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Limits On Medical Malpractice Damages Violates Texas Constitution

The Texas Supreme Court held that statutory limits placed on medical
malpractice damages violated the Texas Constitution.

Infant Christopher Lucas had a penicillin product injected directly into an
artery; a blockage formed causing the blood-starvation of nerve cells.
Christopher was permanently paralyzed as a result. Parents and infant sued
under the Federal Tort Claims Act and were awarded a total of $1,448,628.72
(reduced by $400,000 due to a previous settlement). Defendants appealed.
The U.S. Fifth Circuit Court of Appeals certified the question of whether,
Tex.Rev.Civ.Stat.Ann. art. 4590i §§ 11.02, 11.03, which limit medical
liability for health care providers, "are consistent with the Texas
Constitution."

The Texas Supreme Court held that "the limitation on medical malpractice
damages in Tex.Rev.Civ.Stat.Ann art. 45901, §§ 11.02 and 11.03, is
inconsistent with and violative of article I, section 13, of the Texas
Constitution." See: Lucas v. United
States, 757 S.W.2d 687 (Tex. 1988).

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Related legal case

Lucas v. United States

RICHARD LUCAS ET AL. v. UNITED STATES AMERICA (05/11/88)

[1] SUPREME COURT OF TEXAS


[2] No. C-6181


[3] 1988.TX; 757 S.W.2d 687, 31 Tex. Sup. J. 423


[4] decided: May 11, 1988.


[5] RICHARD LUCAS ET AL., PETITIONERS,
v.
UNITED STATES OF AMERICA, RESPONDENT


[6] ON CERTIFIED QUESTIONS FROM THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT.


[7] COUNSEL


[8] Boyaki, Mr. Walter L., Miranda & Boyaki, El Paso, TX, for Appellee.


[9] Solet, Ms. Irene M., U. S. Department of Justice, Washington, DC, Forrest, Mr. Bruce G., Mr. Robert S. Greenspan, Washington, DC, Eversberg, Mrs. Helen M., United States Attorney, Washington, DC, Spears, Mr. James M., Deputy Assistant Attorney General, Washington, DC, Greenspan, Mr. Robert S., U. S. Department of Justice, Washington, DC, for Appellant.


[10] Kilgarlin, Justice, Gonzalez, J and Phillips, C.j.


[11] Author: Kilgarlin


[12] WILLIAM W. KILGARLIN, Justice


[13] This is the first case to come to us on questions certified by a federal appellate court. See Lucas v. United States, 807 F.2d 414 (5th Cir. 1986), questions certified, 811 F.2d 270 (5th Cir. 1987). Pursuant to Tex. Const. art. V, § 3-c, we have jurisdiction to answer the questions certified, which are as follows:


[14] Whether the limitation on medical malpractice damages in Tex. Rev. Civ. Stat. Ann. art. 4590i §§ 11.02 and 11.03 (Vernon Supp. 1986) is consistent with the Texas Constitution, and if so, whether it applies to limit the liability of each defendant rather than the recovery of each claimant.


[15] For the reasons stated in this opinion, we answer that the damages limitations contained in sections 11.02 and 11.03 of article 4590i violate article I, § 13 of the Texas Constitution. It is therefore unnecessary for us to answer the additional question certified to us by the Fifth Circuit.


[16] Our constitutional authority to answer questions of state law certified by federal appellate courts is of relatively recent origin. In 1985, Texas voters approved an amendment to our state constitution which became article V, section 3-c. The amendment became effective January 1, 1986, and our court thereafter promulgated an implementing rule as authorized by the constitution. See Tex. Const. art. V., §§ 3-c(b) and 31; Tex. R. App. P. 114. Because this is the first case to come to us under the new certification procedures, for historical purposes we will first review briefly the steps employed by this court in considering the Fifth Circuit's certification order and, ultimately, agreeing to answer the questions certified.


[17] Upon receipt of the certified questions from the Fifth Circuit, the case was docketed and assigned a number in normal sequential order. Notice of the docketing was furnished the Attorney General, as required by Tex. R. App. P. 114(f) (the Attorney General did not intervene). Thereafter, the court, by majority vote, determined that it would accept the question and render an answer. At that time, the case was set for oral argument and the court determined to allow Lucas, who was urging the unconstitutionality of the statute, the role of petitioner even though the United States of America was the appealing party in the Fifth Circuit. Argument in the case was allowed as in any other cause before the court.


[18] To put the facts of this case in perspective, we quote at length from the original opinion of the Fifth Circuit:


[19] When fourteen-month-old Christopher Lucas developed a swollen neck and a fever after a family outing, his parents took him to the William Beaumont Army Medical Center near El Paso, Texas, for diagnosis and treatment. An army doctor determined that the child had a cyst in his thyroglossal duct and ordered an injection of 600,000 units of Bicillin LA, a penicillin product manufactured and packaged in its own syringe by Wyeth Laboratories.


[20] A hospital nurse gave Christopher the shot in his right buttock with a 1 1/4" needle that was fully inserted. Christopher's father testified that he saw a thin line of blood appear in the tube containing the medication when the nurse aspirated the plunger before injecting the medication into the baby. Blood appeared at the injection site, and within a few moments, Christopher's legs became mottled. The doctors were summoned. They concluded that the baby was having an allergic reaction to the antibiotic and gave injections to combat it.


[21] Several hours later, Christopher's parents noticed that his legs were not moving as they usually did when he cried. Tests conducted during the next several days indicated paralysis. An operation to remove a tumor suspected to be pressing on the nerves controlling the child's legs determined that the paralysis was the result of blood starvation of the nerves caused by a blockage created when the Bicillin LA was injected directly into an artery. Tragically, the paralysis is permanent.


[22] Christopher and his parents sued the United States under the Federal Tort Claims Act. The district court held that the injection was negligently administered and awarded the parents $498,628.72 as the present value of the past and future medical expenses they face in caring for Christopher until his majority. While the district court did not detail its calculation, the amount of the award is consistent with the total-offset method of discounting. The court also awarded to Christopher $350,000.00 as the present value of the future medical expenses he will have after his eighteenth birthday, and $600,000.00 as the present value of the impairment of his future earning capacity. Finally, the court awarded Christopher $1,500,000.00 for pain and suffering. The district court then reduced the award by the $400,000.00 paid by Weyth [sic] Labs to the Lucases in settlement of a state court suit.


[23] The district court refused to apply Tex. Rev. Civ. Stat. Ann. art. 4590i (Vernon Supp. 1986) to limit the non-medical damages, stating that the provision did not apply to hospitals operated by the United States. In an amended judgment, the court ordered that interest on a judgment against the United States be paid only as it accrues after a claim is filed with the Comptroller General and not from the date of judgment. See 31 U.S.C. § 1304(b)(1)(A). The court awarded no damages for the parents' separate claims for pain and suffering.


