HOLMES, J., concurring and dissenting in part.

I concur in the majority's finding R.C. 2305.27 constitutional and regarding application of the collateral source rule to future payments. I also agree with the conclusion of the majority that R.C. 2307.43 is not constitutionally defective upon an equal protection analysis. However, I must dissent from the majority in its holding that this section which provides caps for general damages in medical malpractice actions is unconstitutional on the basis that it violates Section 16, Article I of the Ohio Constitution and the Due Process Clause of the Fourteenth Amendment to the United States Constitution.

In that a great deal has been written in case law and in legal commentary, both in upholding, as well as in rejecting, the constitutionality of statutory limitations on medical malpractice recoveries, I shall not add at length to this plethora of legal analysis.

The first general principle which this court must adhere to in this, or in any other, legal review of the constitutionality of a legislative enactment is the firmly established rule that legislative acts enjoy a strong presumption of constitutionality and that any doubts must be resolved in favor of the statute. Sedar v. Knowlton Constr. Co. (1990), 49 Ohio St.3d 193, 199, 551 N.E.2d 938, 944; State v. Stambaugh (1987), 34 Ohio St.3d 34, 35, 517 N.E.2d 526, 527; State v. Dorso (1983), 4 Ohio St.3d 60, 61, 4 OBR 150, 151, 446 N.E.2d 449, 450; State, ex rel. Dickman, v. Defenbacher (1955), 164 Ohio St. 142, 57 O.O. 134, 128 N.E.2d 59, paragraph one of the syllabus; see, also, State v. Sinito (1975), 43 Ohio St.2d 98, 101, 72 O.O.2d 54, 56, 330 N.E.2d 896, 898; Wilson v. Kennedy (1949), 151 Ohio St. 485, 492, 39 O.O. 301, 304, 86 N.E.2d 722, 725. Although the majority seems to acknowledge this standard of constitutional review, it proceeds to give it little heed.

Applying such presumption of legality to the statute under consideration here, and applying the other appropriate standards of constitutional review, it is my opinion that R.C. 2307.43 violates neither the Ohio nor the United States Constitution regarding either equal protection or due process rights.

It must be emphasized that this limiting section involves only general, noneconomic damages, and not special, economic damages. The damages that are limited to $200,000 are those of a nonpecuniary harm alleged to have resulted from injury, such as pain and suffering, loss of society, companionship, mental anguish, etc. The damages that are not limited are those of a pecuniary harm such as all wages, salaries, or other compensation lost as a result of the injury; all expenditures for medical care or treatment, rehabilitation services, or other care, treatment, products or accommodations needed by virtue of the injury; or any other expenditures incurred as a result of the injury. Therefore, R.C. 2307.43 does not limit in any way a plaintiff's right to fully recover the economic damages caused by medical malpractice. Also, this section does not limit in any way the plaintiff's right to fully recover all damages, both economic and noneconomic, in cases involving death, including the survivor's mental anguish. Also this section does not, as suggested by some detractors, eliminate the recovery of general or noneconomic damages — such damages may be recovered up to the maximum of $200,000.

It is claimed by the petitioners that R.C. 2307.43 violates the state and federal constitutional provisions providing for due process and equal protection. In review of statutes challenged on constitutional grounds, this court applies a rational basis test as the standard of review. Applying this standard, the statute should be upheld absent proof of arbitrariness, irrationality or unreasonableness of the legislature. Accordingly, in Strock v. Pressnell (1988), 38 Ohio St.3d 207, 214, 527 N.E.2d 1235, 1241, this court held that the legislature could, as here, make modifications to the common law as long as the legislature (1) does not interfere with vested property rights and (2) has a permissible legislative objective.

In Strock this court acknowledged that the General Assembly may limit, modify or abolish common law causes of action, stating: "` A person has no property, no vested interest, in any rule of the common law. * * * Rights of property which have been created by the common law cannot be taken away without due process; but the law itself, as a rule of conduct, may be changed at the will, or even at the whim, of the legislature, unless prevented by constitutional limitations. Indeed, the great office of statutes is to remedy defects in the common law as they are developed, and to adapt it to the changes of time and circumstances.' Munn v. Illinois (1876), 94 U.S. 113, 134 [ 24 L.Ed. 77, 87]; Second Employers' Liability Cases (1912), 223 U.S. 1, 50 [ 32 S.Ct. 169, 175, 56 L.Ed. 327, 346]; see Western Union Tel. Co. v. Commercial Milling Co. (1910), 218 U.S. 406, 416-417 [ 31 S.Ct. 59, 61-62, 54 L.Ed. 1088, 1091-1092]." (Emphasis added.) Strock, supra, 38 Ohio St.3d at 213-214, 527 N.E.2d at 1241.

R.C. 2307.43 does not violate Section 16, Article I of the Ohio Constitution. This section is a limitation on the recovery of noneconomic damages in a common-law cause of action. This limitation does not interfere with a vested property right.

Further, this limitation on noneconomic recoveries in medical malpractice civil actions has a reasonably permissible legislative objective. In this regard we may look to Beatty v. Akron City Hospital (1981), 67 Ohio St.2d 483, 495, 21 O.O.3d 302, 309, 424 N.E.2d 586, 594, where it was stated: "The Ohio General Assembly, after appropriate study and debate on the subject, recognized the urgency of implementing a reasonable and effective means of helping alleviate the adverse economic and social impacts of this medical provider crisis. It is beyond reasonable question that the General Assembly had a legitimate interest in protecting the health of its citizens as well as the economic and social stability of the state in this area of concern. Concluding as they must have that the increased number of medical claims was the cause of the dramatic rise in the cost of medical malpractice insurance, and thus the cause of the rise in the cost of providing medical services to the public, it was only rational for the General Assembly to deal with such claims in the manner provided in the Act." (Emphasis added.)

