Fein v. Permanente Medical Group

BIRD, C. J., Dissenting.

With today’s decision, a majority of this court have upheld, in piecemeal fashion, statutory provisions that require victims *168of medical negligence to accept delayed payment of their judgments (American Bank & Trust Co. v. Community Hospital (1984) 36 Cal.3d 359 [204 Cal.Rptr. 671, 683 P.2d 670] [hereafter American Bank]), that prohibit them from paying the market rate for legal representation (Roa v. Lodi Medical Group (1985) 37 Cal.3d 920 [211 Cal.Rptr. 77, 695 P.2d 164]), that deprive them of compensation for proven noneconomic damages greater than $250,000 (maj. opn., ante, at pp. 157-164), and that divest them of the benefit of their own insurance policies (id., at pp. 164-167).

While the majority have considered the cumulative financial effect of these provisions on insurers to support their conclusion that MICRA might have some desirable impact on insurance rates (see maj. opn., ante, at p. 159, fn. 16), they have insisted upon assessing the human impact of each provision on injured victims in isolation. However, it is no longer possible to ignore the overall pattern of the MICRA scheme. In order to provide special relief to negligent healthcare providers and their insurers, MICRA arbitrarily singles out a few injured patients to be stripped of important and well-established protections against negligently inflicted harm.

Crisis or no crisis, this court is dutybound to apply the constitutional guarantee against irrational and invidious legislative classifications. Today’s majority opinion represents a sad departure from this court’s previously proud tradition of fulfilling that important duty.

By now, the story of MICRA is a familiar one. (See generally, American Bank, supra, 36 Cal.3d at p. 364.) Enacted in 1975 amidst a nationwide “medical malpractice crisis,” it includes a number of provisions that seek to relieve healthcare providers and their insurers from some of the costs of medical malpractice litigation. Victims of medical negligence—especially those afflicted with severe injuries—have been singled out to provide the bulk of this relief. These plaintiffs have been deprived of the benefit of various general rules that normally govern personal injury litigation. (See, e.g., Code Civ. Proc., § 667.7 [exception to general rule requiring immediate lump sum payment of a judgment]; Bus. & Prof. Code, § 6146 [special restrictions on attorney fees]; Civ. Code, § 3333.2 [special limit on non-economic damages];1 § 3333.1 [abrogation of collateral source rule].)

As political scientist Paul Starr has observed, “[a] crisis can be a truly marvelous mechanism for the withdrawal or suspension of established rights, and the acquisition and legitimation of new privileges.” (Quoted in Jenkins & Schweinfurth, California’s Medical Injury Compensation Reform Act: An Equal Protection Challenge (1979) 52 So.Cal. L.Rev. 829, 935 *169[hereafter California’s MICRA.) However, now that the medical malpractice “crisis” is fading into the past, courts around the country are taking a closer look at medical malpractice legislation. At the time of this court’s first MICRA decision, only three courts had invalidated medical malpractice legislation on equal protection grounds. (American Bank, supra, 36 Cal.3d at p. 370, fn. 10.) In the past year alone, that number has doubled. (See Austin v. Litvak (Colo. 1984) 682 P.2d 41; Baptist Hosp. of Southeast Texas v. Baber (Tex.Ct.App. 1984) 672 S.W.2d 296; Kenyon v. Hammer (1984) 142 Ariz. 69 [688 P.2d 961].)

Unfortunately, a majority of this court today decline to join this growing trend. Instead, they continue to defer to the Legislature’s resolution of the “crisis,” with dire consequences both for victims of medical negligence and for well-established principles of constitutional law.