[24] Lucas v. United States, 807 F.2d 414, 416 (5th Cir. 1986), questions certified, 811 F.2d 270 (5th Cir. 1987).


[25] On appeal, the Fifth Circuit held that the liability limit of article 4590i, section 11.02, does apply to federally operated hospitals and that its application was consistent with the due process and equal protection clauses of the United States Constitution. 807 F.2d at 417, 421-22; 811 F.2d at 271. Our question, then, is whether the limits of liability for health care providers set out in that statute and/or section 11.03 are consistent with the Texas Constitution. Those sections provide in pertinent part:


[26] Limit on civil liability


[27] Sec. 11.02. (a) In an action on a health care liability claim where final judgment is rendered against a physician or health care provider, the limit of civil liability for damages of the physician or health care provider shall be limited to an amount not to exceed $500,000.


[28] (b) Subsection (a) of this section does not apply to the amount of damages awarded on a health care liability claim for the expenses of necessary medical, hospital, and custodial care received before judgment or required in the future for treatment of the injury.


[29] Alternative partial limit on civil liability


[30] Sec. 11.03. In the event that Section 11.02(a) of this subchapter is stricken from this subchapter or is otherwise invalidated by a method other than through legislative means, the following shall become effective:


[31] In an action on a health care liability claim where final judgment is rendered against a physician or health care provider, the limit of civil liability of the physician or health care provider for all past and future non-economic losses recoverable by or on behalf of any injured person and/or the estate of such person, including without limitation as applicable past and future physical pain and suffering, mental anguish and suffering, consortium, disfigurement, and any other non-pecuniary damage, shall be limited to an amount not to exceed $150,000.


[32] Tex. Rev. Civ. Stat. Ann. art. 4590i, §§ 11.02, 11.03. The limits in both sections are not absolute but instead increase or decrease depending on the consumer price index published by the federal government. Id. at §§ 11.01, 11.04.


[ 31 Tex. Sup. J. Page ]


At least thirteen states other than Texas have enacted damage limitation provisions into their medical malpractice statutes. Each statute has different characteristics, and the state courts have divided on the constitutionality of the various caps. See, e.g., Smith v. Department of Insurance, 507 So. 2d 1080, 1087-89 (Fla. 1987) ($450,000 limit on non-economic damages violated "open courts" provision of Florida Constitution); Wright v. Central Du Page Hospital Ass'n, 63 Ill. 2d 313, 347 N.E.2d 736, 743 (1976) ($500,000 cap constituted "special law" in violation of Illinois Constitution);*fn1 Carson v. Maurer, 120 N.H. 925, 424 A.2d 825, 836-38 (1980) ($250,000 limit on non-economic damages violated equal protection guaranteed by New Hampshire Constitution); Arneson v. Olson, 270 N.W.2d 125, 135-36 (N.D. 1978) ($300,000 ceiling violated equal protection clause of North Dakota Constitution); Duren v. Suburban Community Hospital, 24 Ohio Misc. 2d 25, 482 N.E.2d 1358, 1361-63 (C.P. 1985) ($200,000 limit on general damages violated Ohio and federal constitutions); Fein v. Permanente Medical Group, 38 Cal. 3d 137, 695 P.2d 665, 679-84, 211 Cal. Rptr. 368 (1985) ($250,000 ceiling on non-economic damages held constitutional); Johnson v. St. Vincent Hospital, Inc., 273 Ind. 374, 404 N.E.2d 585, 598-601 (1980) ($500,000 cap upheld); Sibley v. Board of Supervisors, 462 So. 2d 149, 154-58 (La. 1985) ($500,000 cap upheld); Prendergast v. Nelson, 199 Neb. 97, 256 N.W.2d 657, 668-69 (1977) ($500,000 cap upheld in plurality opinion joined by only three judges, with three others dissenting as to constitutionality, and one judge declining to reach constitutional issues because opinion was merely advisory). Compare Jones v. State Board of Medicine, 97 Idaho 859, 555 P.2d 399, 410-16 (1976), cert. denied, 431 U.S. 914, 53 L. Ed. 2d 223, 97 S. Ct. 2173 (1977) (case remanded for fact findings pertinent to constitutional attacks on damage caps).
[33] In Texas, at least three courts of appeals have already struck down the damages caps provided in article 4590i. Baptist Hospital of Southeast Texas, Inc. v. Baber, 672 S.W.2d 296 (Tex. App.--Beaumont 1984), writ ref'd n.r.e. per curiam, 714 S.W.2d 310 (Tex. 1986); Brownsville Medical Center v. Gracia, 704 S.W.2d 68, 80 (Tex. App.--Corpus Christi 1985, writ ref'd n.r.e.); Detar Hospital, Inc. v. Estrada, 694 S.W.2d 359, 365-66 (Tex. App.-- Corpus Christi 1985, no writ); Malone & Hyde, Inc. v. Hobrecht. 685 S.W.2d 739, 753 (Tex. App.--San Antonio 1985, writ dism'd by agr.). Another court of appeals has upheld the caps. Rose v. Doctors Hospital Facilities, 735 S.W.2d 244 (Tex. App.--Dallas 1987, writ granted). One federal district judge concluded that the Texas statute violates both the state and federal constitutions. Waggoner v. Gibson, 647 F. Supp. 1102 (N.D. Tex. 1986). The certifying panel in our case, however, disagrees as to the federal constitution. See Lucas, 807 F.2d at 422 n.2.


[34] We begin our state constitutional analysis by noting the findings and purposes enumerated by the Texas Legislature in Tex. Rev. Civ. Stat. Ann. art. 4590i, § 1.02 (Vernon Supp. 1987). Based on these findings and purposes, the legislature enacted the damages limitations quoted in section 11.02 and, alternatively, section 11.03. Significantly, section 11.03 on its face shows that the legislature itself entertained doubts about the constitutionality of the limit of liability set out in section 11.02(a).


[35] We have considered the arguments for and against the constitutionality of the caps. With all respect due a legislative enactment, we nevertheless conclude that the liability limits in article 4590i, sections 11.02 and 11.03, are unconstitutional as applied to catastrophically damaged malpractice victims seeking a "remedy by due course of law." Construing article I, section 13, of the Texas Constitution, this court has said:


[36] In analyzing the litigant's right to redress, we first note that the litigant has two criteria to satisfy. First, it must be shown that the litigant has a cognizable common law cause of action that is being restricted. Second, the litigant must show that the restriction is unreasonable or arbitrary when balanced against the purpose and basis of the statute.


