Farley v. Engelken

740 P.2d 1058, 241 Kan. 663, 74 A.L.R. 4th 1, 1987 Kan. LEXIS 413

• Court: Supreme Court of Kansas
• Decided: July 17, 1987
• Docket: 59,314, 59,338, 59,591
• Status: Published

Opinions

The opinion of the court was delivered by

Herd, J.:

Three interlocutory appeals in medical malpractice suits have been consolidated for a determination of the constitutionality of K.S.A. 1986 Supp. 60-3403 (hereafter 60-3403). In Farley v. Engelken, et al., Case No. 59,314, the district court of Pottawatomie County upheld the constitutionality of the statute and plaintiff has appealed. In the other cases, Ditto, et al. v. Shawnee Mission Medical Center, Case No. 59,338, and Ridge v. Barker, Case No. 59,591, the district courts of Johnson County and Barber County found the statute to be unconstitutional and the defendants have appealed. Plaintiffs in all three cases are united in interest in asserting the unconstitutionality of the statute and will be referred to collectively throughout this opinion as plaintiffs. As the various health care provider defendants are likewise united in interest in asserting the constitutionality of the statute they will be referred to collectively as defendants.

In addition to the conflicting decisions in our state district courts, a division of authority also exists in the federal trial courts of Kansas. In Ferguson v. Garmon, 643 F. Supp. 335 (D. Kan. 1986), and Crowe by and through Crowe v. Wigglesworth, 623 F. Supp. 699 (D. Kan. 1985), Chief Judge O’Connor and Judge Kelly upheld the constitutionality of the statute, while in Coburn by and through Coburn v. Agustin, 627 F. Supp. 983 (D. Kan. 1985), and Fretz v. Keltner, 109 F.R.D. 303 (D. Kan. 1985), Judges Theis and Saffels found the statute unconstitutional.

The primary question presented on appeal is whether 60-3403 violates the equal protection clauses of the Kansas and United States Constitutions and Section 18 of the Kansas Bill of Rights. The statute was enacted in 1985 and abrogates the common-law collateral source rule in “any medical malpractice liability action.” The collateral source rule is a common-law rule preventing the introduction of certain evidence, summarized in the Restatement (Second) of Torts § 920A (1977), as “[p]ayments made to or benefits conferred on the injured party from other sources [which] are not credited against the tortfeasor’s liability although they cover all or a part of the harm for which the tortfeasor is liable.” In Allman v. Holleman, 233 Kan. 781, Syl. ¶ 8, 667 P.2d 296 (1983), we stated the rule as:

“The collateral source rule provides that benefits received by the plaintiff from a source wholly independent of and collateral to the wrongdoer will not diminish the damages otherwise recoverable from the wrongdoer.”

Such payments are commonly known as collateral source benefits or payments. K.S.A. 1986 Supp. 60-3403 is the successor to K.S.A. 60-471, which was found unconstitutional by this court in Wentling v. Medical Anesthesia Services, 237 Kan. 503, 701 P.2d 939 (1985).

K.S.A. 1986 Supp. 60-3403 provides:

“Evidence of collateral source payments and amounts offsetting payments; admissibility; effect, (a) In any medical malpractice liability action, evidence of the amount of reimbursement or indemnification paid or to be paid to or for the benefit of a claimant under the following shall be admissible: (1) Medical, disability or other insurance coverage except life insurance coverage; or (2) workers’ compensation, military service benefit plan, employment wage continuation plan, social welfare benefit program or other benefit plan or program provided by law.

“(b) When evidence of reimbursement or indemnification of a claimant is admitted pursuant to subsection (a), the claimant may present evidence of any amounts paid to secure the right to such reimbursement or indemnification and the extent to which the right to recovery is subject to a lien or subrogation rights.

“(c) In determining damages in a medical malpractice action, the trier of fact shall consider: (1) The extent to which damages awarded will duplicate reimbursement or indemnification specified in subsection (a); and (2) the extent to which such reimbursement or indemnification is offset by amounts or rights specified in subsection (b).

“(d) The provisions of this section shall apply to any action pending or brought on or after July 1, 1985, regardless of when the cause of action accrued.”

