AMERICAN BANK TRUST CO. v. COMMUNITY HOSPITAL

MOSK, J.

I dissent. This imprudent legislation provides benefits to the wrongdoer at the expense of his victim.

First, I disagree with the majority's view that the detrimental effect of Code of Civil Procedure section 667.7 on malpractice victims is irrelevant to a determination of unconstitutionality. Second, while I concur with the majority that the rational relationship test is the appropriate standard to apply in evaluating the challenge to MICRA on equal protection grounds, I disagree with its conclusion as to the purpose of the legislation, and with the failure to consider certain statistical information in deciding the equal protection issue.

It is true, as the majority hold, that the Legislature is not required to provide a quid pro quo as a condition of diminishing the common law rights of tort victims. However, consideration of the detrimental effect of legislation on a disadvantaged class is not irrelevant to a determination of whether the members of the class have been deprived of due process of law. A number of cases, in passing on the constitutionality of statutes imposing disabilities on certain categories of tort victims, have relied on the presence or absence of a quid pro quo to the detrimentally affected class as a factor in their determinations. (See, e.g., Duke Power Co. v. Carolina Env. Study Group (1978) 438 U.S. 59, 93 [57 L.Ed.2d 595, 623, 98 S.Ct. 2620]; New York Central R.R. Co. v. White (1917) 243 U.S. 188, 201 [61 L.Ed. 667, 674, 37 S.Ct. 247]; Hurst v. Triad Shipping Co. (3d Cir. 1977) 554 F.2d 1237, 1243-1244; see also Carr v. United States (4th Cir. 1970) 422 F.2d 1007, 1011; Learner, Medical Malpractice (1981) 18 Harv.J.Legis. 143.) Indeed, the absence of quid pro quo to malpractice victims was held to render unconstitutional a monetary limit on the amount of recovery ( Wright v. Central DuPage Hospital Association (1976) 63 Ill.2d 313 [ 347 N.E.2d 736, 742-743, 80 A.L.R.3d 566]) and a statute of limitations applicable only to malpractice victims who are minors ( Sax v. Votteler (Tex. 1983) 648 S.W.2d 661, 667.)

Although the hospital claims that periodic payments are fair to the malpractice victim because damages are paid out as they are incurred, this assumes that a court, in structuring payments for future damages, will be prescient enough to predict with unerring accuracy the future condition of the plaintiff and the rate of inflation for perhaps decades into the future. If the victim's condition deteriorates so that medical treatment or custodial care costs more than the amount set forth in the schedule of payments, he is unable to obtain the additional sums required because the payment schedule is fixed. Even if his condition remains as predicted, it is impossible to foresee in advance the rate at which future medical costs will increase. For a number of years, such costs have been rising at a pace substantially higher than the general inflation rate. (Health United States — 1981 (U.S. Dept. of Health Human Services, Pub. Health Service, Office of Health Research, Statistics Technology) p. 83.)

By depriving a malpractice victim of access to the whole amount of the judgment awarded by the trier of fact and the benefits from its investment, section 667.7 places upon him the entire risk that unpredictable future consequences of his injury will render the periodic payments inadequate to meet his needs. This problem is alleviated for the victims of every tort except medical malpractice; all other prevailing plaintiffs may use the entire amount awarded by the judgment and the earnings therefrom as needed.

While subdivision (f) of section 667.7 eliminates the possibility that the heirs of a malpractice victim would obtain a "windfall" if there were funds awarded by the judgment remaining at the time of his death, the availability of such funds may well be due to the fact that the statute has prevented the victim from using the entire amount of the judgment as his needs require. Under the statute, the sums retained by the insurer are those which would have provided a financial safety valve to the victim for unexpected expenses connected with his injury during the course of his life. Thus, it is the insurer for the wrongdoer which obtains a windfall under the statute, by retaining some — perhaps in some instances most — of the funds which the judgment has awarded to the victim.

Of course, the periodic payment arrangement prevents dissipation of the funds awarded to the victim of the malpractice so that continued compensation is assured. However, the injured party who receives payment in full may also assure a continued income by purchasing an annuity and he may, in addition, derive growth and flexibility by acquiring liquid, income-producing investments with some of the funds awarded.

In short, section 667.7 provides a wrongdoer in a malpractice action with substantial advantages without compensating advantages to his victim.

Next, I disagree with the majority's explanation as to the purposes underlying this unfair distribution of burdens and benefits. The major thrust of the majority's opinion appears to be that the "fundamental goal" of section 667.7 is to "ensure that money paid to an injured plaintiff will in fact be available" when he incurs future expenses and to prevent a "windfall" to heirs of a malpractice victim who dies before his lump-sum award is exhausted. (Maj. opn., ante at p. 369.) According to the majority, the so-called "malpractice crisis" merely provided the "immediate impetus" for the initial application of this general reform to malpractice victims. (Maj. opn., ante at p. 371.) This approach turns the purpose of section 667.7 on its head. Neither the Governor's proclamation calling the Legislature into special session, nor the preamble to the measure mention these goals as a justification for MICRA. While the majority cites various commentators and other authorities for the proposition that such reforms may be desirable, there is no indication that the Legislature itself viewed the premature dissipation of amounts recovered by tort plaintiffs or a possible "windfall" to their heirs as a general problem which the Legislature was meeting by adopting a "piecemeal" solution.

Almost all of the decisions which have upheld the constitutionality of legislation diminishing the rights of malpractice victims have justified the legislation on the ground that its purpose was to alleviate a "malpractice crisis," and some decisions which have invalidated malpractice reforms have done so because they concluded that such a crisis did not exist. ( Arneson v. Olson (N.D. 1978) 270 N.W.2d 125, 136; Boucher v. Sayeed (1983) ___ R.I. ___ [ 459 A.2d 87, 93], see Jones v. State Board of Medicine (1976) 97 Idaho 859 [ 555 P.2d 399, 412-416].)

A second reason advanced by the majority as justification for the classification made in section 667.7 is that it was intended to reduce the cost of premiums for malpractice insurance, thereby inducing doctors who had withdrawn their services because of the rise in premiums to resume practice, and to encourage doctors to carry malpractice insurance. (Maj. opn., ante at p. 372.)

