical adjustment upward an provided for quid quo. The pro ture societal and individual upon the Consum- damages limit based by reducing the society is that benefit fourth, majority places great er Price Index. And the statute emphasis on imposes jurisdictions the fact that a limitation on the some of the upheld imposing statutes providers health care rather than an abso- caps, provided. alternative ceiling remedies were plaintiff lute on the amount a can (citing See 757 S.W.2d 689 Johnson v. St. Thus, multiple recover. where defendants Hospital, Vincent involved, 273 Ind. N.E.2d malpractice plain- the medical (1980); Sibley Sup’rs v. Board tiff can recover each. The statu- Louisiana, opinion So.2d tory applied per limits are on a defendant modified, 477 So.2d 1094 (La.1985)). It per than on basis rather a occurrence basis. noted, however, should be that both clear, therefore, Legislature It is that the caps Indiana and Louisiana have medical limiting was concerned $500,000 as an ceiling absolute all on defendant, each unreasonably not with damages, necessitating my thus view arbitrarily limiting plaintiff the amount a higher justification. level of constitutional aspects can recover. These of the statute Johnson, generally, at 601 N.E.2d distinguish serve to it from other all state (existence patient compensation fund to undergone versions which have constitu- insurance); availability increase of medical tional attack. Sibley, (Louisi- see also So.2d at 156 Act). ana’s Act modeled Indiana’s Nei- Out State Authorities required ther quid the existence of a majority $500,000 The concludes that a pro quo prerequisite. as a constitutional cap damages arbitrary, on nonmedical is De- Smith v. majority’s The reliance on approval Wright v. Central and cites with Insurance, partment 507 So.2d Ass’n, Page Hospital Du 63 I11.2d (Fla.1987), equally unconvincing. Al- N.E.2d Reliance on though $450,000 cap Smith held that a Wright inappropriate misplaced. damages noneconomic violated Florida’s Wright, defendant, relying upon case open provision, courts it did so because no upholding challenges law constitutional “legislative showing overpowering of an Act, Compensation Illinois Workman’s public necessity for the abolishment of maintained there existed under that state’s right, such and no alternative method of damages cap quid pro quo: a societal meeting public necessity such can be recovery potential loss of plaintiffs to some Id. heightened shown.” at 1089. Such a offset the lower medical care and standard is not followed Texas. As stat- society general. insurance costs to previously, applied ed the test to be in the Supreme rejected argu- Illinois challenge under context of constitutional any quid pro quo ment because that existed open provision is Texas’ whether challenged was insufficient to save the of redress is diminution “unreasonable Id., statutory provision. 347 N.E.2d at 742. arbitrary pur- when balanced however, in Wright, The crucial distinction Sax, pose and of the statute.” basis was the court’s concern that under sec- at 666. cannot conclude that statute, expenses medical were Illinois constitutionally infirm under tion 11.02 is capped. Compensa- Unlike the Workman’s Sax. enunciated in the standard Act, tion which allowed all “medical ex- Olson, Ameson v. Reliance on penses payment compensation (N.D.1978) misplaced. is also N.W.2d 125 incapacity,” the duration of ... the medical damages cap was a total North Dakota’s malpractice plaintiff may “be unable to re- cap $300,000 might prevent seri- expenses cover even all the medical he recovering all of injured from ously victims might incur.” Id. Such is not the case in expenses. previously As not- their Texas. Article allows and com- 4590i full ed, case in Texas. is not the such plete recovery expenses; all medical have invali- only damages capped. nonmedical that several states It is true limiting dam- statutory provisions TEX.REV.CIV.STAT.ANN. dated on a (Vernon ages malpractice actions Supp.1988). in medical 11.02 variety excep- (Gonzalez, J., of theories. With two S.W.2d at dissenting). however, tions, these invalidated statutes ceilings pecuni-

contained absolute on both Special Legislation ary nonpecuniary damages.4 What majority intimates that the distinguishes article 4590i from other statu- caps special of article 4590i constitute a law tory is its full schemes allowance all III, in violation of Article section 56 of the expenses; only medical costs and nonmedi- prohibits Texas Constitution. That section injuries cal are limited. Legislature from passing spe- local or laws, except cial provided otherwise approval The majority cites with the lan- CONST, the Texas Constitution. TEX. guage used Flor- Court of Ill, Finley, 56. In Clark v. 93 Tex. ida: constitution- “[I]f S.W. the court defined $450,000 ally cap recovery at there is no opera- “local” law as one which confines its why they reason discernable could part territory tion fixed recovery figure, perhaps other some Id. at 346. A “special state. law” was $50,000 $1,000 or or At 692. $1.” This partic- defined as statute to which relates argument ignores the fact that modifi- Id. persons things ular of a class. legislature cation the makes is subject to being stricken as A re- unconstitutional. duction of to nonmedical a lesser damages caps The cannot be classified as cap point manifestly at some would be so apply local law these because statutes to justice. insufficient as become a denial of equally throughout to all citizens the State Wood, v. 350, of Texas. Tex. Wood 159 property Plaintiffs have no vested 807, (1959); County 320 809 particular damages. in a measure Wilson; 25, Cameron Tex. 326 160 S.W. right” is without doubt since a “vested 162, (1959); Finley, Clark v. 2d 165 54 more ex something must be than mere S.W. 346. Nor can it said that be pectation anticipated based continuance 11.02 section of article 4590i constitutes a title, of existing law. It must become a special law in favor of a certain class of legal equitable, present to or future El we said Miller v. Paso litigants. As in National Car enjoyment property. County, 136 Tex. loading Corp. v. Paso Ex Phoenix-El (1941): 1001-1002 press, 142 Tex. 176 S.W.2d 564 cert, recognize Legislature in courts the [T]he denied, power a rather broad to make classifica- (1944). legislature L.Ed. has legislative purposes for and en- tions to powers scope modify broad to the na and thereof, regulation act laws for the even damages. See American ture such though legislation may applica- such be Hospi & Trust v. Community Bank Co. class....; particular to a such ble tal, Cal.Rptr. Cal.3d legislation apply must be intended to uni- prepared P.2d 670 I am not to hold the formly to all who come within ($500,- that an award close to million $1 Act, designated the classification plus adjustment pro index consumer enough the classification must be broad Act) 11.04 the vided for nonmed and must substantial class include a damages coupled ical with no limitation on legitimately be on characteristics based past expenses and future medical is so distinguishing such class from others arbitrary it and unreasonable that does purpose sought respect public the with pass Therefore, this constitutional muster. accomplished.... to be open is more a violation the Thus, unquestionably provision Legislature is courts Texas Constitution per LeCroy, empowered create classifications than fee increase was according caps scrutiny” Hampshire 4. The two exceptions struck down medical are New Maurer, heightened stan- "intermediate Florida. to a See Carson v. A.2d Insurance, apply (1980); does not such Department Smith dard of review. (Fla.1987). Both standard. 507 So.2d findings by Study things, long as made Commis- sons and so the classifica adopted by the are sion and arbitrary. Where a reason tions are However, findings relationship questionable. classi exists between the able should accord- “legislative facts” which objectives sought to be fication and court, great by particular- this statute, III, ed deference accomplished Article minds can differ as ly because reasonable Id. also is Section 56 not violated. crisis. Davis, causes of the For us (Tex. Smith a crisis state that there is on the “unfind” 1968). legisla- “super is like a record to act It is evident that the class affected separation pow- in violation of the ture” damages caps are health care the medical respect process. must ers doctrine. We providers. Distinguishing class of flaws in the find- exist Whatever from tortfeasors others reasonable ings, proper forum to correct them legislative findings light of the that a medi- Legislature and not this court. the Texas malpractice exists cal insurance crisis reasons, I For the above dissent. Texas, legislative objectives of in- creasing availability affordability 25, 1988 MAY pri- of health insurance this state. CULVER, Justice, determining concurring. test

mary and ultimate caps pass scruti- constitutional whether agree result with the reached III, ny under Article Section 56 has been However, I do so caution majority. there is a for the met: reasonable basis legislative caps I believe that because makes, oper- classification and the law con- awards could be on all within the class. Robin- equally ates under with the Texas Constitution sistent Hill, (Tex.1974). son v. certain circumstances. damages in The limitations contained Conclusion 4590i, 11.02 Tex.Rev.Civ.Stat.Ann. §§ enacted, time At the 4590i was unconstitutionally limit 11.03 would not and affordability in faced with a crisis the was the for a of access to Lucas’ availability in- malpractice and of medical legis- of law” “remedy due course if the crisis, many As a surance. result of the provide and had seen fit to Lucas lature providers physicians and health care had similarly situated with an alternative those scope prac- ceased reduced the of their notes that “in remedy. majority two legis- must tice. We measure whether the damages caps jurisdictions of the arbitrary light lature’s action reme- upheld, the fact that alternative were many though these circumstances. Even provided weighed heavily in the were dies findings legislature of the made the decisions,” citing Johnson St. Vincent experience, upon Texas’ the were based Hospital, 273 Ind. N.E.2d legislature reasonably could have believed Supervisors, Sibley v. Board of and measure of reduc- that without some cost (La.1985), 462 So.2d modified tion, malpractice future medical claimants (La.1985) rek’g, So.2d experience difficulty obtaining col- would ordering remand (latter opinion conditional any of judgments for their dam- lectible challenge). The equal protection on state Thus, ages. the could have rea- legisla- that the state majority observes cap- sonably rationally and concluded that Louisiana had estab- of Indiana and tures damages in ping nonmedical the amount of compensation funds.” “patient lished malpractice improve a medical action would Kee- Dean majority further observes that availability cost of in- the urged compensation victim’s that a ton in the surance State Texas. for the as a substitute fund be established I share damages caps question here. acknowledge there serious I that are expressed by majority the that surrounding the of the the concern questions causes renders these I alternative remedies malpractice insurance crisis. also lack of bal- arbitrary when acknowledge validity caps the some unreasonable that purpose anced and basis the Finally, Texas Constitution. the court statute. itself possibility alludes that provisions may prohibition violate the express I my sepa- have chosen to views against special in the laws Texas Constitu- rately because I do to be not wish under- importance tion. Because and diffi- saying damages stood as caps that all case, culty of the issues I will review I fundamentally unconstitutional. do possible grounds each con- of these five interpret majority opinion to stand for Having stitutional attack.1 found section proposition, such a but extent constitutional, 11.02 to be I make need not majority hold, interpreted to so I separate as to determination the constitu- my view, damages disagree. caps would $150,000 tionality cap alternative scrutiny could constitutional if survive belief, damages. my non-economic I note statutory provided adequate scheme an al- though, erred court further patient remedy, ternative such as a com- holding cap also the alternative unconstitu- fund, pensation catastrophic victims tional. injuries. Equal Protection SEPTEMBER aligned The Lucases all curiae amici PHILLIPS, Justice, dissenting. Chief allege that both limitations violate respectfully I I dissent. would hold that equal protection clause of the Texas $500,000 damages, on non-medical provides clause as fol- Constitution. That 11.02, TEX.REV.CIV.STAT. art. lows: provision does not of the Texas violate men, they a social All free when form hold Constitution. would further man, rights, compact, equal cap operates limit of each men, entitled exclusive or set recovery rather than of each defendant emoluments, public privi- separate plaintiff. public ser- leges, but consideration of vices. I. CONSTITUTIONALITY TEX.CONST. case comes hs- certification protection a stat- questions Equal

