[¶ 1] Justice RICHARD W. SAEERS
delivers the majority opinion of the Court on the result of unconstitutionality of the damages cap of SDCL 21-3-11 based on due process and on questions 3 and 4.
[¶ 21 Justice DAVID GILBERTSON
delivers the majority opinion of the Court on the rationale for unconstitutionality and on the revival of the 1985 version of SDCL 21-3-11 and on question 2.
[¶ 3] SABERS, Justice, writing the majority opinion on the result of unconstitutionality of the damages cap of SDCL 21-3-11 based on due process and on questions 3 and 4.
[¶ 4J Parents brought suit for severe injuries suffered by minor son while under care of Air Force hospital. The United States admitted liability and invoked the $1 million cap on medical malpractice damages. The federal district court held the cap was constitutional under the South Dakota and United States Constitutions. On appeal to the Eighth Circuit Court of Appeals, four certified questions were presented and accepted by the South Dakota Supreme Court. For the reasons set forth herein, we hold that the damages cap of SDCL 21-3-11 is unconstitutional.
FACTS
[¶ 5] Kris Knowles was twelve days old when he was admitted for treatment of a fever at the Ellsworth Air Force Base Hospital, near Rapid City, South Dakota. Medical Service Specialists, the Air Force’s equivalent to nurses’ aides, recorded Kris’ temperature. On the night before his discharge, the specialists failed to report to nurses or physicians that Kris’ temperature had been dropping throughout that night. Kris developed hypoglycemia and suffered respiratory arrest resulting in severe, permanent brain damage.
[¶ 6] William and Jane Knowles brought suit on their own behalf and for Kris for medical malpractice, emotional distress, and loss of consortium. The United States admitted liability for medical malpractice and filed a motion for entry of judgment of $1 million based on SDCL 21-3-11,1 which limits damages in medical malpractice actions to $1 million. In Knowles v. U.S., 829 F.Supp. 1147, 1157 (D.S.D.1993), the United States District Court of South Dakota, Western Division, (district court) ruled that SDCL 21-3-11 was constitutional and entered judgment for $1 million. Knowles appealed. The Eighth Circuit Court of Appeals certified four questions to this court, which we accepted:
1. Is the SDCL 21-3-11 damages cap unconstitutional under South Dakota’s Constitution? Specifically, is it violative of any of the following portions of the South Dakota Constitution: SDCon-stArtVI, § 6, the right to a jury trial; SDConstArtVI, §§ 2 and 18, due process and equal protection of law; SDCon-stArtVI, § 20, the open-courts and remedy-for-injury provision; or SDConstAr-tlll, § 23(9), forbidding certain special legislation?
2. Are Medical Service Specialists “practitioners of the healing arts” for purposes of SDCL 21-3-11?
The district court answered in the affirmative. Knowles, 829 F.Supp. at 1151.
3. Does South Dakota law recognize emotional distress or loss of consortium for injuries to a minor child as a separate cause of action?
The district court determined that there was only one cause of action for the purpose of its decision. Id. at 1152-53.
[186]*1864. Does the statutory limitation on damages apply separately to each of the three plaintiffs in this case and each of the two separate causes of action?
The district court answered in the negative. Id. at 1152.
[¶ 7] Question 1: Is the SDCL 21-3-11 damages cap unconstitutional under South Dakota’s Constitution?
There is a strong presumption that the laws enacted by the Legislature are constitutional and that presumption is rebutted only when it clearly, palpably and plainly appears that the statute violates a provision of the constitution.