The problems of this approach are rapidly becoming apparent as the courts begin to confront its human consequences. Less than one year ago, this court rejected the first MICRA challenge, upholding the periodic payment provision. (See American Bank, supra, 36 Cal.3d 359.) Already, that provision has been severely limited. In American Bank itself, this court mandated special procedures to offset the provision’s worst effects (id., at pp. 376, 377, fn. 14) and declined to apply it to the case at bar. (Id., at p. 378.) Today, in “the interests of justice,” this court approves the trial court’s refusal to apply the provision to all but a small portion of the present plaintiff’s award. (Maj. opn., ante, at p. 156.)

While the majority have upheld the various provisions of MICRA out of deference to the Legislature, it is unlikely that such ad hoc judicial adjustments to the act will ultimately produce a result that is more respectful of the Legislature than a clear-cut constitutional invalidation followed by a legislative revision of the scheme. The majority’s well meaning attempt at “deference” serves only to perpetuate a fundamentally unjust statutory scheme.

I.

For the first time, this court is confronted with a provision of MICRA that directly prohibits plaintiffs from recovering compensation for proven injuries. In contrast to the provisions so far upheld by this court, there is no pretense that the $250,000 limit on noneconomic damages affects only windfalls (compare American Bank, supra, 36 Cal.3d at p. 369), that it protects plaintiffs’ awards (compare ibid.; Roa v. Lodi Medical Group, supra, 37 Cal.3d at p. 933), or that it discourages nonmeritorious suits (com*170pare id., at p. 932.) The statute plainly and simply denies severely injured malpractice victims compensation for negligently inflicted harm.

Also for the first time, the weight of authority from other jurisdictions supports the constitutional challenge. A substantial majority of the courts of the nation that have addressed the constitutionality of medical malpractice damage limits have invalidated the challenged provisions. (See Wright v. Central Du Page Hospital Association (1976) 63 Ill.2d 313 [347 N.E.2d 736, 743, 80 A.L.R.3d 566]; Carson v. Maurer (1980) 120 N.H. 925 [424 A.2d 825, 838, 12 A.L.R.4th 1] [hereafter Carson]; Arneson v. Olson (N.D. 1978) 270 N.W.2d 125, 136; Baptist Hosp. of Southeast Texas v. Baber, supra, 672 S.W.2d at p. 298; Simon v. St. Elizabeth, Medical Center (1976) 3 Ohio Ops.3d 164 [355 N.E.2d 903, 906-907] [dictum]; cf. Jones v. State Board of Medicine (1976) 97 Idaho 859 [555 P.2d 399, 416], cert, den., 431 U.S. 914 [53 L.Ed.2d 223, 97 S.Ct. 2173] [remanding for factual determination on whether a medical malpractice crisis actually existed]; but see Johnson v. St. Vincent Hospital, Inc. (1980) 273 Ind. 374 [404 N.E.2d 585, 601].)

In Carson, supra, 424 A.2d at page 838, the New Hampshire Supreme Court struck down a damage limit identical to the present one. The court explained that “[i]t 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.” (Id., at p. 837.)2

The majority suggest that, with the exception of Carson, the decisions of other jurisdictions are factually distinguishable from the present case. It is argued that the invalidated statutes were more oppressive than the present one since they restricted recovery for all types of injury. (See maj. opn., ante, at p. 161.) However, in Baptist Hosp. of Southeast Texas v. Baber, supra, 672 S.W.2d 296, a Texas appellate court invalidated a $500,000 limit that applied only to damages other than medical expenses. Also, in Simon v. St. Elizabeth Medical Center, supra, 355 N.E.2d 903, an Ohio appellate court stated in dictum that a $200,000 limit on “general” damages, similar to the limit on “noneconomic” damages involved in the present case, violated the United States and Ohio Constitutions. These provisions were not markedly more severe than MICRA’s $250,000 limit on noneconomic damages.