of United is violated when by of States law. classi- invidious or unreasonable Appeals Court of for the Fifth ute makes Circuit. CONST, V, The on medical mal- parties TEX. The fications. limitation 3-c. clearly different practice awards treats the federal court case have filed briefs and First, people ways. presented argument this in different oral before court. classes persons those who parties joined on the it differentiates between have issue consti- particular amount 11.02 sue and are awarded tutionality of both section malpractice case damages in a medical cap, alternative TEX.REV.CIV.STAT. Second, it are 11.03, protection from who sue and not. equal under those persons those who open provision between clause and the courts of the differentiates malpractice and are award- sue Texas amici curiae Constitution. Various damages from additionally raising particular ed amount appeared, have also and are sue other torts those who caps whether violate the due course of These differ- similar amount. provisions of awarded a by jury law and to trial procedure here fundamental- appeal, applicable,” the ordinary 1. In an this court would be appeal. ly limited at- In what is essen- in its review those constitutional from an different presented properly preserved advisory opinion tacks to this constitu- tially first ever party attacking validity court, court re- tionally we should rendered Mattox, Bldg. v. statute. See Texas Pub. Auth. necessary to answer resolve all issues view 924, (Tex.1985). 686 927 Because this S.W.2d general- questions presented to fully us. certification, through matter how- comes to us Questions, Brown, State ly Law Certification of ever, jurisdiction is Al- our not so constrained. Brown, (1985); 300 48 Tex.B.J. Certification— though 114(e) Tex.R.App.P. briefing provides for (1977). Action, 7 Cum.L.Rev. 455 in Federalism reasonably under rules the usual “so far 1974, n.r.e.); analyzed enees must be to determine writ —Eastland ref’d Williams, Equality they objectionable under our Guarantees State whether Law, Constitutional 1195, Constitution. 63 Texas L.Rev. 1219 n. 160 Even when our courts challenge equal protection When an scope have held expressly that the law, reviewing made to a court must same, assumption the clauses are the initially appropriate determine the standard identicality is inherent most of our deci Attorney New York General of review. many opinions pri sions. relied Thus have 898, 6, Soto-Lopez, v. n. 906 at marily authority interpreting on federal 2317, 6, 899, 2323 at n. L.Ed.2d See, equal protection the Texas clause. (1986) (plurality opinion). n. 6 907-08 at Inc., e.g., Project Principle, v. State put, Simply must decide how 387, (Tex.1987); Spring S.W.2d strictly to examine the classifications made Stamos, v. 556, Branch I.S.D. 695 S.W.2d particular by the statute. King v. Board Trust (Tex.1985); 559-60 aligned its United States and amici ees, 925, (Tex.Civ.App.— 555 S.W.2d 928-29 interprets equal pro- Texas contend that its n.r.e.). El Paso ref'd Most writ tection clause the same manner as the courts no have drawn distinction between interprets the United States equal protection state federal clauses corresponding provision of the United See, e.g., when have both been invoked. their States Constitution. Plaintiffs and Lafferty, San Antonio Retail Grocers curiae, hand, aligned on the amici other (1957); Ger 156 Tex. 297 S.W.2d 813 requires insist that the Texas Constitution Smith, (Tex.Civ. ard v. S.W.2d scrutiny a more intense dis- App. ref’d); Stout Paso writ — El equal protection does tinctions than I.S.D., Grand Prairie S.W.2d clause of the Fourteenth Amendment. ref’d, n.r.e.); (Tex.App. writ — Dallas opinions, From a review our I believe Smith, (Tex. Smith v. 720 S.W.2d traditionally that Texas writ). App. [1st Dist.] — Houston adopted equal protection federal analy- fact, many From opinions, of this court’s interpreting equal protection sis in our own impossible it is even to ascertain whether course, provision. Of our courts are free protection claims, equal federal or state give independent meaning to similar or both, being litigants. asserted were language even identical state constitutional See, City Village v. e.g., Brookside Co given by from that the federal courts the mean, (Tex.1982); 795-96 clear- United States Constitution. Just as Chayklintaste, Texas Woman’s Univ. however, ly, may defer to inter- we federal (Tex.1975); S.W.2d pretations provisions giving similar Rights Wright, Water Comm’n v. See, meaning to our Constitution. own (Tex.1971); State v. 642, 650-51 State, (Tex. e.g., Brown v. 657 S.W.2d 797 Inc., Indus., Spartan’s Developments in the Law Crim.App.1983); (Tex.1969). obviously 412-13 Texas courts Interpretation —The State Constitu- analysis equal protection look to federal (1982). Rights, tional 95 1324 Harv.L.Rev. provision. interpreting our own wording equal protec our While protection equal clause applying the seems broader than the corre tion clause Amendment, the United of the Fourteenth sponding provision of the United States has articulated three States Constitution, no decision of a Texas court scrutiny. appli- The choice of the levels of actually held that this textual has ever examining cable is determined both tier a the con distinction makes difference. On rights and the affected classes trary, both courts and commentators have challenged made in the statute. distinctions protections that the are identical. concluded Co., level of scrutiny, rigorous most Ry. K. & T. Strict Lively v. Missouri 102 See (1909); review, applied a law burdens an 558-59, 852, is 545, 856 Tex. 120 S.W. suspect funda- Lee Cen inherently class affects Bd. v. Vision Optometry Texas justify ter, Inc., 380, liberty right. burden (Tex.Civ.App. 386 mental 704 party affecting such a distinction rests on the de them usually strictly scruti it, fending upheld and such a law cannot be nized. Such include those funda compelling unless it serves a state interest guarantees mental Rights the Bill of “closely and is tailored to effectuate applied incorporation State into Redhail, v. Zablocki those interests.” 434 process the due clause of the Fourteenth 374, 388, 673, 682, 98 54 U.S. S.Ct. L.Ed.2d Amendment, right as well as the of free 618, (1978). Intermediate, middle-tier, 631 association, NAACP v. Alabama ex. rel. scrutiny applied or means when statute Patterson, 449, 460-61, 357 U.S. 78 S.Ct. sensitive, suspect, burdens a but not a 1163, 1170-71, 1488, 2 L.Ed.2d 1498-99 class, impinges important, on an but not (1958), right political of access to the fundamental, Tribe, See L. Ameri right. process, Harper Virginia v. State Bd. of (2nd can Constitutional Law 1610-18 ed. Elections, 663, 666, 1079, 383 U.S. 86 S.Ct. 1988). subjected scrutiny Laws to this 1087, 169, (1966), 16 L.Ed.2d 172 important governmental objec “must serve States, Shapiro v. travel between substantially tives and must be related to Thompson, 618, 634, 394 U.S. 89 S.Ct. Craig v. objectives.” achievement of those 1322, 1331, 600, (1969), 22 L.Ed.2d 615

Boren, 190, 197, 451, 458, 429 U.S. 97 S.Ct. privacy personal in certain deci 397, (1976). remaining 50 All L.Ed.2d 407 sions, Loving Virginia, v. 1, 12, 388 U.S. legislation subject only to minimal scruti 1817, 1823, 1010, 87 S.Ct. 18 L.Ed.2d ny, upheld long and will be so as the classi (1967), perhaps others. 2. R. Ro “rationally fications made are related to a tunda, al., Treatise on Constitutional et City legitimate Cle state interest.” Law, (1986). 79-86 Center, Living burne v. Cleburne 473 U.S. 432, 440, 3249, 3254, 105 S.Ct. 87 L.Ed.2d scrutiny ap- Intermediate has also been 313, (1985) (plurality opinion). Under plied sparingly by rather the federal standard, statutory discrimination employed courts. It has been almost exclu- upheld will be “if state of facts reason sively where distinctions have made been ably may justify be conceived to it.” Boren, regarding gender, Craig supra, v. Maryland, v. 420, 426, McGowan U.S. Lucas, illegitimacy, Matthews v. 427 U.S. 1101, 1105, 393, 81 S.Ct. 6 L.Ed.2d 505, 2755, 2762, 495, 96 S.Ct. 49 L.Ed.2d Almost all distinctions 651, (1976), perhaps alienage, 660-61 scrutiny. will withstand this level Doe, Plyler 202, 223-24,102 see v. 457 U.S. applied The federal courts have strict 2382, 2398, (1982), 72 L.Ed.2d S.Ct. race, scrutiny very sparingly. Only although occasionally other classes have perhaps origin, consistently national slightly heightened scrutiny. been accorded suspect, Loving Virgi- regarded been as See, e.g., City Cleburne v. Cleburne nia, 388 U.S. 18 L.Ed.2d S.Ct. Center, (mental retardation). Living supra (1967); Brown v. Board Edu- independent equal protection Because no cation, 347 U.S. 74 S.Ct. 98 L.Ed. developed analysis has been under the Tex States, (1954); Korematsu United Constitution, apply our courts the same S.Ct. 89 L.Ed. 194 scrutiny with identical standards of tiers of (1944), although alienage has at times been challenged review to classifications under Compare Graham v. this status. accorded See, equal protection clause. Richardson, 365, 372, 403 U.S. Stamos, Spring I.S.D. v. e.g., Branch 29 L.Ed.2d (Tex.1985) (applying mini Connelie, Foley involving ec scrutiny mal to classifications 1067, 1071, 287, 98 S.Ct. 55 L.Ed.2d 293 Houston Chron policy); social onomic and (1978). Similarly, only those fundamental Houston, , Publishing City icle Co. liberty rights “explicitly implicitly guar- of 833, (Tex.Civ.App.— 620 838-39 S.W.2d Antonio Constitution,” San anteed 1981, writ) (apply Houston no 1, 33-34, Rodriquez, I.S.D. [14th Dist.] 93 scrutiny 1278, 1296-97, 16, ing strict under both state S.Ct. 36 L.Ed.2d 43-44 (1973), important constitutions to First Amendment are so that classifications federal intermingled of the rights);2 had its discussion fundamental In Interest cuit of B.M.N., 493, (Tex.Civ. guarantees Tex- under the equal protection 498-500 1978, writ) constitutions, App. (applying in so do- federal as and — Texarkana scrutiny state and intermediate under both stated inconsistent formulations ing had federal constitutions to based classification basis said: the rational test. The Court illegitimacy). stated that [Fifth Circuit] [T]he requires legislative test that action test “[t]he