[37] Sax v. Votteler, 648 S.W.2d 661, 666 (Tex. 1983).


[38] Texas courts have long recognized that victims of medical negligence have a well-defined common law cause of action to sue for injuries negligently inflicted upon them. This much is undisputed. Under Sax, then, the remaining inquiry is whether the restriction on Lucas' right of recovery "is unreasonable or arbitrary when balanced against the purpose and basis of the statute" (emphasis added). We hold that the restriction is unreasonable and arbitrary and that article 4590i, sections 11.02 and 11.03, unconstitutionally limit Lucas' right of access to the courts for a "remedy by due course of law." Tex. Const. art. I, § 13. We note that there is no provision in the federal constitution corresponding to our constitution's "open courts" guarantee. Indeed, that guarantee is embodied in Magna Carta and has been a part of our constitutional law since our republic.


[39] Our first concern with the statute is that the legislature has failed to provide Lucas any adequate substitute to obtain redress for his injuries. See Sax, 648 S.W.2d at 667, citing Middleton v. Texas Power & Light Co., 108 Tex. 96, 185 S.W. 556 (1915). As did the Supreme Court of Illinois, we reject any argument that the statute may be supported by alleged benefits to society generally:


[40] Defendants argue that there is a societal quid pro quo in that loss of recovery potential to some malpractice victims is offset by "lower insurance premiums and lower medical care costs for all recipients of medical care." This quid pro quo does not extend to the seriously injured medical malpractice victim and does not serve to bring the limited recovery provision within the rationale of the cases upholding the constitutionality of the Workmen's Compensation Act.


[41] Wright, 63 Ill. 2d at 328, 347 N.E.2d at 742. Although Wright was not decided on "open courts" grounds, the Illinois Supreme Court expressly held that limiting recovery only in malpractice actions was "arbitrary," which is at least part of our test under Sax.


[42] It is significant to note that in two of the jurisdictions in which damages caps were upheld, the fact that alternative remedies were provided weighed heavily in the decisions. in Johnson v. St. Vincent Hospital, 404 N.E.2d at 601, the court stated "[t]he [Indiana] legislature responded by creating the patient compensation fund." Louisiana enacted a statute with a patient compensation fund identical to the Indiana statute. Sibley v. Board of Sup'rs of Louisiana, 462 So. 2d at 156.


[43] It should be remembered that the Medical Liability Act of 1977 (now article 4590i) was based on recommendations of the Texas Medical Professional Liability Study Commission, sometimes referred to as the Keeton Report. Dean Keeton, in a separate statement, recommended a victim's compensation fund as a statutory substitute for limitations upon recovery. See Keeton Report at 51-52. The legislature chose not to follow this recommendation.


[44] We also question whether the restrictions in sections 11.02 and 11.03 are reasonable when balanced against the purposes and bases of the statute.*fn2 The legislature, in enacting article 4590i, apparently did not intend to strike at frivolous malpractice suits for it found in section 1.02(a)(2) that "the filing of legitimate health care liability claims in Texas is a contributing factor affecting medical professional liability rates" (emphasis added). The legislature did find that a "medical malpractice insurance crisis" had been created and that "satisfactory insurance coverage . . . [was] often not available at any price," but it then stated that "adoption of certain modifications in the medical, insurance, and legal systems . . . may or may not have an effect on the rates charged by insurers for medical professional liability coverage," Tex. Rev. Civ. Stat. Ann. art. 4590i, § 1.02(a)(5), (10), (12) (emphasis added).


[45] In the context of persons catastrophically injured by medical negligence, we believe it is unreasonable and arbitrary to limit their recovery in a speculative experiment to determine whether liability insurance rates will decrease. Texas Constitution article I, section 13, guarantees meaningful access to the courts whether or not liability rates are high. As to the legislature's stated purpose to "assure that awards are rationally related to actual damages," section 1.02(b)(2), we simply note that this is a power properly attached to the judicial and not the legislative branch of government. Tex. Const. art. II, § 1. In any event, we hold it is unreasonable and arbitrary for the legislature to conclude that arbitrary damages caps, applicable to all claimants no matter how seriously injured, will help assure a rational relationship between actual damages and amounts awarded.


[46] Even the Keeton Commission could not conclude there was any correlation between a damage cap and the stated legislative purpose of improved health care, stating that adequate data was lacking. Keeton Report at 7; id. at 38. One independent study has concluded that there is no relationship between a damage cap and increases in insurance rates [thereby reducing available health care], given that less than .6 % of all claims brought are for over $100,000. Sumner, The Dollars and Sense of Hospital Malpractice Insurance, 9 (Aft Books 1979).


[47] We are supported in our decision to strike down the damages caps in article 4590i by the reasoning of the Florida Supreme Court invalidating that state's $450,000 ceiling on non-economic damages. Smith v. Department of Insurance, 507 So. 2d 1080 (Fla. 1987). Like the appellees in Smith, the medical defendant in our case argues that the legislature has not totally abolished a cause of action but merely placed a cap on damages that may be recovered and, therefore, has not denied the right of access to the courts. The Supreme Court of Florida rejected these arguments. After first pointing out that the constitutional right of access to the courts must be read in conjunction with the right of trial by jury, the court stated:


[48] Access to the court is granted for the purpose of redressing injuries. A plaintiff who receives a jury verdict for, e.g., $1,000,000, has not received a constitutional redress of injuries if the legislature statutorily, and arbitrarily, caps the recovery. Nor, we add, because the jury verdict is being arbitrarily capped, is the plaintiff receiving the constitutional benefit of a jury trial as we have understood that right. Further, if the legislature may constitutionally cap recovery at $450,000, there is no discernible reason why it could not cap the recovery at some other figure, perhaps $50,000, or $1,000, or even $1.


[49] Smith, 507 So. 2d at 1088-89. Compare Boyd v. Bulala, 672 F. Supp. 915, 922 (W.D. Va. 1987) ($1,000,000 damage cap violated right of jury trial under seventh amendment to the U.S. Constitution) (prior opinion in same case held that $750,000 cap violated right of jury trial under Virginia Constitution as well, 647 F. Supp. at 789).


