dissenting: Having authored a considerable number of dissents in the ten plus years I have been on this court, I was, at first, at a loss to understand my reluctance to write a dissent in this case. For some inexplicable reason, I felt like a noncombatant in ancient Rome about to attempt a crossing of the arena in the Coliseum. Upon reflection came the realization that my feelings of anxiety arose from the unique nature of the controversy churning and boiling around the subject matter of this litigation. There are a few areas of legislation and court decisions which evoke primal emotions in the general public. At the present time the subject of abortion would probably head this list. But regulation of malpractice legislation is not in this category. The general public is not aroused. There are no long processions of irate citizens carrying placards and chanting slogans marching around courthouses and state capitols on this issue. The intense feelings, the anger, and the rage are there but they are in the minds of professionals who believe their livelihoods are at risk. Many physicians truly believe that the legal profession is out to destroy them for personal gain. Many lawyers believe, with equal sincerity, that the medical profession is *355attempting, through legislation, to avoid its responsibility for harm done by its members. Companies providing medical malpractice insurance are attacked by both groups. Unfortunately, the militant approach spills over into the majority opinion. Accurate information and statistical data upon which to evaluate the true situation are nonexistent. Vocal extremists on both sides make wild accusations based upon unverifiable statements of facts. It is not surprising that the public hearings held by the legislature resulted in a flood of conflicting opinions and misinformation. The legislature has been placed in a very difficult position. The proponents and opponents of the proposed legislation are presumably speaking from knowledge and expertise — not just emotional beliefs.
Looking at the situation from an objective perspective, one would, I believe, have to conclude that there was ample evidence to support the legislative conclusion in 1976 that significant problems existed which could affect the availability of adequate health care for Kansas citizens and the payment of claims arising from the providing of health care. In 1976 the legislature enacted the Kansas Health Care Provider Insurance Availability Act (K.S.A. 1976 Supp. 40-3401 et seq.), which this court held constitutionally valid in State ex rel. Schneider v. Liggett, 223 Kan. 610, 576 P.2d 221 (1978). In Schneider we stated:
“The Kansas Health Care Provider Insurance Availability Act was passed by the 1976 legislature as a partial response to increasing pressure brought upon Kansas health care providers because of the national medical malpractice crisis. The primary feature of the act is the requirement that all health care providers operating within the state must obtain professional malpractice liability insurance (40-3402) and pay a surcharge to the health care stabilization fund (40-3404). The law requires the provider to carry a basic policy of $100,000 per occurrence and an annual aggregate of $300,000 for all claims made during the period. The stabilization fund provides for the payment of claims in excess of policy limits. Included in the act is a provision requiring every health care insurer to participate in an apportionment plan whereby any health care provider may obtain liability insurance from the plan if insurance from a conventional source (40-3413) is not available.
“The problem of obtaining and maintaining affordable malpractice insurance came before the legislature in 1971, 1973 and 1975. As a result, the legislature enacted a law in 1975 requiring all health care insurers to report their claims experience to the commissioner of insurance (K.S.A. 1975 Supp. 40-1126, et seq.). *356In 1976, however, the problem had grown to such proportions it received full legislative attention. A legislative interim committee was told in detail how insurance costs had skyrocketed on present policies, policies were unavailable for new doctors, insurers were beginning to withdraw from the medical malpractice field, and the availability of medical service in some Kansas communities was threatened. In response, the committee proposed twelve bills, including the act in the present controversy.
“The original bill did not require mandatory .insurance coverage, nor did it require payment of the surcharge. These provisions were added by the legislature at the behest of Insurance Commissioner Fletcher Bell. The mandatory coverage provision, it was alleged, would provide for the financial stability of the insurance availability program and would assure all Kansans they would have a source of recovery for damages resulting from malpractice.” 223 Kan. at 611.