The rational basis is the measure rationally accomplish- are, be related to the be, which most laws and should legitimate purpose,” ment of a state Making judged. classifications is at the federal decisions cited both and state heart of the function. If the support of that In the sec- every to strike statute formulation. courts were down paragraph, people differently; which treated different ond the court stated that system requires there could be no efficient of laws. test legislation con- that “[t]he ‘reasonable, Even if the courts were to strike down stitute a means that is majority those classifications which a arbitrary ground and rests some unsound, judges felt having unwise the consti- difference a fair and substantial tutionally powers mandated division of be- relation to the object legisla- of the government tion....,’” tween such branches our quoting from a decision of substantially would be gener- altered. See Supreme Court, the Texas Texas Wom- CONST, ally II, TEX. 1. The least University v an’s Chayklintaste, government democratic branch would 927, (1975), quot- SW2d which turn powerful, most resulting become the with a Reed, v ed from Reed 30 L US people’s right diminution in the of self- 225, 92 Ed 2d S Ct 251. A number government. Berger, generally See R. this Court’s decisions were cited as in by Judiciary Government Although accord with this formulation. reasonably sure, might cannot be we we The Lucases and curiae associated amici infer that the second formulation assert, however, entirely that Texas has Appeals’ in- represents the test Court abandoned the federal test. rational basis of Texas law. terpretation primarily on lan- This contention based 17, 1077 n. opinion at guage from one of the United 294 n. at 455 U.S. Supreme opinions of The Court 17, States Court and two at n. 17. L.Ed.2d 162-63 my opinion, this In court. none of these formulation” find the “second went on to support decisions Tex- proposition federal with current at variance developed equal pro- has independent an saying: analysis, tection standard. from formulation is derived opinion Royster Guano Court’s F.S. Castle, City Mesquite v. In Aladdin’s 415, 412, L Ed Virginia, US Co. Inc., 71 L.Ed. S.Ct. Ct 560. is unclear 40 S But it 2d 152 declined Court Roy- apply whether this would constitutionality Texas to rule on of a present ster case. Guano standard to municipal ordinance because the Fifth Cir- See Retirement United States Railroad Appeals might have reached cuit Court Fritz, 166, L Ed 2d Bd. v. 449 US independent grounds under its judgment 453; Boren, 429 US Craig 101 S v taking note Ct After the Texas Constitution. There- L Ed 2d Ct 451. 97 S lan- “arguably significantly broader” of the clause, fore, surely not evident equal protection Texas guage of the standard standard and the federal at Texas 102 S.Ct. at 71 L.Ed.2d id. congruent. Fifth Cir- are observed that the the Court Amendment, scrutiny heightened un- matically subjected to Equal Rights Pursuant equal protection clause scrutiny applied to all der the is also in Texas strict McLean, 725 involving Interest protected classes of Constitution. classifications (Tex.1987); Board color, Mercer v. sex, race, origin. creed national CONST, Trustees, (Tex.Civ.App.— affect- 3a. Classifications TEX. of Houston n.r.e.). not, however, writ refd Dist.] categories [14th also auto- ing these 706 Changing on a 294, 455 Doctrine 1077, U.S. at Evolving 102 S.Ct. at 71 L.Ed. Equal

2d at 162-63. A a Newer Pro- Court: Model for (1972); tection, 1, 30-36 86 Harv.L.Rev. Supreme Court’s deference to Response to the Medi- Redish, Legislative principles of federalism is commendable. Consti- Malpractice Crisis: cal Insurance is, however, equal There no different Texas Texas L.Rev. Implications, tutional 55 protection opinion This court’s standard.3 face, Reed 759, (1977). pur- On its 771-73 in Chayklintaste, Supreme which the basis merely another rational ported to be rationale, only Court based its relied not case, clearly so understood was Reed, Royster, v. on McGinnis but also 410 important, More Chayklintaste4. in 263, 1055, 1062-63, 276, U.S. 35 93 S.Ct. not even de- probably was Chayklintaste 282, (1973), L.Ed.2d 292 which articulated While Constitution. the Texas traditional, cided under deferential formulation of the file reveals of the entire a review although rational basis standard. And state and federal plaintiff asserted both Reed was later recognized as the seminal opinion grounds, itself standard, equal protection case of the scrutiny intermediate did authorities and solely on federal immediately perceived. so relied See was either constitution. expressly refer Foreward: In Search Gunther, generally Aladdin, restrictive formulations panel Royster Guano and less 3. On an unanimous remand in after Reed. See test until indepen- of the rational basis the Fifth that no Circuit determined 166, Fritz, v. 449 U.S. protection Retirement Bd. equal dent standard exists. U.S.R.R. 174-75, 368, 453, 459, opinion 66 L.Ed. 375-76 Slip Op. 101 S.Ct. was vacated on 15958. This Cleveland, however, rehearing, Supreme (1980); U.S. City East 431 because the Court Moore v. 1962, 531, 1932, 494, 551, only had 52 L.Ed.2d remanded the cause for clarification as 97 S.Ct. J., original grounds (1977) (White, dissenting); opinion, v. for the not for Trimble 569-70 784-85, 1459, 762, Gordon, adequacy any redetermination of the inde- 97 S.Ct. U.S. 430 pendent J., grounds. (1983). 31, (1977) 1472, (Rehnquist, state 713 F.2d 137 52 L.Ed.2d Supreme Beto, 319, 4, City's Court thereafter n. dissenting); denied the 405 U.S. 326 v. Cruz Supreme 4, 263, motion 1079, to recall the judgment. 270 n. 4 Court’s 31 L.Ed.2d 1083 n. 92 S.Ct. 927, 329, 464 U.S. J., 104 S.Ct. dissenting). majority 78 (Rehnquist, L.Ed.2d 300 No (1983). acknowledged Royster opinion of the Court scrutiny of middle-tier as a statement Guano 380, 391, Mohammed, The standard in Reed 441 U.S. 99 Caban v. was taken from F.S. until Royster 297, (1979), Virginia, 415, 1760, 1767, Guano '412, v. 306 253 L.Ed.2d U.S. 40 S.Ct. 60 560, 561-62, S.Ct. 989, 64 L.Ed. court decided years after this 990 more than three Supreme Court case from the Chayklintaste. now discredited era of judicial intense Caban, activism justices in re- social and still have Even after some spheres. economic Pitney, Authored Justice a valid language Royster garded Guano with both Justices Brandéis and Holmes in dis- See Za- basis test. rational statement sent, Royster 673, 400, was 374, Guano not cited majori- in Redhail, S.Ct. 98 v. 434 U.S. blocki ty opinion of J., (1978) (Powell, Court between 688, 618, 1938 and 1957. 639 54 L.Ed.2d obscurity Its Fritz, the lower courts was even more Bd. v. Retirement concurring); U.S.R.R. striking, it being 464, cited once in 184, the Federal L.Ed.2d at at 66 S.Ct. at 101 449 U.S. Reporter and twice Supplement J., Federal dissenting). (Brennan, As Justice Powell 382 between 1936 and 1970. citing Royster Guano in his dissent stated 221, 243, With Wilson, the emergence U.S. 450 Schweiker modern rational standard, basis 186, (1981): 1087, 1074, Royster 203 occasionally Guano 67 L.Ed.2d cited as an to hold diver- example of continue of this Court scrutiny. minimal Members Allied Ohio, legisla- Stores clarity Bowers, gent Inc. v. views on the 358 U.S. 480, 522, 527, omitted], 437, 79 441, appear [citations purpose S.Ct. must 3 tive L.Ed.2d 485 (1959); Morey Doud, afforded degree of deference 465, 457, about 77 1344, S.Ct. 1350, suiting [cita- to ends 1485, means legislature in 1 L.Ed.2d 1491 Reed, After it was cited omitted]. more tions frequently both state Castle, Inc., courts, federal v. Aladdin's City Mesquite particularly gender See also classification 296, 297, 71 E.g., cases. at Robison, S.Ct. 102 Johnson v. U.S. at White, JJ., U.S. 374-75, (Powell S.Ct. L.Ed.2d L.Ed.2d (1974); Stanton, dissenting). separately Stanton v. 7, 14, U.S. 1373, 1377, suggestion S.Ct. background refutes 43 L.Ed.2d (1975); Craig Boren, Reed citation to court’s Supreme that this Court S.Ct. adop- 50 L.Ed. (1976) (Powell, might demonstrate Chayklintaste J., concurring). scrutiny No under justice, stricter level tion of a however, acknowledged any distinction Texas Constitution. between

