Smith v. United States

• Citation: 356 P.3d 1249,2015 UT 68
• Decision Date: 11 August 2015
• Docket Number: No. 20131030.,20131030.
• Parties: Gregory Lynn SMITH, Appellant, v. UNITED STATES of America, Appellee.
• Court: Supreme Court of Utah

356 P.3d 1249

2015 UT 68

Gregory Lynn SMITH, Appellant

v.UNITED STATES of America, Appellee.

No. 20131030.

Supreme Court of Utah.

Aug. 11, 2015.

Steve S. Christensen, David M. Corbett, Craig L. Pankratz, Salt Lake City, for appellant.

David B. Barlow, Amy J. Oliver, Jeffrey E. Nelson, Salt Lake City, for appellee.

Sean D. Reyes, Att'y Gen., Bridget K. Romano, Solicitor Gen., Salt Lake City, for the State of Utah.

Justice PARRISH authored the opinion of the Court, in which Chief Justice DURRANT, Associate Chief Justice LEE, Justice DURHAM, and Judge TOOMEY joined. Due to his retirement, Justice NEHRING did not participate herein; Court of Appeals Judge KATE A. TOOMEY sat. Justice DENO G. HIMONAS became a member of the Court on February 13, 2015, after oral argument in this matter, and accordingly did not participate.

Justice PARRISH, opinion of the Court:

INTRODUCTION

¶ 1 For millennia, physicians have sworn, “With regard to healing the sick, ... I will take care that they suffer no hurt or damage.”¹ And for perhaps just as long, the sick have sought redress when hurt or damage inevitably occur.² Caught in the middle, lawmakers have tried to strike a balance that provides redress for the injured while accounting for the concerns of the medical profession.³

¶ 2 In 1986, the Utah Legislature amended the Utah Health Care Malpractice Act, sections 78B–3–401 to –425 of the Utah Code, (the “Malpractice Act”) and imposed a cap on noneconomic damages in medical malpractice cases.⁴ But the Legislature did not explicitly account for the Utah Constitution's prohibition of such damage caps in wrongful-death cases.⁵ Almost thirty years later, we find ourselves at the confluence of these provisions and have been asked by the United States District Court to resolve the conflict. That court has certified to us this question:

Is the noneconomic damages cap in section 78B–3–410 of the Malpractice Act permissible as applied to wrongful-death cases under article XVI, section 5 of the Utah Constitution ? We hold that it is not.

BACKGROUND

¶ 3 Gregory Lynn Smith's son, Gregory Lee Smith, died on October 22, 2010, of an acute drug intoxication involving the medications prescribed to him by medical staff at the VA medical center in Salt Lake City. The VA staff had prescribed the pain medications upon his discharge from the medical center after a back surgery.

¶ 4 Mr. Smith filed suit against the United States of America in the United States District Court for the District of Utah, alleging that VA medical staff negligently caused his son's death.⁶ That court certified two questions to us:

(1) Does the limitation on a plaintiff's recovery of noneconomic damages in Utah Code Ann. § 78B–3–410 apply to claims alleging wrongful death caused by medical malpractice?

(2) If the answer to Question No. 1 is in the affirmative, is Utah Code Ann. § 78B–3–410 permissible under Article XVI, Section 5 of the Utah Constitution ?⁷

We have jurisdiction to answer these questions pursuant to Utah Code section 78A–3–102(1).

STANDARD OF REVIEW

¶ 5 On certification from a federal court, there is no prior decision and thus no standard of review.⁸ We answer the legal questions presented and do not resolve the underlying dispute.⁹

ANALYSIS

¶ 6 The United States District Court has asked us if the damages cap in section 78B–3–410 of the Malpractice Act is permissible under article XVI, section 5 of the Utah Constitution in cases of medical malpractice that result in death. Article XVI, section 5 provides,

The right of action to recover damages for injuries resulting in death, shall never be abrogated, and the amount recoverable shall not be subject to any statutory limitation, except in cases where compensation for injuries resulting in death is provided for by law.¹⁰

But the damages cap in section 78B–3–410 provides,

In a malpractice action against a health care provider, an injured plaintiff may recover noneconomic losses to compensate for pain, suffering, and inconvenience. The amount of damages awarded for noneconomic loss may not exceed ... $450,000.¹¹

Our analysis proceeds in two parts. We hold that article XVI, section 5 protects both economic and certain noneconomic damages in wrongful-death cases and that its exception is not implicated except in the context of a scheme akin to workers' compensation. As a result, we conclude that the damages cap in section 78B–3–410 of the Malpractice Act is not constitutionally permissible as applied to wrongful-death cases.

