                This opinion is subject to revision before final
                     publication in the Pacific Reporter

                                2015 UT 68

                                   IN THE

      SUPREME COURT OF THE STATE OF UTAH
                        GREGORY LYNN SMITH,
                             Appellant,
                                      v.
                    UNITED STATES OF AMERICA,
                             Appellee.

                            No. 20131030
                        Filed August 11, 2015

                   On Certification from the
       United States District Court for the District of Utah
                 The Honorable Dee V. Benson
                     No. 2:12-CV-00968-DB

                                Attorneys:
    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
                       SMITH v. UNITED STATES
                        Opinion of the Court

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.




   1
    The Hippocratic Oath, LONDON MED. REPOSITORY, MONTHLY J. &
REV., Jan.–June 1825, at 258 (internal quotation marks omitted).
   2
     See Everard v. Hopkins, (c. 1600) 80 Eng. Rep. 1164 (K.B.) 1164;
2 Bulstrode 332; DIETER GIESEN, INTERNATIONAL MEDICAL MALPRAC-
TICE LAW 3 (1988).
   3
    See B. Sonny Bal, An Introduction to Medical Malpractice in the
United States, 467 U.S. MED. MALPRACTICE, Feb. 2009, at 339–40.
   4
     1986 Utah Laws 637–38. Many of our sister states have adopted
similar damage caps in the context of medical malpractice. E.g., CAL.
CIV. CODE § 3333.2 (West 2015); COLO. REV. STAT. ANN. § 13-21-102.5
(West 2015); IND. CODE ANN. § 34-18-14-3 (West 2015); LA. REV. STAT.
ANN. § 40:1299.42 (2014); NEB. REV. STAT. ANN. § 44-2825 (West 2015);
N.M. STAT. ANN. § 41-5-6 (West 2015); N.C. GEN. STAT. ANN.
§ 90-21.19 (West 2015); OHIO REV. CODE ANN. § 2323.43 (West 2015);
S.C. CODE ANN. § 15-32-220 (2015); S.D. CODIFIED LAWS § 21-3-11
(2015); VA. CODE ANN. § 8.01-581.15 (West 2015); WIS. STAT. ANN.
§ 893.55 (West 2015).
   5
     At least six other states have similar constitutional protections
for damages in wrongful-death cases. See ARIZ. CONST. art. XVIII, § 6;
KY. CONST. § 54; N.Y. CONST. art. I, § 16; OKLA. CONST. art. XXIII, § 7;
PA. CONST. art. III, § 18; WYO. CONST. art. 10, § 4.

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                          Opinion of the Court

                           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


   6
     Though not a party in the original case, the State of Utah has
entered this litigation to support the constitutionality of the statute
at issue. Because the State’s arguments are parallel to those of the
United States, we do not address them independently.
   7
    Order Certifying Questions to the Utah Supreme Court at *4,
Smith v. United States, No. 2:12-CV-00968-DB (D. Utah Nov. 4, 2013).
   8
       Egbert v. Nissan N. Am., Inc., 2007 UT 64, ¶ 7, 167 P.3d 1058.
   9
       Id.

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                        SMITH v. UNITED STATES
                         Opinion of the Court

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


   10
        UTAH CONST. art. XVI, § 5.
   11
        UTAH CODE § 78B-3-410(1).
   12
     The United States also argues that article XVI, section 5 is not
generally applicable. It points out that article XVI is titled “Labor”
and that other sections in that article provide protections for
laborers. It then suggests that the damages-cap prohibition applies
only in cases where a party seeks to hold an employer liable for the
wrongful death of its employee. We are not persuaded. The United
States’ proposed construction is wholly unsupported by the plain
language of section 5. We will not look beyond the plain language of
the operative provision because “[w]here the language of [a
constitutional] provision is plain, that is to say, where its meaning as
                                                           (continued...)

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                          Opinion of the Court

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




   12
     (...continued)
intended or understood by its framers is beyond debate, we need
proceed no further.” Am. Bush v. City of South Salt Lake, 2006 UT 40,
¶ 87, 140 P.3d 1235.
   13
     Garfield Smelting Co. v. Indus. Comm’n, 178 P. 57, 59 (Utah 1918)
(“[T]he Constitution clearly prohibits the Legislature from abrogat-
ing the ‘right of action,’ [therefore] it becomes necessary to inquire
what that right was and who enjoyed it at the time the Constitution
was adopted by the people of this state.”).
   14
        24 P. 616 (Utah Terr. 1890).
   15
        Id. at 618.
   16
        Id. at 616.

