Lisa Beth ROSE et al., Petitioners, v. DOCTORS HOSPITAL et al., Respondents, 801 S.W.2d 841

OPINION ON MOTION FOR REHEARING COOK, Justice. The motions for rehearing are granted in part and overruled in part. This court’s opinion and judgment of September 6, 1990, are withdrawn, and the following is substituted in its place. In this case, we once again consider the constitutionality of the damages provisions of the Medical Liability and Insurance Improvement Act, TEX.REV.CIV.STAT.ANN. art. 4590i, §§ 11.02 and 11.03 (Vernon Supp.1991) (“Medical Liability Act”), this time in the context of a wrongful death action.

The court of appeals decided that the statutory damages limitations provisions are constitutional. 735 S.W.2d 244. We decided subsequently to the court of appeals opinion that statutory' damages limitations are unconstitutional when applied to damages in common law medical malpractice actions. Lucas v. United States, 757 S.W.2d 687, 692 (Tex.1988). Our holding in Lucas, however, did not extend to wrongful death actions. We now hold that the legislature may, through the Medical Liability Act, constitutionally curtail damages in wrongful death actions. The case also presents procedural issues.

We are asked to decide whether a remit-titur becomes fatally defective when the party filing it in the court of appeals reserves the right to complain of the standard used in arriving at the remittitur. If such a remittitur is not defective, we must consider whether, in this particular case, the court of appeals did apply the wrong standard in arriving at the remittitur. We hold that a remittitur filed in the court of appeals is unaffected by a reservation of the right to appeal the standard used in arriving at the remittitur.

We further hold that the court of appeals applied the correct standard in arriving at the remittiturs in this case. I. FACTS The convoluted history of this case is partly explained in the original opinion of the court of appeals and in our opinion on application for writ of mandamus. 735 S.W.2d 244; 750 S.W.2d 177. For purposes of this opinion, we confine ourselves to a

summary of the circumstances which brought to this court the issues we must decide today. Rex Rose was admitted to Doctors Hospital and died there the next day. His widow, Lisa Beth, and his parents, Alton and Frances, brought a wrongful death action against the hospital, contending that Rex Rose had received a fatal dose of morphine while a patient at the hospital. The jury awarded $2,825,000 to Lisa Beth Rose and $815,000 each to Alton and Frances Rose, but the trial court rendered judgment notwithstanding the verdict.

The court of appeals reversed, holding that there was some evidence that the hospital caused Rex Rose’s death. The court did, however, suggest remittiturs to reduce the damages awarded by the jury. Lisa Beth Rose’s damages were reduced in accordance with § 11.02 of the Medical Liability Act. The court suggested a remittitur reducing Alton and Frances Rose’s damages to the amount supported by the evidence. The Roses responded by filing remit-titurs within the time period prescribed by the court of appeals. However, the Roses expressly reserved the right to complain of the ruling requiring the remittiturs.

The Roses argue that the court of appeals was prohibited by the Texas Constitution and our decision in Lucas from reducing the damages awarded to Lisa Beth Rose. They also contend that the court of appeals applied an erroneous standard in reviewing the evidence to arrive at the remittitur. Doctors Hospital complains that the Roses filed a “conditional” remittitur, one which was defective because it amounted to a non-acceptance of the judgment of the court of appeals. We address each issue in turn. II.

STATUTORY VALIDITY In Lucas, the United States Court of Appeals for the Fifth Circuit asked this court to decide whether the limitation on medical malpractice damages in the Medical Liability Act is consistent with the Texas Constitution. We looked to the open courts provision of our constitution to determine whether that provision thwarted application of the damages limitations. The provision states: All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law. TEX. CONST, art. I, § 13.

We noted that, in analyzing the litigant’s right to redress under this provision, the litigant must satisfy two criteria. First, the litigant must have a cognizable common law cause of action that is being restricted. Second, the litigant must show that the restriction is unreasonable or arbitrary when balanced against the purpose and basis of the statute. Lucas, 757 S.W.2d at 690; Sax v. Votteler, 648 S.W.2d 661, 666 (Tex.1983). The court initially acknowledged that victims of medical negligence have a well-defined common law cause of action to sue for injuries. Lucas, 757 S.W.2d at 690.

The court then concluded that the statutory damages limitations provisions at issue met the second criterion, that is, they were unreasonable and arbitrary when balanced against the purpose and basis of the statute. Id. at 690-92. Having reached these conclusions, the court decided that the damages limitations provisions were unconstitutional “as applied to catastrophically-damaged malpractice victims seeking a ‘remedy by due course of law.’ ” Id. at 690.