I. ARTICLE XVI, SECTION 5 OF THE UTAH CONSTITUTION

¶ 7 The interpretation of article XVI, section 5 turns on two distinct questions. First, what species of damages are protected? Second, when does the compensation exception apply?¹² We address each question in turn.

A. Article XVI, Section 5 Protects Economic and Certain Noneconomic Damages

¶ 8 The parties agree that article XVI, section 5 protects those damages that were available at the time of its adoption. Indeed, our case law has so held for almost one hundred years.¹³ But the parties disagree as to the nature of those protected damages. Both parties cite opinions by our predecessors on the territorial court discussing the damages then available in wrongful-death actions, including the seminal case of Webb v. Denver & R.G.W. Railway.¹⁴ However, they disagree about how to read them.

¶ 9 A particular point of disagreement is the pronouncement in Webb that “only the pecuniary loss sustained can be compensated” in a suit for wrongful death.¹⁵ Mr. Smith argues that “pecuniary” as used in that case includes economic and noneconomic damages. The United States argues that pecuniary damages are limited to economic damages. We agree with Mr. Smith and conclude that the damages allowed under Webb and its progeny are not so limited.

¶ 10 To understand Webb and the scope of protection afforded by section 5 of article XVI, we begin with the legal landscape in which the constitutional protection was enacted. At common law, a cause of action for personal injury—including fatal injury—died with the injured party, leaving survivors with no recourse.¹⁶ But Lord Campbell's Act, adopted in 1846 by the British parliament, abrogated this harsh rule and vested a cause of action for wrongful death in the heirs of the deceased.¹⁷ This new cause of action rippled through the common law world resulting in the enactment of a materially identical statute in the Territory of Utah in 1874.¹⁸ That statute provided,

Be it enacted by the Governor and Legislative Assembly of the Territory of Utah: That whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if the death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who, or the company or corporation which, would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony.

Sec. 2. That every such action shall be brought by, and in the names of the personal representatives of such deceased person ...: And provided further, that the damages so recovered shall not in any case exceed the sum of ten thousand dollars.¹⁹

Ten years later, the territorial legislature enacted a new wrongful-death statute. The new statute provided,

Sec. 234. When the death of a person not being a minor is caused by the wrongful act or neglect of another, his heirs or personal representatives may maintain an action for damages against the person causing the death, or if such person be employed by another person who is responsible for his conduct, then also against such other person. In every action under this and the preceding section, such damages may be given as under all circumstances of the case may be just.²⁰

Unlike its predecessor, the new statute contained no limit on the amount of damages. It was against the backdrop of this statute that the constitutional provision prohibiting damage caps in wrongful-death cases went into affect in 1896 when Utah became a state.²¹

¶ 11 The first case to address the issue of allowable damages under the revised Utah statute was the 1890 case of Webb v. Denver & R.G.W. Railway, which both parties recognize as the seminal case on this question. In that case, our predecessors recognized

the rule almost uniformly laid down by the courts of England and the United States to the effect that only the pecuniary loss sustained can be compensated for, and that no compensation can be given for the mental anguish or suffering of the heirs or next of kin of the deceased.²²

The court's inclusion of the word pecuniary is the basis for the substantial differences in the parties' understanding of the holding in Webb. The word pecuniary has the same meaning today as it did in the late nineteenth century—“consisting of or measured in money” or “of or relating to money.”²³ But the court in Webb stated that “the word ‘pecuniary’ in this [context] is not construed in any very strict sense.”²⁴ Indeed, the court held that there is “great[ ] liberality” in allowable damages under the statute and they “include every element of injury that may be deemed to have a pecuniary value, although this value may not be susceptible of positive proof, and can only be vaguely estimated.”²⁵ It further stated that even though “the pecuniary injury ... cannot be proved with even an approach to accuracy, ... [it is] to be estimated and awarded, for ... the jury is to give such damages as may be just under all the circumstances.”²⁶ The court then listed various species of allowable damages, including the loss of nurture, intellectual and moral training, and society.²⁷ These damages are not pecuniary as that term is commonly understood. We are therefore persuaded that the badge pecuniary, as that word is commonly understood, is not helpful...