Plaintiffs assert that the statute unconstitutionally creates a class of plaintiffs in tort litigation, insured or otherwise compensated medical malpractice plaintiffs, who are treated differently from all other plaintiffs in tort litigation. The medical malpractice plaintiffs do not receive the benefit of the collateral source rule while all other tort plaintiffs do receive that benefit. It is also asserted the statute creates a class of tort litigation defendants, health care providers, who are not subject to the rule, while all other tort defendants are subject to the rule. Defendants, on the other hand, assert the statute is constitutional and that the classifications created are within the legislature’s authority in seeking a remedy to a problem of extreme public interest.

The Fourteenth Amendment to the United States Constitution provides that no state shall “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The Kansas counterpart to the Fourteenth Amendment equal protection clause is found in Sections 1 and 2 of the Bill of Rights of the Kansas Constitution, which provide:

“§ 1. Equal rights. All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.”

“§ 2. Political power; privileges. All political power is inherent in the people, and all free governments are founded on their authority, and are instituted for their equal protection and benefit. No special privileges or immunities shall ever be granted by the legislature, which may not be altered, revoked or repealed by the same body; and this power shall be exercised by no other tribunal or agency.”

While these two provisions are given much the same effect as the clauses of the Fourteenth Amendment relating to due process and equal protection of the law (Henry v. Bauder, 213 Kan. 751, 752-53, 518 P.2d 362 [1974]), Section 2 of the Kansas Bill of Rights has been construed as referring only to political privileges and not to property rights. When an equal protection challenge is raised involving individual personal or property rights, not political rights, the proper constitutional section to be considered is Section 1 of the Kansas Bill of Rights. Stephens v. Snyder Clinic Assn, 230 Kan. 115, 128, 631 P.2d 222 (1981).

When a statute is attacked on equal protection grounds, the general rule is that the statute is presumed constitutional, and the burden is on the party attacking the statute to prove otherwise. Only in cases involving “suspect classifications” or “fundamental interests” is the presumption of constitutionality displaced and the burden placed on the party asserting constitutionality to demonstrate a compelling state interest which justifies the classification. Gumbhir v. Kansas State Board of Pharmacy, 231 Kan. 507, 521, 646 P.2d 1078 (1982), cert. denied 459 U.S. 1103 (1983). In reviewing legislative enact-merits, the court does not sit to judge the merits or wisdom of the act; the court’s limited review of the challenged statute is whether the classifications are reasonable, not arbitrary, and are justified by a legitimate state interest. City of Wichita v. White, 205 Kan. 408, 409, 469 P.2d 287 (1970). In other words, does the legislative end justify the classification means?

Before turning to the principal issue, let us review the legal concept of equality. Equality was recognized by the founding fathers as one of man’s natural rights, yet, the original Constitution and Bill of Rights contained no equal protection guarantees. It wasn’t until the adoption of the Fourteenth Amendment in 1868 that the Constitution formally guaranteed people equal protection of the laws. However, the Fourteenth Amendment applies only to the states. The guarantee of equal treatment under federal law is dependent upon interpretation of the due process clause of the Fifth Amendment, which contains no equal protection clause. See Shapiro v. Thompson, 394 U.S. 618, 642, 22 L. Ed. 2d 600, 89 S. Ct. 1322 (1969); Bolling v. Sharpe, 347 U.S. 497, 98 L. Ed. 884, 74 S. Ct. 693 (1954).

While equality is the rule and classification the exception, it is readily apparent that complete numerical equality of treatment for all persons is impossible, particularly in a pluralistic, diverse society such as the United States. Thus, some types of classification are inescapable even though they create burdened as well as benefited classes. Classification in application of the law, by its very nature, creates preference to the benefited class. Thus, classification is discriminatory. However, discrimination under proper rules is not prohibited. For instance, equal protection does not require a state to license a blind person to drive a motor vehicle merely because it licenses those with good vision. Nor does equal protection prevent the state from regulating sanitary conditions in restaurants where it does not regulate such conditions in repair shops. We could go on with many illustrations showing that unequal treatment of persons under proper circumstances is essential to the operation of government. On the other hand, the equal protection clause forbids some types of classification. The court’s problem has thus been to articulate principles by which constitutional differentiations can be separated from unconstitutional differentations.