                                       5
                          SMITH v. UNITED STATES
                           Opinion of the Court

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




   17
        Id. at 616–17; Fatal Accidents Act, 1846, 9 & 10 Vict. c. 93 (Eng.).
   18
        Webb, 24 P. at 617.
   19
     1874 Utah Laws 9–10 (codified at COMP. LAWS UTAH 1876,
§§ 1216–17; COMP. LAWS UTAH 1888, §§ 2961–62).

                                      6
                          Cite as: 2015 UT 68
                          Opinion of the Court

         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

   20
      1884 Utah Laws 193–94 (codified at COMP. LAWS UTAH 1888,
§ 3179). The United States argues that a cause of action for wrongful
death resulting from medical malpractice filed between 1884 and
1896 would have arisen under the common law, rather than this
statute. But the United States has cited no Utah case recognizing a
common law cause of action for medical malpractice. And when the
territorial legislature enacted the wrongful-death statute in 1884, it
instructed that statutory enactments should be liberally construed to
preempt the common law. 1884 Utah Laws 154–55. Accordingly, we
are persuaded that it is this statute that would have governed a suit
for wrongful death arising from alleged medical malpractice at the
time article XVI, section 5 was enacted.
   21
        UTAH CONST. ANN. art. XVI, § 5.
   22
        Webb, 24 P. at 618 (emphasis added).
   23
      MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 912 (11th ed.
2012); accord BLACK’S LAW DICTIONARY 882 (1891); WEBSTER’S
COLLEGIATE DICTIONARY 601 (1898); WEBSTER’S COMMON SCHOOL
DICTIONARY 253 (1892).

                                   7
                         SMITH v. UNITED STATES
                          Opinion of the Court

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 in
identifying the damages that were available in wrongful-death cases
at the time the Utah Constitution was adopted. Instead, we must
look to the species of damages allowed by the court under the
statute.
    ¶12 In the years leading to the adoption of the Utah
Constitution, the court upheld a broad range of damages for
wrongful death, including both economic and noneconomic
damages. In the arena of economic damages, the court held that the
jury should consider the financial contribution the deceased
reasonably would have provided to his survivors based on “his
ability to earn wages and provide for his family,” “the number in the
family dependent upon him for support and previously provided
for,” “the number and ages of the children,” “the age and health of



   24
        Webb, 24 P. at 618.
   25
     Id.; see also Chilton v. Union Pac. Ry., 29 P. 963, 964 (Utah Terr.
1892) (“Human capacity can make but vague and indefinite
estimates of [the] value in dollars and cents [of the loss of the society,
the advice, the kindness, and good treatment of a husband and
father], but justice demands that it shall be done.”); BLACK’S LAW
DICTIONARY 315 (2d ed. 1910) (defining “[p]ecuniary damages” as
damages “[s]uch as can be estimated in and compensated by money;
not merely the loss of money or salable property or rights, but all
such loss, deprivation or injury as can be the subject of calculation
and of recompense in money”).
   26
        Webb, 24 P. at 618.
   27
        Id.

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                           Opinion of the Court

his wife, and age and health of the deceased.”28 In short, the court
allowed recovery for loss of the reasonably-expected net financial
productivity of the deceased and the financial cost occasioned by his
death.29
    ¶13 Significantly for our purposes, the court also allowed
damages for certain noneconomic losses. For example, the court
allowed recovery for “the loss of nurture, [that is] the intellectual,
moral, and physical training” of a parent and “the loss of the society
of a near relative, ” including “the loss of [a] father by children who
are of full age living away from the home of the deceased and
supporting themselves.”30 The court also upheld instructions for the
jury to “take into account the loss of society, and the comfort” that
surviving parents would have gained by raising the deceased
child;31 to “include any loss which the widow of [the] deceased and
his daughter have sustained or may hereafter sustain by being
deprived of the support, care, nurture, companionship, assistance,
and protection which . . . they would have received from the
deceased if he had not been killed”;32 and to award damages for the
loss of “the benefits from the associations, comforts, and pleasures
that . . . [the decedent’s survivors] would have received from him