Notwithstanding the specific application of the Lucas holding to catastrophically damaged malpractice victims, the Roses argue that the holding voids the statute in all respects and for all applications. We disagree. We note initially that Lucas was a certified question. We were authorized by TEX. CONST, art. V § 3-c and the implementing rules of appellate procedure to answer the question, which was in part “[w]hether the limitation on medical malpractice damages in TEX.REV.CIV.STAT. ANN. art. 4590i, §§ 11.02 and 11.03 (Vernon Supp.1991) is consistent with the Texas Constitution.” Lucas, 757 S.W.2d at 687.

Any response other than that necessary to answer the question authorized by the Constitution or the enabling rules would be dicta. Rule 114 makes clear that answers to certified questions are allowed only as long as “there are involved in the proceedings before the certifying court questions of law of this state which may be determinative of the cause then pending.” Tex.R. App.P. 114(a). Under that rule, we did not decide, as the Roses contend we did decide, that the limitation on wrongful death— rather than medical malpractice — damages — is inconsistent with the Texas Constitution.

To do so would have been to decide a “cause not then pending before the certifying court,” a cause involving wrongful death rather than common law medical malpractice. For further support for the proposition that the statute is not void, we turn to the statute’s severability clause. It states in part that if the application of the statute to any person or circumstance is held unconstitutional, then the effect of the invalidation shall be confined to the portion of the statute adjudged to be unconstitutional. Act of Aug. 29, 1977, ch. 817, § 41.04.

In Lucas, it was the “application” of the statute to the “circumstance” of a common law medical malpractice claim which was held to be unconstitutional. The “effect” of that holding is the inapplicability of §§ 11.-02 and 11.03 to common law medical malpractice claims. According to the sever-ability clause, this effect — and this effect only — is confined to §§ 11.02 and 11.03.

The goal of this severability clause, to retain valid portions and applications of the statute whenever possible, reflects the case law’s reminder that “[i]n the construction of statutes, if it can be lawfully done, it is the duty of the court to construe a statute so as to render it valid.” Sharber v. Florence, 131 Tex. 341, 345, 115 S.W.2d 604, 606 (1938). In Western Union Telegraph Co. v.

State, 62 Tex. 630 (1884), we acknowledged that some statutes are severa-ble while others are not and stated the test for determining when a finding of unconstitutionality of one portion of a statute invalidates the whole statute: When, therefore, a part of a statute is unconstitutional, that fact does not authorize the courts to declare the remainder void also, unless all the provisions are connected in subject-matter, dependent on each other, operating together for the same purpose, or otherwise so connected in meaning that it cannot be presumed the legislature would have passed the one without the other.

The constitutional and unconstitutional provisions may even be contained in the same section, and yet be perfectly distinct and separable, so that the first may stand though the last fall. The point is not whether they are contained in the same section, for the distribution into sections is purely artificial; but whether they are essentially and inseparably connected in substance.

If, when the unconstitutional portion is stricken out, that which remains is complete in itself, and capable of being executed in accordance with the apparent legislative intent, wholly independent of that which was rejected, it must stand. Id. at 634. When we consider the Western Union test in the context of §§ 11.02 and 11.03, we recognize the statute’s validity. These sections cover “health care liability claims.” The statutory definition of such claims expressly mentions both common law personal injury and wrongful death claims. TEX.REV.CIV.STAT.ANN. art. 4590i, § 1.03(4) (Vernon Supp.1991).

According to the Western Union test, if, when we strike the statute’s application to the common law claims, we are left with something which “remains complete in itself, and capable of being executed in accordance with the legislative intent, wholly independent of that which was rejected, it must stand.” Western Union, 62 Tex. at 634. The application of §§ 11.02 and 11.03 to wrongful death claims remains complete in itself, capable of execution in accord with the legislature’s intent, and independent of any application to common law claims. The statute, therefore, can be severed, leaving a valid law.

To reach any other conclusion would be to ignore not only the intent of the legislature and the specific holding in Lucas, but also our traditional distinction between common law personal injury and statutory wrongful death claims. We recognized this distinction in Lucas, restating the traditional rule that the open courts provision of our constitution applies only to common law claims. We relied upon this distinction to. strike application of §§ 11.02 and 11.03 to common law medical malpractice claims.