The United States Supreme Court has utilized varying standards in distinguishing constitutional from unconstitutional classification. It currently recognizes and applies three standards, or “levels of scrutiny,” in analyzing equal protection claims. The standard of scrutiny increases with the perceived importance of the right or interest involved and the sensitivity of the classification. Of the three articulated tests, the least strict is the “rational” or “reasonable” basis test. In McGowan v. Maryland, 366 U.S. 420, 6 L. Ed. 2d 393, 81 S. Ct. 1101 (1961), the court discussed the rational basis test:

“[T]he Fourteenth Amendment permits the States a wide scope of discretion in enacting laws which affect some groups of citizens differently than others. The constitutional safeguard 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.” 366 U.S. at 425-26.

The next level of judicial review in equal protection cases is of more recent origin. This intermediate level of review is termed “heightened scrutiny” and is applicable to “quasi-suspect” classifications. It requires the statutory classification to substantially further a legitimate legislative purpose. Under this standard, a greater justification for the statutory classification than is required under the rational basis analysis must be shown, including a direct relationship between the classification and the state’s goal. Craig v. Boren, 429 U.S. 190, 197, 50 L. Ed. 2d 397, 97 S. Ct. 451 (1976). Gender-based classifications have been subjected to middle-level scrutiny, Reed v. Reed, 404 U.S. 71, 30 L. Ed. 2d 225, 92 S. Ct. 251 (1971); Craig v. Boren, 429 U.S. 190, as have those based on legitimacy, Pickett v. Brown, 462 U.S. 1, 76 L. Ed. 2d 372, 103 S. Ct. 2199 (1983); Trimble v. Gordon, 430 U.S. 762, 52 L. Ed. 2d 31, 97 S. Ct. 1459 (1977); and Mathews v. Lucas, 427 U.S. 495, 49 L. Ed. 2d 651, 96 S. Ct. 2755 (1976).

The most critical level of examination under current equal protection analysis is “strict scrutiny,” which applies in cases involving suspect classifications such as race, ancestry, and alienage, and fundamental rights expressly or implicitly guaranteed by the Constitution. Fundamental rights recognized by the Supreme Court include voting, Hill v. Stone, 421 U.S. 289, 44 L. Ed. 2d 172, 95 S. Ct. 1637, reh. denied 422 U.S. 1029 (1975); privacy, Griswold v. Connecticut, 381 U.S. 479, 14 L. Ed. 2d 510, 85 S. Ct. 1678 (1965); marriage, Loving v. Virginia, 388 U.S. 1, 18 L. Ed. 2d 1010, 87 S. Ct. 1817 (1967); Skinner v. Oklahoma, 316 U.S. 535, 86 L. Ed. 1655, 62 S. Ct. 1110 (1942); and travel, Shapiro v. Thompson, 394 U.S. 618, 22 L. Ed. 2d 600, 89 S. Ct. 1322 (1969). Suspect classifications recognized by the Court include race, McLaughlin v. Florida, 379 U.S. 184, 13 L. Ed. 2d 222, 85 S. Ct. 283 (1964); ancestry, Oyama v. California, 332 U.S. 633, 92 L. Ed. 249, 68 S. Ct. 269 (1948); and alienage, Graham v. Richardson, 403 U.S. 365, 29 L. Ed. 2d 534, 91 S. Ct. 1848 (1971); Yick Wo v. Hopkins, 118 U.S. 356, 30 L. Ed. 220, 6 S. Ct. 1064 (1886). Under the “strict scrutiny” test, it must be demonstrated that the classification is necessary to serve a compelling state interest, otherwise it is unconstitutional. Shapiro v. Thompson, 394 U.S. at 634. Thus, the burden of proof is shifted from plaintiff to defendant and the ordinary presumption of validity of the statute is reversed.

As the above review illustrates, the level of scrutiny to be applied often determines the constitutionality of the statute. For a more detailed discussion of the three recognized levels of scrutiny, see Crowe by and through Crowe v. Wigglesworth, 623 F. Supp. at 702-03.