707 tution, remaining proposi- Legal Tex. argument The for the Services Center Alert 1987), 16; The Tex- indepen- (August Harrington, tion that Texas has established an at Liberties, Rights equal protection of as Bill and Civil dent standard review 17 from 1487, (1986), under the Texas Constitution comes Tex.Tech.L.Rev. 1517-19 opinions day: two decided on same sufficiently such not been ar- standard has Bynum, 699 v. 194 Whitworth S.W.2d permit application to ticulated to its other Spring Branch I.S.D. v. (Tex.1985), cases. Stamos, (Tex.1985). S.W.2d 556 695 I, therefore, reject the that Texas notion Whitworth, true, is did opinion court’s it independent equal protec- an has devised cryptically refer a “Texas version supported analysis. tion This conclusion is test.” 699 at 197. rational basis S.W.2d by language from most the recent deci- articulated, however, “version” As this See, e.g., State v. sions of our courts. only entirely for the unremarkable stood 387, Principle, 724 Project 391 S.W.2d must propositions that classifications State, (Tex.1987); Vasquez v. 739 S.W.2d “legitimate “rationally related” to a state 37, (Tex.Crim.App.1987); 43 Twiford “similarly indi- interest” and situated Dist., County Appraisal 725 Nueces S.W. equally must be treated under viduals 325, (Tex.App. Corpus 2d n. 5 Christi 328 — statutory there classification unless 1987, n.r.e.); County Aransas ref’d writ Id. doing rational so.” basis Appraisal Bd. Texas Review Gulf tradition- These are classic formulations of Co., 186, (Tex. Shrimp 195-96 Stamos, scrutiny. the other al minimal 1986, App. Corpus Christi writ ref’d n.r. — hand, expressly state and drew both e.); Massachusetts Indem. & Ins. Co. Life authority describing equal federal Texas Ins., 104, v. Texas State Bd. protection review. While both Whitworth writ). no (Tex.App. —Austin and Stamos relied heavily on this court’s independent If an standard is articulated University decision in Sullivan v. Inter- future, forthright decla- must be (Tex. League, scholastic 616 S.W.2d 170 court, majority ration from a this 1981), that reliance does not indicate the sporadic suggestion implication. Sullivan creation of a new standard.5 was if announces an When court solely protection the equal based clause standard, independent equal protection Fourteenth Amendment to the Unit- appreci- trust will do so with a full that we Constitution; ed States violation of the uniformity, legitimacy, ation for the loss alleged Constitution even in that certainty, economy flexibility, subsequent reliance on Sullivan case. Our Develop- imposes. See judicial activism only thus reinforces the traditional defer- Law, at ments in the 95 Harv.L.Rev. 1357- ence this court standards federal 58,1460-63, Maltz, The Dark Side State protection applying equal when clause Activism, 63 Texas L.Rev. of the Texas Constitution. some While now, For I am satisfied with the might members of want to create standard, struck the three-tiered federal LeCroy see v. Han- separate balance lon, vantage v. By- 338; approach. From the “isolated Whitworth S.W.2d num, espe- 5; Kilgarlin, litigation process,” judges are n. at 197 Equal Protection cially ill-equipped people’s set Under Texas Consti- aside Sullivan, (1970); Yeager, purporting apply Rinaldi v. while mini- scrutiny mal under United Constitu- States "strict S.Ct. L.Ed.2d tion, state-imposed barring Sullivan, struck down a rule equal analysis” protection 616 S.W. participat- an underclass transfer student from scruti- intermediate 2d at reminiscent ing varsity sports year because for one its Tribe, ny. Law L. American Constitutional See made it "overbroad irrebutable classifications and overinclusive.” 616 S.W.2d at 173. Since Therefore, apparently de- Sullivan 1603-04. princi- parted federal constitutional from settled Court has been of overin- tolerant Harrington, reaching ples its result. See legislation scrutiny, ag., clusive under minimal Liberties, Rights Tex. and Civil Texas Bill of Bradley, Vance v. (1986); generally 2 see L.Rev. Tech (1979); Dandridge 59 L.Ed.2d Rotunda, Law 248. R. Constitutional 471,90 Williams, 397 U.S. S.Ct. 25 L.Ed.2d

legislatively expressed except personal injuries will where sue for is fundamental. potential majoritarian Note, The Fairness and Constitution- abuse compromised precious rights our most ality Statutes Limitations Toxic for traditionally op- or discriminated Suits, Tort 1683, 1693-94, 96 Harv.L.Rev. generally See pressed groups. D. Horo- (1983); Witherspoon, Con- 1697 n. witz, 45-51, Policy The Courts and Social stitutionality the Texas Statute Limit- (1977). 274-84 has served our ing Liability Malpractice, Medical by deferring state well to the federal stan- 419, 453, (1979). Tex.Tech L.Rev. interpreting equal dard when the Texas arguments unpersuasive. These are Not protection clause. every right remedy trig- constitutional already The Fifth Circuit has determined gers heightened equal protection review. scrutiny applies that minimal to this case Only liberty rights those fundamental “of equal protection analysis under federal and importance society” basic in our have been equal protection that withstands accorded such status. Boddie v. Connecti- analysis scrutiny. under that As far as cut, 371, 374, 780, 784, 401 U.S. 91 S.Ct. concerned, my this lawsuit is conclusion (1971). right L.Ed.2d 116-17 to equal protection that federal and state doc- jury right trial is not a fundamental under trines identical should foreclose further are Constitution, the United States as that discussion of this issue. To answer the right has not been extended to the states however, question, Fifth Circuit’s certified by incorporation process in the due clause must we ourselves determine the constitu- of the Fourteenth Amendment. Minne- tionality of the statute in a manner that Bombolis, apolis & St. Louis R.R. Co. v. apply will to future cases this state. 60 L.Ed. 961 Therefore, I feel constrained to make an (1916). Access to the courts is also not a independent determination of constitution- right of that fundamental unless denial ality equal protection under the state impinges recognized access itself on a fun- doing, appropri- clause. so I believe it is See, e.g., Ortwein v. right. damental rely ate both Texas and federal au- Schwab, 656, 658-60, 93 S.Ct. thorities. (1973) 1172, 1172-75, L.Ed.2d return, then, inquiry: I to the initial (access to courts to seek welfare relief not appropriate scrutiny. level of For the rea- right). Being grounded a fundamental below, agree sons discussed with the constitution, law, not the common Fifth Circuit and with the dissent Justice compensation for right to receive tortious scrutiny appropri- Gonzalez that minimal is See, e.g., injury simply is not fundamental. ate. Merlo, 882, 106 Brown v. 8 Cal.3d 388, 407, (1973). suggests Cal.Rptr. amicus 506 P.2d One curiae that strict scrutiny apply applied the statute Those few states which have strict should because simply scrutiny to the courts and trial in a similar context are affects access alleged rights these outside the mainstream of state constitu- jury. Both of See, Kenyon e.g., they appear jurisprudence. in our tional be fundamental because CONST, Hammer, Constitution, 688 P.2d TEX. 142 Ariz. §§ (holding right of access to and have their that “fundamental damages bodily injury fun- genesis express implied provi- recover damental, noting numerous other personal liberty recognized in the but that sions of otherwise).6 Texas Spring held Under federal and state constitutions.” states have states, Stamos, law, simply in most there is Branch I.S.D. v. 695 S.W.2d at case applying scrutiny to this suggested no basis for strict 560. Other commentators have Smith, Battling a legislation. personal security type that the interest Receding Tort Frontier: Constitutional integrity bodily accompanying the abrogated, recov- probably explained by and the amount is shall never be 6. The result Arizona any statutory subject limita- express provision not be Constitution that ered shall its CONST, personal injuries 6.§ recover tion.” ARIZ. "the action to Laws, It is ceil- Malpractice 38 tutional muster.8 obvious Attacks Medical 204-05, recovery ing Okla.L.Rev. on maximum legit- rationally related to the stated and remaining aligned The Lucases all goals reducing imate exces- less amici contend that some restrictive claims, severity of health care sive heightened scrutiny appropriate. form of claims, decreasing making the cost of those offered, principal reason reasonably affordable rates insurance heightened scrutiny to has extended all providers, health care and mak- available to classifications, is merit. A second- without ing affordable health care more accessible argument ary also advanced is that public. TEX.REV. and available to sufficiently impor- interests affected are 1.02(b). See Rose CIV.STAT. justify tant intermediate review. One Facilities, Hosp. 735 S.W.2d v. Doctors involving “in argues amicus that a case 1987, 244, (Tex.App. 250-54 writ longstanding rights, denial of common law —Dallas granted). Neither the Lucases nor am- adopt court should a stricter standard [the] curiae, fact, caps ici in asserts that for constitutional review than the rational case, protection equal test.” No or Texas under a rational basis federal violate however, suggested height- relationship analysis. though has ever Even some scrutiny appropriate courts, Texas, in including ened this area. state those of have See, e.g., Duke Power Co. v. Carolina occasion seemed more amenable than Inc., 59, 83, Group, Study Envt’l striking statutory federal courts to down 2620, 595, 2635, 98 57 627 see, S.Ct. L.Ed.2d scrutiny, classifications under minimal (1978) constitutionality (upholding the e.g., San Antonio Retail Grocers v. Laf- million limitation total 574, (1957); $560 Tex. ferty, 156 297 S.W.2d 813 accidents, describing for nuclear Law, 95 Developments in the Harv.L.Rev. example limitation as “a classic of econom- 1463-93, at the courts of last resort regulation”). ic Unless the common law is every the rational basis test state where signifi- be elevated constitutional malpractice employed upheld has been have cance, holding see can no reason so protection challenges. caps equal now.7 Group, Permanente Medical See Fein v. 368, 137, 161-64, Cal.Rptr. 211 38 Cal.3d test, opinion, my The rational basis 385-87, 665, (1985); provides 695 P.2d 682-84 John- appropriate scrutiny level of Inc., 273 Ind. provisions question. Hosp., v. for the son St. Vincent Under this 585, standard, 374, 391-93, provisions clearly pass consti- 404 N.E.2d 600-01 scrutiny Supreme applied 7. intermediate It is true that courts three other states have Court applied scrutiny intermediate to somewhat sim- the state constitution and the Four- under both involving any meaningful ilar statutes ages dam- Amendment without teenth Medicine, 133, analysis. v. limitations. Jones State Bd. 270 N.W.2d at 135-136. 859, 870-71, 399, 97 Idaho 555 P.2d 410-11 cert, courts, state, denied, (1977); like the federal 8. The courts our 914 Carson 925, 933-34, 825, vary- Mauer, the rational basis test in have articulated 120 N.H. 424 A.2d v. (1980); Olson, Spring ing ways. Compare I.S.D. v. Sta- Branch 270 N.W.2d 830-31 Ameson v. 559, 125, (N.D.1978). mos, v. at with Friedman Amer- 132-33 I find none these Co., persuasive. Surety cases 137 Tex. S.W.2d ican distinctions, 570, (1941). These textual Jones, Supreme deter- In Idaho however, generally had little effect on have scrutiny appropriate mined the level under fact, In our courts result of the cases. by federal constitutions not both state and seemingly frequently two or more combined examining involved classes affect- articulating disparate the ra- standards when ed, concluding but that it did not like the See, e.g., Texas Woman’s standard. 871, tional basis question. 555 P.2d at statute in Idaho Chayklintaste, supra; Railroad Comm’n Carson, Univ. v. Hampshire In New 670, (Tex.1968); Miller, Univ- S.W.2d acknowledged applied Court scrutiny that it intermediate League ersity v. North Dallas Interscholastic only to its Constitution not those under Ass’n., courts, Soccer S.W.2d Chamber Commerce categories "but enunciated the federal (Tex.Civ.App. no examining legisla- 516-17 and social also economic —Dallas Chevrolet, writ); McLarty, Inc. did distinctions based tion which not involve Crawford (Tex.Civ.App. gender illegitimacy." N.H. at —Amarillo Ameson, writ). the North Dakota 424 A.2d at 831. Nelson, (semble); Prendergast Crawford, 199 Neb. 68 Tex. 3 S.W. 97, 113-14, (1887) (statute 256 N.W.2d requiring court instead of I, therefore, agree dissenting opin- with the jury adjudication plaintiff’s damages af- ion of cap Justice Gonzalez that the does ter defendant’s default held unconstitution- equal protection not violate under the al); Tex- Houston, Hatten v. City as Constitution. 535 (Tex.Civ.App. writ —Houston n.r.e.) (statute ref’d requiring adjudication Right Jury Trial validity system of water revenue bonds and proceedings suggest Several amici curiae incident to the issuance that the right jury thereof by jury provision violates the to trial instead of held uncon- stitutional), Constitution, provides, right of the Texas if is satisfied access part: to some disputed determination of issues by jury preserved. caps fact Since the by jury to trial shall remain destroy do not plaintiff’s right jury to a Legislature pass inviolate. The shall justiciable resolution of a controversy, they regulate such laws as be needed to do not same, by jury. violate the to trial purity and to maintain its efficiency. upheld This court a far more radical mod- common law remedies Mid- ification of in CONST, Co., dleton Light v. Texas Power & TEX. disagree. 15.9 I 96, Tex. 185 S.W. 556 it when found acknowledge guarantee that the Texas Compensation the Texas Workmen’s Act right by jury to trial is much broader constitutional. The court said: guarantee than the afforded under the Sev- impair right Nor does the Act enth Amendment to the United States Con- by jury. by jury trial Trial cannot be litigants stitution to civil in federal inquiry non-judicial claimed in an courts.10 The Texas Constitution has been character, respect pro- its or with to by protect held right this court to “the to ceedings before an administrative board. by jury trial jury those cases where a charged The Accident Board with the law,” proper would have been at common administration of the Act is not a right ... “where that existed at the time the disputed court. In its adopted,” determination State v. Credit Constitution was Laredo, Inc., Bureau right jury claims there could be no to a (Tex.1975), including appeals trial. The Act authorizes from “cases of a sim- courts, arising ilar character under the decisions of the Board to the statutes enact- subsequently adoption jury ed to the where a trial of the matters in dis- of our White, v. White pute, Constitution.” 108 Tex. under the law as embodied in the 570, 581, (1917). Act, may 196 S.W. be had. Thus, 108 Tex. at 185 S.W. at 561-62. Constitution, however,