The legislative determination of the medical malpractice crisis was based upon reports and analyses of evidence and upon criteria developed both in Ohio and throughout the United States. The General Assembly had evidence presented to the committees that liability insurance premiums for health care professionals escalated at a significant rate during the 1960s and 1970s. From 1960 to 1970 surgeons' premiums rose 949.2 percent and nonsurgeons' premiums rose 540.8 percent. Over the same period hospital insurance costs jumped 262.7 percent. Predominant among the reasons for such increases were the rising frequency of medical malpractice suits and the upward spiraling damage award typical of such claims. Medical insurers responded to these events by adjusting their ratemaking tables to reflect the upward climb in payout costs and in some instances by abandoning the medical market altogether. As insurance premiums rose, physicians and hospitals developed methods to minimize the risk of malpractice suits and avoid the resulting higher premiums. Some of these methods included the avoidance of high-risk medical specialties, relocation to lower-risk geographic areas, practice of defensive medicine through the increasing use of secondary and follow-up procedures, and shift of increases in insurance costs to patients. But each of these defensive actions represented a potential threat to those requiring medical care and services. As the situation worsened, concerned commentators and legislators labeled it the medical malpractice "crisis."

This majority should reasonably conclude that R.C. 2307.43 bears a direct relationship to this recognized purpose of the legislation passed in response to the medical malpractice crisis, as was determined after appropriate hearings and review of the evidence by the legislature. By placing a ceiling on the recovery of noneconomic damages in medical claims, the legislature determined that it could relieve the effects of unpredictably large jury verdicts. The legislature also concluded that under this Act, physicians and their professional liability insurers would be better able to predict their potential exposure which in turn bears directly on the amount of premiums necessary to provide adequate and secure professional liability insurance. Thus, these were the bases for the reasonable legislative enactment of medical malpractice legislation with the contested cap for recovery of noneconomic damages. As Judge Contie of the federal district court found in Keeton v. Mansfield Obstetrics Gynecology Assoc., Inc. (N.D.Ohio 1981), No. C-80-1573A, unreported, the inquiry is not whether any judge who hears this issue would have voted for this legislation as a legislator. The wisdom of the statute is not the determinative issue. Rather, the inquiry is whether the classification rests on grounds that are reasonably related to the achievement of the state's objective. In Keeton, Judge Contie, although having some personal hesitation on the question, held that R.C. 2307.43 did not violate equal protection and stated:

"The general rationality that smaller damage awards will stabilize the cost of malpractice insurance and guarantee health care throughout the state are [ sic] ample justification for the difference in treatment between medical malpractice plaintiffs and other tort plaintiffs and among medical malpractice plaintiffs." Id. at 29.

There has been a difference of opinion among the various courts throughout the United States as to the constitutionality of legislative caps being placed upon medical malpractice damage recoveries by states' legislative bodies. The majority points out that most of the jurisdictions that have addressed the subject have proclaimed such caps to be unconstitutional under state or federal analyses. However, it should be pointed out that some of the authority cited in support of the proposition that the caps are unconstitutional has originated in states where such caps have been placed upon overall damages — both economic as well as noneconomic. Moreover, state supreme courts from several jurisdictions have found caps upon either noneconomic or economic damages in medical malpractice actions to be constitutional. Notable among the latter holdings is Fein v. Permanente Medical Group (1985), 38 Cal.3d 137, 211 Cal.Rptr. 368, 695 P.2d 665, where the California Supreme Court upheld the California statute limiting recovery of noneconomic damages to $250,000. The United States Supreme Court dismissed the appeal of this case for lack of a substantial constitutional question. See (1985), 474 U.S. 892, 106 S.Ct. 214, 88 L.Ed.2d 215. In Fein the majority, in supporting the legislative cap, stated that: "Faced with the prospect that, in the absence of some cost reduction, medical malpractice plaintiffs might as a realistic matter have difficulty collecting judgments for any of their damages — pecuniary as well as nonpecuniary — the Legislature concluded that it was in the public interest to attempt to obtain some cost savings by limiting noneconomic damages. Although reasonable persons can certainly disagree as to the wisdom of this provision, we cannot say that it is not rationally related to a legitimate state interest." (Footnotes omitted.) Id., 38 Cal.3d at 160-161, 211 Cal.Rptr. at 384-385, 695 P.2d at 681.

I agree with this statement of the California majority, and would apply such an analysis to the Ohio statute placing a limitation upon noneconomic damages.

In that I disagree with the majority with respect to its due process analysis, I would hold R.C. 2307.43 constitutional.

SWEENEY, J., concurring in part and dissenting in part. I agree with the majority that R.C. 2307.43 violates the Due Process Clause of the Ohio Constitution, but, respectfully, I disagree with much of what the majority does here today. I write separately because, in my view, R.C. 2307.43 violates several provisions of the Ohio Constitution (including the Due Process Clause) and, further, because I believe that R.C. 2305.27 is, among other things, unconstitutional.

I R.C. 2307.43

In the case at bar, we are asked to decide whether R.C. 2307.43 violates the Ohio Constitution. R.C. 2307.43 provides that:

"In no event shall an amount recovered for general damages in any medical claim, as defined in division (D) of section 2305.11 of the Revised Code, not involving death exceed the sum of two hundred thousand dollars."

R.C. 2305.11(D)(3) defines a "medical claim" as follows:

"`Medical claim' means any claim that is asserted in any civil action against a physician, podiatrist, or hospital, against any employee or agent of a physician, podiatrist, or hospital, or against a registered nurse or physical therapist, and that arises out of the medical diagnosis, care, or treatment of any person. `Medical claim' includes derivative claims for relief that arise from the medical diagnosis, care, or treatment of a person."

For the following reasons, I believe that R.C. 2307.43 is unconstitutional.

A Jury Trials

The right to jury trial derives from the Magna Carta, and is reasserted in both the United States and Ohio Constitutions. For centuries, the right to a jury trial has been held to be a fundamental constitutional right. See Cleveland Ry. Co. v. Halliday (1933), 127 Ohio St. 278, 284, 188 N.E. 1, 3. The right, where it exists, is substantive, not procedural. Kneisley v. Lattimer-Stevens Co. (1988), 40 Ohio St.3d 354, 356, 533 N.E.2d 743, 746.