   28
        Pool v. S. Pac. R.R., 26 P. 654, 656 (Utah Terr. 1891).
   29
      See Webb, 24 P. at 618 (recognizing that survivors may recover
for “the loss of expected services,” even if the deceased was “under
no legal or moral obligation to render service or support, [but] the
circumstances shown render it probable it [would have been]
rendered”); see also Jones v. Carvell, 641 P.2d 105, 107 (Utah 1982)
(“Under Utah law a parent may recover for the wrongful death of a
child such [economic] damages as funeral and medical expenses, the
value of the services he might have rendered to the household, and
the amount of money the deceased child might have earned, if its
projected income would have exceeded the cost of its maintenance
and care.” (citation omitted)); BLACK’S LAW DICTIONARY 589 (9th ed.
2009) (defining economic loss); 25A C.J.S. Death § 285 (2015)
(discussing economic loss).
   30
        Webb, 24 P. at 618.
   31
        Hyde v. Union Pac. Ry., 26 P. 979, 980 (Utah Terr. 1891).
   32
      Wells v. Denver & R.G.W. Ry., 27 P. 688, 689 (Utah Terr. 1891)
(internal quotation marks omitted).

                                      9
                          SMITH v. UNITED STATES
                           Opinion of the Court

had his life been spared.”33 This court continued a broad conception
of allowable damages by upholding similar awards after statehood.34
     ¶14 While the court clearly allowed damages for noneconomic
losses, such damages were not unlimited. In Webb, the court held
that “no compensation can be given for the mental anguish or
suffering of the heirs or next of kin of the deceased.”35 The opinion
in Webb notes the same concerns expressed in the seminal English
case on this issue,36 namely that “if the mental suffering of the heirs
is to be taken into the account, and compensated for in money, the
difficulty [of proving or estimating the pecuniary loss] is infinitely
increased.”37 In short, the court held that this kind of loss is “too
remote and sentimental to be a proper element of damage under the
statute.”38
   ¶15 It is against this legal backdrop that the framers adopted the
constitutional provision protecting the recovery of damages for


   33
        Chilton, 29 P. at 964.
   34
      See English v. S. Pac. Co., 45 P. 47, 51 (Utah 1896); Corbett v. Or.
Short Line R.R., 71 P. 1065, 1066–67 (Utah 1903); Rogers v. Rio Grande
W. Ry. Co., 90 P. 1075, 1078–79 (Utah 1907); Spiking v. Consol. Ry. &
Power Co., 93 P. 838, 846–47 (Utah 1908); Evans v. Or. Short Line R.R.,
108 P. 638, 641–42 (Utah 1910); White v. Shipley, 160 P. 441, 443 (Utah
1916); Moore v. Utah Idaho Cent. R.R., 174 P. 873, 880 (Utah 1918);
Burbidge v. Utah Light & Traction Co., 196 P. 556, 558 (Utah 1921)
(“Under our statute, both the wife and the children were heirs of the
deceased, and as such were entitled to recover, not only for the loss
of support, companionship, and the assistance he would naturally
and probably be to them but were entitled to all the pecuniary loss
that they may have sustained by reason of his death, which could be
established with reasonable certainty in view of all the circumstances
pertaining to the subject-matter.” (internal quotation marks omit-
ted)).
   35
     Webb, 24 P. at 618; see also FRANCIS B. TIFFANY, DEATH BY
WRONGFUL ACT §§ 154, 156 (1893); WILLIAM B. HALE, HANDBOOK ON
THE LAW OF DAMAGES §§ 127, 129 (1896). While secondary sources
from this era are helpful, they are in tension with Utah case law on
some points. And on these points, Utah case law controls.
   36
        Blake v. Midland Ry., (1852) 118 Eng. Rep. 35; 18 Q.B. 93.
   37
        Webb, 24 P. at 618.
   38
        Id.

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                        Opinion of the Court

wrongful death. Accordingly, article XVI, section 5 protects recovery
of economic damages—compensation for the loss of the reasonably-
anticipated net financial productivity of the deceased and the costs
occasioned by the death. It also protects recovery of certain
noneconomic damages designed to compensate for the loss of the
assistance, association, care, comfort, companionship, nurture,
pleasure, protection, society, and support of the deceased. Because
such damages were available at the time our constitution was
adopted, they “shall not be subject to any statutory limitation.” But
those damages for the mental anguish and suffering of survivors,
which were not available at the time of statehood, may be limited by
the Legislature.
B. The Compensation Exception to Article XVI, Section 5 Applies Only
            to Schemes Akin to Workers’ Compensation
    ¶16 Having defined the types of wrongful-death damages
protected by article XVI, section 5, we proceed to consider whether
the damages at issue fall within the exception to the constitutional
protection. Article XVI, section 5 excepts from constitutional
protection “cases where compensation for injuries resulting in death
is provided for by law.”39 The parties disagree with respect to the
scope of this exception. Their disagreement turns on the meaning of
“compensation.” Mr. Smith argues that “compensation” means
something akin to a workers’ compensation scheme, while the
United States argues that “compensation” has a broader meaning
and includes any form of recovery allowed by law.40 We agree with