We now turn to the issue of which standard of scrutiny must be applied to 60-3403. Roth plaintiffs and defendants attempt to rely upon Wentling v. Medical Anesthesia Services, 237 Kan. 503, 701 P.2d 939 (1985), where we held K.S.A. 60-471, the predecessor to 60-3403, unconstitutional. In Wentling, this court quoted at some length from Judge Theis’ opinion in Doran v. Priddy, 534 F. Supp. 30 (D. Kan. 1981), finding K.S.A. 60-471 unconstitutional, and then stated, “A majority of the members of this court are in agreement with the conclusions reached by Judge Theis.” 237 Kan. at 516-18. The conclusion reached by Judge Theis, and approved by the majority, was that in analyzing K.S.A. 60-471 the court “must apply a scrutiny which . . . is‘not a toothless one.’ ” 534 F. Supp. at 37 (quoting Trimble v. Gordon, 430 U.S. 762). Judge Theis concluded that, because of the important nature of the rights affected by the statute under review, the court must apply a more stringent standard of review than that applied under the rational basis test. Thus, in Wentling, without specifically so stating, we applied the heightened scrutiny test under the United States Constitution. While we are concerned here with the same issue, as hereinafter demonstrated, the Kansas Constitution affords separate, adequate, and greater rights than the federal Constitution. Therefore, we clearly and expressly decide this case upon Sections 1 and 18 of the Kansas Bill of Rights. See Michigan v. Long, 463 U.S. 1032, 77 L. Ed. 2d 1201, 103 S. Ct. 3469 (1983).

In addition to our holding in Wentling, other considerations would indicate a heightened scrutiny analysis is appropriate in this case. For instance, Section 18 of the Kansas Bill of Rights provides that all persons, for injuries suffered in person, reputation, or property, shall have a remedy by due course of law, and justice administered without delay.

In Ernest v. Faler, 237 Kan. 125, 697 P.2d 870 (1985), we considered the nature of the right granted in Section 18. The specific issue facing the court in Ernest was whether K.S.A. 2-2457 (repealed L. 1986, ch. 8, § 2) was unconstitutional on the basis that it results in a denial of due process of law and equal protection of the law. K.S.A. 2-2457 required a person damaged from a pesticide application to file, within 60 days after the date the damage was discovered, a written statement with the county attorney that he had been damaged in order to maintain a civil action to recover damages.

Justice (now Chief Justice) Prager, writing for the court, first reviewed the various tests applied when considering whether a statute offends the equal protection clause and noted that in cases involving “suspect classifications” or “fundamental interests” the courts adopt an attitude of active and critical analysis, requiring the courts to consider the nature of the rights affected by the legislation, the classification established, and the governmental interests necessitating the classification. 237 Kan. at 129-30. The court reasoned:

“The right of the plaintiff involved in this case is the fundamental constitutional right to have a remedy for an injury to person or property by due course of law. This right is recognized in the Kansas Bill of Rights § 18, which provides that all persons, for injuries suffered in person, reputation or property, shall have a remedy by due course of law, and justice administered without delay. In 1904, the term, ‘remedy by due course of law,’ was defined in Hanson v. Krehbiel, 68 Kan. 670, 75 Pac. 1041 (1904), as follows:

‘ “Remedy by due course of law,” as used in section 18 of the bill of rights, means the reparation for injury, ordered by a tribunal having jurisdiction, in due course of procedure and after a fair hearing.’ ” 237 Kan. at 131. (Emphasis added.)

Defendants argue 60-3403 does not impair plaintiffs’ right to a remedy because plaintiffs can still sue and recover damages against a health care provider in Kansas; thus, no fundamental right is affected. Admittedly, 60-3403 does not eliminate a medical malpractice victim’s right to bring suit. However, it impairs his remedy if a jury determines the victim is not entitled to full compensation from the defendant because the victim has received benefits from independent sources.

While we do not reach the issue of whether 60-3403 violates Section 18 of the Kansas Bill of Rights, we find that the right of a victim of medical malpractice to a remedy against the person or persons who wronged him is sufficiently threatened by 60-3403 to require a higher standard of review than the rational basis test.

