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

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 MALPRACTICE 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

(West2015);IND.CODE ANN. § 34-18-14-3 (West 2015); LA.REV.STAT.

ANN. § 40:1299.42 (2014); NEB.REV.STAT.ANN.§44-2825(West2015);

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.

2

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.
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Opinion of the Court

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.

3

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
SMITH v. UNITED STATES

Opinion of the Court

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...)

4

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
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Opinion of the Court

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 abrogating 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

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
SMITH v. UNITED STATES

Opinion of the Court

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

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 wrongfuldeath 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
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Opinion of the Court

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

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 wrongfuldeath 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
SMITH v. UNITED STATES

Opinion of the Court

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.

8

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
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Opinion of the Court

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

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
SMITH v. UNITED STATES

Opinion of the Court

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 omitted)).

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.

10

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
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Opinion of the Court

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 Immunity 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 Governmental Immunity Act did not violate article XVI, section 5 because

(continued...)

11

wrongful death. Accordingly, article XVI, section 5 protects recovery

of economic damages—compensation for the loss of the reasonablyanticipated 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
SMITH v. UNITED STATES

Opinion of the Court

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.

12

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
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Opinion of the Court

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) (“Conceptually, 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

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.
SMITH v. UNITED STATES

Opinion of the Court

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.

14

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
Cite as: 2015 UT 68

Opinion of the Court

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

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
SMITH v. UNITED STATES

Opinion of the Court

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

16

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
Cite as: 2015 UT 68

Opinion of the Court

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).

17

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 wrongfuldeath 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.