Obviously, the 1976 legislature hoped this legislation would resolve the problems. By 1984 the Health Care Stabilization Fund was in serious financial trouble and the 1984 legislature enacted a $3,000,000 cap on the Fund’s liability (L. 1984, ch. 178, § 1). By 1986 the Fund was insolvent. It really does not matter at this point to pinpoint with exactitude why the Fund was insolvent. Inadequacy of the surcharge imposed against physicians in prior years and sharply rising jury verdicts were but two of the reasons. Since the 1984 cap of $3,000,000 on the Fund’s liability, physicians desiring coverage in excess of $3,000,000 were being faced with rapidly escalating premiums, particularly those practicing in the high risk areas of medicine (surgery, anesthesiology, obstetrics, etc.). One area of concern presented to the legislature was that many physicians were giving up the practice of obstetrics in the face of the high insurance premiums associated therewith. This was a problem in the rural areas particularly when delivering babies was just one phase of the general practitioner’s work. The delivery of a brain-damaged baby exposes the attending physician to a potentially financially devastating liability. Anything he did or did not do is opened up as a possible cause of the infant’s defect. Even though 95 percent of the medical profession in the field might agree the physician breached no duty of care, a jury may believe a representative of the five percent who says he breached a duty and caused the defect. Based upon the long life-expectancy of an injured baby, the verdict could be far in excess of the $3,000,000 cap of the Fund.
Any ten professionals, whether they be physicians, lawyers, or *357insurance company experts, would have ten different proposals to attempt to resolve the problems existing. The legislature held its hearings, discussed the problems from all angles, and decided on the course of action reflected in H.B. 2661 (L. 1986, ch. 229). The wisdom or desirability of that legislative decision is not a subject of judicial review. The legislature is the branch of government granted the power to make such determinations free of any interference by the judicial branch except where such enactment is violative of the Kansas or United States Constitutions.
The majority has found three sections of H.B. 2661 to be unconstitutional. They are those sections codified as K.S.A. 1987 Supp. 60-3407, 60-3409, and 60-3411 which set caps on the amount of the recovery and require an annuity for payment of future economic loss. These sections were found to be violative of Sections 5 and 18 of the Bill of Rights of the Kansas Constitution. I do not agree.
The majority opinion correctly states the standards of judicial review as follows:
“The constitutionality of a statute is presumed, and all doubts must be resolved in favor of its validity. Before a statute may be stricken down, it must clearly appear the statute violates the Constitution. Moreover, it is the court’s duty to uphold the statute under attack, if possible, rather than defeat it, and if there is any reasonable way to construe the statute as constitutionally valid, that should be done.”
Before us is the constitutionality of certain 1986 legislative enactments. These enactments cannot be viewed in a vacuum separate and apart from the Health Care Provider Insurance Availability Act (K.S.A. 40-3401 et seq.).
The original Act was enacted in 1976. Modification of the Act to improve or resolve problems therewith has been an ongoing process. Illustrative therewith is the fact that K.S.A. 40-3401, alone, has been amended in 1977, 1979, 1980, 1982, 1984, 1985, 1986, and 1987. The original Act required the defined “health care providers” to carry $100,000 per occurrence and $300,000 annual aggregate insurance. In 1984 the amounts were raised to $200,000 and $600,000, respectively. The Health Care Stabilization Fund initially provided unlimited excess liability, but was subsequently reduced to $3,000,000 per claim and an aggregate of $6,000,000.
*358The particular provisions at issue are codified in Article 34 of Chapter 60, commonly designated as the Professional Liability Actions Act. The purpose of the Act is set forth in K.S.A. 1987 Supp. 60-3405 as follows:
“Substantial increases in costs of professional liability insurance for health care providers have created a crisis of availability and affordability. This situation poses a serious threat to the continued availability and quality of health care in Kansas. In the interest of the public health and welfare, new measures are required to assure that affordable professional liability insurance will be available to Kansas health care providers, to assure that injured parties receive adequate compensation for their injuries, and to maintain the quality of health care in Kansas.”