The rationale for applying a higher level of scrutiny to this particular legislation is well stated by Learner, Restrictive Medical Malpractice Compensation Schemes: A Constitutional “Quid Pro Quo” Analysis to Safeguard Individual Liberties, 18 Harv. J. on Legis. 143, 184, 189 (1981). Learner compares the political powerlessness of the class of future medical malpractice victims to that of traditional “suspect” and “semi-suspect” classifications — e.g., minorities, women, illegitimates, and aliens. He reasons that certain similar characteristics (e.g., lack of group cohesiveness and political disorganization) justify treating future malpractice victims similarly to other politically powerless, semi-suspect classes who receive judicial protection through an enhanced scrutiny of legislation critically affecting their individual rights. Learner concludes:

“When the legislative balancing process is unduly skewed by the structural inability of the burdened class to form active political coalitions, a court must be sensitive to its institutional role as a counter-majoritarian monitor of legislative legitimacy. The political powerlessness of future medical malpractice victims arguably justifies their status as a semi-suspect class entitled to judicial protection against majoritarian subjugation of individual rights.” p. 189.

We further note that other jurisdictions which have considered equal protection challenges under the Fourteenth Amendment to statutes abrogating the collateral source rule in medical malpractice cases have also applied a more rigorous scrutiny than that applied under the rational basis test. For example, in Carson v. Maurer, 120 N.H. 925, 424 A.2d 825 (1980), the New Hampshire Supreme Court held that, while the right to recover for injuries is not a fundamental right in New Hampshire, the right to be indemnified against medical malpractice is “sufficiently important to require that the restrictions imposed on those rights be subjected to a more rigorous judicial scrutiny than allowed under the rational basis test.” 120 N.H. at 931-32. The Supreme Court of North Dakota also used an intermediate level of scrutiny to hold a similar statute invalid in Arneson v. Olson, 270 N.W.2d 125 (N.D. 1978). The court there noted this intermediate test required a “close correspondence between statutory classification and legislative goals.” 270 N.W.2d at 133. See also Graley v. Satayatham, 74 Ohio Op. 2d 316, 320, 343 N.E.2d 832 (1976), where the Ohio court held the crucial question is whether there is an appropriate governmental interest suitably furthered by the differential treatment; and Jones v. State Board of Medicine, 97 Idaho 859, 555 P.2d 399 (1976), in which the Supreme Court of Idaho determined the standard of review was whether the statute reflected any reasonably conceived public purpose and whether the establishment of the classification had a fair and substantial relation to the achievement of the governmental objective and purpose. Further, two federal district courts of Kansas have applied a heightened level of scrutiny in finding 60-3403 unconstitutional. See Coburn by and through Coburn v. Agustin, 627 F. Supp. 983, and Fretz v. Keltner, 109 F.R.D. 303 (D. Kan. 1985).

It is also worthy of mention that in all of the above-mentioned cases (except Jones) the courts held statutes abrogating the collateral source rule unconstitutional. In Jones, the court remanded the case for determination of questions pertinent to the equal protection challenges. 97 Idaho at 877.

We recognize that a number of courts, facing the issue now before us, have opted to apply the less stringent rational basis test. See, e.g., Eastin v. Broomfield, 116 Ariz. 576, 570 P.2d 744 (1977); Pinillos v. Cedars of Lebanon Hospital Corp., 403 So. 2d 365 (Fla. 1981); Bernier v. Burris, 113 Ill. 2d 219, 497 N.E.2d 763 (1986); Rudolph v. Iowa Methodist Medical Ctr., 293 N.W.2d 550 (Iowa 1980).

We further recognize that this court has previously applied a “rational basis” test to uphold the constitutionality of malpractice “crisis” legislation. See, e.g., Stephens v. Snyder Clinic Ass’n, 230 Kan. 115, 631 P.2d 222 (1981), and State ex rel. Schneider v. Liggett, 223 Kan. 610, 576 P.2d 221 (1978). However, both of these cases are distinguishable from the present case.

In Liggett, this court upheld the constitutionality of the Kansas Health Care Provider Insurance Act against a physician’s complaint that combining high-risk physicians with low-risk practitioners violated his equal protection rights. The Liggett court determined there is no “fundamental interest” involved in the practice of medicine or in any other profession. Therefore, the court concluded the defendant’s equal protection challenge must be gauged by the traditional “rational relationship” test. 223 Kan. at 618. Liggett is clearly distinguishable from the instant case as the legislation in question in Liggett did not classify or burden victims of medical malpractice.