[50] The reasoning from the Smith opinion is entirely consistent with our "open courts" analysis in LeCroy v. Hanlon, 713 S.W.2d 335 (Tex. 1986). LeCroy involved legislative interference with access to the courts by way of increased filing fees, much of which went to the state's general revenue fund. Clearly this was not a total abolition of the right of access. Nevertheless, the court held the fee increases invalid under Tex. Const. art. I, § 13. 713 S.W.2d at 338-42. Our opinion in LeCroy also concisely explained the importance and uniqueness of state constitutional rights:


[51] While state constitutions cannot subtract from rights guaranteed by the United States Constitution, state constitutions can and often do provide additional rights for their citizens. The federal constitution sets the floor for individual rights; state constitutions establish the ceiling. Recently, state courts have not hesitated to look to their own constitutions to protect individual rights. This court has been in the mainstream of that movement.


[52] Like the citizens of other states, Texans have adopted state constitutions to restrict governmental power and guarantee individual rights. The powers restricted and the individual rights guaranteed in the present constitution reflect Texas' values, customs, and traditions. Our constitution has independent vitality, and this court has the power and duty to protect the additional state guaranteed rights of all Texans. By enforcing our constitution, we provide Texans with their full individual rights and strengthen federalism.


[53] LeCroy, 713 S.W.2d at 338-39 (citations and footnote omitted).


[54] We understand the legislature's concern in attempting to solve the health care problems it perceived during the middle of the 1970's. Nevertheless, we agree with the statement by the Supreme Court of New Hampshire: "It is simply unfair and unreasonable to impose the burden of supporting the medical care industry solely upon those persons who are most severely injured and therefore most in need of compensation." Carson v. Maurer, 120 N.H. 925, 424 A.2d 825, 837 (1980).*fn3


[55] For the reasons stated in this opinion, our answer to the certified question is that the limitation on medical malpractice damages in Tex. Rev. Civ. Stat. Ann. art. 4590i, §§ 11.02 and 11.03, is inconsistent with and violative of article I, section 13, of the Texas Constitution. The additional question certified to us is moot.


[56] Dissenting Opinion by Justice Gonzalez


[57] Dissenting Opinion by Chief Justice Phillips to be filed


[58] CONCURRING OPINION


[59] BARBARA G. CULVER JUSTICE


[60] I agree with the result reached by the majority. However, I do so with caution because I believe that legislative caps on medical malpractice awards could be consistent with the Texas Constitution under certain circumstances.


[61] The damages limitations contained in Tex. Rev. Civ. Stat. Ann. art. 4590i ss 11.02 and 11.03 would not unconstitutionally limit Lucas' right of access to the courts for a "remedy by due course of law" if the legislature had seen fit to provide Lucas and those similarly situated with an alternative remedy. The majority notes that "in two of the jurisdictions in which damages caps were upheld, the fact that alternative remedies were provided weighted heavily in the decisions, " citing Johnson v. St. Vincent Hospital, 273 Ind. 374, 404 N.E. 2d 585, 601 (Ind. 1980) and Sibley v. Board of supervisors, 462 So. 2d 149, 156 (La. 1985), modified on reh'g, 477 So. 2d 1094, 1109-10 (La. 1985) (latter opinion ordering conditional remand on state equal protection challenge). The majority observes that the state legislatures of Indiana and Louisiana had established "patient compensation funds." The majority further observes that Dean Keeton urged that a victim's compensation fund be established as a substitute for the damages caps in question here. I share the concern expressed by the majority that lack of alternative remedies renders these caps unreasonable and arbitrary when balanced against the purpose and basis of the statute.


[62] I have chosen to express my views separately because I do not wish to be understood as saying that all damages caps are fundamentally unconstitutional. I do not interpret the majority opinion to stand for such a proposition, but to the extent the majority may be interpreted to so hold, I would disagree. In my view, damages caps could survive constitutional scrutiny if the statutory scheme provided an adequate alternative remedy, such as a patient compensation fund, for victims of catastrophic injuries.


[63] ING OPINION


[64] RAUL A. GONZALEZ, Justice


[65] I dissent. The issue is not the wisdom or fairness of the cap, but whether the cap bears a reasonable relation to a proper legislative purpose. I would hold that the limitation on recovery of non-medical damages does not violate either the Equal Protection or the Due Process guarantees which are set forth in the Texas Constitution.


[66] History and Legislative Findings


[67] In 1975, the Texas Legislature enacted legislation creating the Texas Medical Professional Liability Study Commission. The function of the Commission was to study the reasons why physicians, hospitals, and other health care providers were experiencing tremendous increases in malpractice insurance premiums. The Commission held hearings, gathered evidence and submitted recommendations to the legislature that reconvened in 1977. The legislature considered a majority and several minority reports before it enacted The Medical Liability and Insurance Improvement Act, found in TEX. REV. CIV. STAT. ANN. art. 4590i (Vernon Supp. 1988). See Keith, The Texas Medical Liability and Insurance Improvement Act -- A Survey and Analysis of its History, Construction and Constitutionality, 36 Baylor L. Rev. 265 (1984).


[68] The Act provides: The Legislature of the State of Texas finds that:


[69] (1) the number of health care liability claims (frequency) has increased since 1972 inordinately;


[70] (2) the filing of legitimate health care liability claims in Texas is a contributing factor affecting medical professional liability rates;


[71] (3) the amounts being paid out by insurers in judgments and settlements (severity) have likewise increased inordinately in the same short period of time;


[72] (4) the effect of the above has caused a serious public problem in availability of and affordability of adequate medical professional liability insurance;


[73] (5) the situation has created a medical malpractice insurance crisis in the State of Texas;


[74] (6) this crisis has had a material adverse effect on the delivery of medical and health care in Texas, including significant reductions of availability of medical and health care services to the people of Texas and a likelihood of further reductions in the future;


[75] (7) the crisis has had a substantial impact on the physicians and hospitals of Texas and the cost to physicians and hospitals for adequate medical malpractice insurance has dramatically risen in price, with cost impact on patients and the public;


[76] (8) the direct cost of medical care to the patient and public of Texas has materially increased due to rising cost of malpractice insurance protection for physicians and hospitals in Texas;


[77] (9) the crisis has increased the cost of medical care both directly through fees and indirectly through additional services provided for protection against future suits or claims; and defensive medicine has resulted in increasing cost to patients, private insurers, and the state and has contributed to the general inflation that has marked health care in recent years;


[78] (10) satisfactory insurance coverage for adequate amounts of insurance in this area is often not available at any price;


[79] (11) the combined effect of the defects in the medical, insurance, and legal systems has caused a serious public problem both with respect to the availability of coverage and to the high rates being charged by insurers for medical professional liability insurance to some physicians, health care providers, and hospitals;


[80] (12) the adoption of certain modifications in the medical, insurance, and legal systems, the total effect of which is currently undetermined, may or may not have an effect on the rates charged by insurers for medical professional liability insurance;


[81] (13) these facts have been verified by the Medical Professional Liability Study Commission, which was created by the 64th Legislature. For further amplification of these facts the legislature adopts the findings of the report of the commission.


