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Judd v. Drezga11/5/2004
iscussed below) demonstrate that it is the economy, and not an increase in litigation, which accounts for the various malpractice crises. However, these studies go further and attack the traditional perspective as rhetoric propagated by the insurance industry and foisted upon the medical community and public as an excuse for skyrocketing rates. . . .
These studies, performed by a coalition of nearly 100 consumer groups around the country entitled "Americans for Insurance Reform" ("AIR"), are perhaps most surprising for their conclusion that there has historically been no relation between malpractice payouts and premiums. Contrary to the cause and effect supposition discussed above, the AIR studies found that over the past thirty years, the amount that medical malpractice insurers have paid out (including jury awards as well as settlements) directly tracks the rate of medical inflation. Thus, despite the alarms rung as a result of the breakdown of the traditional doctor-patient relationship and the increased media attention paid to medical mistakes and jury verdicts, this has not translated to a resulting explosion in payouts to medical malpractice claimants.
Premiums, the studies found, are a different story. Rather than correspond to payouts, they rise and fall in direct relation to the state of the economy. More specifically, premiums rise when interest rates fall. Examining the two prior malpractice crises (which occurred in the mid 1970s and mid 1980s respectively), the studies found that the crises occurred during years of a weakened economy and falling interest rates. Although each crisis brought attempts at malpractice reform in many states, it only subsided when the economy finally recovered and interest rates rose.
Mitchell J. Nathanson, It's the Economy (and Combined Ratio),Stupid: Examining the Medical Malpractice Litigation Crisis Myth and the Factors Critical to Reform, 108 Penn. St. L. Rev. 1077, 1081-82 (2004).
Given the extensive debate and the lack of empirical or expert consensus on the cause of increasing insurance costs, the legislature, however persuaded it may be by one set of assertions, may not properly deprive individual victims of their constitutional right to receive jury-determined compensation for their losses in the absence of overwhelming evidence that the public interest can only be protected by the deprivation. Such a state of affairs currently does not exist; indeed, many thoughtful experts have propounded numerous responses to the situation that would involve no infringement of constitutional rights of citizens. See, e.g., Weiler, supra, at 93-161; see also sources referenced in appendix B. The insistence of our past jurisprudence in this area that the legislature provide some substitute remedy, some quid pro quo, speaks to the high burden borne by those who seek to justify a statute like this. That burden has not been met here. In essence, the majority concludes that the constitutional rights at issue here are so negligible that any "reasonable" need identified by the legislature is sufficient to permit their destruction. I disagree. As we said in Berry, the basic purpose of article I, section 11 is "to impose some limitation on that power for the benefit of those persons who are injured in their persons, property, or reputations since they are generally isolated in society, belong to no identifiable group, and rarely are able to rally the political process to their aid." 717 P.2d at 676.
II. RIGHT TO JURY TRIAL
Article I, section 10 of the Utah Constitution guarantees the right to a jury trial in civil cases. The majority suggests that this guarantee does not protect the right to benefit from the resul
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