Specht v. City of Sioux Falls, 526 N.W.2d 727, 729 (S.D.1995) (citations omitted). [¶ a)]
Initially, we note that many courts have invalidated limitations on damages based on their respective state constitutions. Moore v. Mobile Infirmary Ass’n, 592 So.2d 156, 158 (Ala.1991) (citing Smith v. Dep’t. of Ins., 507 So.2d 1080 (Fla.1987) (invalidating a damages cap on personal injury awards); Wright v. Central Du Page Hosp. Ass’n, 63 Ill.2d 313, 347 N.E.2d 736 (1976); Brannigan v. Usitalo, 134 N.H. 50, 587 A.2d 1232 (N.H.1991); Carson v. Maurer, 120 N.H. 925, 424 A.2d 825 (N.H.1980); Arneson v. Olson, 270 N.W.2d 125 (N.D.1978); Morris v. Savoy, 61 Ohio St.3d 684, 576 N.E.2d 765 (1991); Lucas v. United States, 757 S.W.2d 687 (Tex.1988); Condemarin v. Univ. Hosp., 775 P.2d 348 (Utah 1989); Sofie v. Fibreboard Corp., 112 Wash.2d 636, 771 P.2d 711 (1989) (amended by 780 P.2d 260 (Wash.1989)) (invalidating a damages cap on all personal injury actions)).
[¶ 81 Other jurisdictions have upheld a damages cap: Moore, 592 So.2d at 158 (citing Fein v. Permanente Medical Group, 38 Cal.3d 137, 211 Cal.Rptr. 368, 695 P.2d 665 (Calif 1985); Johnson v. St. Vincent Hosp., Inc., 273 Ind. 374, 404 N.E.2d 585 (1980); Samsel v. Wheeler Transport Servs., Inc., 246 Kan. 336, 789 P.2d 541 (1990)) (modified on statutory grounds by Bair v. Peck, 248 Kan. 824, 811 P.2d 1176, 1191 (1991); Etheridge v. Medical Center Hosps., 237 Va. 87, 376 S.E.2d 525 (1989)). See also Carol A. Crocca, Validity, Construction, and Application of State Statutory Provisions Limiting Amount of Recovery in Medical Malpractice Claims, 26 ALR5th 245 (1995); Gary D. Jensen, Legislative Larceny: The Legislature Acts Unconstitutionally When It Arbitrarily Abolishes or Limits Common Law Rights to Redress for Injury, 31 SDLRev 82, 82 (1985) (“Much of the [protectionist legislation for health care providers] has been struck down as unconstitutional.”).
[¶ 9] However, the questions presented herein generally turn on the particular constitutional provisions of the state and the case law precedent interpreting those provisions. Because the provisions of the South Dakota Constitution guaranteeing the right to jury trial, open courts and due process are dispositive, we do not reach the other constitutional questions.
SDCL § 21-3-11 violates the right of trial by jury.
South Dakota Constitution article VI, § 6 guarantees the right of trial by jury:
The right of trial by jury shall remain inviolate and shall extend to all cases at law without regard to the amount in controversy[.]
(Emphasis added); see SDCL 15-6-38(a) (“The right of trial by jury ... shall be preserved to the parties inviolate.”) (emphasis added). “Inviolate” has been defined as “free from change or blemish: pure, unbroken ... free from assault or trespass: untouched, intact[.]” Sofie, 771 P.2d at 721-22 (citing Webster’s New Third International Dictionary, 1190 (1976)). In discussing the role of the jury, the United States Supreme Court has stated:
Maintenance of the jury as a fact-finding body is of such importance and occupies so firm a place in our history and jurisprudence that any seeming curtailment of the right to a jury trial should be scrutinized with the utmost care.
Dimick v. Schiedt, 293 U.S. 474, 486, 55 S.Ct. 296, 301, 79 L.Ed. 603, 611 (1935) (assessment of damages is a “matter so peculiarly within the province of the jury[.]”).
[¶ 10] “A jury is the tribunal provided by law to determine the facts and to fix the amount of damages.” Schaffer v. Edward D. Jones & Co., 521 N.W.2d 921, 927 n9 (SD [187]*1871994) (citation omitted). “[T]he amount of damages to be awarded is a factual issue to be determined by the trier of fact[.]” Sander v. Geib, Elston, Frost Professional Ass’n, 506 N.W.2d 107, 119 (S.D.1993) (citation omitted). With any jury award for personal injuries, we “have allowed [the jury] ‘wide latitude’ ” in making its award. Id. (citation omitted).