[82] TEX. REV. CIV. STAT. ANN. art. 4590i, § 1.02(a) (Vernon Supp. 1988)(emphasis added).


[83] The stated purposes of the Act are to:


[84] (1) reduce excessive frequency and severity of health care liability claims through reasonable improvements and modifications in the Texas insurance, tort, and medical practice systems;


[85] (2) decrease the cost of those claims and assure that awards are rationally related to actual damages;


[86] (3) do so in a manner that will not unduly restrict a claimant's rights any more than necessary to deal with the crisis;


[87] (4) make available to physicians, hospitals, and other health care providers protection against potential liability through the insurance mechanism at reasonably affordable rates;


[88] (5) make affordable medical and health care more accessible and available to the citizens of Texas;


[89] (6) make certain modifications in the medical, insurance, and legal systems in order to determine whether or not there will be an effect on rates charged by insurers for medical professional liability insurance; and


[90] (7) make certain modifications to the liability laws as they relate to health care liability claims only and with an intention of the legislature to not extend or apply such modifications of liability laws to any other area of the Texas legal system or tort law.


[91] TEX. REV. CIV. STAT. ANN. art. 4590i, § 1.02(b) (Vernon Supp. 1988).*fn1


[92] As a starting point in our constitutional review of article 4590i, it cannot be overemphasized that:


[93] [W]e begin with a presumption of validity. It is to be presumed that the Legislature has not acted unreasonably or arbitrarily; and a mere difference of opinion, where reasonable minds could differ, is not a sufficient basis for striking down legislation as arbitrary or unreasonable. The wisdom or expediency of the law is the Legislature's prerogative, not ours . . . . There is a strong presumption that a Legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience, and that its discriminations are based upon adequate grounds.


[94] Smith v. Davis, 426 S.W.2d 827, 831 (Tex. 1968); see also Sax v. Votteler, 648 S.W.2d 661, 664 (Tex. 1983). This presumption of constitutionality applies "whether the basis of constitutional attack is grounded in due process or equal protection." Whitworth v. Bynum, 699 S.W.2d 194, 197 (Tex. 1985). The burden of demonstrating constitutional invalidity rests on the party assailing the statute. Robinson v. Hill, 507 S.W.2d 521, 524 (Tex. 1974); Smith v. Craddick, 471 S.W.2d 375, 378 (Tex. 1971).


[95] Equal Rights


[96] The Fourteenth Amendment to the United States Constitution provides that "[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws." U.S. CONST. amend. XIV, § 1. Similarly, the Texas Constitution states that "[a]ll free men, when they form a social compact, have equal rights . . . ." TEX. CONST. art. I, § 3.


[97] Under traditional equal protection analysis, different levels of judicial scrutiny are applied depending upon the type of individual right which the State has chosen to affect through legislative classification. Under the equal protection clause of the Fourteenth Amendment, this Court has previously applied a two-tier analysis:


[98] [T]he general rule is that when the classification created by the state regulatory scheme neither infringes fundamental rights or interests nor burdens an inherently suspect class, equal protection analysis requires that the classification be rationally related to a legitimate state interest.


[99] Sullivan v. University Interscholastic League, 616 S.W.2d 170, 172 (Tex. 1981). Thus, if the legislative classification does not affect a fundamental right or a suspect class, it need only be rationally related to a legitimate state interest in order to pass constitutional muster. See Vance v. Bradley, 440 U.S. 93, 97, 59 L. Ed. 2d 171, 99 S. Ct. 939 (1979). We apply this same two-prong analysis to the equal protection clause contained in Article I, Section 3 of the Texas Constitution. Spring Branch I.S.D. v. Stamos, 695 S.W.2d 556, 559-60 (Tex. 1985).


[100] The right accorded to a plaintiff to sue in tort for an injury is not a fundamental right. See Sibley v. Board of Sup'rs of Louisiana, 462 So.2d 149, 155 (La. 1985). Accordingly, the appropriate level of scrutiny to be applied in this case is whether the classifications drawn by article 4590i are rationally related to a legitimate state interest. See Whitworth, 699 S.W.2d at 197; Spring Branch, 695 S.W.2d at 559.


[101] Article 4590i creates two classifications. First, section 11.02 draws a distinction between medical malpractice claimants and other tort claimants. Second, within the class of medical malpractice claimants, there is a distinction drawn based upon whether damages exceed $500,000 dollars. Under the rational basis test, I cannot say that this statute is not rationally related to the stated purposes of section 1.02(b). "Whether in fact the Act will [achieve its stated goals] is not the question: the Equal Protection Clause is satisfied . . . if the Legislature could rationally have decided " that a cap of non-medical damages would effectuate those goals. See Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 466, 66 L. Ed. 2d 659, 101 S. Ct. 715 (1980) (emphasis in original).


[102] Where a local economic regulation is challenged on equal protection grounds, we must defer "to legislative determinations as to the desirability of particular statutory discrimination." New Orleans v. Dukes, 427 U.S. 297, 303, 49 L. Ed. 2d 511, 96 S. Ct. 2513 (1975).


[103] In short, the judiciary may not sit as a super-legislature to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines . . ., in the local economic sphere, it is only the invidious discrimination, the wholly arbitrary act, which cannot stand consistently with the Fourteenth Amendment.


[104] Id. at 303-04 (citations omitted). This reasoning applies with equal force to the equal rights provision of Article I, Section 3 of the Texas Constitution.


[105] Due Course


[106] Article I, Section 19 of the Texas Constitution provides:


[107] No citizen of this state shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.


[108] TEX. CONST. art. I, § 19.


[109] Article I, Section 19 and the Fourteenth Amendment to the United States Constitution impose similar restrictions on the legislature. TEX. CONST. art. I, § 19; Lively v. Missouri K. & T. Ry. Co. of Texas, 102 Tex. 545, 120 S.W. 852 (1909); Mellinger v. City of Houston, 68 Tex. 37, 3 S.W. 249 (Tex. 1887); Massachusetts Indem. & Life v. Tex. State Bd. of Ins., 685 S.W.2d 104 (Tex. App. -- Austin 1985, no writ). The standard of review for constitutional challenges on substantive due process grounds for both the state and federal due process clauses is as follows:


[110] If the laws passed are seen to have a reasonable relation to a proper legislative purpose, and are neither arbitrary nor discriminatory, the requirements of due process are satisfied. . . .


[111] Nebbia v. New York, 291 U.S. 502, 537, 78 L. Ed. 940, 54 S. Ct. 505 (1933).