In my view, the purpose of MICRA, including section 667.7, was, instead, to lower malpractice premiums for the purpose of reducing or containing the cost of medical care to the public. A number of cases from other jurisdictions recognize this containment of overall medical costs as a main objective of legislation similar to MICRA. (See, e.g., Gay v. Rabon (1983) 280 Ark. 5 [ 652 S.W.2d 836, 838]; Pinillos v. Cedars of Lebanon Hospital Corp. (Fla. 1981) 403 So.2d 365, 367; Everett v. Goldman (La. 1978) 359 So.2d 1256, 1266; Attorney General v. Johnson (1978) 282 Md. 274 [ 385 A.2d 57, fn. 35 at pp. 78-79]; Prendergast v. Nelson (1977) 199 Neb. 97 [ 256 N.W.2d 657, 668]; Beatty v. Akron City Hospital (1981) 67 Ohio St.2d 483 [ 424 N.E.2d 586, 594]; Allen v. Intermountain Health Care, Inc. (Utah 1981) 635 P.2d 30, 32; State ex rel. Strykowski v. Wilkie (1978) 81 Wis.2d 491 [ 261 N.W.2d 434, 442].) This intent is implicit in the statement of the preamble that the health care crisis, with its resulting hardship to the "medically indigent" and the "economically marginal" is "attributable to skyrocketing medical malpractice premium costs," and in the statement in the Governor's proclamation that the inability of doctors to obtain such insurance at reasonable rates was endangering the health of the people and threatened the closing of many hospitals, a result which would seriously limit the health care available to hundreds of thousands of Californians. The withdrawal of some medical services and the threat that some doctors would not purchase malpractice insurance would not necessarily threaten the health of the "medically indigent" or the "economically marginal," it seems to me, whereas a rise in the overall cost of medical care would pose such a threat.

The assumption made by the Legislature was that insurers could provide malpractice insurance at lower rates if they could save on the cost of providing such insurance, and that these lower premium rates would then be passed on to the public in the form of lower medical costs, or at least in the containment of such costs.

The assumption that there exists a significant relationship between the reduction in malpractice premiums and a meaningful containment of medical costs to the general public lies at the heart of MICRA. Yet, a comparison between the amount of such premiums and the cost of hospital care in the years following the enactment of the legislation demonstrates that this premise is erroneous.

According to amicus curiae, the California Hospital Association, in a study of the premiums paid by 420 of the state's 650 hospitals, the cost of malpractice insurance had risen dramatically before the enactment of MICRA, so that by October 1, 1976, the charge for $1 million in coverage for each occupied hospital bed was $124.31 a month, or roughly $4 a day. Premium charges were lower by 1981, amounting to only $93.46 a month for the same amount of coverage for each occupied bed, or approximately $3 a day.

In 1975, the year MICRA was enacted, the average daily charge for hospitalization in a community hospital in California was $217 a day. (U.S. Dept. of Commerce, Statistical Abstract of the U.S., table No. 177, p. 111 (1981).) By 1981, the average hospital charge had risen to $547 daily, an increase of more than 20 percent over the previous year. (Cal. Health Facil. Com., Q. Fin. Utilization Rep. No. 82-5, Aggregate Hospital Data, 4th Quarter 1981 (Apr. 15, 1982) at p. A-1.) Another increase of more than 20 percent occurred between the first quarter of 1981 and the first quarter of 1982, so that in the latter period, the average daily hospitalization charge amounted to $620. ( Id., Rep. No. 82-8, 1st Quarter 1982 (July 15, 1982) at p. A-1.)

In short, while malpractice premiums for most of the state's hospitals declined by 25 percent in the years following enactment of MICRA, the cost of hospitalization rose dramatically. These spiraling costs are significant in assessing the total expense for medical care because hospital expenditures constitute more than 40 cents of every dollar spent on medical care, a far higher segment than any other component of the overall cost. (Health United States — 1981 (U.S. Dept. of Health Human Services, Pub. Health Service, Office of Health Research, Statistics Technology) table No. 68, p. 203.)

We do not imply, of course, that the charge for malpractice premiums plays no part in the cost of hospitalization. It is obvious from the figures set forth above, however, that the cost effect of the former on the latter is negligible at best, and that experience since 1975 has demonstrated the fallacy of the Legislature's assumption that the reduction of malpractice premiums paid by hospitals would result in a meaningful containment of hospital costs.

But, claims the majority, we are precluded from considering these matters because "the constitutionality of a measure under the equal protection clause does not depend on a court's assessment of the empirical success or failure of the measure's provisions." (Maj. opn., ante at p. 374.) It is true, nevertheless, that a number of cases have relied on events following enactment of a statute in holding that it violates equal protection or other constitutional principles because the assumption on which the legislation was premised has ceased to exist.

In Brown v. Merlo (1973) 8 Cal.3d 855, 869 [ 106 Cal.Rptr. 388, 506 P.2d 212, 66 A.L.R.3d 505], we held invalid as a denial of equal protection a statute which denied recovery to nonpaying automobile passengers against a negligent driver reasoning, in part, that although the statute might have been justified when it was enacted as rationally related to the protection of hosts from the "ingratitude" of their passengers, the widespread availability of liability insurance in later years eliminated this justification for the distinction between those passengers who were entitled to recover against a negligent driver and those who were not. The guest statute has been invalidated in other states on this basis. (See, e.g., Thompson v. Hagan (1974) 96 Idaho 19 [ 523 P.2d 1365, 1368-1369]; Henry v. Bauder (1974) 213 Kan. 751 [ 518 P.2d 362, 369-371]; McGeehan v. Bunch (1975) 88 N.M. 308 [ 540 P.2d 238, 242-244]; see also, Johnson v. Hassett (N.D. 1974) 217 N.W.2d 771, 779-780.)

The application of this principle is not confined to guest statutes. (E.g., Milnot Company v. Richardson (S.D.Ill. 1972) 350 F. Supp. 221, 224-225 [statute prohibiting interstate shipment of imitation milk and dairy products violated equal protection in view of changes in marketing conditions occurring after earlier decision of United States Supreme Court upholding constitutionality of statute]; People v. McCabe (1971) 49 Ill.2d 338 [ 275 N.E.2d 407, 409, 413, 50 A.L.R.3d 1149] [classification of marijuana under law providing for 10-year mandatory sentence violated equal protection in view of recent information regarding nature and effects of marijuana]; State v. Anonymous (1976) 32 Conn. Sup. 324 [ 355 A.2d 729, 732-733, 740-741] [classification of marijuana with certain dangerous drugs for penalty purposes violated equal protection on basis of "present state of knowledge" regarding properties of the drug].)