Our cannot be joined virtually every other state expansively preclude any read so as to holding jury stage that access to a at some modification of the remedies available un- for resolution of some claims was suffi- rights. Although der those common law compensation pass cient for scheme to zealously guarded our courts have See, see, e.g., Deibeikis e.g., right constitutional muster. White by jury, to trial Co., White, 454, 466,104 supra, v. Link Belt (statute Ill. requiring N.E. adjudica- (1914); Hunter v. Consol. sanity by physicians tion of commission of Colfax Co., 245, 325-27, unconstitutional); Cen- Coal jury instead of held 175 Iowa 154 N.W. Montgomery tral & R.R. Co. v. Morris & CONST, V, Bombolis, supra, our courts

9. See also TEX. Louis R.R. Co. v. guidance almost seek from federal au- never substantially protec- 10. Because of our broader interpreting provision our thorities in tions, protections and because of the Seventh Rutledge Rutledge, Constitution. But see Amendment have not been to the extended (Tex.App. Worth —Fort through process states the due clause of the writ). Amendment, Minneapolis Fourteenth & St.

7H remedies, passage jurisdictions in at least three law as with Courts have, however, Act, caps Compensation held that Workers’ but abolished infringe right altogether, repeal the constitutional to them the recent Búlala, Boyd F.Supp. jury conversation, trial. actions for criminal TEX. (W.D.Va.1986), a 4.05, federal and alienation affec- FAM.CODE § Virginia cap found the unconstitutional un- tions. 4.06. Such le- TEX.FAM.CODE § Virginia both the United States and der gitimate governmental activity does in- Constitutions, stating part: See Coul- right by jury. vade the to trial Melody, (Tex. ter v. assessment of a

Since the n.r.e.) jury Civ.App. fact issue committed reso- ref’d writ —Texarkana lution, performance by limitation on the (right jury infringed statu- trial is a on the role of provision plaintiff’s that function limitation tory which eliminated jury.... marriage right challenge relative's consent).

showing lack of extraordinary requirement ... Accordingly, I would hold that re- relation to the doctrines provi- bears no jury trial does not violate the mittitur, trial, judgment new not- sion of the Texas Constitution. See John- verdict, withstanding the cannot Hosp., Inc., 273 Ind. son v. St. Vincent upon the inherent be founded court’s (1980) (mal- 404 N.E.2d power judgments. verdicts and In- over practice caps not to held violate deed, permissible there exists no basis Constitution). jury under Indiana trial entering judgment predetermined place judgment of a Due Law Course of properly jury, verdict reached aligned curiae with the Lucas- Two amici also v. De- (emphasis original). See Smith violates the es also contend that Ins., partment 507 So.2d 1088-89 guarantee process of the Texas Consti- due Malpractice Kansas (Fla.1987); Victims tution, provides as follows: Bell, Coalition v. 243 Kan. 757 P.2d deprived No shall be citizen this State (1988). life, privileges liberty, property, or arguments prove These too If much. immunities, or in manner disfran- Legislature jury’s cannot limit a award in chised, except of the by the due course case, one then neither can it increase a law the land. jury’s analy- award another. Under the CONST, I, 19. This section is TEX. art. accepted sis of Boyd, § remedial measures process guarantee,” due multiple knowing “traditional such as stat- guaran- see, violations, corresponding process to the due e.g., TEX.INS.CODE utory Amendment to the 21.21, 16(b)(1), tee of the Fourteenth clearly would also United States Constitution. See Sax fall. Votteler, 664. separation powers If the to be process meaningful, federal and state due legislative Both the branch proce- guarantee of pass originated as a government authority must clauses have CONST, TEX. availability scope laws which alter the dural fairness. interpretative commentary. American of remedies. To hold otherwise would evis- however, long imparted courts, a sub- Legislature’s remedy ability cerate the “to language as meaning to the well. they stantive defects in the common law as beyond proper legislation goes developed, adapt changes When and to it to the life, “any activity, sphere government time and circumstances.” Munn v. Illi- a law is nois, property limited such liberty L.Ed. U.S. Silver, the Con- process because also taken without due Silver government the 157-58, granted the 117, 122, stitution never 50 S.Ct. 74 L.Ed. Rotunda, 2 R. pass a law.” (1929). Thus, ability to such Legislature our has Law on Constitutional common Treatise only time from time to not limited For many years, the United contend, States Su- Some however, that our state preme applied pro- substantive due provision due course rigorous more than analysis quite cess expansively. By requir- process. federal due Richards, State v. ing legislation to bear “a real and substan- 166, 171, 157 Tex. tial public health, relation to the safety, (1957), example, this court apparently morals, or some phase general other of the departed from federal standards in describ- welfare,” Liggett Louis K. Co. v. Bal- ing requirements of substantive due dridge, 105, 112, 57, 59, 278 U.S. process as follows: 73 L.Ed. the Court struck police line where power of the down hundreds of state and federal laws state encounters the barrier of substan- Tribe, between 1897 and 1937. L. Ameri- tive process due susceptible is not can Constitutional Law 567 n. 2. This exact general definition. As a rule the unprecedented judicial usurpation public power with, is commensurate but does policy vigorously choices was decried at the exceed, duty provide for the time, public judicial confidence in the real people health, needs of the in their process severely compromised. As safety, comfort and convenience as con- explained Justice Holmes in his famous dis- sistently may private property be with York, Lochner v. New sent in rights_ large A discretion is neces- 539, 546, 547, S.Ct. 49 L.Ed. sarily Legislature vested in the to deter- (1905): mine what the interests of the This case is decided an economic public require, but what measures are theory large part which a country of the necessary protection for the of such in- does not entertain. If it question were a terests. If there is room for a fair dif- agreed whether I theory, with that I opinion ference of necessity as to the should study desire to long it further and reasonableness of a enactment making before up my mind. But I do not subject on a which lies within the domain my conceive that duty, because police power, the courts will not strongly believe my agreement hold it void. [Citations omitted]. disagreement nothing has to do with the majority of a embody opin- their frequently, however, More this court has ions in law.... Constitution is not [A] relied on both state and federal authorities embody particular intended to economic See, discussing our due course clause. theory- It is people made for of fun- e.g., Eggemeyer Eggemeyer, v. 554 S.W.2d damentally views, differing and the acci- 137, (Tex.1977); Thompson v. Cal 140-41 dent of finding our opinions certain natu- vert, 95, (Tex.1972). 489 S.W.2d 99 A sub familiar, novel,

ral and or and even cases, fact, stantial number of Texas shocking, ought not to conclude judg- our implied have held or that the federal due question ment whether statutes are, process and state due course clauses embodying them conflict Consti- facets, as to some or all of their identical. tution of the United States. See, Jimenez, e.g., parte 183, Ex 159 Tex. 189, 189, Mabee v. 317 S.W.2d 194 History has vindicated Justice Holmes McDonald, 139, 148-49, 107 Tex. 175 S.W. judicial and the advocates of restraint. 676, (1915) (plurality opinion), rev’d on 680 Since the Court abandoned its in- 90, 343, grounds, other 243 U.S. 37 61 S.Ct. fifty years ago, trusive stance more than (1917); Lively v. Missouri K. L.Ed. & 608 process has not used the due clause even Co., 545, Ry. 558-59, T. 102 once to strike Tex. 120 S.W. leg- down social or economic 852, (1909); Mellinger City v. Hous islation. Under 856 process, federal due where of ton, 37, 44-45, 249, affected, 68 Tex. 3 252-53 fundamental interests are not S.W. Martinez, (1887); 289, parte Ex upheld statute merely will be if it 742 S.W.2d bears a State, Smith v. relationship legitimate (Tex.Cr.App.1987); rational 291 to a state 683 Ferguson 393, Skrupa, See v. (Tex.Cr.App.1984); interest. 2 372 S.W.2d 399 n. 726, 1028, 544, Lindsay 83 Papageorgiou, v. S.Ct. 10 L.Ed.2d 93 751 S.W.2d (1963). 1988, (Tex.App. 550 Dist.] [1st — Houston