We are unwilling to allow the trial court authority to limit a damages award as a matter of law ... A jury determination of the amount of damages is the essence of the right to trial by jury — to go beyond the procedural mechanisms now in place [remittitur] for reduction of a verdict and to bind the jury’s discretion is to deny this constitutional right.
Moore, 592 So.2d at 161 (citation omitted) (emphasis in original). The damages cap is unconstitutional because it limits the jury verdict “automatically and absolutely” which makes the jury’s function “less than an advisory status.” Id. at 164 (emphasis in original).
[¶ 11] SDCL 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 could actually be payable to the wrongdoers for medical expenses, not to the victims. It does so in all cases, even when a judicial determination of damages above one million dollars results from an adversarial hearing after notice.
[¶ 12] Five states whose constitutions provide that the right of trial by jury shall remain “inviolate ” have invalidated damages caps. Sofie, 771 P.2d at 723 (citing Kansas (see Kansas Malpractice Victims Coalition v. Bell, 243 Kan. 333, 757 P.2d 251 (1988) (modified on statutory grounds by Bair, 811 P.2d at 1191); Texas (Lucas, 757 S.W.2d at 692); Ohio (see Duren v. Suburban Community Hosp., 24 Ohio Misc.2d 25, 495 N.E.2d 51 (1985); and Florida (see Smith, 507 So.2d at 1095)).
[¶ 13] In Sofie, 771 P.2d at 722, the Washington Supreme Court considered whether a personal injury damages cap violated the right of a jury trial. Washington’s constitutional provision uses the same language as South Dakota Constitution article VI, § 6. Id. (“The right of trial by jury shall remain inviolate ”).
For such a right to remain inviolate, it must not diminish over time and must be protected from all assaults to its essential guarantees_ [T]hose guarantees include allowing the jury to determine the amount of damages in a civil case.
Sofie, 771 P.2d at 722 (citation omitted).
[¶ 14] The Kansas Supreme Court considered the former distinctions between equity and legal actions in a challenge to its medical malpractice damages cap. Bell, 757 P.2d at 258 (upholding the validity of a statute which eliminated vicarious liability in medical malpractice actions). In actions for equity which did not request monetary damages, a plaintiff was not entitled to a jury trial. However, in a legal action for money damages, a plaintiff had a right to a jury trial unless waived. Id A medical malpractice damages cap is “an infringement on the jury’s determination of the facts, and, thus, is an infringement on the right to a jury trial.” Id. The court concluded that “[i]t would be illogical for this court to find that a jury, empaneled because monetary damages are sought, could not then fully determine the amount of damages suffered.” Id.
[¶ 15] In Smith, 507 So.2d at 1088-89, the Florida Supreme Court held that a plaintiff whose personal injury recovery is arbitrarily capped is not “receiving the constitutional benefit of a jury trial[.]” The court held that the recovery cap infringed upon a constitutional right and the legislatui’e may not restrict it merely because it deems it rational. Id. at 1089. The court further held that the legislature must provide a “commensurate benefit” to the tort victim, which it had not. Id.
[¶ 16] For these reasons, we hold that the damages cap violates the right to a jury trial [188] under South Dakota Constitution article VI, § 6.
SDCL 21-3-11 violates SDConstArtVI, § 20, the open courts and remedy-for-injury provision.
[¶ 17] South Dakota Constitution article VI, § 20 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.” 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. In Bell, 757 P.2d at 263, the Kansas Supreme Court invalidated a damages cap, noting that “the right to a remedy means the right to a full remedy[.]” (emphasis in original). Other courts have also held that the damages cap violates their respective states’ open courts provisions. Smith, 507 So.2d at 1088; Lucas, 757 S.W.2d at 692.