The rule that postenactment information may be considered in passing on the constitutionality of a statute has been invoked with respect to constitutional provisions other than equal protection. In a recent case, this court applied such reasoning to hold unconstitutional a statute challenged on the ground that it impaired the obligation of contracts in violation of the United States and California Constitutions. ( Sonoma County Organization of Public Employees v. County of Sonoma (1979) 23 Cal.3d 296, 311 [ 152 Cal.Rptr. 903, 591 P.2d 1].) We observed that a law which depends on the existence of an emergency to uphold it may be invalid if the emergency ceases or if the facts have changed even though the law was valid when passed, that it is "always open to judicial inquiry whether the exigency still exists upon which the continued operation of the law depends," and that a court is not precluded from considering matters which occurred after enactment of the statute in order to decide whether later events render it invalid. (See also, Leary v. United States (1969) 395 U.S. 6, 38, 52-53 [23 L.Ed.2d 57, 83, 91, 89 S.Ct. 1532] [statutory presumption that users knew that marijuana was imported held irrational in part on basis of information developed following enactment]; Chastelton Corp. v. Sinclair (1924) 264 U.S. 543, 547-548 [68 L.Ed. 841, 843, 44 S.Ct. 405] [question whether emergency initially justifying legislation still continued remanded to lower court]; see the seminal case of Home Bldg. L. Assn. v. Blaisdell (1934) 290 U.S. 398, 442 [78 L.Ed. 413, 431, 54 S.Ct. 231, 88 A.L.R. 1481]; Abie State Bank v. Bryan (1931) 282 U.S. 765, 772 [75 L.Ed. 690, 701, 51 S.Ct. 252].)

Of particular interest are Arneson v. Olson, supra, 270 N.W.2d 125, Boucher v. Sayeed, supra, 459 A.2d 87 and two cases each from Florida and Pennsylvania. In Arneson, the North Dakota Supreme Court held unconstitutional as a denial of equal protection a monetary limit on the amount of compensation recoverable by malpractice victims. The court held that the limitation amounted to a drastic curtailment of the rights of malpractice victims and was not justified by the Legislature's purpose to enhance the availability and lower the cost of malpractice insurance. The trial court had found that there was no crisis attributable to these factors, and the North Dakota Supreme Court upheld this finding, stating (at p. 136) that the "evidence in the case before us . . . indicates that either the Legislature was misinformed or subsequent events have changed the situation substantially" because malpractice insurance rates in North Dakota are the sixth lowest in the United States.

In Boucher, it was held that, while a medical malpractice crisis may have existed when legislation requiring the submission of malpractice claims to a liability panel was first enacted, there was no crisis at the time the legislation was amended. Absent such a crisis, held the court, the requirement that malpractice plaintiffs submit their claims to such a panel denied them equal protection. (459 A.2d at p. 93.)

The Florida cases considered the constitutionality of a statute requiring plaintiffs to submit malpractice claims to a medical liability mediation panel. Initially, the Florida Supreme Court held the statute constitutional on its face. ( Carter v. Sparkman (Fla. 1976) 335 So.2d 802, 805-806.) Four years later, however, the court reversed itself, holding that the statute had proved "unworkable and inequitable in practical operation," thereby denying due process to plaintiffs in malpractice actions. ( Aldana v. Holub (Fla. 1980) 381 So.2d 231, 237.)

Substantially the same sequence occurred in Pennsylvania. The Supreme Court of that state refused initially to declare unconstitutional a statutory requirement that a malpractice litigant submit his case to an arbitration panel. ( Parker v. Children's Hospital of Philadelphia (1978) 483 Pa. 106 [ 394 A.2d 932, 938-940].) After several years of experience with the procedure, however, the court held that the lengthy delays in the arbitration process denied malpractice litigants of their constitutional right to trial by jury, and held the statute requiring arbitration unconstitutional. ( Mattos v. Thompson (1980) 491 Pa. 385 [ 421 A.2d 190, 195].)

As the majority observe, many jurisdictions have enacted statutes to deal with the problems posed by malpractice insurance. Only a few of the decisions cited by the majority (maj. opn., ante, at p. 369, fn. 9) deal with substantive limitations on recovery such as section 667.7 Rather, they affirm the constitutionality of procedural conditions to recovery, such as the requirement that a plaintiff submit his claim to a malpractice review panel before filing an action. (E.g., Everett v. Goldman, supra, 359 So.2d 1256, 1267; Attorney General v. Johnson, supra, 385 A.2d 57, 65-66; Paro v. Longwood Hospital (1977) 373 Mass. 645 [ 369 N.E.2d 985, 992]; Linder v. Smith (1981) ___ Mont. ___ [ 629 P.2d 1187, 1192].)

A few cases have upheld more substantive limitations on the rights of malpractice plaintiffs, such as the abolition of the collateral source rule (e.g., Eastin v. Broomfield (1977) 116 Ariz. 576 [ 570 P.2d 744, 752-753]; Pinillos v. Cedars of Lebanon Hospital Corp., supra, 403 So.2d 365, 368; Rudolph v. Iowa Methodist Medical Ctr. (Iowa 1980) 293 N.W.2d 550, 559) and monetary limitations on the fees of plaintiffs' attorneys ( Johnson v. St. Vincent Hospital, Inc. (1980) 273 Ind. 374 [ 404 N.E.2d 585, 602-603]) and on the amount of recovery ( id., at p. 598).

However, the decisions are by no means unanimous. Both substantive and procedural limitations have been struck down in a significant number of decisions. These cases have held unconstitutional the requirement for submission of malpractice claims to a review panel ( Aldana v. Holub, supra, 381 So.2d 231, 237; Mattos v. Thompson, supra, 421 A.2d 190, 195; State, Cardinal Glennon Mem. Hosp. v. Gaertner (Mo. 1979) 583 S.W.2d 107, 110; Boucher v. Sayeed, supra, 459 A.2d 87, 93-94), imposition of a monetary limitation on recovery ( Carson v. Maurer (1980) 120 N.H. 925 [ 424 A.2d 825, 836, 838]; Arneson v. Olson, supra, 270 N.W.2d 125, 136; Simon v. St. Elizabeth Medical Center (1976) 30 Ohio Ops.2d 164 [355 N.E.2d 903, 910]; Wright v. Central DuPage Hospital Association, supra, 347 N.E.2d 736, 743), abolition of the collateral source rule ( Doran v. Priddy (D.Kan. 1981) 534 F. Supp. 30, 37; Graley v. Satayatham (1976) 74 Ohio Ops.3d 316 [343 N.E.2d 832, 836]; see also, Jones v. State Board of Medicine, supra, 555 P.2d 399), limitations on attorneys fees ( Heller v. Frankston Pa. Commw. 294 (1983) [ 464 A.2d 581, 586-587]), and a special statute of limitations for certain minors ( Schwan v. Riverside Methodist Hosp. (1983) 6 Ohio St.3d 300 [ 452 N.E.2d 1337, 1339]; Sax v. Votteler, supra, 648 S.W.2d 661, 667).