The Ohio Constitution recognizes the fundamental right to a jury trial in Section 5, Article I, which provides that:

"The right of trial by jury shall be inviolate, except that, in civil cases, laws may be passed to authorize the rendering of a verdict by the concurrence of not less than three-fourths of the jury." (Emphasis added.)

However, Section 5, Article I does not guarantee the right to a jury trial in all cases. Section 5, Article I only preserves the right to a jury trial with respect to those causes of action where the right existed at common law at the time our state Constitution was adopted. See Belding v. State, ex rel. Heifner (1929), 121 Ohio St. 393, 169 N.E. 301, paragraph one of the syllabus.

The action for negligence, upon which today's medical malpractice actions are founded, evolved from the common law action of "trespass on the case." See Mominee v. Scherbarth (1986), 28 Ohio St.3d 270, 291, 28 OBR 346, 364, 503 N.E.2d 717, 733 (Douglas, J., concurring). At common law, in trespass actions, the right to trial by jury was recognized. See, generally, 47 American Jurisprudence 2d (1969) 657-658, Jury, Section 39; and Kneisley, supra, 40 Ohio St.3d at 356-357, 533 N.E.2d at 746. Furthermore, this court has, on a previous occasion, determined that the right to a jury trial in trespass actions existed in Ohio at "common law" at the time of the adoption of our state Constitution. Kneisley, supra, at 357, 533 N.E.2d at 746. Thus, the right to a jury trial in today's medical malpractice actions is guaranteed by Section 5, Article I of the Ohio Constitution.

In the case at bar, plaintiff-petitioner, Ralph Morris, was the victim of defendant-respondent Dr. John A. Savoy's medical malpractice. Morris and his wife sued Savoy, and Savoy admitted liability. The case was tried to a jury on the issue of damages and the jury returned a verdict awarding Morris and his wife over $2,200,000 in damages. However, R.C. 2307.43 places a "cap" on general, or noneconomic, damages and if applied in the case at bar, the amount of the jury's award representing general damages would be reduced to $200,000. This would result in a reduction of the jury's award of $771,000.

As we have seen, Section 5, Article I of the Ohio Constitution guarantees the right to trial by jury in medical malpractice cases and provides that the right "* * * shall be inviolate * * *." "Inviolate" means "* * * free from substantial impairment." Black's Law Dictionary (6 Ed. 1990) 826. Applying R.C. 2307.43 to reduce any portion of a jury's award in the case at bar would clearly infringe upon the jury's function to determine damages and to provide a remedy which would compensate Morris and his wife for the injuries suffered by them. Applying R.C. 2307.43 would substitute the will of the General Assembly for that of the jury in any case where a jury awards general damages for medical malpractice in excess of $200,000. In my view, any application of R.C. 2307.43 "substantially impairs" the right to a trial by jury and substantially erodes that sacred and fundamental constitutional right.

It may be argued that R.C. 2307.43 does not substantially impair the right to a jury trial but, rather, merely limits the amount of general damages recoverable in a medical malpractice case. This argument, however, is not persuasive. The right to trial by jury includes the right to have the jury determine factual issues and assess damages. Miller v. Wikel Mfg. Co. (1989), 46 Ohio St.3d 76, 81, 545 N.E.2d 76, 81 (Douglas, J., concurring in part and dissenting in part). See, also, Seth v. Capitol Paper Co. (Aug. 29, 1990), Montgomery App. No. 11539, unreported, 1990 WL 125724. The right to a jury trial is a substantive (and not a procedural) right. Kneisley, supra, 40 Ohio St. 3d at 356, 533 N.E.2d at 746. Hence, the right to a jury trial must not be viewed as a mere perfunctory exercise. This is particularly true given the clear mandate of Section 5, Article I.

Several courts from other jurisdictions which have carefully considered the question concerning caps on damages have concluded that the limitation on damages violates the right to jury trial provision of their respective state constitutions. See, e.g., Sofie v. Fibreboard Corp. (1989), 112 Wn.2d 636, 771 P.2d 711; Smith v. Dept. of Ins. (Fla. 1987), 507 So.2d 1080; and Kansas Malpractice Victims Coalition v. Bell (1988), 243 Kan. 333, 757 P.2d 251. Of particular interest is the fact that Washington, Florida and Kansas have constitutional provisions stating (in one form or another) that the right to trial by jury shall be "inviolate." See Section 21, Article I of the Washington Constitution; Section 22, Article I of the Florida Constitution; and Section 5 of the Kansas Constitution Bill of Rights. See, also, Arneson v. Olson (N.D. 1978), 270 N.W.2d 125.

The right to trial by jury is one of the touchstones of the founding of our nation. As stated by Justice Andy Douglas in his concurring and dissenting opinion in Miller, supra:

"It is no accident that the Seventh Amendment to the United States Constitution provides: `In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved * * *.' It is no accident that Section 5, Article I of the Ohio Constitution provides: "The right of trial by jury shall be inviolate * * *.'

"The long and storied history of the right, in America, to trial by jury dates as far back as 1606 when certain matters in Virginia were tried before juries. Massachusetts, New Jersey and Pennsylvania followed with documents providing for trial by jury. The First Continental Congress declared in 1774 that the colonists were entitled to be tried by a jury of peers of the vicinage — and John Hancock and his brave friends, in signing the Declaration of Independence thereby absolving the colonies from all allegiance to the British Crown, set forth, as one of their grievances, the `* * * depriving us in many cases, of benefits of Trial by Jury * * *.'