This Act must be viewed in conjunction with the Health Care Provider Insurance Availability Act, as they are both involved with legislation aimed at resolving the same problem and for similar purposes. The 1986 legislation caps the total recovery at $1,000,000 with the pinhole provision. Obviously, these amendments reducing the Fund’s liability and placing a cap on the maximum recovery are less favorable to the severely damaged individual than the original Act, but this fact does not authorize the scrutiny of the 1986 legislation as being separate and apart from the original Act. The passage of the Health Care Provider Insurance Availability Act was landmark legislation. It provided protection for Kansas citizens and others utilizing the services of Kansas, health, care providers in previously unheard-of dimensions. A person injured through malpractice by these providers was assured the provider was insured and covered under the State-backed fund. The list of professions within the term “health care provider” has been expanded over the years to include those set forth in K.S.A. 1987 Supp. 40-3401 as follows:
“(f) ‘Health care provider’ means a person licensed to practice any branch of the healing arts by the state board of healing arts, a person who holds a temporary permit to practice any branch of the healing arts issued by the state board of healing arts, a person engaged in a postgraduate training program approved by the state board of healing arts, a medical care facility licensed by the department of health and environment, a health maintenance organization issued a certificate of authority by the commissioner of insurance, an optometrist licensed by the board of examiners in optometry, a podiatrist registered by the state board of healing arts, a pharmacist licensed by the state board of pharmacy, a licensed professional nurse who is authorized to practice as a registered nurse anesthetist, a licensed professional nurse who has been granted a temporary authorization to
*359practice nurse anesthesia under K.S.A. 1987 Supp. 65-1153 and amendments thereto, a professional corporation organized pursuant to the professional corporation law of Kansas by persons who are authorized by such law to form such a corporation and who are health care providers as defined by this subsection, a partnership of persons who are health care providers under this subsection, a Kansas not-for-profit corporation organized for the purpose of rendering professional services by persons who are health care providers as defined by this subsection, a dentist certified by the state board of healing arts to administer anesthetics under K.S.A. 65-2899 and amendments thereto, a physical therapist registered by the state board of healing arts, a psychiatric hospital licensed under K.S.A. 75-3307b and amendments thereto, or a mental health center or mental health clinic licensed by the secretary of social and rehabilitation services, except that health care provider does not include (1) any state institution for the mentally retarded, (2) any state psychiatric hospital or (3) any person holding an exempt license issued by the state board of healing arts.”
There are no statutes providing any such level of protection to those employing the services of any other group of professionals. As admitted by the majority opinion, the 1986 cap and annuity provisions would affect only a relative handful of claims. The purpose of the original Act and the 1986 legislation encompassed more than just payment of claims. The legislation intended to insure the availability of all types of medical services to every area of the state — including the high-risk practice services. It is intended to hold down the cost of health insurance and health services. It may be argued that the legislation will not accomplish its goals, but that is not the question herein. As we stated in Manzanares v. Bell, 214 Kan. 589, Syl. ¶ 13, 522 P.2d 1291 (1974):
“It is not within the province of the supreme court to weigh the desirability of social or economic policy underlying a statute, nor weigh the beneficial results flowing from any particular legislative policy.”
The majority has found the complained-of 1986 legislation violative of the due process guaranteed by Section 18 of the Bill of Rights of the Kansas Constitution, which provides:
“§ 18. Justice without delay. All persons, for injuries suffered in person, reputation or property, shall have remedy by due course of law, and justice administered without delay.”