   39
        UTAH CONST. art. XVI, § 5 (emphasis added).
   40
      In so arguing, the United States relies on our opinion in Parks
v. Utah Transit Authority, 2002 UT 55, ¶ 17, 53 P.3d 473. That opinion
reasons that article XVI, section 5's compensation “exception applies
[in the context of cases arising under the the Governmental Immu-
nity Act] where the legislature has in the Act fixed the plaintiffs’
remedy.” Id. We are not persuaded that this pronouncement is
inconsistent with our holding today, but we take this opportunity to
resolve any doubt. That cursory pronouncement in Parks is dicta
without any analysis. And it was similarly unsupported dicta when
repeated in Tindley v. Salt Lake City School District, 2005 UT 30, ¶ 36,
116 P.3d 295. Both of these cases relied upon and were resolved by
Tiede v. State, 915 P.2d 500 (Utah 1996), which held that the Govern-
mental Immunity Act did not violate article XVI, section 5 because
                                                          (continued...)

                                  11
                       SMITH v. UNITED STATES
                         Opinion of the Court

Mr. Smith.
    ¶17 The compensation exception to article XVI, section 5 does
not immunize the damages cap of the Malpractice Act from
constitutional challenge. The constitutional provision differentiates
between “damages” and “compensation.” The word damage defines
the constitutional protection; the word compensation defines the
scope of the exception. Accordingly, the two terms must mean
something different otherwise the exception would swallow the
rule. We gain insight into the meaning of the compensation
exception by its context. The compensation exception was not part
of the original constitution, but was added through an amendment
made in 1921.41 The exception remedied the inconsistency between
the unamended constitutional provision and the Workmen’s
Compensation Act of 1917.42 Thus, as we have previously held, the
term compensation, as used in amended section 5, carries the same
meaning that it had in the Workmen’s Compensation Act, namely
“any payment required by the act to be made to a workman or to his
dependents, or for their benefit, or into the state treasury for the
special purposes of the compensation act.”43
    ¶18 The United States argues that the exception applies because
the Smiths are still entitled to recover damages (compensation) up
to the amount of the cap. In other words, it suggests that the
exception empowers the Legislature to cap damages as long as the
cap is some number greater than zero. But the practical impact of
this proposed construction is completely at odds with the
constitutional language. Article XVI, section 5 enshrines two
separate protections on the right to recover for wrongful death. The
first is that the right to recover damages “shall never be abrogated.”
The second is that the amount of the damages “shall not be subject
to any statutory limitation.” The United States’ suggestion that the
right to recover damages up to the level of the cap constitutes


   40
      (...continued)
of the State’s sovereign immunity at the time the constitution was
ratified. We accordingly disavow the dicta in paragraph 17 of Parks
and the dicta in Tindley that cites it.
   41
        UTAH CONST. ANN. art. XVI, § 5.
   42
     Henrie v. Rocky Mountain Packing Corp., 196 P.2d 487, 492 (Utah
1948).
   43
        Id. at 493.

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                         Cite as: 2015 UT 68
                        Opinion of the Court

compensation ignores the two separate protections and would, in
fact, render the second constitutional guarantee a nullity.
    ¶19 The United States’ proposed construction is also flawed
because it conflates the concept of damages with that of
compensation. The fact that the Smiths may be entitled to recover
some damages under the cap does not transform those recoverable
damages into compensation. In fact, the terms damages and
compensation have distinct meanings. The word compensation means
“making amends” or “that which is necessary to restore an injured
party to his former position.”44 In contrast, the word damages means
“[a] pecuniary compensation . . . , which may be recovered in the
courts by any person who has suffered loss, detriment, or injury . . .
through the unlawful act or omission or negligence of another.”45 As
Black’s Law Dictionary stated in 1891 and repeated in 1910,
“[d]amages [are] amends exacted from a wrong-doer for a tort” but
“[c]ompensation is amends for something which was taken without
the owner’s choice, yet without commission of a tort.”46 Thus,
compensation is distinguished from damages because damages
require fault.47 Because any damages awardable within the cap are
based upon a medical provider’s fault, the fact of their awardability
does not make the constitutional exception available. Accordingly,
we hold that the compensation exception to article XVI, section 5 of
the constitution does not apply in cases implicating the damages cap
of the Malpractice Act.