We are aware of only two cases which have ruled on the constitutionality of a provision for periodic payments. One of these held the statute unconstitutional on the ground that it unreasonably discriminated against malpractice plaintiffs and deprived them of the right to dispose of their property ( Carson v. Maurer, supra, 424 A.2d 825, 836), while the other upheld the constitutionality of the provision against an equal protection challenge, reasoning that it was intended to benefit a claimant who required long term care ( State ex rel. Strykowski v. Wilkie, supra, 261 N.W.2d 434, 443). Thus, the cases from other jurisdictions which have considered the constitutionality of legislation similar to MICRA are not consistent in their results.

The rationale employed by the majority could just as logically justify the abolition of any right to recovery by victims of malpractice if it served to induce recalcitrant doctors not to withhold their services from the public and to carry insurance. In my opinion, this legislation, which I indicated at the outset merely benefits the wrongdoer at the expense of his victim, is unconstitutional as a denial of equal protection of the law.

Rattigan, J., concurred.

BIRD, C.J.

I respectfully dissent. Today's majority opinion ignores the lessons of history. This is not the first time that tort victims have, in the face of a "crisis," been deprived of their constitutional rights. In the late 1920's and 1930's, many states, including California, enacted panic legislation restricting the right of automobile guest passengers to obtain relief from negligently inflicted harm. (See Rudolph v. Iowa Methodist Medical Ctr. (Iowa 1980) 293 N.W.2d 550, 561 (dis. opn. of Reynoldson, C.J.), citing (1973) 23 Drake L.Rev. 216, 217; Stats. 1929, ch. 787, § 1, p. 1580.) It was not until 1973 that this court recognized this constitutional violation and invalidated the automobile guest statute as applied to negligently injured guests. (See Brown v. Merlo (1973) 8 Cal.3d 855, 882 [ 506 P.2d 212, 66 A.L.R.3d 505].) With today's majority opinion, it appears that once again years will pass and many victims of negligence will undergo injury without adequate relief before their constitutional rights will be recognized and respected.

The periodic payment provision of the Medical Injury Compensation Reform Act (hereafter MICRA) (Code Civ. Proc., § 667.7) violates the constitutional guarantees of trial by jury and equal protection of the laws. (Cal. Const., art. I, §§ 16, 7, art. IV, § 16.)

Section 667.7 deprives medical malpractice victims of their constitutional right to a jury trial. Under that section the judge possesses the power to nullify the jury's award of damages even though the award is entirely proper. A defendant who fails to convince the jury enjoys a second chance before the judge. This procedure violates the very essence of the right to trial by jury.

"Trial by jury is an inviolate right and shall be secured to all. . . ." (Cal. Const., art. I, § 16.) In the civil context, this constitutional guarantee embodies the common law right to jury trial as it existed at the time the Constitution was adopted. ( Southern Pac. Transportation Co. v. Superior Court (1976) 58 Cal.App.3d 433, 436 [ 129 Cal.Rptr. 912].) Although the guarantee does not require rigid adherence to the letter of common law practice, it does prohibit any impairment of the "`substantial features of a jury trial.'" ( Jehl v. Southern Pac. Co. (1967) 66 Cal.2d 821, 828-829 [ 59 Cal.Rptr. 276, 427 P.2d 988] [hereafter Jehl].)

The determination of damages by the jury is one such "substantial feature" of the jury trial. It is well established that the constitutional guarantee entitles the parties in a personal injury action to a jury finding on the quantum of damages. (See Langdon v. Superior Court (1923) 65 Cal.App. 41, 43-44 [ 223 P. 72]; Farrell v. City of Ontario (1919) 39 Cal.App. 351, 353-357 [ 178 P. 740].) Indeed, it has been said that "in a civil case a jury determination of the quantum of damages is the very essence or substance of the right to trial by jury." (Comment, Remittitur Review: Constitutionality and Efficiency in Liquidated and Unliquidated Damage Cases (1976) 43 U.Chi.L.Rev. 376, 389.)

Under section 667.7, the jury makes the initial award of damages. However, in cases involving awards of $50,000 or more in "future damages," the court must, upon request by either party, order that this portion of the award be paid in periodic installments. The amount and schedule of these payments is determined not by the jury but by the court. (§ 667.7, subds. (a), (b)(1).) Further, in the event that the plaintiff dies before receiving the full award, the court must determine what portion of the award was attributable to loss of future earnings. (See maj. opn., ante, at p. 377.) Only that portion survives the plaintiff's death. (§ 667.7, subds. (b)(1), (c), (f); see maj. opn., ante, at p. 368, fn. 8.)

According to the majority, the statute should be construed to provide for a jury determination of the "future damages" component of the award. (See maj. opn., ante, at p. 376.) They impliedly concede that a contrary construction would render the statute constitutionally defective. ( Ibid.) For reasons explained later in this opinion (see post, at pp. 393-395), the majority's construction is contrary to the clear wording and legislative intent of the statute. However, there is a far more fundamental flaw in the majority's approach.

Accepting arguendo the majority's construction, section 667.7 nevertheless violates the jury trial guarantee. In holding to the contrary, the majority ignore the actual impact of the statute on the plaintiff's right to a jury trial.

To fulfill its role under section 667.7, the trial court must resolve numerous issues of fact concerning the nature of the plaintiff's injury. Each of these issues can be decisive in determining the amount of monetary relief that will actually be paid by the tortfeasor to the tort victim. Even small variations in the court's findings can produce large disparties in the amount actually paid. Indeed, the court's factfinding power rivals that of the jury in its actual impact on both the plaintiff and the defendant.

First, the court must make a finding as to the period over which the plaintiff will suffer future injury. On this issue alone, the court's factfinding power can prevent the malpractice victim from receiving the bulk of the jury award.