In State ex rel. Schneider v. Liggett, 223 Kan. 610, a challenge to mandatory insurance requirements of the original act, we discussed the due process requirement as follows:
“We turn to the due process and equal protection arguments raised by *360defendant. In order to properly resolve these issues it is necessary to understand the distinction between these two constitutional concepts. In Ross v. Moffitt, 417 U.S. 600, 41 L. Ed. 2d 341, 94 S. Ct. 2437, the court explained:
“ ‘. . . “Due process” emphasizes fairness between the State and the individual dealing with the State, regardless of how other individuals in the same situation may be treated. “Equal protection,” on the other hand, emphasizes disparity in treatment by a State between classes of individuals whose situations are arguably indistinguishable. . . .’ (p. 609.)
“The standard of review in a due process case has fluctuated in response to society’s changing attitudes concerning the proper role of the judiciary in the examination of social and economic regulations imposed pursuant to the state’s police power. In the past courts often struck down laws with which they disagreed on the basis that due process was violated. (See, e.g., Tyson & Brother v. Banton, 273 U.S. 418, 71 L. Ed. 718, 47 S. Ct. 426 [1927]; Adkins v. Childrens Hospital, 261 U.S. 525, 67 L. Ed. 785, 43 S. Ct. 394 [1923]; Coppage v. Kansas, 236 U.S. 1, 59 L. Ed. 441, 35 S. Ct. 240 [1915]; Adair v. United States, 208 U.S. 161, 52 L. Ed. 436, 28 S. Ct. 277 [1908]; Lochner v. New York, 198 U.S. 45, 49 L. Ed. 937, 25 S. Ct. 539 [1905].) This practice fell into disrepute, however, beginning with the case of Nebbia v. New York, 291 U.S. 502, 78 L. Ed. 940, 54 S. Ct. 505. There the court retreated from its previous attitude and declared the test for due process to be whether the legislative means selected had a real and substantial relation to the objective sought. The rule has been restated in terms of whether the regulation is reasonable in relation to its subject and is adopted in the interest of the community. (West Coast Hotel Co. v. Parrish, 300 U.S. 379, 81 L. Ed. 703, 57 S. Ct. 578, 108 A.L.R. 1330.) Courts can no longer sit as a ‘super legislature’ and throw out laws they feel may be unwise, improvident or inappropriate. (Ferguson v. Skrupa, 372 U.S. 726, 10 L. Ed. 2d 93, 83 S. Ct. 1028, 95 A.L.R.2d 1347; Williamson v. Lee Optical Co., 348 U.S. 483, 99 L. Ed. 563, 75 S. Ct. 461.) That view remains valid today. (See, North Dakota Pharmacy Bd. v. Snyder’s Stores, 414 U.S. 156, 38 L. Ed. 2d 379, 94 S. Ct. 407; Dean v. Gadsden Times Publishing Corp., 412 U.S. 543, 37 L. Ed. 2d 137, 93 S. Ct. 2264; Griswold v. Connecticut, 381 U.S. 479, 14 L. Ed. 2d 510, 85 S. Ct. 1678.)” 223 Kan. at 613-14.
I believe the complained-of 1986 legislation has a real and substantial relation to the objective sought. Under the standards set forth in Schneider, there is no violation of due process.
The majority opinion also holds the complained-of 1986 legislation is violative of Section 5 of the Bill of Rights of the Kansas Constitution which provides:
“§ 5. Trial by jury. The right of trial by jury shall be inviolate.”