[¶ 18] One study found that “there is no relationship between a damage cap and increases in insurance rates thereby reducing available health care, given that less than 0.6% of all claims brought are for over $100,-000.” Lucas, 757 S.W.2d at 691 (citation omitted). The Lucas court held that the damages cap violated the Texas constitution’s open courts provision. Id. at 692.
[¶ 19] In Smith, 507 So.2d at 1088-89, the Florida Supreme Court held that “La]ccess to courts is granted for the purpose of redressing injuries. A plaintiff who receives a jury verdict for [greater than the cap] has not received a constitutional redress of injuries if the legislature statutorily, and arbitrarily, caps the recovery[.]” In other words, a victim who was hospitalized for life and whose economic damages exceeded the $1 million cap, might receive no compensation for all other damages.2
[¶20] The general law applicable in this case is 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.
[¶ 21] 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, a person is responsible for injuries caused- by his want of ordinary care or skill.
[¶ 22] This court recently addressed the South Dakota “open courts” provision in Kyllo v. Panzer, 535 N.W.2d 896 (S.D.1995). We noted that state law made employees responsible for their torts notwithstanding the protections of sovereign immunity:
Regardless of state employment, Employees still owed the same duty of care to drive safely as any other driver not so employed. Employees’ claimed immunization from suit does not extend to negligent individuals in any other sector of employment. The legislature cannot extend it to negligent individuals who work for the state.
Kyllo, 535 N.W.2d at 903.
[¶ 23] Knowles’ situation is similar to those injured by negligent state employees who would have been immune from lawsuits if the statute were constitutional. Physicians owe a duty of care to patients in their positions as health care providers.
[¶ 24] SDCL 20-9-1 makes each person liable for damage to others in tort without [189] limitation on the amount of the injury. SDCL 21-3-11 attempts to carve a special exception for practitioners of the healing arts. While the legislature has the power and ability to make the laws of the state, “[tjhe function of this court is to interpret the laws as they affect the ‘life, liberty, or property of the citizens of the State.’ ” Kyllo, 535 N.W.2d at 901 (quoting Baatz, 426 N.W.2d at 303). The legislature does not act alone. This court exists to ensure that the constitutional rights of citizens are not infringed upon by acts of the legislature. It is not enough to say the legislature has the right to limit remedies; those restrictions must also be constitutional. “Although the legislature has the authority to limit available remedies, especially when they purport to reach state coffers, it is our responsibility to ensure access to the courts as guaranteed by our state constitution.” Kyllo, 535 N.W.2d at 901.
[¶ 251 “The legislature can impose reasonable restrictions upon available remedies and even upon these rights in accordance ivith the constitution, as long as they do not violate the constitution; but they cannot destroy these rights in violation of the constitution.” Baatz, 426 N.W.2d at 304 (emphasis added). For these reasons, we hold that SDCL 21-3-11 violates South Dakota’s open courts provision, SDConstArtVI, § 20.3
SDCL 21-3-11 violates due process.
[¶ 26] Under South Dakota Constitution article VI, § 2, “[n]o person shall be deprived of life, liberty or property without due process of law.” People have a right to be free from injury. Swanson v. Ball, 67 S.D. 161, 290 N.W. 482 (1940). We apply a more stringent test than the federal courts’ rational basis test. Katz v. Bd. of Med. & Osteopathic Examiners, 432 N.W.2d 274, 278 n.6 (SD 1988). The statute must “bear a real and substantial relation to the objects sought to be attained.” Id. (citation omitted).
[¶ 27] Ohio uses the same test. In Morris, 576 N.E.2d at 770-71, the Supreme Court of Ohio held that a medical malpractice damages cap was a violation of due process. A 1987 study by the Insurance Service Organization, which sets the rates of the insurance industry, found that the savings from various tort reforms including a damages cap were “marginal to nonexistent.” Id. 576 N.E.2d at 771. The court concluded that the cap was irrational and arbitrary and that it did “not bear a real and substantial relation to public health or welfare[.]” Id.
