Kick Them While Down

In Judd v. Drezga, the Court upheld Utah’s cap on non-economic damages in medical malpractice cases. The Utah statute limit applies to those who have suffered over $250,000. (The plaintiff was awarded $1.25 million in on-economic damages.) The statute, like all such statutes, was enacted because the Legislature “was convinced that doing so would limit malpractice insurance costs for medical professionals, thereby helping to control excessively high medical care cots and health insurance premiums.” ¶5. Judd attacked the limit as contrary to the state Constitution.

 The key to the majority’s holding is that it believes that the cap on non-economic damages, although “it does not provide a substitute remedy substantially equal to that abrogated” it “represents a reasonable, nonarbitrary method of reducing health care costs and other dangers that the legislature views as clear social or economic evils.” In other words, underUtah law, the Open Courts provision requires an adequate remedy for every wrong. The cap takes away a remedy to a wrong without providing a substantially equal non-judicial remedy. But it is still permitted if it is a reasonable response to a serious social or economic evil as viewed by the Legislature. The Court found the cap was. (So the worst off get the least, which, come to think of it, is in line with Utah politics generally.) The analysis repeats through a number of other clauses of the Utah Constitution, but the argument really just repeats. 

 The dissent, by Chief Justice Durham and Justice Nehring, makes compelling reading. The argument there is far more persuasive because it addresses the substantive issues within the framework of prior cases. If “heightened review” is compatible with a rational basis review, there is not much point to the constitutional provisions at all. If the analyses yields that it is reasonable to punish the worst off the most, those most seriously injured by malpractice, the analysis needs a good deal more than the majority’s obsequious deference to the Legislature. 

 In addition, I should say that I just don’t see the evidence to support such caps as having any significant effect on malpractice insurance. It is a continuing source of amazement to me that none of the public discussions of malpractice insurance focuses on reducing malpractice or on ensuring quick and complete compensation to the injured. But then, doctors, unlike the rest of us, do not respond to economic incentives.