"The right to trial by jury was provided for in state constitutions, both before and after the drafting and adoption of the federal Constitution. The fact that the original federal Constitution did not contain a provision regarding the right to trial by jury caused persons like Thomas Jefferson and Patrick Henry to indicate they would oppose ratification. Alexander Hamilton attempted to answer the criticism in Federalist No. 83, but Jefferson supported ratification only when James Madison agreed to introduce in the First Congress a Bill of Rights including a provision or amendment for trial by jury. It is not surprising that Jefferson expressed his feelings on the subject by saying: `I consider trial by jury as the only anchor ever yet imagined by man by which a government can be held to the principles of the Constitution.'" (Footnote omitted.) Id., 46 Ohio St. 3d at 81-82, 545 N.E.2d at 82.

Since R.C. 2307.43 encroaches upon the right to trial by jury, it clearly violates Section 5, Article I of the Ohio Constitution.

B Due Process

The majority concludes that R.C. 2307.43 violates the Due Process Clause of the Ohio Constitution (Section 16, Article I). While I agree that R.C. 2307.43 violates due process, I do not agree with some of the majority's discussion leading to that conclusion. Specifically, I disagree that our standard for reviewing R.C. 2307.43 is the same standard employed by this court in Mominee, supra, and Schwan v. Riverside Methodist Hosp. (1983), 6 Ohio St.3d 300, 6 OBR 361, 452 N.E.2d 1337.

Section 16, Article I of the Ohio Constitution provides, in part, as follows:

"All courts shall be open, and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law, and shall have justice administered without denial or delay. * * *"

Section 16, Article I guarantees, among other things, that an individual who suffers an injury to his or her person has the right to a remedy by due course of law. The "due course of law" provision of Section 16, Article I is considered the equivalent of the "due process of law" provision in the Fourteenth Amendment to the United States Constitution. Direct Plumbing Supply Co. v. Dayton (1941), 138 Ohio St. 540, 544, 21 O.O. 422, 424, 38 N.E.2d 70, 72.

According to the principles of due process, governmental actions which limit the exercise of "fundamental" constitutional rights are subject to the highest level of judicial scrutiny. See, e.g., N.A.A.C.P. v. Alabama, ex rel. Patterson (1958), 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488. Under this "strict scrutiny" standard for reviewing legislation which restricts the exercise of fundamental rights, a statute will be considered unconstitutional unless it is shown to be necessary to promote a compelling governmental interest. See Shapiro v. Thompson (1969), 394 U.S. 618, 634, 89 S.Ct. 1322, 1331, 22 L.Ed.2d 600, 615; and Primes v. Tyler (1975), 43 Ohio St.2d 195, 198-199, 72 O.O.2d 112, 114, 331 N.E.2d 723, 726.

As mentioned before, the right to a jury trial in medical malpractice actions is a fundamental right guaranteed by Section 5, Article I of the Ohio Constitution. See discussion in Part I(A), supra. Therefore, to determine whether R.C. 2307.43 (which restricts the right of trial by jury) violates the Due Process Clause of the Ohio Constitution, a "strict-scrutiny" standard of review applies. As such, in my view, the majority clearly errs in finding that the same standard of review to determine whether R.C. 2307.43 violates due process is the one employed by this court in Mominee, supra, and Schwan, supra.

However, the majority does conclude that R.C. 2307.43 violates the Due Process Clause because "* * * it does not bear a real and substantial relation to public health or welfare and further because it is unreasonable and arbitrary." I agree. R.C. 2307.43 violates Section 16, Article I even if it is reviewed under the permissive standard employed by today's majority. The Supreme Courts of both Texas and Kansas have reached similar conclusions finding that a cap on medical malpractice damages violates the "due course of law" provision of their respective state constitutions. See Lucas v. United States (Tex. 1988), 757 S.W.2d 687, and Kansas Malpractice Victims Coalition, supra.

C Equal Protection

R.C. 2307.43, in addressing the issue of medical malpractice, creates a classification of individuals comprised of all medical malpractice victims. As the majority ably points out, R.C. 2307.43 treats individual members of this classification in radically different ways. For instance, the statute treats those within the class who are most seriously injured by medical malpractice differently from those who are not as seriously injured. However, all individuals who are affected by the statute (those with general damages exceeding $200,000) are deprived of the fundamental constitutional right to trial by jury. See discussion in Part I(A), supra. Therefore, the statutory classification "involves" a fundamental right.

A statutory classification which involves neither a suspect class nor a fundamental right does not violate the Equal Protection Clause of the Ohio Constitution if the classification is rationally related to a legitimate governmental interest. See Kinney v. Kaiser Aluminum Chemical Corp. (1975), 41 Ohio St.2d 120, 123, 70 O.O.2d 206, 208, 322 N.E.2d 880, 883. See, also, Klepper v. Ohio Bd. of Regents (1991), 59 Ohio St.3d 131, 570 N.E.2d 1124. Today's majority finds that R.C. 2307.43 involves neither a suspect class nor a fundamental right and, hence, applies a "rational basis" standard to review the constitutionality of R.C. 2307.43. Clearly the majority errs in applying this standard of review.

The correct standard to employ in determining whether a statutory classification involving a fundamental right violates the Equal Protection Clause of the Ohio Constitution is the "strict-scrutiny" test. See Shapiro, supra. Thus, R.C. 2307.43 is unconstitutional unless it can be shown that the statute is necessary to promote a compelling governmental interest. Id. The majority concedes that the statutory classifications created by R.C. 2307.43 are barely supported even under a "rational basis" standard of review. Certainly, it cannot be said that R.C. 2307.43 is necessary to promote a compelling governmental interest.

Furthermore, the majority's citation to Denicola v. Providence Hosp. (1979), 57 Ohio St.2d 115, 11 O.O.3d 290, 387 N.E.2d 231, does not support the proposition that a rational basis standard of review is applicable in the case at bar. The statute upheld in Denicola (qualifications of expert witnesses) did not involve a fundamental right, whereas R.C. 2703.43 clearly involves the right to trial by jury.

However, even if the "rational basis" test is the appropriate standard of review herein, I believe that the majority's conclusion that R.C. 2307.43 does not violate the Equal Protection Clause of the Ohio Constitution is unsupportable.