[¶ 28] In Ameson, 270 N.W.2d at 136, the North Dakota Supreme Court examined whether a medical malpractice damages cap violated equal protection and due process under the North Dakota constitution:
Defendants argue that there is a societal quid pro quo in that the loss of recovery potential to some malpractice victims is offset by “lower insurance premiums and lower medical care costs for all recipients of medical care.” This quid pro quo does not extend to the seriously injured medical malpractice victim and does not serve to bring the limited recovery provision within the rationale of the cases upholding the constitutionality of the Workmen’s Compensation Act.
Id. (quoting Wright, 347 N.E.2d at 742). See Carson, 424 A.2d at 837-38 (quoting same passage from Wright, 347 N.E.2d at 742) (invalidating a damages cap based on equal protection because no quid pro quo was given).4 The Noi’th Dakota Supreme Court held that the damages cap violated equal protection and due process.5 Arneson, 270 N.W.2d at 135-36. In Lyons v. Lederle Lab[190] oratories, 440 N.W.2d 769, 771 (S.D.1989), we discussed equal protection rather than due process and stated: “We fail to perceive any rational basis for assuming that medical malpractice claims will diminish simply by requiring that suits be instituted at an earlier date.” The statute of limitations in Lyons, which carved out an exception for minors which did not allow tolling, created an arbitrary classification of those minor's with medical malpractice claims versus other tort claims. Id. Likewise, SDCL 21-3-11 creates arbitrary classifications of medical malpractice claimants and of those claimants who sustain damages over $1 million and those who do not. Those who suffer less than $1 million in damages may be compensated fully while those who suffer more shall have their damages capped.
[¶ 291 The arbitrary classification of malpractice claimants based on the amount of damages is not rationally related to the stated purpose of curbing medical malpractice claims. See Lyons, 440 N.W.2d at 773 (Sabers, J. concurring specially). The legislation was adopted as a result of “some perceived malpractice crisis.” Id. at 771. Many courts and commentators have argued that there was no “crisis” at all.6 Gail Eiesland, note, Miller v. Gilmore: The Constitutionality of South Dakota’s Medical Malpractice Stahite of Limitations, 38 SDLRev 672, 703 (1993); Hoem v. State, 756 P.2d 780, 783 (Wyo.1988) (holding that medical malpractice tort reform violated equal protection under the rational basis standard). As noted by the court in Hoem:
It cannot seriously be contended that the extension of special benefits to the medical profession and the imposition of an additional hurdle in the path of medical malpractice victims relate to the protection of the public health.
756 P.2d at 783.
[¶ 30] In Moore, 592 So.2d at 167-169, the court examined several studies to conclude that the connection between recovery caps [191] and decreased malpractice insurance rates was “at best, indirect and remote.” Id. at 168. The court balanced this remote connection against the “direct and concrete” burden on severely injured claimants. Id. at 169; see Carson, 424 A.2d at 837 (It is “unfair and unreasonable to impose the burden of supporting the medical care industry solely upon those persons who are most severely injured and therefore most in need of compensation.”). “|T]he statute operates to the advantage not only of negligent health care providers over other tortfeasors, but of those health care providers who are most irresponsible.” Moore, 592 So.2d at 169 (emphasis in original).
[¶ 31] Before SDCL 21-3-11 was amended in 1986, the statute only capped general or noneconomic damages.7 Now, the $1 million cap applies to all damages, noneconomic and economic. 1986 SDSessLaws ch 172. This record provides no reasons for amending the statute or making the cap apply to all damages. Therefore, even if the legislative record and findings were sufficient to support the existence of an insurance crisis and the reasonableness of the cap on noneconomic damages at $500,000, they would not support the reasonableness of placing a cap on all damages, economic and noneconomic, at $1 million. No justifiable reason appears to cap economic damages.8
[¶ 32] SDCL 21-3-11 does not treat each medical malpractice claimant uniformly. It divides claimants into two classes: those whose damages are less than $1 million and those whose damages exceed $1 million. Those who have awards below the statutory cap shall be fully compensated for their injury while those exceeding the cap are not.