   44
    BLACK’S LAW DICTIONARY 232 (2d ed. 1910); accord BLACK’S LAW
DICTIONARY 237–38 (1891).
   45
     BLACK’S LAW DICTIONARY 316 (1891); accord BLACK’S LAW
DICTIONARY 314 (2d ed. 1910).
   46
     BLACK’S LAW DICTIONARY 238 (1891); accord BLACK’S LAW
DICTIONARY 232 (2d ed. 1910).
   47
     Star v. Indus. Comm’n, 615 P.2d 436, 438 (Utah 1980) (“Concep-
tually, compensation and damages are different. Damages are based
upon fault, are generally limited only by the findings of the jury, and
are payable in death cases to the heirs or personal representatives
without regard to dependency. In contrast, compensation, generally,
has no relation to fault, is fixed or limited by statute, and is payable
to dependents only.”).

                                  13
                        SMITH v. UNITED STATES
                          Opinion of the Court

              II. SECTION 78B-3-410 OF THE UTAH CODE IS
                  UNCONSTITUTIONAL AS APPLIED TO
                       WRONGFUL-DEATH CASES
   ¶20 The Malpractice Act limits noneconomic damages in a
“malpractice action,” including damages in those cases of
malpractice that result in death.48 Section 78B-3-410(1) of the Utah
Code 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.
The parties agree that this statute cannot constitutionally limit
damages that article XVI, section 5 of the Utah Constitution protects.
But they disagree on how to resolve the clear tension between the
constitution and the statute. Mr. Smith has proposed three
alternatives for our consideration. First, he suggests that we construe
the cap as inapplicable in all wrongful-death cases. Second, he
proposes that we construe the cap to limit only those damage
awards that are not protected by the constitution. Finally, if we reject
his first two alternatives, he argues that we must declare the cap
unconstitutional as applied to wrongful-death cases. The United
States soundly rebuts the first two of Mr. Smith’s proposed
alternatives by pointing out that they are foreclosed by the plain
language of the Malpractice Act. But the United States proposes no
other option to avoid declaring the cap unconstitutional as applied
to wrongful-death cases. Accordingly, we hold that the damages cap
in section 78B-3-410 of the Malpractice Act is unconstitutional as
applied to cases of wrongful death.
    ¶21 When construing a statute, we seek primarily to give effect
to the intent of the Legislature.49 To begin, we look to the plain
language of the specific provision within its context.50 And because
we presume that the Legislature intends a statute to complement,
not contradict, constitutional protections, we attempt to construe it




   48
        UTAH CODE § 78B-3-410(1); see id. § 78B-3-403(17).
   49
        LPI Servs. v. McGee, 2009 UT 41, ¶ 11, 215 P.3d 135.
   50
        Id.

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                               Cite as: 2015 UT 68
                              Opinion of the Court

accordingly.51 We address Mr. Smith’s three alternatives in turn.
    ¶22 First, Mr. Smith reasons that the Legislature never intended
for the Malpractice Act to apply to wrongful-death cases because it
did not explicitly reference the cap in the wrongful-death statute
itself. Mr. Smith points to the consortium statute as an example. In
that statute, the Legislature provided that “[d]amages awarded for
loss of consortium . . . may not exceed any applicable statutory limit
on noneconomic damages, including [the damages cap in] Section
78B-3-410” of the Malpractice Act.52 No such explicit reference to the
cap appears in the wrongful-death statute.53
    ¶23 The United States soundly rebuts this reasoning on the basis
of the express scope of the cap. The first sentence denotes the cap’s
scope: “[i]n a malpractice action against a health care provider.”54
And the definition section defines “[m]alpractice action against a
health care provider” as “any action against a health care provider,
whether in contract, tort, breach of warranty, wrongful death, or
otherwise.”55 Further, there is nothing in the language of the cap
indicating that it applies only if it is expressly referenced in the
statute giving rise to the underlying cause of action. In short, the
plain language of the Malpractice Act forecloses any reading under
which it is inapplicable as a whole to wrongful-death cases.
    ¶24 Mr. Smith’s second proposed construction would narrow
the application of the cap to apply only to those damages that are
not protected by the constitution. The Malpractice Act provides that
         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 . . . $450,000.56
Mr. Smith proposes that we narrowly construe the phrase
“noneconomic losses to compensate for pain, suffering, and



   51
     Uzelac v. Thurgood (In re Estate of S.T.T.), 2006 UT 46, ¶ 26,
144 P.3d 1083.
   52
        UTAH CODE § 30-2-11(7).
   53
        See id. § 78B-3-106.
   54
        Id. § 78B-3-410(1).
   55
        Id. § 78B-3-403(17) (emphasis added).
   56
        Id. § 78B-3-410(1) (emphasis added).