In its due process analysis, the majority concludes that there is no evidence to show that the R.C. 2307.43 cap on medical malpractice damages is rationally related to the achievement of the state's objective to reduce medical malpractice insurance rates. How then can the majority conclude, in its equal protection analysis, that the statutory classification created by R.C. 2307.43 rationally furthers a legitimate legislative objective where there is admittedly no evidence to support that conclusion? Further, in its due process analysis, the majority concludes that R.C. 2307.43 is unreasonable and arbitrary. How then can the majority say, in its equal protection analysis, that R.C. 2307.43 "rationally" furthers a legitimate governmental interest?

The answer to these questions is that the majority cannot reasonably conclude that R.C. 2307.43 violates due process on the one hand but does not violate equal protection on the other hand. It is literally "hornbook" law that the analyses for due process and equal protection are identical, and that the only substantial difference between substantive due process and equal protection is that legislation reviewed under equal protection always involves a classification. Nowak, Rotunda Young, Constitutional Law (3 Ed. 1986) at 329 and 350-351, Sections 10.7 and 11.4.

Additionally, several state supreme courts have held that a statutory cap on medical malpractice damages violates the equal protection clause(s) of the respective states' constitutions. See, e.g., Carson v. Maurer (1980), 120 N.H. 925, 424 A.2d 825; Wright v. Central Du Page Hosp. Assn. (1976), 63 Ill.2d 313, 347 N.E.2d 736; and Arneson, supra. In my view, Ohio should now join the ranks of these enlightened jurisdictions.

D Open Courts

Section 16, Article I of the Ohio Constitution, in addition to providing for a right to remedy by "due course of law," provides that "[a]ll courts shall be open * * *." Section 16, Article I ensures that the courts shall be open for actions based upon medical malpractice.

In Smith, supra, the Supreme Court of Florida determined that a $450,000 "tort-reform" cap on damages violates Section 21, Article I (the "open courts" or "access to courts" provision) of the Florida Constitution. In doing so, the court stated that:

"Appellees also argue, and the trial court below agreed, that the legislature has not totally abolished a cause of action, it has only placed a cap on damages which may be recovered and, therefore, has not denied the right to access the courts. This reasoning focuses on the title to article I, section 21, `Access to courts,' and overlooks the contents which must be read in conjunction with section 22, `Trial by jury.' Access to courts is granted for the purpose of redressing injuries. A plaintiff who receives a jury verdict for, e.g., $1,000,000, has not received a constitutional redress of injuries if the legislature statutorily, and arbitrarily, caps the recovery at $450,000. Nor, we add, because the jury verdict is being arbitrarily capped, is the plaintiff receiving the constitutional benefit of a jury trial as we have heretofore understood that right. Further, if the legislature may constitutionally cap recovery at $450,000, there is no discernible reason why it could not cap the recovery at some other figure, perhaps $50,000, or $1,000, or even $1. None of these caps, under the reasoning of appellees, would `totally' abolish the right of access to the courts. At least one of the appellees candidly argues that there is no constitutional bar to completely abolishing noneconomic damages by requiring potential injured victims to buy insurance protecting themselves against economic loss due to injury as an alternative remedy. That particular issue is not before us but we note that if it were permissible to restrict the constitutional right by legislative action, * * * the constitutional right of access to the courts for redress of injuries would be subordinated to, and a creature of, legislative grace or, as Mr. Smith puts it, `majoritarian whim.' There are political systems where constitutional rights are subordinated to the power of the executive or legislative branches, but ours is not such a system." Id. at 1088-1089.

I agree with the court in Smith that a statutory cap on damages violates the constitutional right to open courts. The Texas Supreme Court is in accord. Lucas, supra.

While R.C. 2307.43 does not completely abolish the right to open courts for a victim of medical malpractice, the effect of the legislation strikes at the very heart of the reason why the courts are to remain open, to wit: to permit individuals to obtain satisfaction for injury or damage sustained. In my view, Section 16, Article I not only protects the right to file a lawsuit, but also protects the right to a judgment (or verdict) which is properly rendered in the suit since, after all, it is the obtaining of damages which truly counts. To allow the General Assembly to encroach upon the right to obtain redress of injuries is to subordinate a constitutional right to the will of the General Assembly. This court should not abdicate its responsibility while constitutional rights are whittled away and supplanted by unconstitutional legislation. Accordingly, I would hold that R.C. 2307.43 violates the "open courts" provision of the Ohio Constitution.

E Special Privileges

Section 2, Article I of the Ohio Constitution provides, in part, that "* * * no special privileges or immunities shall ever be granted, that may not be altered, revoked, or repealed by the general assembly."

R.C. 2307.43 limits (without a rational justification) the liability of a particular class of tortfeasors at the expense, and to the detriment, of their victims who suffer extensive injuries. The class of tortfeasors protected by R.C. 2307.43 is granted this benefit while other tortfeasors are not. Section 2, Article I of the Ohio Constitution prohibits such special treatment and such grants of immunity. See Primes, supra (Ohio's "guest statute," R.C. 4515.02, found unconstitutional because, inter alia, it denied the people of Ohio equal protection and benefit of the law by granting a special privilege and immunity to a certain class of tortfeasors). See, also, Wright, supra (Illinois Supreme Court held that legislation limiting recovery in malpractice actions to $500,000 violated Section 13, Article IV of the Illinois Constitution which prohibits enactment of "special laws." Id., 63 Ill.2d at 329-330, 347 N.E.2d at 743).

In my view, R.C. 2307.43 violates Section 2, Article I, prohibiting the granting of special privileges and immunities.