[¶ 33] Therefore, SDCL 21-3-11 does not bear a “real and substantial relation to the objects sought to be obtained” and we hold that the damages cap violates due process guaranteed by South Dakota Constitution article VI, § 2.
CONCLUSION
[¶ 34] In this instance, if we assume that the economic damages are $2 million and the noneconomic damages are $1 million, it becomes clear that the statute is neither reasonable nor constitutional. The reasons are many, but the most basic is that the statute impermissibly gives all the benefits to the wrongdoer (his liability is limited to $1 million) while it places all the corresponding detriment on the negligently injured victim (his recovery, economic & noneconomic, is limited to $1 million). There is no quid pro quo or “commensurate benefit” here. Smith, 507 So.2d at 1089; see Arneson, 270 N.W.2d at 136; Wright, 347 N.E.2d at 742; Carson, 424 A.2d at 838; Jensen, supra, at 104. [¶ a)]
Despite a claimed medical malpractice crisis in the rural areas of this state, this legislation wholly failed to differentiate between rural and urban problems and solutions. It purported to cover all practitioners of the healing arts, including chiropractors and dentists. There is no showing of a shortage of chiropractors or dentists. The statutes purported to cover the entire state even though there was no medical malpractice crisis in the urban areas such as Minne-haha and Pennington Counties, as opposed to the rural areas.
[¶ 35] Even in this case, we are dealing with a United States Air Force hospital situated in Pennington County. There is no showing that any United States Air Force [192] hospital had any difficulty obtaining and keeping practitioners of the healing arts. This legislation does not bear a real and substantial relation to the objects sought to be attained9 and it violates many rights in the process. The fact that certain fringe benefits may result to the public in general is insufficient to save this. statute. The same rationale applies to prior versions of the statute. Therefore, they violate the constitutional provisions stated herein.
[¶ 36] We are not saying that the state cannot subsidize health practitioners or even the health insurance industry. We are simply saying that it cannot be done in this manner to the sole detriment of the injured. Obviously, fewer constitutional objections would exist if the state would pay the difference to the injured; or, before the fact, to the insurer or health care provider; or, in all personal injury actions, all damages, economic and noneconomic, were limited in reasonable proportions for all those wrongfully injured for the benefit of all wrongdoers. We decline to comment on the wisdom, as opposed to the constitutionality of such approach.
[¶ 37] Question 2: Are Medical Service Specialists “practitioners of the healing arts” for purposes of SDCL 21-3-11?
[¶ 38] In view of our holding that the damages cap of SDCL 21-3-11 is unconstitutional, it is not necessary to reach this question. Alternatively, the question would be moot upon the revival of the 1985 version of SDCL 21-3-11 because this particular language was not added until the 1986 amendment.
[¶ 39] Question 3: Does South Dakota law recognize emotional distress or loss of consortium for injuries to a minor child as a separate cause of action?
LI 40] We have held that a parent may bring a cause of action to recover consequential damages incurred because of negligent injury to a child. Barger for Wares v. Cox, 372 N.W.2d 161, 164 (S.D.1985). Furthermore, a parent may bring a cause of action for loss of companionship and society of a child under our wrongful death statute. Anderson v. Lale, 88 S.D. 111, 216 N.W.2d 152, 158-59 (S.D.1974). We have never recognized a loss of consortium claim, however, on behalf of a parent because of injuries to a child.