The problem is best illustrated by a hypothetical case. The jury has awarded $100,000 based on its conclusion that the plaintiff will live to suffer injury for three years. The court, on the other hand, finds that the injury will be spread over 10 years instead of 3, and schedules the payments in 10 annual installments of $10,000 each. The plaintiff then dies after receiving three installments totaling $30,000. The remaining seven years of payments — which, under the jury's findings, would have been paid to the plaintiff prior to his or her death — would instead remain in the hands of the defendant. (§ 667.7; see maj. opn., ante, at p. 368, fn. 8.) In short, the court would have deprived the plaintiff of 70 percent of the jury award.

Such deprivation will be common under section 667.7 Whenever the court overestimates the life span found by the jury, the plaintiff will be deprived of a substantial portion of the jury award. For example, in the above hypothetical case, a court error of only one year would deprive the plaintiff of 25 percent of the jury award.

The potential for defeating the jury award is augmented by the necessity for a court finding as to the timing of plaintiff's needs within the period of injury. If the court finds, contrary to the jury, that the plaintiff's needs will be less at the beginning of the period than at the end, the plaintiff may be deprived of the jury award when it is most needed.

The court must also second-guess the jury's finding as to the expected rate of inflation over the period of compensation. If the period is a long one, a small variation in findings could produce a significant difference in the actual recovery. The opinion in Florida Medical Center, Inc. v. Von Stetina (Fla. App. 1983) 436 So.2d 1022, is instructive on this point. There, the court invalidated a periodic payment provision that closely resembled section 677.7, reasoning that the provision was constitutionally defective since it provided no method for the court to reconstruct the jury's finding as to future damages before discounting to present value. ( Id., at pp. 1028-1029.) Like the statute in Florida Medical Center, section 667.7 authorizes the court to convert the jury's discounted award into periodic payments.

Of far greater significance is the court's role in determining what portion of the award is attributable to the loss of future earnings. As the majority recognize, "[t]his figure will become of crucial importance in the event that the plaintiff dies before the judgment is fully paid, because section 667.7, subdivision (c) provides that damages for future earnings — unlike the other components of future damages — must continue to be paid to a plaintiff's dependents after the plaintiff's death." (Maj. opn., ante, at p. 377, fn. 14.) Unfortunately, the majority omit to mention the potentially "crucial" impact of this court finding in their discussion of the jury trial guarantee.

In short, under section 667.7, the timing and the specific components of the plaintiff's injury will take on added importance. A defendant who loses before the jury will have an opportunity to gut the jury award by winning on these issues before the judge. The statute thus presents the specter of adversary parties entering a court of law, disputing issues of fact essential to a common law cause of action, and depending ultimately upon the court's findings of fact — not the jury's — to determine the outcome.

The majority fail to confront the immense impact of the court's factfinding powers on the jury award. Instead, they dispense with the issue by referring to three assertedly analogous practices elsewhere in the law: the additur procedure (see Jehl, supra, 66 Cal.2d 821), court administration of monetary relief awarded to minors and incompetent persons (Prob. Code, § 3600 et seq.), and court apportionment of wrongful death recoveries among individual heirs (§ 377).

However, these supposed analogies only highlight the magnitude of section 667.7's intrusion on the jury function. None of these situations involves a direct infringement of rights guaranteed at common law.

The additur procedure is employed only after the plaintiff has moved for a new trial and the court has determined that the jury's award is "clearly inadequate." ( Jehl, supra, 66 Cal.2d at p. 832.) At that point, the court may order the defendant either to accept a court-determined increase in the award or to undergo a new trial on the issue of damages. ( Id., at p. 827, fn. 1.)

This procedure differs from section 667.7 in two crucial respects. First, the court's determination does not become binding until after both parties have rejected the jury determinations available to them. In moving for a new trial, the plaintiff chooses to forego the initial jury award. Similarly, in accepting the court's determination, the defendant declines the option of a new jury trial. By contrast, section 667.7 provides for court-determined periodic payments upon the request of either party and without any preliminary finding of jury error.

Second, and more fundamentally, the additur procedure represents a relative expansion of the procedural rights held at common law. As noted above, the Constitution embodies the common law right to jury trial. In upholding additur, the Jehl court noted that under the common law a party did not enjoy any right to a reassessment of damages by a second jury. (See Jehl, supra, 66 Cal.2d at pp. 830-831.) The first jury's determination was conclusive. ( Id., at p. 831.) Hence, under the common law, the plaintiff in Jehl would have been bound by the initial verdict, however inadequate. On balance, the additur procedure represented an improvement in the plaintiff's position over what it had been at common law.

By contrast, section 667.7 directly cuts back on the common law right to jury trial. As the majority acknowledge, tort judgments were not subject to periodic payment at common law. (See maj. opn., ante, at p. 376.) Plaintiffs enjoyed the right to a lump sum payment in the amount awarded by the jury. Hence, far from being incidental to an improvement in the rights of medical malpractice victims, section 667.7 creates a new power in the court to defeat a jury award.

The majority's citations to the Probate Code and the wrongful death statute are no more helpful. These provisions do not affect the quantum of damages paid by the defendant to the plaintiff. Nor does either of them intrude on a proceeding that was covered by the common law right to jury trial. Hence, it is not surprising that neither has ever been challenged on jury trial grounds in a reported case.

Probate Code section 3600 et seq. authorize the court to administer judgments received by minors and incompetents. After making disbursements for the costs and expenses of the action, the court either turns over the remainder to a guardian or conservator or holds it for the benefit of the minor or incompetent. ( Ibid.; see also 6 Witkin, Summary of Cal. Law (8th ed., 1984 supp.) Parent and Child, § 103E, pp. 231-232.) In no case does the court reduce the amount of the judgment or provide the defendant with a refund.

Further, the court's power to act in the interest of minors and incompetents derives from the Probate Code, not the common law. Since there was no common law right to trial by jury in probate proceedings, the right generally exists only when granted by statute. ( Estate of Baird (1916) 173 Cal. 617, 619 [ 160 P. 1078]; see also In re Bundy (1919) 44 Cal.App. 466, 468-471 [ 186 P. 811] [constitutional right to jury trial does not apply to guardianship proceedings].) Thus, Probate Code section 3600 et seq., unlike section 667.7, do not impinge on the common law right to jury trial.

