dissenting in part and concurring in part: I dissent from that portion of the opinion holding K.S.A. 60-471 (as it existed prior to repeal by the 1985 legislature) unconstitutional.
As noted in the majority opinion, two federal courts in Kansas have reached different results on the question of the constitu*519tionality of K.S.A. 60-471. I believe that the rationale of Judge Richard Rogers is well reasoned and legally sound. I adopt the same as expressed in Holman v. The Menninger Foundation, No. 79-4090 (D. Kan., unpublished opinion filed July 13,1982) as follows:
“The question of the constitutionality of K.S.A. 60-471 is more troublesome. The judges in this district have reached differing conclusions. In Marlatt v. Hutton, No. 76-46-C5 (D. Kan., unpublished, 4/3/79), this court found the statute to be constitutional. We stated:
“ ‘Although the wisdom of the statute in terms of its societal impact may be questioned, we are convinced that there exists a rational basis for singling out those who received gratuitous services at no cost which they are not obligated to repay. Those persons simply did not suffer compensable economic damage for the value of such services, either before the fact in the form of insurance premiums or after the fact in the form of subrogation payments or derivative rights of recovery vested in the third party. In deciding that malpractice plaintiffs should be limited in their recoveries to a sum which more closely approximates their actual economic loss, the Legislature did not draw arbitrary distinctions. And, as defendant points out, the statute will also work to limit recovery by those who are not welfare recipients but have received gratuitous services; care in the home by family members would perhaps be the most expected case.
“ ‘Plaintiff does not claim that the statute unfairly singles out malpractice plaintiffs as a class, as opposed to plaintiffs injured by any other type of tortfeasor. Rather, the claim is that within the class of malpractice plaintiffs, those who have received gratuities are unfairly treated. There exists a rational basis for this discrimination among malpractice plaintiffs, and we thus reject the equal protection arguments of plaintiff.’
“Thereafter, Judge Theis examined the statute in Doran v. Priddy, [534 F. Supp. 30 (D. Kan. 1981)], and found it to be unconstitutional. Judge Theis reasoned:
“ ‘The instant case deals with a rule of evidence which first applies to parties claimed to have been injured through the wrongful conduct of another only if the putative tortfeasor is a health care provider. It then further discriminates between those who pay for insurance, or have such benefits from their employment, and anyone who must rely upon charity or other gratuitous care. Even if we assume medical malpractice statutes which single out one profession for special protection from rising costs for tortious conduct in a time of general inflation betoken legitimate interests, these interests are not thwarted by requiring more even treatment of indigent injured parties with other classes of injured parties referenced in the same statute. The statute before the Court embodies elements of putativeness and discrimination which violate the rights of citizens to equal treatment under the law. Like the differences in treatment between classes of civil judgment debtors, the discrimination between classes of medical malpractice plaintiffs is lodged within the heart of the'judicial process. Rules governing the admissibility of evidence in a civil trial are a type of discrimination not to be approved automatically. Rather, the Court must apply a scrutiny which, as the United States Supreme Court has called it in another context, is ‘not a toothless *520one.’ Trimble v. Gordon, 430 U.S. 762 (1977) (illegitimacy not a suspect class, but statute unconstitutional).
“ ‘This statute is intended to keep down the costs of medical malpractice insurance, and to limit the size of medical malpractice verdicts. The distinction between insured plaintiffs, and ones who must rely upon kindness for some of their pre-litigation care, is not one which furthers that goal. Rather, it substantially undermines that purpose, and at the expense of the indigent litigant. It therefore is violative of the right of all litigants to equal protection under the Fourteenth Amendment to the United States Constitution.’ [p. 37.]
“The divergence of opinion within this district on the constitutionality of this type of legislation is reflective of the courts across the country. Courts throughout the country have faced numerous equal protection challenges to statutes affecting medical malpractice recovery rights. The results have been far from uniform. Compare Fein v. Permanente Medical Group, 175 Cal. Rptr. 177 (Cal. App. 1981); Pinillos v. Cedars of Lebanon Hospital Corp., 403 So.2d 365 (Fla. 1981); DiAntonio v. Northampton-Accomack Memorial Hospital, 628 F.2d 287 (4th Cir. 1980); Rudolph v. Iowa Methodist Medical Center, 293 N.W.2d 550 (Iowa 1980); Woods v. Holy Cross Hospital, 591 F.2d 1164 (5th Cir. 1979); Seoane v. Ortho Pharmaceuticals, Inc., 472 F.Supp. 468 (E.D. La. 1979); State ex rel. Strykowski v. Wilkie, 81 Wis.2d 491, 261 N.W. 2d 434 (1978); Eastin v. Broomfield, 116 Ariz. 576, 570 P.2d 744 (1977) with Carson v. Maurer, 120 N.H. 925, 424 A.2d 825 (1980); .... Arneson v. Olson, 270 N.W.2d 125 (N.D. 1978); Simon v. St. Elizabeth Medical Center, 3 O.O.3d 164 355 N.E. 2d 903 (Ct.Cmn.Pl. 1976); Graley v. Satayatham, 74 O.O.2d 316, 343 N.E.2d 832 (Ct. Cmn. Pl. 1976). A review of these cases reveals that the outcome hinges substantially on which equal protection standard of review is employed. The issue of the proper test to employ on the instant statute was not discussed in any great detail in the previous decisions in the District of Kansas. Therefore, we shall examine that issue in some detail.