[If 41] Analogous to our rationale is the relationship between a husband and wife in comparison to a parent and child. In Bar-ger, we cited with approval the language of Callies v. Reliance Laundry Co., 188 Wis. 376, 206 N.W. 198, 200 (1925), where it was stated:
The parent is by law required to support and care for his child. In return for the performance of such obligation, the law gives to the parent the right to a part of the child’s cause of action in case he is negligently injured by another. So also since the husband is required to support his wife the law likewise gives him a part of the wife’s cause of action in case she is negligently injured by another. This splitting up of the cause of action resulting in some of the damages being given the child and some to the parent, or some to the wife and some to the husband, is due solely to the parental and marital relations existing between the parties.... But for such relations and obligations the entire damages would belong to the child or wife[.]
Barger, 372 N.W.2d at 165.
[¶ 42] We have recognized a spouse’s right to claim loss of consortium when the other spouse is injured because of the negligent acts of another. Hoekstra v. Helgeland, 78 S.D. 82, 98 N.W.2d 669, 681 (S.D.1959). The Hoekstra court examined the common law to determine whether a wife had a right to maintain an action for loss of consortium. Id. 98 N.W.2d at 670-79. Therefore, we also look to the common law to see if a parent has a similar right. We do not find that a parent had or has a common law right to make a claim of loss of consortium. Prosser summarizes the common law rights of parents regarding injuries to their child:
[193] Since the father was, under the common law rule, entitled to the services of his child, he was entitled to recover for a loss of services or earning capacity not only when the child was enticed away or seduced, but also when the child was tor-tiously injured. And since the father was obliged to provide medical attention to the child, he was likewise entitled to recover against the tortfeasor for the child’s medical expenses. But the claim for the loss of the child’s services did not expand to include intangible losses of consortium as it did token a spouse was injured: where the child was negligently injured the parent had no claim for loss of the child’s society and companionship except so far as the claim for loss of services in a modern society is a fictional one.
A partial exception to this rule developed under the wrongful death statutes in some states, where loss of the child’s society, companionship or affection may be a recoverable item of damages for surviving parents[.]
Prosser and Keeton on The Law of Torts § 125, at 934 (5th ed 1984)(footnotes omitted)(emphasis added).
[¶ 43] Therefore, we answer the third certified question in the negative as we do not recognize a parent’s emotional distress or loss of consortium claim for injuries to a minor child. We do, however, recognize a parent’s right to assert claims for loss of the child’s services and for medical and other consequential damages incurred in caring for the child.
[¶ 44] Question 4: Does the statutory limitation on damages apply separately to each of the three plaintiffs in this case and each of the two separate causes of action?
[¶ 45] SDCL 21-3-11 states in pertinent part: “In any action for damages for personal injury or death alleging malpractice ... the total damages which may be awarded may not exceed the sum of one million dollars.” We have previously held this statute applies separately to a cause of action for personal injury and to a cause of action for wrongful death. Sander, 506 N.W.2d at 126-27. Therefore, the two causes of action in Sander were subject to separate $1 million caps. Id. at 126.
[¶ 46] Two separate causes of action have been presented by the plaintiffs in this case. The first cause of action is premises liability and the second is professional negligence. In Sander, the causes of action were different in the remedies sought, the recipients of any damages awarded, and the distributions of any damage awards. Id. at 127. Here, the facts, liability and damages asserted under either theory are the same. Thus, premises liability and professional negligence are not distinguishable “actions” for purposes of SDCL 21-3-11, and these two causes of action would be subject to one damage cap.
[¶47] The more difficult question is whether the child’s cause of action and the parents’ derivative action are separate “actions” for purposes of the damages cap. We have classified a spouse’s cause of action for loss of consortium as derivative in nature, even though the right of consortium is a personal right and a separate and distinct cause of action. Titze v. Miller, 337 N.W.2d 176, 177 (S.D.1983). If the injured child is unable to recover for his own personal injuries, the parents’ cause of action would also fail. Barger, 372 N.W.2d at 165. Their cause of action for consequential damages for negligent injury to a child, is derivative of the child’s and is not recognized as a separate cause of action. Id. at 164. The parents’ action is derivative in the sense that parents cannot recover unless the child also has a good cause of action. Id. Hence, the parents’ cause of action is derivative of the child’s in regard to the issue of liability and parents are subject to the defenses which could be used against the child to refute liability. See Id. at 164-165.