*171Moreover, for many plaintiffs the present limit may be no less harsh than the $500,000 limit on total damages struck down by the Illinois Supreme Court in Wright v. Central Du Page Hospital Association, supra, 347 N.E.2d at page 741. Depending on the relative size of a particular plaintiff’s economic and noneconomic damages, the present limit might produce more or less harsh results than the Illinois statute. Only the North Dakota and Ohio statutes imposed substantially more stringent restrictions. (See Arneson v. Olson, supra, 270 N.W.2d at p. 135 [$300,000 limit on total damages]; Jones v. State Board of Medicine, supra, 555 P.2d at p. 410 [$150,000 limit on total damages].)

The burden on medical malpractice victims is no less real by virtue of the fact that it is “noneconomic” injury which goes uncompensated. Noneconomic injuries include not only physical pain and loss of enjoyment, but also “fright, nervousness, grief, anxiety, worry, mortification, shock, humiliation, indignity, embarrassment, apprehension, terror or ordeal.” (Capelouto v. Kaiser Foundation Hospitals (1972) 7 Cal.3d 889, 892-893 [103 Cal.Rptr. 856, 500 P.2d 880].)

For a child who has been paralyzed from the neck down, the only compensation for a lifetime without play comes from noneconomic damages. Similarly, a person who has been hideously disfigured receives only non-economic damages to ameliorate the resulting humiliation and embarassment.

Pain and suffering are afflictions shared by all human beings, regardless of economic status. For poor plaintiffs, noneconomic damages can provide the principal source of compensation for reduced lifespan or loss of physical capacity. Unlike the attorney in the present case, these plaintiffs may be unable to prove substantial loss of future earnings or other economic damages.

At first blush, $250,000 sounds like a considerable sum to allow for noneconomic damages. However, as amici California Hospital Association and California Medical Association candidly admit, most large recoveries come in cases involving permanent damage to infants or to young, previously healthy adults. Spread out over the expected lifetime of a young person, $250,000 shrinks to insignificance. Injured infants are prohibited from recovering more than three or four thousand dollars per year, no matter how excruciating their pain, how truncated their lifespans, or how grotesque their disfigurement. Even this small figure will gradually decline as inflation erodes the real value of the allowable compensation.

*172The majority are able to cite only a single decision upholding a limit on medical malpractice damages.3 In Johnson v. St. Vincent Hospital, Inc., supra, 404 N.E.2d 585, 601, the Indiana Supreme Court upheld a $500,000 limit on total damages. However, the Indiana statute did more than restrict malpractice victims’ recoveries. In order to obtain the benefits of the limit, health care providers were required to contribute to a state-run compensation fund. (Id., at p. 601; Ind. Code, tit. 16, art. 9.5, ch. 2-1.)

By contrast, the present limit is not linked to any public benefit. Insurers and health care providers are free to retain any savings for private use. Moreover, the Legislature had before it no evidence that the immense sacrifices of victims would result in appreciable savings to the insurance companies. In the years preceding the enactment of MICRA, an insignificant number of individuals (at maximum, 14 in a single year) received compensation of over $250,000 in noneconomic and economic damages combined. (See Cal. Auditor General, The Medical Malpractice Insurance Crisis in California (1975) p. 31 [hereafter Report of the Auditor General].) Further, it does not appear that the Legislature had access to any data specifically relating to noneconomic damages. (Id., at pp. 30-31; see generally, California’s MICRA, supra, at p. 951.)

As in American Bank and Roa, this court is urged to apply a heightened level of equal protection scrutiny. (Cf. Carson v. Maurer, supra, 424 A.2d 825.) However, I do not find it necessary to address that issue, since the limit cannot survive any “ ‘serious and genuine judicial inquiry into the correspondence between the classification and the legislative goals.’ ” (Cooper v. Bray (1978) 21 Cal.3d 841, 848 [148 Cal.Rptr. 148, 582 P.2d 604], quoting Newland v. Board of Governors (1977) 19 Cal.3d 705, 711 [139 Cal.Rptr. 620, 566 P.2d 254].)