Had we faced a wrongful death claim in Lucas, we could not have reached the same conclusion, for the open courts provision does not apply to statutory claims. Can we now rely upon Lucas to do something we may not do under the law as delineated in Lucas itself, that is, declare the statute unconstitutional in the context of wrongful death claims? We think not. For this and all the other reasons discussed, we conclude that we are construing a statute which may be validly applied to all but common law claims. III.

CONSTITUTIONALITY OF STATUTORY DAMAGES PROVISIONS To determine whether the open courts provision prevents constitutional application of the Medical Liability Act in the case before us today, we are guided by the two-prong analysis in Lucas. We ask first whether the Roses’ remedy is based upon a cognizable common law cause of action. If the remedy was so grounded, then the open courts provision prevents application of the Medical Liability Act in this case. Like all actions based upon theories of negligence, the Roses’ cause of action was a common law claim.

It would have died with Rex Rose had it not been preserved by the legislature in the wrongful death statute. See TEX.CIV.PRAC. & REM.CODE ANN. § 71.001 et seq. (Vernon 1986). The Roses’ remedy, therefore, was conferred by statute, not by the common law. Because the Roses do not seek a common law remedy, the open courts provision does not apply to their wrongful death claim. Accordingly, we hold that the open courts provision may not bar the application of the damages provisions of the Medical Liability Act in wrongful death eases.

Further arguments concerning the application of the open courts provisions to statutory wrongful death actions are effectively deflected by our recent holding in Moreno v. Sterling Drug, Inc., 787 S.W.2d 348 (1990). In that decision, we followed a steady line of Texas Supreme Court decisions holding that there is no common-law cause of action for wrongful death. Id. at 366. Moreno establishes that it is the actions of the legislature itself, not the open courts provision, which modify wrongful death actions.

The Rose petitioners further argue that the Medical Liability Act’s damages provisions violate the equal protection clauses of the federal and our state constitutions. This is so, argue the Roses, because application of the statute differentiates between classes of litigants asserting common law medical malpractice claims and those asserting wrongful death claims. To prevail upon this claim the Roses must overcome the longstanding presumption in favor of

an act of the legislature. See Sax v. Vot- teler, 648 S.W.2d 661, 664 (Tex.1983). The Roses have not met this burden with regard to either the Medical Liability Act or the wrongful death statute. The United States Constitution provides that no state shall deny any person within its jurisdiction the equal protection of the laws. U.S. CONST, amend XIV, § 1. Our state constitution provides that all free men have equal rights. TEX. CONST, art. I, § 3. Texas cases echo federal standards when determining whether a statute violates equal protection under either provision. See, e.g., Spring Branch I.S.D. v.

Stamos, 695 S.W.2d 556, 559-60 (Tex.1985). Those standards dictate that, when the classification created by a state statute does not infringe upon fundamental rights or does not burden an inherently suspect class, equal protection requires only that the statutory classification be rationally related to a legitimate state interest. Id. at 559. No fundamental rights or suspect classes are involved in this case. Equal protection requires, therefore, that the Wrongful Death Statute and the Medical Liability Act merely be rationally related to a legitimate state interest.

The wrongful death statute confers a cause of action only upon the surviving spouse, children, and parents of the deceased. TEX.CIV.PRAC. & REM.CODE ANN. § 71.004 (Vernon 1986). The restriction on class of beneficiaries reflects the state’s interest in ensuring compensation for only those persons who normally have had the closest relationship to the deceased and who suffer the most from his death. See Castillo v. Hidalgo County Water Dist. No. 1, 771 S.W.2d 633, 635 (Tex.App.—Corpus Christi 1989, no writ). The restrictive terms of the statute, therefore, relate rationally to an interest of the state.

Equal protection is not violated. The Medical Liability Act delineates the interests of the state in a list of purposes found at the beginning of the statute. TEX.REV.CIV.STAT. art. 4590i, § 1.02(b) (Vernon Supp.1991). These purposes include the reduction of excessive severity of health care liability claims, decreasing the cost of those claims, making insurance at reasonably affordable rates available to health care providers, and making affordable health care more accessible and available to the public. Id.

The method by which the legislature chose to effect those purposes is outlined in §§ 11.02 and 11.03, the damages provisions. The damages provisions rationally relate to the interests of the state as stated in the statute’s list of purposes. The statute, therefore, does not violate equal protection. IV. DAMAGES CALCULATION Each party suggests a different method for calculation of damages in a wrongful death damages cap case. We hold that the amount of damages under § 11.02 is to be calculated on a “per defendant” basis. The damages cap provision of

article 4590i provides: In an action on a health care liability claim where final judgment is rendered against a physician or health care provider, the limit of civil liability for damages of the physician or health care provider shall be limited to an amount not to exceed $500,000. Tex.Rev.Civ.Stat.Ann. art. 4590i § 11.02(a) (Vernon Supp.1991). This court indicated in Baptist Hospital of Southeast Texas, Inc. v. Baber, 714 S.W.2d 310 (Tex.1986), that the damages cap provision is to be applied on a “per defendant” basis.