                                       15
                        SMITH v. UNITED STATES
                          Opinion of the Court

inconvenience” to refer only to damages for “mental anguish and
suffering” because the latter are not protected by the constitution.
    ¶25 As the United States points out, this construction results in
a reading of the Malpractice Act that is contrary to our precedent.
We previously have noted that damages for “pain, suffering, and
inconvenience” provided by this statute “amount to the same
measure” as noneconomic loss or general damages.57 Thus, Mr.
Smith’s proposed reading of “pain, suffering, and inconvenience” as
a subset of noneconomic damages is inconsistent with our
precedent. And we will not depart from our common-sense
precedent to adopt an unnatural reading of the statutory text.
    ¶26 Moreover, Mr. Smith’s second proposed construction
would vitiate the policy addressed by the Legislature in the
Malpractice Act as a whole. The damages cap applies to all medical
malpractice cases, only a small subset of which involve wrongful
death. Were we to narrowly construe the damages cap on the basis
of the constitutional protection for wrongful-death damages, that
narrow construction would impact the scope of the cap in all
medical malpractice cases, not just those involving wrongful death.
This approach would unduly narrow the damages cap imposed by
the Legislature. We are unwilling to sacrifice the cap’s broader
operation in order to avoid its application in the limited number of
wrongful-death cases with impermissible constitutional
implications. Accordingly, we reject Mr. Smith’s second proposed
construction.
    ¶27 Finally, Mr. Smith reasons that if the statute cannot be
saved through either of the first two alternatives, it must be declared
unconstitutional as applied to the class of cases involving damages
for wrongful death. The United States has proposed no construction
to stave off this alternative. Accordingly, we hold that the damages
cap in section 78B-3-410 of the Malpractice Act is unconstitutional as
applied to wrongful-death cases.
   ¶28 We are generally reluctant to strike down statutory
enactments. But declaring the damages cap unconstitutional in this
narrow subset of cases is the only viable approach given the
conflicting constitutional and statutory language. The Malpractice
Act provides broad procedural safeguards for the medical




   57
        Judd v. Drezga, 2004 UT 91, ¶ 4, 103 P.3d 135.

                                   16
                         Cite as: 2015 UT 68
                        Opinion of the Court

profession that are applicable in all malpractice cases.58 The
Legislature clearly intended for these protections to apply in
wrongful-death cases. But when it inserted the damages cap in 1986,
it did not account for the constitutionally significant differences
between the operation of the cap inside and outside of the wrongful-
death context. Had the Legislature intended to abrogate the
constitutional protection for wrongful-death damages in the context
of medical malpractice, it could have sought an exception to article
XVI, section 5 as it did to accommodate the workers’ compensation
scheme some sixty years earlier. But it did not. Thus, limiting the
application of the cap to cases outside the wrongful-death context
allows the broadest operation of the legislative scheme.
    ¶29 We note that our holding is limited to those damages that
are protected by article XVI, section 5. It has no application in those
cases where the alleged medical malpractice does not result in death.
And the remaining sections of the Malpractice Act, which have not
been challenged in this case, remain in full force in wrongful-death
cases.
                           CONCLUSION
    ¶30 The United States District Court has asked us to resolve the
conflict between the prohibition of damage caps in article XVI,
section 5 of the Utah Constitution with the cap on noneconomic
damages in section 78B-3-410 of the Malpractice Act. The conflict
between these two provisions comes to a head in this case, where the
alleged medical malpractice resulted in death. We hold that the
damages cap in section 78B-3-410 of the Malpractice Act is
unconstitutional as applied to cases of wrongful death under article
XVI, section 5 of the Utah Constitution.




   58
       See, e.g., UTAH CODE § 78B-3-404 (establishing a statute of
limitations); id. § 78B-3-407(1) (prohibiting malpractice actions
“brought on the basis of the consequences resulting from the refusal
of a child’s parent or guardian to consent to the child’s health care”);
id. § 78B-3-409 (prohibiting a complaint with a specific dollar amount
of requested damages).

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