Only one legitimate purpose is advanced in support of the statute: that of preserving medical malpractice insurance so that plaintiffs will be able to collect on the unrestricted portions of their judgments. (Maj. opn., ante, at p. 158.) Admittedly, the objective of preserving insurance is legitimate. And, the Legislature might reasonably have determined that special relief *173to medical tortfeasors and their insurance companies would effectuate that purpose. (See American Bank, supra, 36 Cal.3d at p. 372.)

However, it is not enough that the statute as a whole might tend to serve the asserted purpose. Each statutory classification “ ‘ “must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.” ’ ” (Brown v. Merlo (1973) 8 Cal.3d 855, 861 [106 Cal.Rptr. 388, 506 P.2d 212, 66 A.L.R.3d 505]; see also Cooper v. Bray, supra, 21 Cal.3d at p. 848; Newland v. Board of Governors, supra, 19 Cal.3d at p. 711.)

There is no logically supportable reason why the most severely injured malpractice victims should be singled out to pay for special relief to medical tortfeasors and their insurers. The idea of preserving insurance by imposing huge sacrifices on a few victims is logically perverse. Insurance is a device for spreading risks and costs among large numbers of people so that no one person is crushed by misfortune. (See generally, Keeton, Basic Insurance Law (1960) p. 484.) In a strange reversal of this principle, the statute concentrates the costs of the worst injuries on a few individuals.

The result is a fundamentally arbitrary classification. Under the statute, a person who suffers a severe injury—for example loss of limbs or eyesight— late in life may receive up to $250,000 for the resulting loss of enjoyment during his or her final years. An infant with identical injuries is limited to the same compensation for an entire lifetime of blindness or immobility.

Such arbitrary treatment cannot be justified with reference to the purpose of the statute. Without speculating on the wisdom of the possible alternatives, it is plain that the Legislature could have provided special relief to health care providers and insurers without imposing these crushing burdens on a few arbitrarily selected victims. Most obviously, the burden could have been spread among all of the statute’s beneficiaries—health care consumers or, more broadly, the taxpayers. Alternately, the Legislature could have reduced all noneconomic damage awards in medical malpractice actions by a pro rata amount. (See California’s MICRA, supra, 52 So.Cal.L.Rev. at p. 952.)

The majority suggest three rationales for singling out the most severely injured plaintiffs to bear the burden. First, it is suggested that “[t]he Legislature could reasonably have determined that an across-the-board limit would provide a more stable base on which to calculate insurance rates.” (Maj. opn., ante, at p. 163.) However, the same could be said of any restriction on recoveries, regardless of the existence or nature of classifica*174tions among tort victims. In effect, this rationale ignores the fact that plaintiff is challenging a classification among tort victims.

Next, the majority hypothesize that “the Legislature may have felt that the fixed $250,000 limit would promote settlements by eliminating ‘the unknown possibility of phenomenal awards for pain and suffering that can make litigation worth the gamble.’” (Maj. opn., ante, at p. 163.) Again, any restriction on recoveries might make plaintiffs less willing to face the risk of litigation. Like the “stability” rationale, this theory fails to address the nature of the classifications among plaintiffs.

Finally, it is suggested that “the Legislature simply may have felt that it was fairer to malpractice plaintiffs in general to reduce only the very large noneconomic damage awards, rather than to diminish the more modest recoveries for pain and suffering and the like in the great bulk of cases.” (Maj. opn., ante, at p. 163.) The notion that the Legislature might have concentrated the burden of medical malpractice on the most severely injured victims out of considerations of fairness certainly has the advantage of originality.

While many courts have concluded that fixed malpractice damage limits are grossly unfair (see cases cited ante, at p. 169), none has suggested the possibility of fairness as a legitimate basis for such a limit. If “fairness” can justify the present limit, it is hard to imagine a statute that could be invalidated under the majority’s version of equal protection scrutiny.