In Stephens, the court upheld legislation imposing a shorter limitation period for tort actions brought against health care providers as constitutional. However, the court did not consider whether a heightened standard of review was appropriate. Instead, the court simply cited Liggett as support for its application of the “reasonable basis” test. Stephens is also distinguishable from this case since the legislation at issue in Stephens did not prevent an injured party from obtaining a full remedy from the negligent tortfeasors. Instead, it limited the time period in which an action could be brought.

Finally, while we are aware the United States Supreme Court has applied heightened scrutiny to very limited classifications, we are interpreting the Kansas Constitution and thus are not bound by the supremacy clause of the federal Constitution.

Having determined the appropriate standard of review, we now turn to the question of whether the equal protection clause of the Kansas Constitution is violated by the statutory abrogation of the collateral source rule in medical malpractice actions. In order to resolve this question, we must balance the interests of the burdened class (insured or otherwise compensated victims of medical malpractice) and the benefited class (negligent health care providers and their insurers) with the goal of the legislation (to insure quality and available health care). Finally, we must decide whether the classifications substantially further a legitimate legislative objective.

K.S.A. 1986 Supp. 60-3403 singles out a class of persons and organizations (negligent health care providers) for preferential treatment not extended to any other tortfeasors. This particularly narrow class of defendants is relieved of professional accountability for their actions when a plaintiff has received compensation through other means.

An examination of the effect of 60-3403 upon the disadvantaged class — insured or otherwise compensated victims of medical malpractice — provides stark contrast. These victims of medical malpractice, unlike other tort claimants, are denied compensation from the person or persons who have wronged them. In effect, it gives a negligent health care provider a credit against the damage the provider inflicts on its victim in the amount of the value of the victim’s independent contractual rights. Thus, the statute renders the damage award one of need rather than actual compensation for loss.

As pointed out by the Ohio court in Graley v. Satayatham, 74 Ohio Op. 2d at 320, there can be no satisfactory reason for such separate and unequal treatment. The Ohio court states:

“There obviously is ‘no compelling governmental interest’ unless it be argued that any segment of the public in financial distress be at least partly relieved of financial accountability for its negligence. To articulate the requirement is to demonstrate its absurdity, for at one time or another every type of profession or business undergoes difficult times, and it is not the business of government to manipulate the law so as to provide succor to one class, the medical, by depriving another, the malpracticed patients, of the equal protection mandated by the constitution. Even remaining with the area of the professions, it is notable that the special consideration given to the medical profession by these statutes is not given to lawyers or dentists or others who are subject to malpractice suits.”

Similar relevant commentary is found in Kenyon v. Hammer, 142 Ariz. 69, 84, 688 P.2d 961 (1984), where the Supreme Court of Arizona held unconstitutional a statute which required medical malpractice actions to be brought within three years from the date of injury. The court reasoned:

“It may be argued, of course, that the high premiums in malpractice cases work an economic hardship on physicians and that, therefore, the special statute of limitations should be sustained as a necessary ‘relief measure’ for health care providers. We doubt the factual premise for such an argument. More importantly, however, we believe that the state has neither a compelling nor legitimate interest in providing economic relief to one segment of society by depriving those who have been wronged of access to, and remedy by, the judicial system. If such a hypothesis were once approved, any profession, business or industry experiencing difficulty could be made the beneficiary of special legislation designed to ameliorate its economic adversity by limiting access to the courts by those whom they have damaged. Under such a system, our constitutional guarantees would be gradually eroded, until this state became no more than a playground for the privileged and influential. We believe this is exactly what those guarantees were designed to prevent.” (Emphasis added.)

K.S.A. 1986 Supp. 60-3403 is one of several statutes enacted by the legislature in 1985 and 1986 in its ongoing attempts to deal with the so-called medical malpractice insurance crisis. See K.S.A. 1986 Supp. 60-3401 through 60-3414. The legislative purpose in enacting the statutes is set forth in K.S.A. 1986 Supp. 60-3405, which states:

“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.”

Thus, by abrogating the collateral source rule in medical malpractice actions, the legislature has attempted to reduce or eliminate malpractice verdicts, thereby effectuating a reduction in liability insurance premiums. A reduction in premiums will allegedly insure the continued availability and quality of health care in this state.

