(concurring in result).
I write specially to assert a better basis for affirming this jury verdict.
SDCL 21-3-11 violates the doctrine of separation of powers. See S.D. Const, art. II. “The powers of the government of the state are divided into three distinct departments, the legislative, executive and judicial; and the powers and duties of each are prescribed by this Constitution.” Id. The function of the legislature is to enact legislation for the benefit of the people of the State of South Dakota in accordance with the Constitution. The function of the judiciary is to make factual determinations and interpret the laws of the United States and the State of South Dakota in accordance with the Constitution.1 Neither branch of government may intrude upon the constitutional functions of the other. “As the legislature cannot set aside the construction of the law already applied by the courts to actual cases, neither can it compel the courts for the future to adopt a particular construction of a law which the legislature permits to remain in force.” Thomas M. Cooley, A Treatise on the Constitutional Limitations 191 (8th ed. 1927). See generally, Dunker v. Brown County Bd. of Educ., 80 S.D. 193, 121 N.W.2d 10 (S.D.1963) (the constitutional separation of powers cannot be done away with by legislative action).
*129SDCL 21-3-11 arbitrarily and without a hearing imposes a limitation of one million dollars on all damages in all medical malpractice actions. It does so without provisions for determining the extent of the injuries or resulting illness, or whether these injuries or illness resulted in death. It purports to cover even those cases where the medical costs occasioned by the malpractice alone exceed one million dollars. In other words, the damages recovered in these cases would be payable to the wrongdoers, not the victims. It does so in all cases even where, as here, a judicial determination of damages of 3.7 million dollars resulted from an adversarial hearing after notice. Not only is SDCL 21-3-11 legislatively arbitrary, it also clearly intrudes upon the constitutional function of the judiciary, which includes the jury. Therefore, it is unconstitutional in its application to these facts.
Under SDCL 21-3-11, “practitioners of the healing arts” would be responsible for only a portion of the injuries caused by their negligence when the damages exceed one million dollars. The South Dakota Constitution requires that the courts remain open and every man for an injury done him “shall have remedy by due course of law, and right and justice, administered without denial or delay.” S.D. Const, art. VI, § 20. Art. VI, § 6 of the South Dakota Constitution provides in part: “The right of trial by jury shall remain inviolate and shall extend to all cases at law without regard to the amount in controversy [.] ” S.D. Const, art. VI, § 6 (emphasis added). The “open courts” and “jury trial” provisions of the South Dakota Constitution apply to all damages, not just partial damages. This arbitrary limitation on damages is prevented not only by the “open courts” provision2 and the constitutional right to jury trial,3 but by other substantial constitutional provisions.4 These constitutional provisions do not permit remedies to be arbitrarily limited in advance without a hearing. Therefore, this enactment, when applied to these facts, violates the South Dakota Constitution.
South Dakota has codified the law of negligence in SDCL 20-9-1 which provides:
Every person is responsible for injury to the person, property, or rights of another caused by his willful acts or caused by his want of ordinary care or skill, subject in the latter cases to the defense of contributory negligence.
“SDCL 20-9-1 is a simple codification of the common law of negligence. In essence, then, the South Dakota Constitution and existing statutory law provide that an injured person has a right to a remedy against a wrongdoer.” Baatz v. Arrow Bar, 426 N.W.2d 298, 304 (S.D.1988) (citing Zacher v. Budd Co., 396 N.W.2d 122 (S.D.1986); Oien v. City of Sioux Falls, 393 N.W.2d 286 (S.D.1986); Daugaard v. Baltic Co-op Bldg. Supply Ass’n, 349 N.W.2d 419 (S.D.1984)). Therefore, under SDCL 20-9-1, and subsequent case law, Clinical Lab is responsible for injuries caused by its want of ordinary care or skill.
*130“The legislature can impose reasonable restrictions upon available remedies and even upon these rights in accordance with the constitution, as long as they do not violate the constitution; but they cannot destroy these rights in violation of the constitution.” Id. Placing a limitation on malpractice damage awards is not, however, a “reasonable restriction in accordance with the constitution.” Although “the legislature can abrogate the rights that flow from legislative acts and statutes,” id. at 302, this requires the repealing of “the statute from which the rights flow.” Id. The legislature did not repeal SDCL 20-9-1, but rather enacted a separate statute, SDCL 21-3-11, in an attempt to limit the rights of malpractice victims such as Kim. As stated earlier, the 'legislature cannot “compel the courts for the future to adopt a particular construction of a law which the legislature permits to remain in force.” Cooley, Constitutional Limitations 191. Therefore, this legislative attempt to limit the rights of malpractice victims against wrongdoers, without eliminating SDCL 20-9-1,5 is ineffective. Baatz, 426 N.W.2d at 303.
The task of determining damages belongs to the courts, not the legislature. See generally, Id. (“[T]he task of determining proximate cause (and civil liability for wrongdoing) belongs to the courts, not the legislature.”). “The judicial power is the power to hear and determine those matters which affect the life, liberty, or property of the citizens of the State.” Cooley, Constitutional Limitations 184 n. 3 (citation omitted).
. "Where, however, the facts out of which a moral or legal obligation is claimed to arise are disputed, the contention falls within the province of the courts, under the distribution of governmental powers prescribed by our constitution."
Board of Educ. v. Ohio ex rel. Lindsay, 51 Ohio St. 531, 38 N.E. 614, 618 (Ohio 1894) (citation omitted).
"[T]he Legislature may not declare the weight to be given to evidence or what evidence shall be conclusive proof of an issue of fact[.] ... [WJhether evidence is of probative value is a legal question, and the Legislature cannot impair judicial analysis and resolution of such questions.”
Nebraska v. Burling, 224 Neb. 725, 400 N.W.2d 872, 876 (1987) (citations omitted).
. Several courts have found damage cap statutes similar to SDCL 21-3-11 unconstitutional because they violate the “open courts” provision. See e.g., Smith v. Dept. of Ins., 507 So.2d 1080 (Fla.1987); Kansas Malpractice Victims Coalition v. Bell, 243 Kan. 333, 757 P.2d 251 (1988); Lucas v. United States, 757 S.W.2d 687 (Tex.1988). Other courts have rejected the open courts/right to remedy challenge. See e.g., Adams v. Children's Mercy Hosp., 832 S.W.2d 898 (Mo.1992) (en banc); Johnson v. St. Vincent Hospital, Inc., 273 Ind. 374, 404 N.E.2d 585 (1980).
. Several courts have held similar damage cap statutes unconstitutional on the ground that they violate the right to a jury trial. See Moore v. Mobile Infirmary Ass’n, 592 So.2d 156 (Ala.1991); Smith, 507 So.2d 1080; Kansas, 757 P.2d 251.
.S.D. Const, art. VI provides in part:
§ 1. Inherent rights. All men have certain inherent rights including enjoying and defending life and liberty, acquiring and protecting property and the pursuit of happiness.
§ 2. Due Process. No person shall be deprived of life, liberty, or property without due process of law.
§ 12. Privilege or immunity laws. No law granting an irrevocable privilege, franchise or immunity shall he passed.
§ 18. Equal privileges or immunities. "No law shall be passed granting to any citizen, class of citizens or corporation, privileges or immunities which upon the same terms shall not equally belong to all citizens or corporations.”
Gasper v. Freidel, 450 N.W.2d 226, 235 n. 3 (S.D.1990) (Sabers, J., concurring specially).
. Because "SDCL 20-9-1 is a simple codification of the common law of negligence,” it could be argued that the legislature is without power to abrogate the rights that flow from it. Cf. Baatz, 426 N.W.2d at 302.