713 City 1977) (no Price v. San Mar pending); independent Braden Texas writ ed. of cos, 349, process); of (Tex.App. development 744 351 substantive due S.W.2d — Austin State, denied); Rights, Bill 1988, 17 Richards v. Texas Harrington, 743 Tex. writ of 747, (Tex.App. Tech This confusion is S.W.2d 749 L.Rev. 1527-28. [1st — Houston state, Massachusetts In 1987, d); unique appears to our com- pet. but ref Dist.] See, e.g., Bd. & Ins. v. Texas State many jurisdictions. mon Ho- dent. Co. Life ward, Ins., State Courts Constitutional 104, (Tex.App 113 685 S.W.2d . —Aus Court, writ); Thompson Rights Burger Day v. Texas in the 1985, 62 tin Examiners, 873, Ex- (1976); Kirby, 570 State Bd. Medical S.W. Va.L.Rev. 882-891 pansive Reg- Economic 123, 1978, Judicial Review (Tex.Civ.App. Tyler 2d 126-29 — Optometry Bd. ulation under Constitutions: The n.r.e.); v. State writ ref d Realism, Center, Inc., 380, 241 Lee Vision Case for 48 Tenn.L.Rev. 515 S.W.2d 1974, Paulsen, The Persistence Sub- (Tex.Civ.App. (1981); 386 writ — Eastland Williamson, States, n.r.e.); Eschrich v. 475 stantive Due Process 34 ref’d (1950). 380, 91 (Tex.Civ.App. 381 Minn.L.Rev. S.W.2d — Beaumont Rope, 1972, n.r.e.); v. d 419 State ref writ discussed, previously As I have state 890, (Tex.Civ.App. S.W.2d — Austin many give indepen times do courts can 1967, n.r.e.); Hainsworth v. ref’d writ meaning provi dent state constitutional Martin, 202, (Tex.Civ.App. 386 S.W.2d uniformity sions. In the interests vacated as n.r.e.), —Austin writ ref d however, I consistency, believe that state moot, 15 L.Ed. normally in courts should defer to federal (1965). 2d 190 Some have dis decisions terpretations provi of similar constitutional cussed both clauses without distinction. Law, See, e.g., Developments in the sions. See, Inc., e.g., Project Principle, State nothing at 1356-66. I find Harv.L.Rev. (Tex.1987); House 724 S.W.2d 390-91 provision, in the our the intention of text of Tobacco, Calvert, Inc. ratifiers, or difference in the framers (Tex.1965). 657-58 structure, or local con constitutional cerns, traditions, public of our attitudes contrast, only a handful of recent interpretation justify a different citizens opinions suggested the Texas state due course clause. See State meaning. See, independent clause has Hunt, 338, 362-68, N.J. 450 A.2d Cruz, e.g., parte Ex S.W.2d 61-63 (Handler, J., concurring). (Tex.Crim.App.1987) (Duncan, J., dissent judicial nothing in our selection also find State, Wright v. ing); S.W.2d proce system, amendment constitutional parte 12 (Tex.Crim.App.1982); Ex Cole n. dure, legislative process suggest a man, (Tex.Crim.App. McGovern, The Vari different result. 1979) J., (on rehearing) (Phillips, dissent Constitutionality Prod ety, Policy and State, Yorko v. ing); Liability Repose, Am.U. uct Statutes of 1984), (Tex.App. [14th Dist.] — Houston In the words L.Rev. affd, (Tex.Crim.App.1985). 690 S.W.2d 260 Professor Howard: majority panel A of the Fifth Circuit review, even when exercised Judicial independent found that Texas has an due an anti- judges, is never without elected standard, process only judge but judges When invali- democratic flavor. panel opinion on the dissented and the act, correct legislative however date a Commentators, subsequently vacated.11 they thwarting an judgment, are judges, appear like also as to divided expression of will. popular process in viability of substantive due Tex Half, Bill Courts Constitutional Howard, Rights: as. See State Safe Rights, 62 Va.L.Rev. at The constitu- guard Liberty, Individual 941. 35 Texas 919, (1957); procedure, while fre- 1 The Consti tional amendment L.Rev. n. 7 Texas, used to tution the State Texas: An Annotat has been quently used change in (G. significant our Comparative Analysis ed and make one 11. See n. 4 above. Rights test,

Bill Finally, since 1876.12 I be- it is rationally even clearer it is relat- govern- lieve that all courts at all levels of legitimate ed greater state interests in respect integrity leg- ment must of the availability of medical care to more citizens generally parte process. Ex islative I, therefore, at lower agree cost.13 with Hughes, 133 Tex. 505, 129 S.W.2d 270 the dissent of Justice Gonzalez that neither (1939); In re House Bill No. 537 section nor 11.02 section 11.03 violates due Thirty-eighth Legislature, 113 Tex. 367, course of law. (1923). 256 S.W. 573 Although independent an due course Special Laws may applied by standard have been Although plaintiffs neither any nor occasion, firmly court on it is not estab- issue, amicus sug- has raised this the court jurisprudence. lished in Texas Because I gests cap might that the violate the local policy justification find no sound for an special laws section the Texas Con- test, generally, see independent Howard, stitution, provides part: Rights, State Courts and Constitutional general all ... cases where a law [I]n 935-40; Smith, Constitu- at Va.L.Rev. applicable, spe- can be made no local or Attacks, 208, tional Okla.L.Rev. at I cial law shall be enacted.... defer ap- would to the federal standard in CONST, Ill, agree TEX. 56. I plying the Texas due course clause. analysis of Justice Gonzalez that Ultimately, though, the choice of stan- does not violate this section. probably dards makes little difference. of State v. Richards language Even if the Open Courts independent does constitute an Texas stan- aligned allege plaintiffs and all amici dard, cap question will withstand due cap pro- violates the second due process scrutiny. clearly There is at least Constitution, provision in cess the Texas opinion “room for a fair difference of as to provision. pro- It open the so-called courts necessity and reasonableness” of the part. vides in providing for “the real needs of the 170, people.” open, every per- 157 Tex. at 301 S.W.2d at All courts shall be lands, him, injury 602. Under the more deferential federal son for an done his 117, Silver, Except Rights Equal 12. for the Amendment of the Court noted in Silver v. 280 U.S. CONST, 1972, 57, 58, 221, 3a, 122, (1929), changes TEX. all 74 L.Ed. 50 S.Ct. “narrow, Rights guest upholding automobile the Bill of have been statute- the Connecticut process like amendments.” 1 due attack: "The Consti- The Constitution statute (G. ed.). State Texas 2 the creation of new Braden tution does not forbid recognized rights, of old ones or the abolition law, permissible the common to attain a strongly reject the notion advanced object.” rigid A more standard caps one least amicus that violate due would, by elevating law actions mere common provides no course because the statute alterna- rights, or defenses to the level of constitutional remedy injured plaintiffs. The tive destroy potential common "the creative imposed requirement under the have such Redish, Legislative Response, 55 Texas law.” process due clause. See Duke Power Co. federal L.Rev. at 787. Inc., Study Group, v. Carolina EnvtL therefore, rule, S.Ct. L.Ed.2d rejects univer- The better White, (1978); pro- pro quo requirement New York Cent. R.R. v. quid under due sal Daniels, See, e.g., Montgomery 61 L.Ed. 38 N.Y. cess. quid pro quo requirement A have N.Y.S.2d 340 N.E.2d 2d statute). appeal (upholding af- Most some when fundamental New York no fault fected, Note, rejected arguments that substantive see The Fairness and Constitution- states requires quid pro quo ality process when medi- Statutes Limitations Toxic Tort due Suits, legislatively capped. are 96 Harv.L.Rev. 1691 or even cal awards 665, abolished, Fein, (Cal.1985); Ame- See 695 P.2d 679-82 where "core” common law son, 125, (N.D.1978); Robins, Prender- 134 Shopping 270 N.W.2d PruneYard Center v. Jones, 657, (Neb.1977); 74, 2035, 2047, 741, 94, gast, 671 256 N.W.2d 64 L.Ed.2d 760 399, (Idaho 1976); J., (1980) (Marshall, see Simon concurring), applica- 406 but 555 P.2d but its 164, Center, 3 0.0.3d every attempted Medical tion to modification of the v. St. Elizabeth 903, 170-72, (1976). surely N.E.2d 910 stultify law. As 355 common law would the

715 657, 97, 103-06, 256 663-65 shall N.W.2d goods, person reputation, or have Neb. Arm- Storage, Inc. v. (1977); Freezer remedy by course of due law. 279-81, Co., 476 Pa. strong Cork 382 CONST, Although there TEX. art 13. § (1978). A.2d 720-21 provision in the federal consti- is similar constitutions tution, majority however, of state states, a A greater number of guarantees. substantially identical contain place restric- appear to some substantive variously are also known guarantees These authority to abol- legislature’s tions on right remedy, to reme- remedy, certain ish well-established remedies or restrict remedy injury, to courts and dy, for access defenses, particularly common law provisions. courts open Comment, access to See Section of causes action. 13: Armor the Com- Constitutional guaran- language open of the courts for The Law, 138-39 mon 35 Ala.L.Rev. originated in Edward Sir apparently tee Guarantees, Note, Constitutional (1984); chapter 29 of the 1225 gloss on Coke’s 49 at 1205-06. This restric- Iowa L.Rev. Carta, chapter 40 Magna the successor only in appears tion to be absolute those Coke, The Magna 1215 E. Carta. constitutionally few which also for- states the Laws Part the Institutes Second of of damages. any legislative restriction on (1642). bid I 53-56 A similar England of ft. CONST, See, 6; e.g., ARIZ. KY. country provision appeared § first CONST, 54; WYO. Pennsylva- CONST. Liberty for the 1683 Charter require, in one form or Among Other states anoth- principles nia. those traceable to er, Carta, balancing of Magna process guaran- judicial the individual due remedy right recognized greater impact to assert a tee itself has had abrogating necessity or re- public A.E. for American Constitutional law. Ho- right. Runnymede ward, stricting that Road from 284 (1968). elements which are considered balance, weight accorded to agreed universally