The majority’s acceptance of rationales so broad and speculative that they could justify virtually any enactment calls attention to the implications of the MICRA cases for equal protection doctrine in this state. In American Bank, supra, 36 Cal.3d at page 398 (dis. opn. of Bird, C. J.), I joined a majority of this court in rejecting the notion of “intermediate” equal protection scrutiny. However, I conditioned that rejection on the belief-grounded in the past practice of this court—that the alternative was a two-tier system with a meaningful level of scrutiny under the lower tier. (Id., at pp. 398-401; see also Hawkins v. Superior Court (1978) 22 Cal.3d 584, 607-610 [150 Cal.Rptr. 435, 586 P.2d 916] (conc. opn. of Bird, C. J.).)

In particular, I relied on Brown v. Merlo, supra, 8 Cal.3d 855. In Brown, this court conducted a serious and sensitive inquiry into the nature and purposes of the automobile guest statute. The court demanded not only that the enactment might tend to serve some conceivable legislative purpose, but also that each classification bear a fair and substantial relationship to a legitimate purpose. (Id., at p. 861.) The guest statute failed to pass this level of scrutiny since the classification of all automobile guests bore an insuffi*175ciently precise relation to the asserted purposes. For example, the classification was held to be overinclusive with regard to the purpose of preventing collusive suits. (Id., at p. 877.) Brown was subsequently followed in Cooper v. Bray, supra, 21 Cal.3d 841.

If applied in the present case, the mode of analysis used in Brown and Cooper would compel invalidation of the $250,000 limit, which is grossly underinclusive by any standard. Millions of healthcare consumers stand to gain from whatever savings the limit produces. Yet, the entire burden of paying for this benefit is concentrated on a handful of badly injured victims—fewer than 15 in the year MICRA was enacted. (See Report of the Auditor General, supra, at p. 31.) Although the Legislature normally enjoys wide latitude in distributing the burdens of personal injuries, the singling out of such a minuscule and vulnerable group violates even the most undemanding standard of underinclusiveness.

However, the MICRA majority opinions have made no attempt to assess the over- or under-inclusiveness of the legislative classifications at issue. American Bank, Barme, and Roa could arguably be distinguished from Brown and Cooper on the ground that the MICRA provisions at issue did not directly deny malpractice victims compensation for negligently inflicted harm. However, if Brown and Cooper retain any vitality today, their analysis must be applied in the present case.

At a bare minimum the court should honestly confront the existence of Brown and Cooper. In my view, it is remarkable that neither of these decisions—previously considered to be leading opinions on the application of equal protection analysis in the personal injury area—is capable of being distinguished in any MICRA majority opinion.

In conclusion, there is no rational basis for singling out the most severely injured victims of medical negligence to pay for special relief to health care providers and their insurers. Hence, the $250,000 limit on noneconomic damages cannot withstand any meaningful level of judicial scrutiny.

II.

Plaintiff also challenges section 3333.1, which deprives medical malpractice victims of the benefits of the longstanding collateral source rule.4

The collateral source rule bars the deduction of collateral compensation, such as insurance benefits, from a tort victim’s damage award. (See Hrnjak *176v. Graymar, Inc. (1971) 4 Cal.3d 725, 729 [484 P.2d 599, 47 A.L.R.3d 224]; see generally, Schwartz, The Collateral-Source Rule (1961) 41 B.U. L.Rev. 348, 354.) The effect of the rule is to prevent tortfeasors and their insurers from reaping the benefits of collateral source funds, which “are usually created through the prudence and foresight of persons other than the tortfeasor, frequently including the injured person himself.” (Gypsum Carrier, Inc. v. Handelsman (9th Cir. 1962) 307 F.2d 525, 534-535 [4 A.L.R.3d 517].)