II R.C. 2305.27

We are also asked, in the case before us, to decide whether R.C. 2305.27 violates the Ohio Constitution. R.C. 2305.27 provides that:

"Except as provided in section 2743.02 of the Revised Code, in any medical claim, as defined in division (D) of section 2305.11 of the Revised Code, an award of damages shall not be reduced by insurance proceeds or payments or other benefits paid under any insurance policy or contract where the premium or cost of such insurance policy or contract was paid either by or for the person who has obtained the award, or by his employer, or both, or by direct payments from his employer, but shall be reduced by any other collateral recovery for medical and hospital care, custodial care or rehabilitation services, and loss of earned income. Unless otherwise expressly provided by statute, a collateral source of indemnity shall not be subrogated to the claimant against a physician, podiatrist, or hospital." (Emphasis added.)

Prior to the enactment of R.C. 2305.27, Ohio followed the "collateral source rule," whereby a plaintiff could receive full damages against a defendant-wrongdoer regardless of whether the plaintiff received reparations for his or her injury from a collateral source, i.e., from a source other than from the defendant. Pryor v. Webber (1970), 23 Ohio St.2d 104, 107-108, 52 O.O.2d 395, 397, 263 N.E.2d 235, 238. However, R.C. 2305.27 partially abrogates the collateral source rule by permitting negligent medical providers to have credited to their benefit certain collateral recoveries which inure to their victims.

The majority concludes that R.C. 2305.27 is constitutional. I disagree for the reasons which follow.

A Jury Trials — Open Courts

R.C. 2305.27 and 2307.43 violate the fundamental right to trial by jury and the "open courts" provision of the Ohio Constitution for substantially similar reasons. Hence, I incorporate my previous discussion in Parts I(A) and (D) herein where applicable.

R.C. 2305.27 requires that an award rendered in a medical malpractice case must be reduced by certain collateral sources of recovery. Thus, for any victim of medical malpractice who pursues his or her claim, R.C. 2305.27 may operate to reduce the amount of the jury award (assuming the matter is tried to a jury) and, therefore, the statute impairs the right to trial by jury — a right which must be jealously protected — and strikes at the very heart of the "open courts" provision of the Ohio Constitution. Indeed, it is conceivable that collateral source recovery may be so substantial in a given case that application of R.C. 2305.27 could result in a reduction of an entire jury award. In such a case, the tortfeasor guilty of medical malpractice would receive a complete "rebate" for the damages he or she caused, and the victim's rights (to a jury trial and to open courts) would be rights hardly worth exercising.

Additionally, perhaps certain victims of medical malpractice may realize that R.C. 2305.27 has the potential to render their trip to court an exercise in futility (depending upon the victim's sources of collateral recovery) and decide that pursuing a claim is not worth the time and expense involved. For these victims of medical malpractice, the right to a jury trial (and to open courts) will never be realized because of the partial abrogation of the collateral source rule.

Accordingly, I would hold that R.C. 2305.27 violates Section 5, Article I and Section 16, Article I, of the Ohio Constitution.

B Equal Protection — Due Process

R.C. 2305.27, in partially abrogating the collateral source rule in medical malpractice cases, creates a classification of individuals comprised of all medical malpractice victims. However, R.C. 2305.27 (like 2307.43) treats members of this classification differently. For instance, members of the classification who own insurance policies paid for by themselves or by their employers do not have their insurance benefits set off against a damage award. However, members of the classification who recover from any other collateral source may suffer a reduction of their award.

A statutory classification which involves a fundamental right violates the Equal Protection Clause of the Ohio Constitution if the classification is not necessary to promote a compelling governmental interest. See discussion in Part I(C), supra. R.C. 2305.27 involves a fundamental right. See discussion in Part II(A), supra. The majority, in upholding R.C. 2305.27, determines that the purpose of the statute is to limit double recovery. However, limiting double recovery in medical malpractice cases (and then only with regard to certain sources of collateral recovery) is not necessary to promote a compelling governmental interest particularly where, as here, the statutory classification is established in response to a "crisis" which is yet to be shown to exist.

In Carson, supra, the Supreme Court of New Hampshire determined that a statute modifying the collateral source rule in cases involving medical injuries violated the Equal Protection Clauses of the state's Constitution. The court reached this conclusion even though it was determined that the statute eliminated some duplicate recovery and although the collateral source rule operates so as to place some plaintiffs in a better financial position than before the wrong. In this regard, the court found that abolishing the collateral source rule results in a "windfall" to the defendant tortfeasor or the tortfeasor's insurer and that the cost of abolishing the collateral source rule to many medical malpractice plaintiffs is "simply too high" to justify. Id., 120 N.H. at 940-941, 424 A.2d at 835-836.

Today's majority upholds R.C. 2305.27 to, in effect, prohibit a windfall for certain victims of medical malpractice. However, as Carson indicates, abolishing the collateral source rule in medical malpractice cases works to the benefit ( i.e., grants a windfall) of the defendant tortfeasor or the tortfeasor's insurer at the expense of certain victims of medical malpractice. While it may be the intended purpose of R.C. 2305.27 to limit double recovery, it does so at the expense of members of the general public who fall victim to medical malpractice. In my view, collateral sources received by a victim should inure to the benefit of the victim (not the tortfeasor), and there is no rationale (compelling or otherwise) which would support the proposition that as between the tortfeasor and his or her innocent victim, the tortfeasor should benefit from payments received by the victim from a collateral source. See Grayson v. Williams (C.A.10, 1958), 256 F.2d 61, 65.

Furthermore, a statutory classification violates the Equal Protection Clause of the Ohio Constitution if it treats similarly situated people in a dissimilar manner based upon an illogical and arbitrary basis. See State v. Buckley (1968), 16 Ohio St.2d 128, 45 O.O.2d 469, 243 N.E.2d 66, and Klepper, supra. In my view, treating medical malpractice victims differently based upon the source of their collateral recovery makes absolutely no sense whatsoever.

Accordingly, I believe that R.C. 2305.27 violates the Equal Protection Clause of the Ohio Constitution. Therefore, R.C. 2305.27 also violates the Due Process Clause of the Ohio Constitution. See Arneson, supra, at 137 (near abolition of collateral source doctrine violates medical patient's due process rights).