[112] Accordingly, I would apply the following standard of review under Article I, Section 19 of the Texas Constitution: whether the medical caps in article 4590i bear a reasonable relation to a proper legislative purpose. Under this standard, I cannot say that the limitation of damages provisions violate Article I, Section 19 of our state constitution.


[113] Open Courts


[114] The other due process guarantee in the Texas Constitution is the open courts provision, which provides as follows:


[115] All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.


[116] TEX. CONST., art. I, § 13. Similar guarantees are found in the constitutions of thirty-seven other states. 1 G. Braden, The Constitution of the State of Texas: An Annotated and Comparative Analysis 51 (1977).


[117] Article I, Section 13 provides two separate and distinct guarantees: (1) all courts shall be open, and (2) every person shall have remedy for injury by due course of law. The former category guarantees a right of "access," while the latter category guarantees a right of "redress." No opinion of this court has discussed the independent guarantee of redress; rather, the focus of our analysis has been upon those legislative enactments which impose impossible or unreasonable conditions on a litigant's right of access to the courts. Article 4590i, however, leaves the right of access wholly intact; only the right of redress is partially restricted.


[118] Thus, this case presents two important questions of first impression. Does a legislative enactment which partially restricts the right of redress trigger the protections of Article I, Section 13? If so, what is the appropriate standard of review to be applied?


[119] I have found no case which interprets the open courts provision as independently protecting a litigant's right of redress. I am mindful, however, of the text of our Constitutional provision: "every person . . . shall have remedy by due course of law." TEX. CONST. art. 1, § 13. I agree with the majority that the protections of Article I, Section 13 do extend to legislative enactments which allow free access but restrict redress. I further agree that the appropriate standard of review is whether the legislative purpose for the statute outweighs the partial diminution of a litigant's constitutionally-guaranteed right of redress. I vigorously disagree, however, with the majority's implication that the appropriate standard of review includes the existence of a reasonable substitute (individual quid pro quo) as a constitutional prerequisite to statutory validity.


[120] Standard of Review


[121] It is at this juncture that I depart from the majority opinion, and register my dissent. The challenged statute here restricts but does not totally abrogate recovery.*fn2 I would hold that section 11.02 of article 4590i is constitutional under Article I, Section 13.


[122] This court recently articulated the standard for reviewing the constitutionality of a statute which abrogates the individual's right of redress. In Sax v. Votteler, 648 S.W.2d 661 (Tex. 1983) we noted:


[123] [T]he right to bring a well established common law cause of action cannot be effectively abrogated by the legislature absent a showing that the legislative basis for the statute outweighs the denial of the constitutionally guaranteed right of redress. In applying this test, we consider both the general purpose of the statute and the extent to which the litigant's right of redress is affected . . . .


[124] In analyzing the litigant's right to redress, we first note that the litigant has two criteria to satisfy. First, it must be shown that the litigant has a cognizable common law cause of action that is being restricted. Second, the litigant must show that the restriction is unreasonable or arbitrary when balanced against the purpose and basis of the statute.


[125] Id. at 666.


[126] It should be noted that the court did not expressly require an individual quid pro quo for the abolition of the right to access. Neither was this required in our later case of Nelson v. Krusen, 678 S.W.2d 918, 922 (Tex. 1984). However, we indicated in Middleton v. Texas Power & Light Co., 108 Tex. 96, 185 S.W 556 (1916); aff'd, 249 U.S. 152, 63 L. Ed. 527, 39 S. Ct. 227 (1919) that the substitution by the legislature of a statutory remedy is necessary when it abrogates an individual's common law rights. And while the majority is guarded in its language, the implied basis in today's opinion for striking down the damages limitations is a perceived lack of a reasonable substitute for the impairment of the litigant's right of redress. I believe that this requirement can be harmonized with our test set out in Sax by making the existence of a quid pro quo a factor in determining whether the statutory scheme denying the constitutionally-guaranteed right of redress is reasonable. This court in Lebohm v. City of Galveston, 154 Tex. 192, 275 S.W.2d 951, 954 (1955) stated that certain legislation would survive constitutional attack even without a reasonable substitute, if it represented a reasonable and permissible exercise by the Legislature of the state's police power. Thus, the court held that the legislature's action was not arbitrary because in abolishing the plaintiff's common law cause of action, "it . . . substituted a different but certain and adequate legal remedy for the one that existed at common law." Id.


[127] This court has never expressly required an individual quid pro quo in the past; to do so now would unquestionably restrain the legislature's ability and duty to effect social change through legislative enactment. Article I, Section 13 does not guarantee the continued existence of a common law cause of action, but only proscribes the creation of an impossible or unreasonable impediment to access or redress to vindicate a recognized and justiciable substantive right. The open courts provision was never intended to create any new rights, nor was it intended to elevate the common law to constitutional stature. I agree with the position taken by the California Supreme Court:


[128] [E]ven if due process principles required some "quid pro quo" to support the statute, it would be difficult to say that the preservation of a viable medical malpractice insurance industry in this state was not an adequate benefit for the detriment the legislation imposes on malpractice plaintiffs.


[129] Fein v. Permanente Medical Group, 38 Cal. 3d 137, 695 P.2d 665, 681-82 n. 18, 211 Cal. Rptr. 368 (Cal. 1985).


[130] Sax and Article 4590i, Sections 11.02, 11.03


[131] Under Sax, the test for determining the constitutionality of a restriction of an individual's right to redress is whether the legislative basis for the statute outweighs the denial of the constitutionally-guaranteed right of redress. Sax, 648 S.W.2d at 665. See also Nelson v. Krusen, 678 S.W.2d at 922 (citing Hanks v. City of Port Arthur, 121 Tex. 202, 48 S.W.2d 944 (Tex. 1932) and McCrary v. City of Odessa, 482 S.W.2d 151 (Tex. 1972)). "In applying this test, we consider both the general purpose of the statute and the extent to which the litigant's right to redress is affected." Sax at 666. Legislative action withdrawing or restricting a common law remedy will be sustained if it is reasonable in substituting other remedies. Sax at 665 (citing Lebohm). I believe the stated purposes for enacting the Medical Liability and Insurance Improvement Act demonstrates that the legislature acted reasonably under this standard.