While the legislature’s purpose in enacting 60-3403 may have been to increase the quality and availability of health care, application of such a statute is counterproductive. It is a major contradiction to legislate for quality health care on the one hand, while on the other hand, in the same statute, to reward negligent health care providers. As at least one court has observed, if the medical profession is less accountable than formerly, relaxation of medical standards may occur with the public the victim. Graley v. Satayatham, 74 Ohio Op. 2d at 320. Further, while the effect of 60-3403 may be to lower liability insurance premiums to the benefited class, it may also result in an increased insurance burden on the injured victims, their insurers, and the general public. The reasoning of the Supreme Court of New Hampshire in Carson v. Maurer, 120 N.H. at 939-40, is instructive on this point:

“We first note that, ‘[a]bolition of the [collateral source] rule . . . presents the anomalous result that an injured party’s insurance company may be required to compensate the victim even though the negligent tortfeasor is fully insured. Not only does this abolition patently discriminate against the victim’s insurer, it may eventually result in an increased insurance burden on innocent parties.’ [Citation omitted.] Thus, although RSA 507-C:7 I (Supp. 1979) may result in lower malpractice insurance rates for health care providers, it may also increase the cost of insurance for members of the general public because they are potential victims of medical negligence.

“Finally, although the collateral source rule operates so as to place some plaintiffs in a better financial position than before the alleged wrong, its abolition will result in a windfall to the defendant tortfeasor or the tortfeasor’s insurer. Moreover, this windfall will sometimes be at the expense of the plaintiff, because ‘in many instances the plaintiff has paid for these [collateral] benefits in the form of . . . concessions in the wages he received because of such fringe benefits.’ [Citation omitted.] Thus, when the collateral payments represent employment benefits, the price for the public benefit derived from RSA 507-C:71 (Supp. 1979) will be paid solely by medical malpractice plaintiffs.”

Thus, 60-3403 places a heavy burden not only upon the injured plaintiff but also upon the victim’s insurer and potentially the general public. Further, if it is true, as the legislature has determined, that a health care “crisis” exists, the burden of remedying that crisis should not be placed solely upon the shoulders of malpractice victims. Rather, it more appropriately should fall upon those causing the crisis — the negligent health care providers. A number of courts agree. See, e.g., Coburn by and through Coburn v. Agustin, 627 F. Supp. at 995-96; and Crowe by and through Crowe v. Wigglesworth, 623 F. Supp. at 706. In Crowe, Judge Kelly states:

“On a more fundamental level, this Court is not at all persuaded this discriminatory legislation is needed or that it will achieve its stated goals. Regarding need, defendants cavalierly refer to the ‘obvious’ medical malpractice crisis justifying this legislation. What is apparently so clear to the medical profession, the insurance industry, their respective lobbyists, and the Legislature is a matter of deep and growing concern to this Court as well a a number of commentators and other courts across the country. In the Legislature’s haste to remedy the situation, it has overlooked or, more likely, ignored the fundamental cause of the so-called crisis: it is the unmistakable result not of excessive verdicts, but of excessive malpractice by health care providers.” (Emphasis added.)

We further point out that under K.S.A. 60-3403 in a case involving both medical malpractice and products liability, collateral source evidence would be admissible in the malpractice portion of the trial and inadmissible in the products liability portion. Since a jury would be unable to erase the collateral source evidence once admitted for malpractice purposes, the trial would have to be bifurcated with separate juries on each issue, creating an unworkable administration of justice under comparative fault principles.

K.S.A. 60-3403 is a not so subtle attempt to alter civil jury trials contrary to constitutional guarantees.

We conclude the classifications created by 60-3403 treat both negligent health care providers and their victims differently from other persons similarily situated and do not substantially further a legitimate legislative objective, contrary to law.

We hold K.S.A. 1986 Supp. 60-3403 unconstitutional under the equal protection clause of the Rill of Rights of the Kansas Constitution.

The trial court’s decision in Case No. 59,314 is reversed, the decisions in Case Nos. 59,338 and 59,591 are affirmed, and the three cases are remanded for proceedings consistent with this opinion.