Similarly, the wrongful death statute authorizes the court to distribute damages among the heirs of the deceased. (§ 377.) In performing this task, the court does not reduce the quantum of damages or resolve any factual dispute between the plaintiff and the defendant. Indeed, it has been said that "[t]he defendant has no interest in the division which the plaintiffs may make among themselves, or which may be made for them, of the damages recovered." ( Robinson v. Western States Gas etc. Co. (1920) 184 Cal. 401, 410 [ 194 P. 39].) Moreover, it should be noted that the cause of action for wrongful death is exclusively statutory in origin. (See 4 Witkin, Summary of Cal. Law (8th ed. 1974) Torts, § 785, pp. 3082-3083.) Although section 377 is not codified in the Probate Code, the court's role in distributing the award among the heirs of the deceased is closely related to its general role in probating estates. As noted above, probate proceedings are not generally covered by the jury trial guarantee.

For all of the above reasons, the trial court's power to schedule periodic payments and determine damages due to loss of future earnings violates the jury trial rights of medical malpractice victims.

In addition to those fatal flaws, section 667.7 provides for an intrusion on the jury's factfinding function that even the majority impliedly acknowledge to be unconstitutional — court determination of "future damages." As the majority recognize, "this `future damage' figure plays a number of crucial roles: (1) it identifies the amount that the jury has determined as attributable to past and present damages, an amount which the plaintiff will be entitled to receive in an immediate lump sum payment at the time of judgment, and (2) it determines whether the periodic payment procedure will be applicable to the case or not — depending on whether future damages are found to equal or exceed $50,000. If the finding on the amount of future damages were left solely to the court, the court might seriously underestimate the award which the jury intended as compensation for losses which the plaintiff has already incurred, thereby significantly undermining the statutory purpose of affording a fair correlation between the sustaining of losses and the payment of damages." (Maj. opn., ante, at p. 376.)

The majority attempt to avoid this problem by "construing" the statute to require a jury determination of future damages. First, they find the statute to be ambiguous. (See maj. opn., ante, at p. 374.) Then they apply the principle that a statute should be construed to avoid doubts as to its constitutionality. (See id., at p. 376.)

Unfortunately, this well-intentioned construction is untenable. The statute makes only one specific reference to the allocation of factfinding functions on the issue of future damages: "In entering a judgment ordering the payment of future damages by periodic payments, the court shall make a specific finding as to the dollar amount of periodic payments which will compensate the [plaintiff] for such future damages." (§ 667.7, subd. (a), italics added.)

The majority maintain that this sentence is ambiguous. However, the legislative history eliminates any potential for misunderstanding. The Assembly deleted from the bill language that would have provided for the jury to determine future damages.

In its initial proposed version, section 667.7 provided that "the jury or the court, in the event the trial is without a jury, shall make a specific finding as to the dollar amount of periodic payments which will compensate the [plaintiff] for such future damages." (Assem. Bill No. 1, as amended June 6, 1975, 13 Assem.J. (1975-1976 Second Ex. Sess.) p. 60, italics added.) Subsequently, the bill was amended to delete any reference to the jury. Instead, the court was directed to make the required finding. (§ 667.7, subd. (a).)

Nevertheless, the majority claim that the legislative history is inconclusive. They rely on the first sentence of section 667.7, subdivision (a), which states that periodic payments are to be ordered "if the award equals or exceeds fifty thousand dollars ($50,000) in future damages." They assert that this clause suggests that "the amount attributable to future damages will be determined as part of the overall determination of `the award.'" (Maj. opn., ante, at p. 375, fn. 13.)

The majority's reliance on this clause is misplaced. At the time that the bill was amended to provide for a court determination of periodic payments, the clause did not mention future damages. (See Assem. Bill No. 1, as amended June 11, 1975, 13 Assem.J., supra, at pp. 60, 86.) Hence, at that point, the bill provided unambiguously for a court determination of future damages.

An examination of the subsequent amendments gives no indication of a legislative intent to change this directive. The first sentence was amended three times by the Senate. (See 10 Sen.J. (1975-1976 Second Ex. Sess.) pp. 107, 129, 175.) Each change altered the preconditions for the ordering of periodic payments. (See ibid.) No change gave any indication of a legislative intent to reallocate factfinding functions between the judge and the jury. The combination of the terms "award" and "future damages," relied upon by the majority, did not appear until August 11, two months after all reference to the jury had been deleted. ( Id., at p. 175.) Moreover, the two terms were added at different times. ( Id., at pp. 107, 129.)

It strains credulity to argue, as does the majority, that these incremental adjustments to the preconditions for periodic payments were intended to alter the Assembly's unambiguous directive that the trial court was to determine future damages. I cannot endorse such a far-fetched theory. In my view, the majority have redrafted the statute in their attempt to save it.

In conclusion, section 667.7 gives the judge, not the jury, effective control over the quantum of monetary relief that will actually be paid to medical malpractice victims by tortfeasors. A defendant who loses before the jury will have a second chance before the judge. Even under the majority's construction of the statute, the court's factfinding powers in scheduling periodic payments and determining the portion of damages attributable to loss of earnings unconstitutionally infringe upon the well-established right of tort victims to a jury finding of damages. In addition, section 667.7 authorizes the court to determine the "future damages" figure used as the basis for periodic payments — a finding which even the majority impliedly admit to be encompassed within the jury trial guarantee. The majority's attempt to evade this defect by "construing" the statute to require a jury determination of future damages is untenable in view of the Assembly's express rejection of proposed language that would have enacted their construction. Clearly, section 667.7 violates the constitutional guarantee of trial by jury.

MICRA was enacted in response to a medical malpractice "crisis" resulting from rising malpractice insurance premiums. (Stats. 1975, Second Ex. Sess. 1975-1976, ch. 2, § 12.5, p. 4007.) The periodic payment provision (§ 667.7) seeks to alleviate this "crisis" by shifting part of the burden from negligent healthcare providers and their insurance companies to a small group of severely injured medical malpractice victims who suffer $50,000 or more in future damages.

Plaintiff argues that section 667.7 violates the equal protection guarantee of the California Constitution. That section divides personal injury tort victims into two classes: medical malpractice victims and all other personal injury tort victims. Medical malpractice victims are not entitled to the full amount of their jury awards. Instead, their compensation depends upon a court-determined schedule of payments. (§ 667.7, subd. (a).) If these victims die before receiving their full awards, they forfeit the remainder, minus damages attributable to future earnings. (§ 667.7, subds. (b), (c), (f); see maj. opn., ante, at p. 368, fn. 8.) If the court fails to predict accurately the timing of the victim's needs, compensation will not be available when it is needed most. (See ante, at p. 366, fn. 6; see also dis. opn. of Mosk, J. at pp. 379-380.)