As this court has observed, the collateral source rule embodies “the venerable concept that a person who has invested years of insurance premiums to assure his medical care should receive the benefits of his thrift. The tortfeasor should not garner the benefits of his victim’s providence.” (Helfend v. Southern Cal. Rapid Transit Dist. (1970) 2 Cal.3d 1, 9-10 [84 Cal.Rptr. 173, 465 P.2d 61, 77 A.L.R.3d 398] [hereafter Helfend\.) In the present case, the plaintiff collected workers’ compensation, which he earned indirectly from his employment.

It is not disputed that section 3333.1 must be reviewed under the rational relationship test. That test requires that legislative classifications bear a rational relationship to a legitimate state purpose to pass constitutional muster. (See Brown v. Merlo, supra, 8 Cal.3d at p. 882; Cooper v. Bray, supra, 21 Cal.3d at p. 848.)

The proponents of section 3333.1 have suggested that it serves two purposes. First, it seeks to eliminate double recoveries by victims. (See Keene, California’s Medical Malpractice Crisis, in A Legislator’s Guide to the Medical Malpractice Issue (Warren & Merritt edits. 1976) p. 31.) However, there is no apparent reason why legislation enacted for this purpose should be limited to medical malpractice victims. (See Graley v. Satayatham (1976) 74 Ohio Ops.2d 316 [343 N.E.2d 832, 836-838].)

Moreover, as this court has recognized, the collateral source rule “does not actually render ‘double recovery’ for the plaintiff.” (Helfend, supra, 2 Cal.3d at p. 12.) Tort victims are not fully compensated for their injuries by their judgments alone. The jury is directed to award damages only in the amount of the plaintiff’s injuries. Yet, plaintiffs must pay attorney fees and costs out of their recoveries. Generally, fees and costs account for a substantial proportion of the recovery in medical malpractice actions. (See U.S. Dept, of Health, Ed. & Welf., Rep. of Sect.’s Com. on Medical Malpractice (1973) p. 32.)

The collateral source rule enables the plaintiff to recover some of these costs from collateral sources. Hence, the rule “will not usually give him *177‘double recovery,’ but partially provides a somewhat closer approximation to full compensation for his injuries.” (Helfend, supra, 2 Cal.3d at p. 13.) Section 3333.1 will prevent many tort victims from obtaining this relatively full compensation simply because they were injured by a doctor instead of some nonmedical tortfeasor.

Furthermore, while supposedly eliminating victims’ “windfalls,” section 3333.1 provides a windfall to negligent tortfeasors. Under section 3333.1, negligent healthcare providers obtain a special exemption from the general rule that negligent tortfeasors must fully compensate their victims. “No reason in law, equity or good conscience can be advanced why a wrongdoer should benefit from part payment from a collateral source. ... If there must be a windfall certainly it is more just that the injured person shall profit therefrom, rather than the wrongdoer . . . .” (Grayson v. Williams (10th Cir. 1958) 256 F.2d 61, 65; see also Helfend, supra, 2 Cal.3d at p. 10.)

The second purpose advanced to justify section 3333.1 is that of reducing the cost of medical malpractice insurance, the overall goal of MICRA. (See Stats. 1975, Second Ex. Sess. 1975-1976, ch. 2, § 12.5, p. 4007.) It is argued that the Legislature rationally singled out medical malpractice actions in order to alleviate a “crisis” in medical malpractice insurance rates.

However, the relationship between section 3333.1 and the reduction of malpractice insurance premiums is entirely speculative. There is no requirement that physicians’ insurers pass on their savings in the form of lowered premiums. Hence, insurance companies may simply retain their windfall for private purposes. Further, section 3333.1 operates only as a rule of evidence. Juries may choose not to offset collateral compensation. Hence, “a degree of arbitrariness may frustrate the relationship between this provision and attainment of MICRA’s goal.” (California’s MICRA, supra, 52 So.Cal.L.Rev. at p. 949.)