[¶ 48] There can be two “actions” for one wrongful act. Sander, 506 N.W.2d 107; Rowe v. Richards, 35 S.D. 201, 214-18, 151 N.W. 1001, 1006-07 (1915). The Rowe court stated, “where there are two rights violated, the wrongs are separate and distinct. Of course, it is a recovery of two items of damages resulting from one wrongful act, but it is not the recovery of two items of damage [194] for one injury.” Rowe, 151 N.W. at 1007 (emphasis in original). In Sander we found the plaintiffs in the two causes of action were distinct. Sander, 506 N.W.2d at 127. The remedies sought, the recipients of any damages awarded, and the distributions of any damage awards distinguish the causes of action. Sander, 506 N.W.2d at 127. Similarly, the parents’ claim in this case is distinct. The parents are legally obligated to provide support and maintenance, including expenses reasonable and necessarily incurred in curing the child’s injury. Doyen v. Lamb, 75 S.D. 77, 80-82, 59 N.W.2d 550, 552-53 (1953). The parents’ damages are not for the injury done to the child, but for the injury done to the parents for loss of services during the minority and expenses incurred by the parents as a result of the injuries. Barger, 372 N.W.2d at 165; Doyen, 59 N.W.2d at 553. In Barger, we cited with approval the language used in Shiels v. Audette, 119 Conn. 75, 174 A. 323, 325 (1934):
An act or omission of a person which causes a loss of the services of a minor child to a parent, or necessitates expenditures to cure an injury done to the child, entitles the parent to recover damages when it appears that the act or omission is one which the law holds to be a legal wrong ... In such a case as this, where the basis of the claimed wrongful conduct is the failure of the defendant to take certain steps to prevent the child from suffering injury, the parent cannot recover unless that failure constituted a legal wrong to the child.
Barger, 372 N.W.2d at 165. The child’s damages are significantly different from the parents, and may be in the form of pain and suffering or mental anguish from the physical injury itself. See Id. This is not a double recovery of damages and the jury can apportion the damages among the injured parties. Rowe, 35 S.D. at 216-18, 151 N.W. at 1007. We can also avoid a multiplicity of suits by uniting the suits into one. Doyen, 75 S.D. at 82, 59 N.W.2d at 553.
[¶ 49] We have found a parent’s cause of action for consequential damages resulting from the negligent injury to a child, while derivative, is a personal right. See Barger, 372 N.W.2d at 164-65. Furthermore, we have stated, “the prevailing rule is that the term [personal injury], when used in a statutory context, should be interpreted broadly to include injuries to personal rights.” Titze, 337 N.W.2d at 177. SDCL 21-3-11 uses the terminology “personal injury” and thus encompasses the parents’ personal right to recover for their damages.
[¶ 50] Due to the differing nature of the parents’ damages claim in comparison to the child’s, we find the parents’ claim is a distinct “action” as applied to SDCL 21-3-11. However, the actions are linked in regard to liability issues and the parents cannot recover unless the child also has a good cause of action. Because SDCL 21-3-11 is a limitation on damages only, not liability, we hold the parents’ “action” and the child’s “action” are separate and distinct for purposes of the damage cap. Therefore, we have one “action” regarding liability, but separate “actions” in relation to damages.
[¶ 51] Certified questions answered.
[¶ 52] AMUNDSON, J., concurs specially.
[¶ 53] MILLER, C.J., and KONENKAMP and GILBERTSON, JJ., concur in part, concur in result in part and dissent in part.