Section 667.7's classification of tort victims is paralleled by a corresponding classification of tortfeasors. Personal injury tortfeasors are divided into two classes: medical malpractice tortfeasors (i.e., doctors and other healthcare providers) and all other personal injury tortfeasors. Medical malpractice tortfeasors are exempted from the general rule that a personal injury judgment must be paid immediately in a lump sum. Instead, they are permitted to pay the judgment in installments. In the event that the plaintiff dies before the payments are completed, these tortfeasors are relieved of their obligation to complete the payments except as to damages for loss of future earnings. (§ 667.7, subds. (b), (c), (f).) There is nothing in the statute to prevent the tortfeasor or its insurance carrier from retaining the unpaid portion of the victim's award for its own private use.

In applying the equal protection guarantee, it is not this court's role to assess the desirability of legislative enactments. As a general matter, "[t]he Constitution presumes that, absent some reason to infer antipathy, even improvident decisions will eventually be rectified by the democratic process and that judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted." ( Vance v. Bradley (1979) 440 U.S. 93, 97 [59 L.Ed.2d 171, 176, 99 S.Ct. 939], fn. omitted.) Only when the political process malfunctions should the judicial branch intervene. (See generally Choper, Judicial Review and the National Political Process (1980); Ely, Democracy and Distrust (1980).)

The distinction between strict and lowered scrutiny serves to separate cases likely to warrant intervention from the bulk of constitutional challenges. If the legislation burdens a fundamental interest of the affected class, or if the burdened group is one which is structurally disadvantaged in the political process, then there is reason for concern that the interests of that group may not have been adequately considered in the process. Hence, strict judicial scrutiny is applied. ( Serrano v. Priest (1976) 18 Cal.3d 728, 768 [ 135 Cal.Rptr. 345, 557 P.2d 929].)

Absent a fundamental interest or a suspect classification, the probability that a classification results from a harmful breakdown in the political process is not sufficiently great to warrant strict scrutiny. Such cases call for judicial deference to legislative factfinding and policy judgments. Accordingly, under lowered scrutiny, a classification need only bear a "substantial and rational" relation to a legitimate state purpose to pass constitutional muster. (See Brown v. Merlo, supra, 8 Cal. 3d at pp. 872-873, 882.)

Plaintiff concedes that section 667.7 does not affect a fundamental interest or burden a suspect class. Nevertheless, it is argued that the discrimination imposed by section 667.7 warrants careful judicial scrutiny. Various inherent characteristics of the burdened group prevent it from adequately advancing its interests in the political process. It is an extraordinarily small group to be singled out to carry the burden of a general "crisis." Its members — malpractice victims with future damages of over $50,000 — may be, as was plaintiff here, physically or mentally disabled. Membership in the group is involuntary.

The group is "selected" at random, ensuring that its members will be scattered and isolated from one another. At the time MICRA was enacted, the individuals who were to make up the group were unaware of that fact. Thus, they could not defend themselves. From the viewpoint of an individual at that time, the risk of becoming a malpractice victim with damages of over $50,000 was infinitesimal. There was no incentive to engage in coalition building or lobbying.

Now, the harm has fallen on a few identifiable individuals, but there is little incentive for them to seek legislative reform. The Legislature generally deals with prospective concerns; the injured tort victims seek retroactive relief. In short, the group burdened by section 667.7 is one which legislators might single out for discriminatory treatment with few, if any, political consequences.

Further, it is argued that the affected interest is personal, not commercial, in character. Alteration of a personal injury tort remedy affects the victim's right to live free — to the extent possible — from the effects of negligently inflicted injury. In the words of the Washington State Supreme Court, "[t]he right to be indemnified for personal injuries is . . . in many cases fundamental to the injured person's physical well-being and ability to continue to live a decent life." ( Hunter v. North Mason High School (1975) 85 Wn.2d 810 [ 539 P.2d 845, 848].) Plaintiff maintains that an interest of this magnitude invokes equal protection concerns greater than those involving purely commercial matters. Accordingly, it is urged that this court apply some form of "intermediate" scrutiny to classifications affecting personal injury tort victims.

The majority correctly decline the invitation to adopt a new level of equal protection scrutiny. This court has carefully avoided the confusing proliferation of tests advanced by the United States Supreme Court. (See Hawkins v. Superior Court (1978) 22 Cal.3d 584, 607-610 [ 150 Cal.Rptr. 435, 586 P.2d 916] (conc. opn. of Bird, C.J.).) Since no suspect classification or fundamental interest is involved in the present case, the rational relationship test applies. (See Brown v. Merlo, supra, 8 Cal.3d at p. 862, fn. 2.)

Unfortunately, the majority go further. In contradiction to the past practice of this court, they reduce the rational relationship test to a rubber stamp. In their view, the test is satisfied if the Legislature "`could rationally have decided'" that the statute would promote the legislative objectives. (Maj. opn., ante, at p. 374, italics omitted.) This test precludes any consideration of the actual impact of the challenged legislation. It ignores both the character of the burdened class and the nature of the interest at stake.

The majority proceed to uphold section 667.7 without recognizing either the vulnerable position of medical malpractice victims or the potentially crippling impact of inadequate compensation. Instead, they attempt to limit their inquiry to the abstract logic of the classification. It should be noted that the majority fail to live up to their own test. They do consider facts that favor upholding the legislation. (See maj. opn., ante, at pp. 373-374.) Their judicial "restraint" is limited to a refusal to consider factual evidence against the rationality of the statute.

As a matter of abstract logic alone, the disparate treatment of medical malpractice victims clearly bears a rational relationship to the asserted purposes. Legislators could rationally conclude that any reduction in damage payments — be it a few hundred dollars or total elimination of the victims' remedy — might tend to reduce malpractice premiums. Thus, total elimination of the remedy would be just as constitutional or unconstitutional as a minor reduction. And a classification burdening a large group, well represented in the political process, would be treated the same as one burdening a nonsuspect but politically vulnerable group such as a few hundred malpractice victims.

To invalidate discriminatory legislation under the majority's version of the rational relationship test, this court would have to conclude that the Legislature acted "irrationally" in passing it. As Felix Cohen observed in his classic critique of Lochner-era legal formalism, this type of test, taken seriously, would make of our courts "lunacy commissions sitting in judgment upon the mental capacity of legislators and, occasionally, of judicial brethren." (Cohen, Transcendental Nonsense and the Functional Approach (1935) 35 Colum.L.Rev. 809, 819.) That observation is as apt today as it was when written.