The courts of other jurisdictions have had occasion to address the constitutionality of similar provisions. In Arneson v. Olson, supra, 270 N.W.2d 125, 137, the North Dakota Supreme Court unanimously invalidated a statute that effectively abolished the collateral source rule in medical malpractice cases. The court found that there was no “ ‘close correspondence between [the] statutory classification and [the] legislative goads’” (Id., at pp. 133, 137), and noted that the provision gave the tortfeasor “the benefit of insurance privately purchased by or for the tort victim . . . .” (Id., at p. 128.)

Similarly, in Carson v. Maurer, supra, 424 A.2d at pages 835-836, the New Hampshire Supreme Court unanimously overturned a kindred provi*178sion, reasoning that it “arbitrarily and unreasonably discriminate[d] in favor of the class of health care providers.” And, in Graley v. Satayatham, supra, 343 N.E.2d at page 836, the court struck down a requirement that collateral benefits be listed in medical malpractice complaints, reasoning that it unconstitutionally discriminated against medical malpractice victims.

Some jurisdictions have upheld similar provisions. (See Eastin v. Broomfield (1977) 116 Ariz. 576 [570 P.2d 744, 751-753]; Pinillos v. Cedars of Lebanon Hospital Corp. (Fla. 1981) 403 So.2d 365, 367-368; Rudolph v. Iowa Methodist Medical Ctr. (Iowa 1980) 293 N.W.2d 550, 552-560.) Two of these decisions were made by sharply divided courts. (See Pinillos, supra, 403 So.2d at pp. 369-371 (dis. opn. of Sundberg, C. J.); Rudolph, supra, 293 N.W.2d at pp. 561-568 (dis. opn. of Reynoldson, C. J.).) Moreover, the decisions reflect a highly deferential approach that is not consistent with the California courts’ rigorous application of the rational relationship test to classifications affecting tort victims. (See, e.g., Brown v. Merlo, supra, 8 Cal.3d 855; Cooper v. Bray, supra, 21 Cal.3d 841; Monroe v. Monroe (1979) 90 Cal.App.3d 388 [153 Cal.Rptr. 384]; Ayer v. Boyle (1974) 37 Cal.App.3d 822 [112 Cal.Rptr. 636].)

In conclusion, section 3333.1 permits negligent healthcare providers and their insurers to reap the benefits of their victims’ foresight in obtaining insurance. This departure from the general rule prohibiting the deduction of collateral source benefits from a judgment is not rationally related to any legitimate state purpose. Hence, section 3333.1 should be declared unconstitutional.

Woods, J.,* concurred.

Henceforth, all statutory references are to the Civil Code unless otherwise specified.

The majority attempt to distinguish Carson on the grounds that the New Hampshire Supreme Court applied an “intermediate” form of equal protection scrutiny, which is not appropriate under the California Constitution. (See maj. opn., ante, at p. 161, fn. 19.) However, the Carson court’s conclusion that it was “unreasonable” to require the most severely injured victims of medical negligence to support the medical care industry is no less relevant under a lower form of scrutiny. The Carson court found no rational basis for the fixed limit.

The majority erroneously cite a second case, Prendergast v. Nelson (1977) 199 Neb. 97 [256 N.W.2d 657], as upholding a damage limit. In Prendergast a three-justice plurality of the Nebraska Supreme Court expressed their view that a $500,000 limit on damages should be upheld. (Id., at p. 669.) An equal number contended that the limit was unconstitutional. (Id., at pp. 675-677 (cone. & dis. opn. of White, J.), (dis. opn. of McCown, J.), (dis. opn. of Boslaugh, J.).) The seventh justice expressed no opinion on the merits of the constitutional challenge, but dissented from the result and pointed out that the plurality opinion did not decide the constitutional questions. (Ibid. (dis. opn. of Clinton, J.).)

In short, four out of seven justices concluded either that the limit was unconstitutional or that the question of its constitutionality was not justiciable.

For the relevant text of section 3333.1, see the majority opinion, ante, at page 164, footnote 20.

Assigned by the Chairperson of the Judicial Council.