[132] Two of the stated purposes of article 4590i are to:


[133] (4) make available to physicians, hospitals, and other health care providers protection against potential liability through the insurance mechanism at reasonable affordable rates;


[134] (5) make affordable medical and health care more accessible and available to the citizens of Texas;


[135] TEX. REV. CIV. STAT. ANN. art. 4590i, § 1.02(b) (Vernon Supp. 1988). Although an individual quid pro quo is not constitutionally required, I nonetheless submit these two purposes reveal that the medical cap in section 11.02 of article 4590i provides both a societal and individual quid pro quo. The benefit to society is that by reducing the awards given to those injured in excess of the caps, insurance payouts are more readily calculable. This in turn allows a predictable rate structure to be erected, thus allowing policies to be written on health care providers who otherwise could not afford the exorbitant rates associated with policies of undeterminable risk. The resultant societal quid pro quo is the decrease in cost of medical malpractice insurance in the state of Texas and the increased availability of health care. I further suggest there is an individual quid pro quo because the caps enable health care providers to procure insurance in the first place. Without adequate coverage, it was reasonable for the Legislature to conclude that the plaintiff in a medical malpractice case would suffer damages with no recovery at all against an insolvent, judgment-proof defendant. I submit that a recovery of all medical costs and expenses, with a cap on $500,000 plus a Consumer Price Index adjustment on other damages, is better than a potential recovery of zero. Thus, while a reasonable substitute should not be required for legislative modifications of causes of action, I suggest there is in fact a sufficient quid pro quo in this case.


[136] In determining whether a litigant's right of redress is unreasonably or arbitrarily restricted, four distinct characteristics of article 4590i must be emphasized. First, the medical malpractice claimant is allowed to recover all past and future medical expenses without limitation. Secondly, the plaintiff may recover up to $500,000 of non-medical damages. Thirdly, the legislature provided for an upward adjustment of the damages limit based upon the Consumer Price Index. And fourth, the statute imposes a limitation on the liability of health care providers rather than an absolute ceiling on the amount a plaintiff can recover. Thus, where multiple defendants are involved, the medical malpractice plaintiff can recover against each. The statutory limits are applied on a per defendant basis rather than on a per occurrence basis. It is clear, therefore, that the Legislature was concerned with limiting the liability of each defendant, not with unreasonably and arbitrarily limiting the amount a plaintiff can recover. These aspects of the statute serve to distinguish it from all other state versions which have undergone constitutional attack.


[137] Out of State Authorities


[ 31 Tex. Sup. J. Page ]


The majority concludes that a $500,000 dollar cap on non-economic damages is arbitrary, and cites with approval Wright v. Central Du Page Hospital Ass'n, 63 Ill. 2d 313, 347 N.E.2d 736, 742 (1976). Reliance on Wright is inappropriate and misplaced. In Wright, the defendant, relying upon case law upholding constitutional challenges to the Illinois Workman's Compensation Act, maintained there existed under that state's damages cap a societal quid pro quo: the loss of recovery potential to some plaintiffs was offset by the lower medical care and insurance costs to society in general. The Illinois Supreme Court rejected this argument because any quid pro quo that existed was insufficient to save the challenged statutory provision. Id. at 742. The crucial distinction in Wright, however, was the court's concern that under the Illinois statute, medical expenses were capped. Unlike the Workman's Compensation Act, which allowed all "medical expenses and payment of compensation for the duration of . . . incapacity," the medical malpractice plaintiff may "be unable to recover even all the medical expenses he might incur." Id. Such is not the case in Texas. Article 4590i allows full and complete recovery of all medical expenses; only non-medical damages are capped. TEX. REV. CIV. STAT. ANN. art. 4590i, § 11.02 (Vernon Supp. 1988).
[138] The majority places great emphasis on the fact that in some of the jurisdictions which upheld statutes imposing damages caps, alternative remedies were provided. See S.W.2d (citing Johnson v. St. Vincent Hospital, 273 Ind. 374, 404 N.E.2d 585, 601 (1980); Sibley v. Board of Sup'rs of Louisiana, 462 So.2d 149, 156 (La. 1985)). It should be noted, however, that both Indiana and Louisiana have medical caps of $500,000 dollars as an absolute ceiling on all damages, thus necessitating in my view a higher level of constitutional justification. See generally, Johnson, 404 N.E.2d at 601 (existence of patient compensation fund to increase availability of medical insurance); see also Sibley, 462 So.2d at 156 (Louisiana's Act modeled on Indiana's Act). Neither court required the existence of a quid pro quo as a constitutional prerequisite.


[139] The majority's reliance on Smith v. Department of Insurance, 507 So.2d 1080 (Fla. 1987), is equally unconvincing. Although Smith held that a $450,000 dollar cap on non-economic damages violated Florida's open courts provision, it did so because no "legislative showing of an overpowering public necessity for the abolishment of such right, and no alternative method of meeting such public necessity can be shown." Id. at 1089. Such a heightened standard is not followed in Texas. As stated previously, the test to be applied in the context of a constitutional challenge under Texas' open courts provision is whether the diminution of redress is "unreasonable or arbitrary when balanced against the purpose and basis of the statute." Sax, 648 S.W.2d at 666. I cannot conclude that section 11.02 is constitutionally infirm under the standard enunciated in Sax.


[140] Reliance on Arneson v. Olson, 270 N.W.2d 125 (N.D. 1978) is also misplaced. North Dakota's damages cap was a total cap of $300,000 dollars which might prevent seriously injured victims from recovering all of their medical expenses. As previously noted, such is not the case in Texas.


[141] It is true that several states have invalidated statutory provisions limiting damages in medical malpractice actions on a variety of theories. With only two exceptions, however, these invalidated statutes contained absolute ceilings on both pecuniary and non-pecuniary damages.*fn3 What distinguishes article 4590i from other statutory schemes is its full allowance of all medical costs and expenses; only non-medical injuries are limited.


[142] The majority cites with approval the language used by the Supreme Court of Florida: "[I]f the legislature may constitutionally cap recovery at $450,000 there is no discernable reason why they could not cap the recovery at some other figure, perhaps $50,000 or $1,000 or $1." S.W.2d . This argument ignores the fact that any modification the legislature makes is subject to being stricken as unconstitutional. A reduction of non-medical damages to a lesser cap at some point would be manifestly so insufficient as to become a denial of justice.


[143] Plaintiffs have no vested property rights in a particular measure of damages. This is without doubt since a "vested right" must be something more than a mere expectation based on anticipated continuance of existing law. It must become a title, legal or equitable, to present or future enjoyment of property. National Carloading Corp. v. Phoenix-El Paso Express, 142 Tex. 141, 176 S.W.2d 564 (Tex. 1944), cert. denied, 322 U.S. 747, 88 L. Ed. 1578, 64 S. Ct. 1156 (1944). The legislature has broad powers to modify the scope and nature of such damages. See American Bank & Trust Co. v. Community Hospital, 36 Cal. 3d 359, 683 P.2d 670, 204 Cal. Rptr. 671 (1984). I am not prepared to hold that an award of close to $1 million ($500,000 plus consumer index adjustment provided for in § 11.04 of the Act) for non-medical damages coupled with no limitation on past and future medical expenses is so arbitrary and unreasonable that it does not pass constitutional muster. Therefore, this cap is no more a violation of the open courts provision of the Texas Constitution than the fee increase was in LeCroy, 713 S.W.2d at 343 (Gonzalez, J., dissenting).