In Manzanares v. Bell, 214 Kan. 589, the constitutionality of the Automobile Injury Reparations Act (K.S.A. 40-3101 et seq.) was before this court. One aspect of the legislation set thresholds *361a party injured in a motor vehicle accident must reach before being permitted to file an action against the negligent party or parties as set forth in K.S.A. 40-3117, as follows:
“In any action for tort brought against the owner, operator or occupant of a motor vehicle or against any person legally responsible for the acts or omissions of such owner, operator or occupant, a plaintiff may recover damages in tort for pain, suffering, mental anguish, inconvenience and other non-pecuniary loss because of injury only in the event the injury requires medical treatment of a kind described in this act as medical benefits, having a reasonable value of five hundred dollars ($500) or more, or the injury consists in whole or in part of permanent disfigurement, a fracture to a weight-bearing bone, a compound, comminuted, displaced or compressed fracture, loss of a body member, permanent injury within reasonable medical probability, permanent loss of a bodily function or death. Any person who is entitled to receive free medical and surgical benefits shall be deemed in compliance with the requirements of this section upon a showing that the medical treatment received has an equivalent value of at least five hundred dollars ($500). Any person receiving ordinary and necessary services, normally performed by a nurse, from a relative or a member of his household shall be entitled to include the reasonable value of such services in meeting the requirements of this section. For the purpose of this section, the charges actually made for medical treatment expenses shall not be conclusive as to their reasonable value. Evidence that the reasonable value thereof was an amount different than the amount actually charged shall be admissible in all actions to which this subsection applies.”
This act completely cut off all recovery for nonpecuniary losses such as pain and suffering, inconvenience, etc., for injured persons not reaching one of the thresholds. (Note: The Act was amended in 1987 to increase the monetary threshold to $2,000.) In finding the Act constitutionally valid, this court stated:
“The no-fault Act is a legislative directive to insure prompt and equitable compensation to persons injured by motor vehicles. This is accomplished by Sections 4 and 7 which provide direct benefits to the insured automobile owner, his family, guest passengers, others operating his car with permission, and to pedestrians struck by his motor vehicle, regardless of fault in the causation of the accident. As we have stated previously, the purpose of requiring prompt payment of compensation to persons injured in a motor vehicle is within the scope of the police power of the state. (Pinnick v. Cleary, [360 Mass. 1, 271 N.E. 2d 592 (1971)]; City of Wichita v. White, [205 Kan. 408, 469 P.2d 287 (1970)]; Opinion of the Justices, [113 N.H. 205, 304 A.2d 881 (1973)].) One of the obvious purposes of the Legislature in limiting recovery under the threshold provision was clearly to eliminate minor claims for pain and suffering. The Legislature could reasonably have thought that the number of such cases (see DOT study) was largely connected with exaggerated claims for pain and suffering in instances of relatively minor injury. Our prior decisions are to the effect that subjective com*362plaints of pain and suffering defy accurate monetary appraisal. (Domann v. Pence, 183 Kan. 135, 325 P.2d 321 [1958]; Henderson v. Kansas Power & Light Co., 188 Kan. 283, 362 P.2d 60 [1961].) In addition, minor ‘nuisance’ claims were often overpaid, and as stated in Pinnick y. Cleary, supra, ‘. . . It was clearly proper for the Legislature to conclude that the benefits of compensating an injured person for relatively minor pain and suffering, which as such entails no monetary loss did not warrant continuation of the practice when balanced against the evils it had spawned.’ (p. 610.)
“We conclude the threshold limitation is a determination by the Legislature of public policy, and is reasonably related to problems that affect the public welfare, including the economic welfare of the state and its citizens, and therefore bears a rational relationship to the legislative objective of compensating persons promptly for accidental bodily injury arising out of the ownership and use of motor vehicles.
“Plaintiff next contends the monetary medical expense standard, set at $500 by Section 17, arbitrarily and invidiously discriminates between various segments of the state’s population; that the $500 standard is not reasonably related to any legitimate legislative purpose; and that such a standard discriminates against those persons who are economically disadvantaged. The contentions are without merit.” Manzanares v. Bell, 214 Kan. at 610-11.
Manzanares v. Bell, further stated in Syl. ¶ 2:
“While the Legislature is restricted in the extent to which it can retroactively affect common-law rights, no person has a vested right in common-law rules governing a negligence action arising out of a motor vehicle accident so as to entitle him to insist the common law remain static for his benefit.”
The change from the concept of contributory negligence to comparative fault adversely affected some individuals. A negligence free plaintiff suing an extremely negligent pauper and a less negligent wealthy corporation would be severely affected in his recovery by the change, as under the prior law he could collect the entire judgment from the corporation. Yet no one asserts an individual has a common-law right to have liability determined under the concept of contributory negligence.
