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Judd v. Drezga11/5/2004
icient account, I believe, of the arbitrary method by which the statute distributes the cost of its solution to the so-called malpractice crisis. The most seriously harmed plaintiff is likely to receive the smallest fraction of his or her actual damages, while the less injured are likely to receive much higher, or even total, compensation for the injuries they suffer. A more graphic illustration of the "impermissible shifting of collective burdens to individual citizens," Condemarin, 775 P.2d at 358, is hard to imagine, and it is the most vulnerable and voiceless citizens who bear the brunt of this shift.
Against this extreme cost to the few victims whose injuries and suffering are severe and perhaps (as with this plaintiff) lifelong is to be considered the legislature's rationale for inflicting such damage on individual rights. The majority defers entirely to the legislature's "fact-finding" process and cites rather extensively to specific sources supporting the legislature's conclusions that high jury verdicts are the major cause of high medical malpractice premiums. This conclusion is entirely inconsistent with Utah's long experience with juries in these cases. Utah juries are demonstrably reluctant to award high pain and suffering awards. In fact, according to the most recent statistics from the National Practitioner Data Bank, Utah ranks fiftieth among all the states and the District of Columbia in the median size of verdicts awarded in malpractice cases. This fact undermines the notion that jury verdicts have anything to do with premiums in this state. N.P.D.B. Ann. Rep. tbl.9 (2002), available at http://www.npdb-hipdb.com/pubs/stats/2002 NPDB_ Annual Report.pdf. While we owe deference to legislative judgments on policy questions generally, we do not grant immunity to constitutional review on the basis of legislative assertions of "fact" that have no demonstrated basis in reality. No one would claim, for example, that if the legislature "determined," contrary to well-established scientific evidence, that childhood vaccinations caused autism, it could properly impose negligence liability on medical practitioners administering the vaccines.
In addition to its uncritical acceptance of the legislature's perception that high jury verdicts in Utah are the cause of the problem this statute purports to address, the majority fails to acknowledge the numerous recent studies attributing rises in insurance premiums to phenomena within the insurance industry itself, rather than to the size of jury verdicts. See app. A. Discussing his landmark Harvard study on medical malpractice, Paul Weiler notes the critical limitations of available evidence in determining the relationship between medical malpractice litigation and insurance premiums and the inherent unfairness and high social cost of damage caps as a response in the absence of any showing of their effectiveness. Paul Weiler, Medical Malpractice on Trial 7-16, 56-61 (1991); see also Thomas B. Metzloff, Understanding the Malpractice Wars, 106 Harv. L. Rev. 1169, 1177-87 (1993) (book review). Weiler's New York-based study was reproduced in Utah and Colorado with significantly similar results. David M. Studdert & Troyen A. Brennan, Beyond Dead Reckoning: Measures of Medical Injury Burden, Malpractice Litigation, and Alternative Compensation Models from Utah and Colorado 33 Ind. L. Rev. 1643, 1677 (2000). Another author points out that emerging data severely undermine the traditional view of the causes of the so-called medical malpractice "crisis":
As much as the [traditional] hypothesis concerning the roots of the malpractice crisis makes intuitive sense, recent studies have shown that it is simply not accurate. Rather, these studies (d
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