C Special Privileges

R.C. 2305.27 violates Section 2, Article I of the Ohio Constitution (prohibiting a grant of special privileges and immunities) for the reasons previously discussed in Part I(E), supra.

III R.C. 2305.27 and Workers' Compensation

The majority holds that pursuant to R.C. 2305.27, future workers' compensation payments that Morris can reasonably expect to receive "can and should" be deducted from the jury's verdict awarding Morris $600,000 for future lost wages. I disagree. In my view, R.C. 2305.27 (in addition to being unconstitutional) clearly does not require and, indeed, prohibits reduction of an award of damages by any amounts paid under the workers' compensation system. Because the majority does not quote or even consider the portion of R.C. 2305.27 relevant to this determination, it would be helpful at this point to, once again, set forth the relevant portion of R.C. 2305.27:

"Except as provided in section 2743.02 of the Revised Code, in any medical claim, as defined in division (D) of section 2305.11 of the Revised Code, an award of damages shall not be reduced by insurance proceeds or payments or other benefits paid under any insurance policy or contract where the premium or cost of such insurance policy or contract was paid either by or for the person who has obtained the award, or by his employer * * *." (Emphasis added.)

R.C. 2305.27 is unambiguous in prohibiting the reduction of an award of damages by any amounts paid under any insurance policy where the premium or cost of the policy is paid for by the employer of the person who obtains the award.

This court has long recognized that the workers' compensation laws are "* * * founded upon the principle of insurance * * *." See State, ex rel. Crawford, v. Indus. Comm. (1924), 110 Ohio St. 271, 274, 143 N.E. 574, 575. Indeed, this court has referred to workers' compensation as "workmen's compensation insurance." Id. at syllabus. See, also, id. at 276, 143 N.E. at 575. Throughout R.C. Chapter 4123, the General Assembly uses terms such as "state insurance fund," "insurance fund," "self-insurers," "premiums," "coverage," and other similar terms and phrases consistent with the concept of insurance. Further, as this court indicated in Blankenship v. Cincinnati Milacron Chemicals (1982), 69 Ohio St.2d 608, 615, 23 O.O.3d 504, 509, 433 N.E.2d 572, 577, an employer who commits an "intentional tort" against his or her employee is not immune from liability simply because the employer complies with the workers' compensation laws since "[a]n insurance policy does not protect the policyholder from the consequences of his intentional tortious act." (Emphasis added.)

The laws governing workers' compensation establish a mandatory insurance scheme whereby employers must pay for "insurance" coverage to compensate their employees for injuries sustained during the course of employment. Thus, workers' compensation benefits constitute (within the meaning of R.C. 2305.27) payments under an insurance policy or contract where the premium or cost of the policy is paid for by the employer of the person who obtains the award. Hence, pursuant to R.C. 2305.27, workers' compensation benefits cannot be set off against a damage award.

In reaching this conclusion, I am persuaded by this court's recent decision in Griffey v. Rajan (1987), 33 Ohio St.3d 75, 80-81, 514 N.E.2d 1122, 1126-1127, wherein Justice Herbert R. Brown, writing for the plurality, held that a plaintiff in a medical malpractice case who failed to disclose her receipt of workers' compensation benefits did not misrepresent her recovery from collateral sources.

I am also persuaded by the fact that had the General Assembly desired that workers' compensation benefits be deducted from an award in a medical malpractice case, it could have done so as it did in R.C. 2317.45(A)(1)(a)(ii). Apparently, under the theory that the General Assembly needs help in drafting legislation, the majority seemingly holds, in order to reach its desired result, that even though the General Assembly did not include workers' compensation benefits, it really meant to do so. In so doing, the majority engages in judicial legislation instead of interpreting the plain language of the statute.

In any event, regardless of whether R.C. 2305.27 prohibits deduction of workers' compensation benefits from an award of damages, workers' compensation benefits clearly do not represent collateral recovery for loss of earned income. Therefore, R.C. 2305.27 does not require an award of damages to be offset by workers' compensation benefits.

In Sharp v. Union Carbide Corp. (1988), 38 Ohio St.3d 69, 70, 525 N.E.2d 1386, 1387, this court determined that the terms "income" and "earnings" are synonymous and contemplate a recurrent benefit or gain which is derived from "`* * * capital, labor, or a combination of both * * *.'" (Emphasis sic.) Workers' compensation benefits are not the product of a recipient's labor, nor do the benefits constitute a return on capital. Workers' compensation benefits are not earned by the recipient but, rather, are paid to the recipient for beneficent and humanitarian reasons.

In Sharp, we held that Social Security benefits are not "income" as that term is commonly understood. Id. I see no reason why today's majority should reach a different conclusion with regard to workers' compensation benefits.

For the foregoing reasons, I would hold that workers' compensation benefits do not constitute a collateral source which may be used to reduce the jury's award in the case at bar.

IV Application of R.C. 2305.27

Applying R.C. 2305.27 is not only unconstitutional but, depending upon how it is applied, R.C. 2305.27 can produce different results. Take the following example. B sues A (a physician) for medical malpractice, and the jury awards B $100,000 in damages and apportions negligence sixty percent to A and forty percent to B. B recovers $50,000 from a collateral source that R.C. 2305.27 requires to be set off against the award. Pursuant to R.C. 2305.27, the trial court reduces the $100,000 award by the $50,000 collateral source, resulting in a difference of $50,000. From this figure, the trial court then subtracts $20,000 (forty percent of the $50,000 representing B's apportioned degree of fault) which results in a difference of $30,000 — B's ultimate recovery on the jury's award. As an alternative method of calculation, the trial court could first reduce the $100,000 award by an amount equal to B's relative degree of fault (forty percent) resulting in a difference of $60,000. From this figure, the $50,000 collateral recovery will be subtracted resulting in a difference of $10,000. Thus, using this formula, B's ultimate recovery on the jury's award will be $10,000.