While it widely provision guarantees right them, vary from state to state. open courts courts, simply great elements are un- diver- Sometimes the access there See, v. Baltic e.g., Daugaard Co- gence among regarding clear. the various states Ass’n, Op. Bldg. Supply extent, 349 N.W.2d 419 any, if con- to which it accords states, however, (S.D.1984). most protection existing In stitutional substan- McGovern, to be The Varie- have articulated factors tive remedies. ty, Policy weight accorded Constitutionality Prod- considered and be Liability Repose, uct Statutes 30 Am.U. each. Constitu- (1981); Note, L.Rev. states, Thus, in a few balance Remedy, tional Guarantees a Certain only if of the restriction satisfied favor (1964); Note, Consti- 49 Iowa L.Rev. has created an alternative legislature Impairment tutional Law—Due Process — pro quo, place remedy, quid Validity State Statute See, of Contracts — Town, e.g., Ecker right. abolished Abolishing Actions Alienation for of Af- Hartford, Conn.App. West Conversation, Criminal fections (1987) (“where ex- A.2d Minn.L.Rev. law statute common isted at or abolish states, legislature may restrict many example, provi- ... right only pro- incorporated where such nothing procedural more than a sion is See, the en- alternative to e.g., judicial availability. vides a reasonable guarantee Gallegher v. O’Quinn Productions, right”); such Disney Walt forcement 620, 624, 380, 392, 183 Davis, Inc., A. 190, 195, 37 Del. 493 P.2d 177 Col. (“the may not Hosp. Bldg. (Del.Super.1936) Twin Falls Clinic & (1972); action to Hamill, the common law Corp. v. 644 P.2d abolish Idaho injury with- negligent Johnson v. St. Vincent (1982); recover substantially ade- Inc., substituting another Hosp., out 273 Ind. 404 N.E.2d Nelson, Prendergast v. (Ind.1980); quate remedy”). states, however, ever,

In other an alternative that the test now in use our court remedy only satisfying is one method of obscures rather than illuminates the cor- balance favor the restriction. The rect Texas standard. determining standards when another Galveston, City Lebohm v. In vary method is sufficient from state to 192, 199, Tex. 275 S.W.2d Alabama, instance, state. In a common (on rehearing), this court articulated the remedy may constitutionally law abol- open provision test under our courts “if possessor ished the individual receives follows: something (the in return for it individual [Legislative withdrawing action com- quid pro quo ...), society large or if mon-law remedies for well established (thereby justifying receives a benefit common-law injuries causes of action for police power).” exercise of the Lankford “lands, goods, person reputa- to one’s or Sullivan, Long Hagerty, & 416 So.2d tion” is sustained when it is reason- (Ala.1982) (plurality opinion), substituting remedies, able other quoting Firemen’s Fund Am. Ins. Co. v. when it is a reasonable exercise of the Coleman, (Ala. So.2d police power gener- in the interest of the 1980) (Shores, J., concurring). Judicial re- Legislative al welfare. action of this Utah, rigorous view is more where a type arbitrary is not sustained when it is remedy or cause of action not be abro- or unreasonable. gated providing without an alternative un- quoted We and reaffirmed this test “there less is a clear social or economic evil Sondock, Waites v. to be eliminated and the elimination of an Votteler, (Tex.1977), and Sax v. existing legal remedy arbitrary is not an (Tex.1983). my opinion, In it re- achieving unreasonable means for the ob- pur- mains the best statement of the true jective”. Berry Cory., v. Beech Aircraft pose open guarantee. of the courts 1985). (Utah 717 P.2d Florida is quoting expressly reaffirming After rigorous more still. There the statute standard, however, the court the Lebohm provide must “a reasonable alternative to immediately Sax set forth this new test: protect people of the of the State right bring hold We ... injuries, Legisla- to redress for unless the well-established common law cause of ac- overpowering public ture can show an ne- abrogated by effectively tion cannot be cessity right, for the abolishment of such showing absent a that the meeting and no alternative method of such legislative basis for the statute out- Kluger public necessity can be shown.” weighs constitutionally- the denial of the White, (Fla.1973). Although 281 So.2d guaranteed right applying of redress. differ, the standards each of these states test, general we consider both recognize legis- that on some occasions the purpose of the statute and the extent may alter or even lative branch abolish litigant’s which the to redress existing common remedies. law affected. Alabama, Florida, Texas Like Utah and at 665-66.14 arbitrary legislative abolition of restricts necessarily compel well-recognized Sax common law causes of ac- While does analysis, practice it has re open provision, an incorrect tion under the courts while in an exclusive focus on “the declining require quid pro quo whenev- sulted almost litigant’s to re changed. remedies extent to which the er common law affected,” an almost total interpretation open dress is adhere to this of the concerned, disregard general purpose of the provision. I am how- of “the 14. Later in its again is unreasonable or opinion, show that the restriction the court restated language: purpose slightly arbitrary the test in different when balanced basis of the statute. satisfy. litigant has two criteria to [T]he statement, First, and not S.W.2d at 666. It is this litigant has a it must be shown that the Sax, holding the court bases cognizable common law cause of action Second, caps. being litigant must its examination restricted. with- Krusen, important competing interests tween Except in Nelson statute.” (Tex.1984), evaluataing the court ex where the rela- standards for out purpose and effect the amined This importance of those interests. tive length, question at some statute of the us with little discretion leaves unfettered nature and emphasized the court has the predilections on personal our other than ex to the virtual of the restriction extent reaching One rely in our decision. which to itself15, in of other factors. Sax clusion “rea- finds the to be justice therefore Hanlon, in this supra,16 and LeCroy v. sonable”, justices con- at the other id. case, “first concern” has been court’s unreason- caps as “unfair and demn the remed adequate substitute the absence able”, or “unreasonable and at id. approach 687. ies.17 arbitrary.” Id. at 701. in this opinions the other also dominates concurring Culver, giving mean- recognize difficulty in her case. Justice “lack of alternative opinion, notes that the As dictates. ing to broad constitutional caps unreasonable renders these remedies nearly a said in reference to Justice Shores against the arbitrary when balanced Consti- provision of the Alabama identical Id. at of the statute.” purpose and basis tution dissent, Gonzalez Justice 701-02. Even enough language Although its is broad “[legislative action withdraw that states interpretations, subject varying to to be remedy restricting a common law ing or incorporate generally be said to it can in sub if it is reasonable will be sustained prin- a fundamental into our constitution He stituting remedies.” Id. at 693. other fairness, vaguely con- perhaps ciple of quid existence of a “societal would find the of limitation important notion ceived but remedy, how a sufficient pro quo” to be infringe power government on the right ever, common law when a rights, to act arbi- upon individual restricted, make and he would modified or are, what de- trarily. What those pro quo quid “the existence of an individual infringement permitted, gree of determing the statu whether a factor inquiries are constitutionally- justification, much tory denying scheme with how guaranteed right long- of redress is reasonable.” subject of have been the original). (Emphasis Id. at 693. Underlying all of standing debate.... all inquiries is the oft-unstated but these all respect, approaches these With all due is to answer pervasive question of who they require from a common vice: suffer How do legislature or courts? them: to strike a delicate balance this court be- against Sax, ing that law’s interference analysis, a law in its substantial 15. In the court's right entirety, to the courts. was as follows: of access the individual’s government the bur- [Citing has purpose Sox]. and basis for [the statute] [B]oth Additionally, recognize legislative purpose legitimate. out- we show that the are den to length ex- of time that insureds are weighs that the posed individual’s interference with the bearing potential has a right of access. charge. We can- the rates that insurers must S.W.2d at 341. however, agree, that the means used purpose are to achieve ... the reasonable opinion, sentence of its 17.In one weighed against they when Illinois, we did the notes: "As abrogation a child’s to re- effective argument reject any that the statute dress. ... society general- alleged supported by benefits to effectively abolishes a mi- statute ... This alone, Standing this sen- ly." 757 S.W.2d 690. bring com- well-established nor’s Texas, like seem to indicate tence would providing cause of action without mon law Delaware, requires an al- now Connecticut Therefore, we declare alternative. reasonable remedy common whenever established ternative provision in violation ... to be limitations Because the court restricted. actions are law goes Constitu- 13 of the Texas section of article length "whether examine at some on to tion. when balanced are reasonable restrictions ... statute,” purposes and bases Sax test as LeCroy, court stated the 16. In however, Sax has it seems clear id. at follows: by the court. abandoned not been provision open test bal- general courts [T]he purpose in enact- legislature’s actual ances supply provision goal ameliorating content rationally perceived overstepping without their social A traditional evil. “reasonable exercise of the police power in legislating role and general themselves? an- interest of the welfare” requires to thus that the questions important, these statute swers ad- important, dress an merely reading prohibi- legit- for too literal a the imate, interest, state that such interest may effectively preclude tions of perceived state, and articulated the governmental action areas of crucial provided that the remedies bear a real rela- concern; public reading too broad a evis- tionship to the being social evil addressed. very rights cerates the the section was requirements, These which are similar to protect. intended to employed those equal pro- in intermediate Coleman, Fireman’s Fund Am. Ins. Co. Tribe, see L. scrutiny, tection American (Ala.1980)(Shores, J., 394 So.2d Constitutional Law 1601-10, and are remi- concurring). heightened pro- niscent of substantive due would, however, language I return to the Richards, standards, see State v. cess Lebohm proper to strike the balance. Tex. at 301 S.W.2d at assure that correctly separates That standard the issue right judicial the to protected redress is remedy of a reasonable alternative from against arbitrary or unreasonable intru- the issue of police a reasonable exercise of sion.18 power. Legislature provided If the has In applying the Lebohm standard to the place left in a reasonable alternative reme- review,19 provision under the first alterna- dy, end, judicial scrutiny prop- is at an quickly apparent tive is It resolved. is that erly Legislature so. The should have abso- long enjoyed our citizens to the adequate lute discretion to substitute one neg- sue for unlimited for medical another, remedy for without its choice be- Gautier, Graham v. ligence, 21 Tex. Ill ing subjected judicial to If re-evaluation. cap and that the has not substituted Legislature provided has not or left in place or left a reasonable alternative place remedy, a reasonable alternative remedy for the withdrawn. While however, requires the Constitution a sec- some restrictions on remedies be so ond, separate inquiry. The courts must insignificant marginal open that independently legislative if determine offended, guarantee that courts is not action constitutes a exercise of reasonable malpractice cap. the case police power. though larger than Even our limits are searching. This determination must be provided legislation in those under similar finding It is not satisfied a mere that states, many they still are other substan- rationally legit- the statute is to a related finder tially beneath what a reasonable interest, imate state for such limited review might particular facts award instances. give open provision courts would permanently In the case of a and cata- redress, separate import, at least as to injured plaintiff infant like strophically LeCroy v. Christopher Lucas, instance, law. See due course of from even the Hanlon, Rather, 713 S.W.2d at 340-41. I statutory likely limits would con- maximum compensation inadequate it is satisfied if the statute stitute under cur- believe rently prevailing community mores.20 relationship to its stated bears a reasonable Hanlon, strong LeCroy presumption of access.” 18.Because of the of consti- at 341. tutionality attaches to a enact- ment, see, Davis, e.g., Smith v. I the same conclusion 19. While would reach (Tex.1968); Shepherd v. San Jacinto Junior standard, believe, rea- under the Sax I for the 1962), Dist., (Tex. College above, presents a sons set forth that Lebohm opinion requiring join would the court’s analysis. more useful framework for attacking party the statute to bear the burden however, opinion proof. disagree sug- In one recent I thus with Justice Gonzalez’s "government suggested gestion that the has the difference between a mere re- that legislative purpose remedies is burden to show that the out- striction and total abolition of significance. necessarily weighs of constitutional the interference with the individual’s proceed Finally, cap does bear a real relation- necessary It therefore rationally perceived malpractice Under ship second alternative Lebohm. to a striking appropriate standards Legislature The found that “the crisis. alternative, I conclude balance under filing liability legitimate health care open cap does not violate the contributing is a factor claims provision. affecting professional rates.” TEX.REV.CIV.STAT. important public addressed an 1.02(a)(2). legit- need focus on Liability and Insurance issue. The Medical prob- imate claims in order address the response Act state’s Improvement was our explained lem was the Commission maintaining problem of to a national follows: comprehensive delivery affordable and light rapidly in to all citizens of