The majority's reductionist variant of the rational relationship test undermines the logic of the two-tier approach. This court's rejection of intermediate scrutiny is sensible only so long as the rational relationship test retains enough critical power to fulfill the functions of lowered scrutiny. (See generally, Hawkins v. Superior court, supra, 22 Cal.3d at p. 609 (conc. opn. of Bird, C.J.).)

The purpose of the rational relationship test is to put a check on the power of the Legislature to impose harmful burdens on politically defenseless groups. Justice Robert Jackson clearly explained the reasons for the test's existence over 30 years ago when he said: "[T]here is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally. Conversely, nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and thus to escape the political retribution that might be visited upon them if larger numbers were affected." ( Railway Express v. New York (1949) 336 U.S. 106, 112-113 [93 L.Ed. 533, 539-540, 69 S.Ct. 463] (conc. opn. of Jackson, J.), quoted by this court in United States Steel Corp. v. Public Utilities Com. (1981) 29 Cal.3d 603, 611-612 [ 175 Cal.Rptr. 169, 629 P.2d 1381].) This incisive statement leaves no doubt that the size and vulnerability of the burdened group (is it composed of "only a few") and the extent of the burden imposed (does it seriously harm the affected group) are essential to a determination as to whether or not a particular enactment raises concerns addressed by the rational relationship test.

Consistent with these concerns, this court has considered both the extent of the burden imposed (see, e.g., Brown v. Merlo, supra, 8 Cal.3d at p. 866) and the basic fairness or unfairness of the classification to the disadvantaged group. (See, e.g., Coml. Communications v. Public Util. Com. (1958) 50 Cal.2d 512, 524 [ 327 P.2d 513].)

Furthermore, California courts have been relatively quick to invalidate statutes affecting remedies for negligently inflicted personal injury — statutes that may impose severe burdens on defenseless groups. (See, e.g., Brown v. Merlo, supra, 8 Cal.3d 855; Cooper v. Bray (1978) 21 Cal.3d 841 [ 148 Cal.Rptr. 148, 582 P.2d 604]; Monroe v. Monroe (1979) 90 Cal.App.3d 388 [ 153 Cal.Rptr. 384]; Ayer v. Boyle (1974) 37 Cal.App.3d 822 [ 112 Cal.Rptr. 636].) Similarly, in Gay Law Students Assn. v. Pacific Tel. Tel. Co. (1979) 24 Cal.3d 458 [ 156 Cal.Rptr. 14, 595 P.2d 592], this court applied the rational relationship test to invalidate discrimination against homosexuals. Indeed, most of this court's decisions striking down enactments on minimum rationality grounds have involved vulnerable groups and/or severe burdens.

By contrast, legislation affecting only the commercial interests of voluntarily defined groups has almost invariably been upheld. The sole recent exception appears to be United States Steel Corp. v. Public Utilities Com. (1981) 29 Cal.3d 603 [ 175 Cal.Rptr. 169, 629 P.2d 1381]. There, however, the constitutional analysis was not essential to the disposition of the case.

The contrasting treatment of these two groups of cases cannot be explained solely on the basis of abstract rationality. In Brown v. Merlo, supra, 8 Cal.3d 855, 882, for example, this court invalidated the automobile guest statute as applied to negligently injured guests. The statute's differential treatment of guests and paying riders was defended as being rationally related to the legitimate state purpose of preventing collusive suits. ( Id., at pp. 872-873.) Clearly, the Legislature could rationally have concluded that guests were more likely to bring collusive suits than were paying customers. However, this court found the classification of all automobile guests overinclusive: "Instead of confining its disability to those who actually institute collusive suits, the provision reaches out beyond such persons and burdens the great number of honest automobile guests." ( Id., at p. 877.) Accordingly, the classification was held to violate the equal protection clause. ( Ibid.)

Like the classification invalidated in Brown, section 667.7's classification of all tort victims with future damages of more than $50,000 is overinclusive. According to the majority, this classification is rationally related to the Legislature's purpose of lowering malpractice insurance premiums. (See maj. opn., ante, at p. 373.) The majority casually assume that the savings due to periodic payments and reduced plaintiff recoveries will be used to reduce premiums. ( Ibid.) However, MICRA contains no provision requiring insurance carriers to pass on savings. There is nothing to prevent them from retaining the proceeds for their own private use. Hence, section 667.7 burdens not only those malpractice victims whose hardship due to periodic payments will be converted into lowered premiums, but also those whose sacrifices will go to swell the coffers of the insurance companies.

Indeed, according to information compiled by MICRA's principal proponent, insurance carriers devote at least 45 percent of each retained premium dollar to litigation expenses. (See Keene, California's Medical Malpractice Crisis in A Legislator's Guide to the Medical Malpractice Issue (Warren Merritt edits. 1976) p. 29.) Hence, it can be expected that a major portion of the savings due to reduced recoveries by medical malpractice victims will go to defend the tortfeasors in future litigation — not to reduce malpractice premiums. Further, it is estimated that another substantial portion of each retained premium dollar is expended on the administrative expenses of the insurance company. ( Ibid.; Jenkins Schweinfurth, supra, 52 So.Cal.L.Rev. at p. 940.)

The classification of tortfeasors is also over-inclusive. "A citizen or class of citizens may not be granted privileges or immunities not granted on the same terms to all citizens." (Cal. Const., art. I, § 7, subd. (b).) Section 667.7 provides medical malpractice tortfeasors with a special exemption from the general rule that negligent tortfeasors must pay a personal injury judgment in a lump sum. This special treatment is granted not only to those tortfeasors who use the resulting savings to promote the purpose of the statute by reducing premiums, but also to those who utilize the savings to their own benefit.

In conclusion, section 667.7 imposes severe burdens on a small and politically vulnerable group of severely injured medical malpractice victims. These burdens are imposed without any guarantee that the resulting savings will be used to further the statutory purpose of reducing malpractice insurance premiums.

Conversely, section 667.7 grants medical malpractice tortfeasors a special exemption from the obligations generally owed by negligent tortfeasors to their victims. This benefit extends to those who retain the resulting savings for their own use, as well as to those who pass on the savings in the form of reduced malpractice insurance premiums. Hence, section 667.7 burdens an overinclusive class of tort victims and benefits an overinclusive class of tortfeasors. This is not the "substantial and rational" relation between classification and legislative purpose that is required under the equal protection guarantee of the California Constitution. ( Brown v. Merlo, supra, 8 Cal.3d at pp. 872-873, 882.)

Rattigan, J., concurred.