47 Am. Jur. 2d, Jury § 18 states that the object of the constitutional provisions guaranteeing the right of trial by jury is to preserve the substance of the right rather than to prescribe the details of the methods by which it is to be exercised and enjoyed, and these provisions are not so inelastic as to render unchangeable every characteristic and detail of the common-law system. This point was made by the Indiana Supreme Court in Hayworth v. Bromwell, 239 Ind. 430, 158 N.E.2d 285 (1959), when it said:
*363“The provision of the Constitution of Indiana that the right to a trial by jury in all civil cases shall remain inviolate means that the substantial elements and incidents, which pertained to a trial by jury at common law, shall not be altered or changed by the Legislature or the courts and are preserved in substance as they existed at common law.” 239 Ind. at 437.
And:
“[I]t is the substance of the right which ‘shall remain inviolate,’ not the manner in which it is exercised or waived.” 239 Ind. at 435.
Both State ex rel. Schneider v. Liggett, 223 Kan. 610, and Manzanares v. Bell, 214 Kan. 589, take the generally accepted broad look at the legislation in question. The collective common good sought to be obtained by the legislation is the area of scrutiny rather than how the legislation might adversely affect certain individuals. Certainly a far greater number of individuals have been and will be affected by the threshold limitations for recovery of nonpecuniary losses in automobile accident cases than will ever be affected by the legislation before us. The majority finds restriction on the recovery of a small number of individuals severely injured by medical malpractice constitutionally impermissible although outright elimination of major elements of smaller claims arising from automobile accidents has been held to be constitutionally acceptable by this court.
Workers’ compensation statutes which barred all actions at law against an employer by an injured employee have repeatedly been held constitutionally acceptable under concepts of the collective good accomplished by the legislation.
Statutes of limitations, entries of summary judgment or directed verdict, limitations on garnishments, and bankruptcy laws are all examples of legislation which would violate Section 5 if read literally under the interpretation of the majority herein. I do not believe Section 5 creates a vested right to any particular remedy in medical malpractice actions.
The great value of the mandatory insurance provisions in the original act and the Fund’s excess liability cannot be ignored. We live in a time when many physicians are foreign born and foreign trained. Without the Act, a person injured by one of these individuals would have no means of recovery at all should the physician simply return to his country of origin or move to some other country. An entire judgment against an uninsured physi*364cian remaining in the country could be defeated by the bankruptcy laws. The legislature since 1974 has been struggling with a problem facing many states. Many amendments have been enacted and many more will, no doubt, in the future be enacted. Recovery afforded to the most severely injured is just one aspect of the entire problem. Assured recovery afforded to the less severely injured, availability of medical care, cost of health insurance, and holding down medical fees are other aspects of the problem.
I also do not find the annuity aspect of the legislation constitutionally deficient. It applies only to future economic loss and requires the annuity to be paid out over the period of time specified in the verdict. The availability of money to pay is assured and will be paid as the loss occurs — much like disability or health insurance. It provides a form of protection to the most severely injured — that money will be paid when the jury has determined that aspect of the loss will occur. The bulk of this item will generally be future lost wages and future medical expenses. In disability or health insurance, such payments are generally not lump sum payments, but rather are paid as the future loss occurs.
In conclusion, some general observations are appropriate. The legislature is attempting to resolve some extremely difficult problems of basic concern to the public. There is no quick fix or easy solution, as Kansas and many other states have found. The present hostile attitude of the medical and legal professions makes resolution of the complex problem even more difficult. Any legislation represents a compromise among many different opinions and proposals. Hopefully, the future will, see a realization that the welfare of the public is vitally concerned with finding the best solution to the problem, and the special interest groups will take a more reasonable and less vituperative approach to resolution of the problem.