[144] Special Legislation


[145] The majority intimates that the damages caps of article 4590i constitute a special law in violation of Article III, section 56 of the Texas Constitution. That section prohibits the Legislature from passing local or special laws, except as otherwise provided by the Texas Constitution. TEX. CONST. art. III, § 56. In Clark v. Finley, 93 Tex. 171, 54 S.W. 343 (1899), the court defined a "local" law as one which confines its operation to a fixed part of the territory of the state. Id. at 346. A "special law" was defined as a statute which relates to particular persons or things of a class. Id. at 345.


[146] The damages caps cannot be classified as a local law because these statutes apply equally to all citizens throughout the State of Texas. Wood v. Wood, 159 Tex. 350, 320 S.W.2d 807, 809 (Tex. 1959); County of Cameron v. Wilson, 160 Tex. 25, 326 S.W.2d 162, 165 (1959); Clark v. Finley, 93 Tex. 171, 54 S.W. 343, 346. Nor can it be said that sections 11.01 and 11.02 of article 4590i constitute a special law in favor of a certain class of litigants. As we said in Miller v. El Paso County, 136 Tex. 370, 150 S.W.2d 1000, 1001-1002 (Tex. 1941):


[147] [T]he courts recognize in the Legislature a rather broad power to make classifications for legislative purposes and to enact laws for the regulation thereof, even though such legislation may be applicable only to a particular class. . . . ; such legislation must be intended to apply uniformly to all who may come within the classification designated in the Act, and the classification must be broad enough to include a substantial class and must be based on characteristics legitimately distinguishing such class from others with respect to the public purpose sought to be accomplished . . . .


[148] Thus, the Legislature is unquestionably empowered to create classifications of persons and things, so long as the classifications are not arbitrary. Where a reasonable relationship exists between the classification and the objectives sought to be accomplished by the statute, Article III, Section 56 is not violated. Id. See also Smith v. Davis, 426 S.W.2d 827, 830 (Tex. 1968).


[149] It is evident that the class affected by the medical damages caps are health care providers. Distinguishing that class of tortfeasors from others is reasonable in light of the legislative findings that a medical malpractice insurance crisis exists in Texas, and the legislative objectives of increasing the availability and affordability of health insurance in his state. The primary and ultimate test for determining whether the caps pass constitutional scrutiny under Article III, Section 56 has been met: there is a reasonable basis for the classification it makes, and the law operates equally on all within the class. Robinson v. Hill, 507 S.W.2d 521, 525 (Tex. 1974).


[150] Conclusion


[151] At the time 4590i was enacted, Texas was faced with a crisis in the affordability and availability of medical malpractice insurance. As a result of the crisis, many physicians and health care providers had ceased or reduced the scope of their practice. We must measure whether the legislature's action was arbitrary in light of these circumstances. Even though many of the findings made by the legislature were not based upon Texas' experience, the legislature could have reasonably believed that without some measure of cost reduction, future medical malpractice claimants would experience difficulty in obtaining collectible judgments for any of their damages. Thus, the legislature could have reasonably and rationally concluded that capping the amount of non-medical damages in a medical malpractice action would improve the availability and cost of malpractice insurance in the State of Texas.


[152] I acknowledge that there are serious questions surrounding the causes of the medical malpractice insurance crisis. I also acknowledge that the validity of some of the findings made by the Study Commission and adopted by the legislature are questionable. However, the findings are "legislative facts" which should be accorded great deference by this court, particularly because reasonable minds can differ as to the causes of the crisis. For us to "unfind" that there is no crisis on the state of this record is to act like a "super legislature" in violation of the separation of powers doctrine. We must respect the process. Whatever flaws exist in the legislative findings, the proper forum to correct them is the Texas Legislature and not this court. For the above reasons, I dissent.



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Opinion Footnotes

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[153] *fn1 Although not necessary in light of our "open courts" holding, one wonders whether the drafters of the Texas Constitution intended for the legislature to enact special laws for the protection of specified classes of tortfeasors. Compare Tex. Const. art. I, § 3 ("[N]o man, or set of men, is entitled to exclusive . . . privileges, but in consideration of public services.") with Tex. Const. art. III, § 56 ("[I]n all other cases where a general law can be made applicable, no local or special law shall be enacted . . . ."). A prior constitution left it to the legislature, "in its judgment," to decide when a general law could be made applicable. Tex. Const. art. XII, § 40 (1873). This language does not appear in the present constitution. Tex. Const. art. III, § 56.


[154] *fn2 In Sax v. Votteler, we said that the purpose and basis of a predecessor statute, Tex. Ins. Code Ann. art. 5.82, were legitimate. 648 S.W.2d at 667. However, that statute contained neither comparable legislative findings nor a limitation on damage recovery as in article 4590i.


[155] *fn3 We note that in its efforts to protect health care providers from perceived harm, the legislature included other provisions in article 4590i that have failed to pass constitutional muster. See Neagle v. Nelson, 685 S.W.2d 11 (Tex. 1985) (terminating a medical negligence cause of action before it was possible to be discovered violated the open courts provision); Sax v. Votteler, 648 S.W.2d 661 (Tex. 1983) (depriving a minor of a medical negligence cause of action violated the open courts provision).



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Dissent Footnotes

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[156] *fn1 What deference or status should our court give these findings? Should we just ignore them as the majority has done?


[157] *fn2 As will be discussed, neither Middleton, Lebohm, Sax, Nelson, or this case requires an individual quid pro quo. However, even if a cogent argument can be made that these authorities do in fact require an individual substitute, none of these cases deal with legislation which partially restrict redress. To the contrary, these decisions construe enactments which totally abrogate a well-defined common law cause of action. Because this case presents a much less intrusive level of interference, I submit the corresponding standard of review does not require the existence of an individual quid pro quo; a societal quid pro quo is sufficient. Lebohm, 275 S.W.2d at 955.


[158] *fn3 The two exceptions are New Hampshire and Florida. See Carson v. Maurer, 120 N.H. 925, 424 A.2d 825, 836 (1980); Smith v. Department of Insurance, 507 So.2d 1080, 1088-89 (Fla. 1987). Both courts struck down the medical caps according to a heightened "intermediate scrutiny" standard of review. Texas does not apply such a standard.