Yesterday the Utah Supreme Court found our medical malpractice cap on non-economic damages, Sec. 78B-3-410, to be unconstitutional in wrongful death claims. That statute provides, 

  In a malpractice action against a health care provider, an injured plaintiff may recover noneconomic losses to compensate for pain, suffering, and inconvenience. The amount of damages awarded for noneconomic loss may not exceed . . . $450,000.

However, the Utah Constitution, Art. XVI, Sec. 5 provides,

 The right of action to recover damages for injuries resulting in death, shall never be abrogated, and the amount recoverable shall not be subject to any statutory limitation, except in cases where compensation for injuries resulting in death is provided for by law.

Smith v. USA, 2015 UT 68 involved a certified question from the US District Court for Utah as to whether the cap could be constitutional given Article XVI, Sec. 5. (Mr. Smith’s son died of a drug overdose from medications prescribed at the local VA Hospital for post-operative back pain.)

Many of us had expected this result, given the clarity of the Utah constitutional provision and prior hints from our high court. I thought there was a possibility that the Supreme Court might dodge the constitutional issue, and hold that the type of damages covered by the cap (“noneconomic losses to compensate for pain, suffering, and inconvenience”) were not damages recoverable in a wrongful death actions anyway, so the cap was inapplicable as a matter of interpretation. Two trial court judges have taken this approach, but the Supreme Court rejected this distinction, see Par. 25.

The Court (Justice Jill Parrish wrote the unanimous opinion, with Court of Appeals Judge Kate Toomey sitting in) took the direct approach and dealt directly with the apparent constitutional conflict.

The opinion starts out with an interesting discussion of the types of damages available in a wrongful death action at the time of the adoption of the Utah Constitution in 1896, and concludes that non-economic damages (but not the mental anguish of the heirs) were then recoverable. Therefore, they are “not subject to any statutory limitation.” 

Then the Court discussed what is meant by “compensation” in the constitutional provision, and decided that it meant something akin to the workers’ compensation scheme. That does not exist in medical malpractice claims. It rejected the defendant’s argument that any amount of damages (above zero) was “compensation,” even if that “compensation” was limited by a cap.

The Court found no way to avoid the inconsistency between the statute and the constitution, and thus held the cap unconstitutional in a wrongful death case.

This issue has been hanging fire for thirty-six years, since the enactment of the first medical malpractice cap. It’s nice to finally have it resolved.