As the foregoing example illustrates, B could receive either $30,000 or $10,000 depending upon the trial court's calculations and, as such, R.C. 2305.27 is bound to result in unequal and nonuniform treatment of individuals throughout the state of Ohio. It should be noted, however, that R.C. 2305.27 requires that an award of damages be reduced by the collateral source. In our example (and literally applying the statute as written) by first reducing the award by the collateral source, we have seen that B would recover $30,000 of the $100,000 jury award. Thus, applying the clear language of R.C. 2305.27, B would recover $80,000 for his injuries ($50,000 from the collateral source and $30,000 on the jury's award) or, in other words, B would recover eighty percent of his damages. This is so even though B is forty percent at fault and, hence, $60,000 (sixty percent of $100,000) would logically be his ceiling for recovery if R.C. 2305.27 made any sense — which it clearly does not.

IV Conclusion

This court is the last bastion upon which most citizens can depend to protect their constitutional rights. Accordingly, this court is obliged to protect an individual's rights to trial by jury (Section 5, Article I) and ensure that the doors of the courthouse remain wide open — not just ajar (Section 16, Article I). We must protect individuals from the arbitrary and unreasonable acts of their government and, thereby, ensure the right of the people to due process of law (Section 16, Article I) and to equal protection of the laws (Section 2, Article I). We must also prohibit the granting of special privileges to some individuals at the expense of others (Section 2, Article I).

With these obligations in mind, I would hold that R.C. 2307.43 and 2305.27 are unconstitutional. The Ohio Constitution is meant to protect every citizen — including those who suffer injuries as a result of medical malpractice.

Furthermore, I believe that R.C. 2305.27 (in addition to being unconstitutional) has no application to workers' compensation benefits received or expected to be received. This would be my response (and I think it should be the response of this court) to the third question certified to us by the United States District Court.

While all the foregoing is pertinent and of general concern to me, my greatest concern is the question of the abridging of the right to trial by jury. The long and storied history of how the right was secured for us should not go unnoticed as some among us sanction the chipping away at the sacred right.

The Resolutions of the Stamp Act Congress adopted on October 19, 1765 stated that "`trial by jury is [an] inherent and invaluable right of every British subject in these colonies.'" Burnett, The Continental Congress (1941) 10. In November 1772, Samuel Adams wrote that the right of trial by jury was one of the original, inherent, indefeasible natural rights of free citizens. The First Continental Congress declared in October 1774 that all Americans were entitled to the common law of England, "`and more especially, to the great inestimable privilege of being tried by their peers of the vicinage.'" Burnett, supra, at 54. John Jay (the first Chief Justice of the United States Supreme Court), then a delegate to the First Continental Congress, drafted a statement in accordance with these principles. The Seventh Amendment guaranteeing that, in civil suits at common law, "* * * the right of trial by jury shall be preserved * * *" was passed by Congress on September 24-25, 1789, and ratified by the required number of states by December 15, 1791. And Thomas Jefferson, in his First Inaugural Address in March 1801, referred to trial by jury as an essential star in "the bright constellation which has * * * guided our steps * * * [on] the road which alone leads to peace, liberty, and safety." The Writings of Thomas Jefferson (Padover Ed. 967) 274.

Yet, we find legislation shrinking (or attempting to shrink) the right to trial by jury in, among other instances, determinations of liability for intentional torts (R.C. 4121.80[C] and [D]), awarding of damages for an intentional tort (R.C. 4121.80[D]), and assessment of punitive damages (R.C. 2315.21[C][2]). Further, we find arising in a number of cases coming before this court the question of the validity of jury verdicts and often in close votes, the right has either been preserved or taken away. See, e.g., Miller v. Wikel, supra, and Villella v. Waikem Motors, Inc. (1989), 45 Ohio St.3d 36, 543 N.E.2d 464.

In yet another example, we find that as recently as June 1989, the United States Court of Appeals for the Fifth Circuit decided the case of Brock v. Merrell Dow Pharmaceuticals, Inc. (C.A.5, 1989), 874 F.2d 307. In its opinion the court gave credence to what is called "* * * a growing realization among academics, lawyers, and judges that cases such as this present special problems and challenges to traditional ideas regarding the role of the jury as a decisionmaker." Id. at 309. In other words, the court stated that the deciding of complex scientific issues might better be left to judges rather than juries.

As a final example, I draw attention to S. 489, 102 Cong., 1st Sess., introduced by Senator Hatch in the Senate of the United States on February 26, 1991. The stated purpose of the Bill is "[t]o provide grants to States to encourage States to improve their systems for compensating individuals in the course of the provision of health care services, to establish uniform criteria for awarding damages in health care malpractice actions, and for other purposes[.]" 137 Cong.Rec. S 2324 (daily ed. Feb. 26, 1991). In the "Findings and Purpose" clause, the Bill provides that, among other things, Congress finds that "* * * the civil judicial system is a costly and inefficient mechanism for resolving claims of health care malpractice and compensating injured patients, * * *" Section 2(a)(5), 137 Cong.Rec., supra, at S 2325. In order for a state to receive the alleged benefits of the Bill, one of the requirements is that an "Alternative Dispute Resolution System" be established. This system would become mandatory and binding and, in fact, could include arbitration (again, no jury). Section 102(d)(4), 137 Cong.Rec., supra, at S 2327. If an injured individual (victim) refuses to participate in arbitration and, instead, initiates a health care malpractice action, then the Bill provides: that such a person-plaintiff may only prevail if he or she proves each element of his or her case beyond a reasonable doubt; that the plaintiff must establish that a defendant was grossly negligent; and that the amount of damages for noneconomic losses which a plaintiff may recover shall not exceed $150,000. Section 102(d)(5)(A) and (B), 137 Cong.Rec., supra, at S 2327.

Unless and until we draw the line, this erosion of the right to trial by jury will continue, and as we have seen in the loss of other constitutional rights, once the rights are lost, the recovery of those rights is difficult at best and often impossible.

For the foregoing reasons, I concur in part and dissent in part.

RESNICK, J., concurs in the foregoing opinion.