“Three standards have been employed by the Supreme Court in reviewing legislation on equal protection grounds. At one end of the spectrum is the ‘rational basis’ or ‘reasonable relationship’ test. This standard was set forth in McGowan v. Maryland, 366 U.S. 420, 425-26 (1961), as follows:
‘The constitutional safeguard of [equal protection] is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State’s objective. State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.’
Thus, a statute comes before the court presumed to be constitutional and it is the duty of the one attacking the statute to sustain the burden of proof. Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78-79 (1911).
“At the other end of the spectrum is the ‘strict scrutiny’ or ‘compelling state interest’ standard. The strict scrutiny test is applicable to legislation which regulates the exercise of a fundamental right, see, e.g., Shapiro v. Thompson, 394 U.S. 618 (1969) (right to travel); Dunn v. Blumstein, 405 U.S. 330 (1972) (right to vote), or singles out a ‘suspect’ class of persons for special treatment, see e.g., *521Loving v. Virginia, 388 U.S. 1 (1967) (race); Oyama v. California, 332 U.S. 633 (1948) (national origin); Graham v. Richardson, 403 U.S. 365 (1971) (alienage). In order for a law to stand under this standard, the state has the burden of demonstrating a compelling governmental interest in making the classification. San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 16-17 (1973).
“In addition to the aforementioned standards, the Supreme Court has established a middle ground approach for certain situations. This measure of review has been called the ‘substantial relationship’ test. Under this standard, a ‘classification must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial [Relationship to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.’ Reed v. Reed, 404 U.S. 71, 76 (1971) (quoting Royster Guano Co. v. Virginia, 235 U.S. 412, 415 (1920)). The Supreme Court has restricted its application of this test to cases involving classifications based upon gender and illegitimacy. See Lalli v. Lalli, 439 U.S. 259 (1979) (illegitimacy); Trimble v. Gordon, 430 U.S. 762 (1977) (illegitimacy); Reed v. Reed, supra (gender).
“None of the classifications created by K.S.A. 60-471 involve a suspect classification, such as race, alienage or nationality, that would require the application of the strict scrutiny standard. Nor do we find any support to apply the ‘substantial relationship’ test since the classifications are not based upon gender or illegitimacy. Accordingly, it is clear that the rational relationship test should be applied here.
“In Marlatt, we did, in finding the statute constitutional, apply the rational relationship test. However, Judge Theis, in Doran, in finding that the statute was unconstitutional, apparently relied upon the ‘substantial relationship’ test articulated in Trimble v. Gordon, supra. The importance of the decision regarding which standard to apply is great. In other cases which have upheld the constitutionality of statutes designed to abrogate the collateral source rule, the rational relationship standard was applied. See Fein v. Permanente Medical Group, supra; Pinillos v. Cedars of Lebanon Hospital Corp., supra; Rudolph v. Iowa Methodist Medical Center, supra; Eastin v. Broomfield, supra. However, in each of the cases where the statutes have been found to be unconstitutional, a stricter standard of review has been applied. See Carson v. Maurer, supra; Arneson v. Olson, supra; Simon v. St. Elizabeth Medical Center, supra; Graley v. Satayatham, supra.
“A review of the legislative history behind K.S.A. 60-471 is instructive in ascertaining the objective behind the passage of the statute. In 1975 and 1976, the Kansas legislature studied the effect of medical malpractice actions on the distribution and provision of medical and hospital care for Kansas recipients. In January, 1976, the report of the Special Committee on Medical Malpractice concluded as follows:
“ ‘During the past six months some Kansas health care providers have experienced steep premium increases and, in some cases, difficulty in obtaining professional liability insurance coverage at any price. The ‘crisis’ in the malpractice insurance market in Kansas presently appears to be limited to physicians and some hospitals. Other providers have not, as yet, had difficulty in obtaining insurance.
“ ‘The committee found that changes in the malpractice insurance market *522threaten health care in Kansas since some physicians believe that they will not be able to continue in practice under such conditions. An adverse effect also arises from passing on the increased cost of insurance through patient charges or daily room charges.’
Thereafter, the legislature passed several bills, including Senate Bill 649 which eventually was codified at K.S.A. 60-471, attempting to rectify the malpractice ‘crisis’. It appears from the legislative history of K.S.A. 60-471 that it was passed as an attempt to reduce the size of malpractice verdicts by allowing introduction of evidence on the portion of the loss paid by certain collateral benefits. The reduction of verdicts would presumably result in a reduction in premiums for malpractice insurance, making it affordable and available, helping to assure the public of continued health care services.
“After due consideration of the foregoing, we shall reaffirm our decision in Marlatt. The plaintiffs have failed to show that there is no rational basis for the distinctions drawn by this statute. We hold that the classifications created by K.S.A. 60-671 bear a rational relationship to the legitimate state interest of protecting the public health by ensuring the availability of adequate medical care for the citizens of Kansas. Accordingly, we find K.S.A. 60-471 to be constitutional and we choose not to follow the opinion by Judge Theis in Doran v. Priddy, supra.”Schroeder, C.J., joins the above dissenting and concurring opinion.