health care Large large and con- verdicts settlements for health care increasing insurance costs relatively percentage of stitute small passed Forty-eight other states providers. the total claims settled or reduced to during type legislation 1970’s some of judgment, probably no more than five crisis, response in to this and twelve indemnity percent, but and allocated loss- damages limita- those states also enacted paid percentage es on this small Witherspoon, Constitutionality tions. in claims account excess of 40% of the Statute, Tex.Tech L.Rev. at the Texas expenses and total allocated for 420. need available and affordable The paid appar- for It all claims. is therefore importance is of to all health care critical in that ent substantial reductions settle- Legislature addressing people, and the was in- judgments ments and in those cases important enacting in this an state interest volving injuries signifi- severe will have statute. impact cant costs and the insurance pure premium rate. Legislature perceived The artic- both and enacting cap. this interest in ulated Report at This and oth- Commission all years passed, was Two before the law findings er the Commission were ex- Li- Legislature established the Professional Legislature. pressly adopted by the TEX. ability Study The Commission. Commis- 4590i, 1.02(a)(13). art. REV.CIY.STAT. § hearings, gathered and sion held evidence course, availability cheaper in- Of report Legislature, to issued a alone, not, standing justify surance would minority writing separate three members Legislature’s response. Taken its to Relying reports. on the Commission’s conclusion, logical approach this would un- work, Legislature found “medical eventually destroy system cur dermine and malpractice crisis” in Texas insurance injured compensation for victims of tort “has had a material effect adverse potential protection for tort- and insurance care delivery on the of medical and health However, contrary to the court’s feasors. Texas,” including “significant in re- both purpose legislative went implication, the availability ductions and medical beyond “protect to health care far a desire in health care services” and an increase perceived harm.” S.W. providers from directly both “the cost of medical care 2d 705 n. 2. indirectly through through servic- fees cap not primary purpose of the was The protection future provided for es protect providers, health care but suits or claims.” TEX.REV.CIV.STAT. Legislature 1.02(a)(5),(6), (9). protect public. found 4590i, A detailed art. § physicians hospitals that “the cost to legislative purpose un- explanation adequate in the insurance statute is set forth derlying the dramatically price, risen with cost findings. has in Hanlon, Facilities, LeCroy supra. place. Hosp. remains in Doctors also Rose v. however, abroga- considering prong, any significant my opinion, In availability the second at 248. In tion, partial, partial some merely redress is suffi- total or whether determining significance whether the exer- satisfy prong unless of Lebohm first cient power remedy police been reasonable. provided cise of the has adequate alternative an patients public,” remedy, impact on and the even when the results are un- “satisfactory coverage world, that insurance certain. In the real policy social adequate frequently amounts of insurance ... is often must be made on the basis of any price.” incomplete conflicting not available TEX.REV. and even informa- 1.02(a)(7), 4590i, tion, and the law of CIV.STAT. unintended conse- § having thus “caused a quences may The crisis serious override even the noblest of problem,” Legislature public TEX.REV.CIV.STAT. art. intentions. The should be com- 1.02(a)(ll), Legislature mended, condemned, for this realiza- concluding constitutionality tion. To pres- reasonable turn on the protection insurance might would make available ence of a declaration of certitude rates,” reasonably thereby arrogance, ignorance affordable “at serve to reward making hypocrisy. “affordable medical and health more care accessible available engaging undisciplined spec- Far from citizens Texas.” TEX.REV.CIV.STAT. ulation, Legislature attempted in 4590i, 1.02(b)(4),(5). Legislature complex problem instance to meet social concluding cheaper was reasonable limiting damages “in a manner that will widely insurance and more available cover- unduly rights any restrict a claimant’s age greater health care would result necessary more than to deal with the cri- being provided more services citizens 4590i, sis.” art. TEX.REV.CIV.STAT. charges, more areas at more economical all 1.02(a)(3). The exclusion of all medical § public benefit. limits, damages the inflation ad- from the harshly Legisla- justment provisions, per

The criticizes the the limitation on a basis, cap per ture for its candid conclusion that the defendant rather a occurrence Stowers “may not on the and the exclusion of claims from may have an effect pro- legislative charged by rates insurers for medical the limits all indicate a solicitude Thus, liability injured for claimants. I find the fessional insurance.” TEX.REV. 4590i, 1.02(a)(12). legislative reasonably CIV.STAT. solution to relat- be and ed, fit, arbitrary “acceptable” rationally court finds it “unreasonable or an to a [injured plaintiffs’] recovery specu- perceived impact limit in a the on social evil. While persons experiment catastrophically injured li- those who lative to determine whether recovery should not mini- are denied full be ability insurance rates will decrease.” 757 mized, cap disagree. addressing I that the is “a reason- at 701. I In believe S.W.2d police power in the problems, able exercise of the complicated social and economic general Legislature attempt a interest of the welfare.”21 must be free See, e.g., 21. Even striking plaints years. v. Los in recent if the court were correct in Seffert however, 498, 511, $500,000 Lines, cap, Angeles non-medical Transit 56 Cal.2d down the Cal.Rptr. still maintain that the court erred P.2d would $150,000 Stein, cap J., striking dissenting); Damages (Traynor, down the alternative and J. damages. damages limited Injury non-economic Recovery and Death Actions 18 —Personal principal cap largely susceptible $250,000 are upholding on non-ec- In a measurement, sup- instance, and evidence in damages, arithmetical malpractice for onomic may derogation damages port those stated: California certainty by degree weighed lowering malpractice seeking with some a means [I]n damages, costs, As to non-economic Legislature placed finder fact. no limits whatso- hand, or even plaintiff’s right other there is no formula to recover all ever on a for economic, proved damages useful in their as- pecuniary which has definition —such appropriate earnings resulting amount is instead expenses sessment. The or lost — discretion, experience common injury, left to the confined the stat- but instead from recovery St. utory finder of fact. See of noneco- sense of the Elizabeth limitations to the Gerrard, (1987); Thoughtful jurists Hosp. damages.... S.W.2d nomic legal (Tex. Meadows, raised seri- Green v. have for some time scholars awarding writ refd Civ.App. questions [1st Dist.] as to the wisdom ous damages —Houston Baucum, n.r.e.); any negli- suffering pain for Hernandez alia, case, refd (Tex.Civ.App. noting, writ gence Antonio inter the inherent 500 n.r.e.). —San monetary placing value on a difficulties losses, money damages are determining the fact that such process for non- This unscientific compensation only imperfect for such increasing at best damages corn- evoked economic has constitu- this case on decided OF LIMITATION II. APPLICATION grounds.... tional certi- question In answer to the second [Emphasis added.] Circuit, I hold Fifth would fied to us limit the liabili- applies section 11.02 CONCLUSION the recov- defendant rather than ty of each caps malpractice declaring the medical of the The effect ery of each claimant. unconstitutional, court has I believe the language, apparent from its provision is policy judgment its own substituted part: in relevant provides acting through duly people their care In an action on health The court has representatives. elected judgment is rendered final claim where carefully crafted struck down provid- health care against physician problem for no major social response to a er, liability limit of civil it finds the scheme reason than that better provider of physician or health care caps Whether distasteful. limited to an amount shall be not, policy or I do not find good social $500,000. exceed Hence, I dis- unconstitutional. them to be 11.02(a). sent. TEX.REV.CIV.STAT. clearly

[Emphasis The limitation added.] recovery against the individu-

applies to the defendant, not the to the individu-

al award thus, plaintiff; plaintiff who recovers

al defendant se- more than one judgment cap. This

cure a excess of pur- is consistent with the

interpretation al., Petitioners, LOPEZ, Guadalupe et provision. pose as the text of the as well holding supported is also per opinion application curiam on court’s LOPEZ, al., Sylvestra et F. Baptist Hosp. South of error in writ Respondents. Texas, Baber, east Inc. v. No. C-7226. (Tex.1986). withdrawing grant of its of Texas. application improvident, as explained unnecessary pass it that was Sept. constitutionality under the facts of 19, 1988. Rehearing Denied Oct. the case: pass

A on the constitution- court will particular

ality of a statute if the case doing be decided without

before

so. Because the [Citation omitted.] does not

judgment this case exceed statutory both de- combined

fendants, appeals the court of need ... unpre- damages such uncertain and intangible injuries The limitation on and that such to, substantially generally passed damages might and borne innocent increase dictable general propriety of coverage While the availability consumers. insurance of affordable is, course, firmly imbedded such public attending at benefits to the with the jurisprudence common law [citations in our devastating large, effect on cata- an without omitted], we are no California case of which therefore, am, injured plaintiffs. strophically suggested has ever that the aware alter- disappointed the court also found the injuries for such noneconomic is con- recover any sepa- without native unconstitutional stitutionally immune from limita- analysis. rate [Citations omitted]. tion or revision. Cal.Rptr. 695 P.2d Cal.3d at [Emphasis original.] at 680-81.

Case Details

Case Name: Lucas v. United States

Court Name: Texas Supreme Court

Date Published: Sep 21, 1988

Citation: 757 S.W.2d 687

Docket Number: C-6181

Court Abbreviation: Tex.