In Baber, we stated that the court of appeals need not have decided the case on constitutional grounds since the judgment in the case did not exceed “the combined statutory liability of both defendants.” Id. The judgment in that case was $1.3 million for Mrs. Baber and other wrongful death and survival statute claimants against Baptist Hospital and Dr. Campbell jointly and severally. The damages cap amount, as adjusted under

article 4590i § 11.04, was $804,419. The judgment in the case did not exceed $804,-419 multiplied by two — the number of culpable defendants in the case. It is clear that the damages cap amounts should be calculated on a “per defendant” basis because the language of § 11.02(

a) clearly applies to the recovery against the individual defendant, not the award to the individual plaintiff. Plaintiffs who recover against more than one defendant may therefore obtain a judgment in excess of the cap, so long as the combined statutory liability of all defendants is not exceeded. Thus, the amount of damages in this case is the damages cap of $500,000, plus a consumer price index adjustment to the present (see Tex.Rev.Civ.Stat.Ann. art. 4590i § 11.04), multiplied by two since there are two culpable defendants in this case. Judgment is hereby rendered accordingly. V.

REMITTITURS The remittitur dispute in this case highlights opposing perceptions of the nature and purpose of remittiturs. Doctors Hospital argues that a remittitur is a “take-it-or-leave-it” offer, one which allows a party no options other than straightforward acceptance or rejection. Once a party accepts the remittitur, he consents to the judgment and may not reserve a right to complain of it later.

Doctors Hospital’s position is that any response to a remittitur other than outright acceptance, including reservation of the right to appeal the remittitur, makes the remittitur conditional and constitutes rejection of the judgment. Under these circumstances, argues Doctors Hospital, a court of appeals has no choice but to remand for a new trial. The Roses argue that a party may file a remittitur in the court of appeals but expressly reserve the right to complain of it on motion for rehearing and in application for writ of error to this court. The Roses not only reserved but exercised that right in this case.

They argue that Doctors Hospital’s rigid notion of the options available to a remitting party would deprive a litigant of his right to appeal and deprive this court of jurisdiction to decide on appeal certain issues which have traditionally come within the power of this court to address. Critical to the Rose position is the assumption that a party complaining of a court of appeals’ suggestion of remittitur has the right to appeal the imposition of the remittitur, irrespective of whether he reserves rights in the remittitur.

If a party does not have that right, then a reservation of the right to appeal is meaningless. Only if the party has the right to appeal a remittitur can the question arise whether a reservation of rights contained within the remittitur filing itself destroys the right to appeal. Rule 85(

c) of the Texas Rules of Appellate Procedure addresses the function of remittiturs on appeal. The rule provides that, if a court of appeals believes that a trial court should have suggested a remit-titur, the court of appeals may suggest one. Texas case law instructs that the standard of review is one of factual sufficiency. Larson v. Cactus Util. Co., 730 S.W.2d 640, 641 (Tex.1987). If the remitting party files the remittitur, then judgment is reformed and affirmed in accordance with the remittitur. If the party declines to file the remittitur, then judgment is reversed. Tex.R.App.P. 85(c). Rule 85(

c) does not contain restrictions upon the remitting party’s right to appeal. We find no Texas authorities to support the contention that the right to appeal the court of appeals’ final judgment, whether a reversal or a reformation and affirmation, is in any way affected by the terms of Rule 85(c). On the contrary, this court is unquestionably empowered to review judgments resulting from the imposition of Rule 85(

c) because those judgments are predicated upon the court of appeals’ conclusion that the evidence is insufficient to sustain the trial court’s judgment. Larson, 730 S.W.2d at 641. Like all legal and factual sufficiency determinations, the standards used in arriving at suggestions of remittitur are subject to examination by this court and may form the basis of a party’s appeal. See Herbert v. Herbert, 754 S.W.2d 141, 144 (Tex.1988), citing Pool v. Ford Motor Co., 715 S.W.2d 629, 634-35 (Tex.1986).

We now turn to the question whether the reservation of a right to appeal contained within the remittitur destroys the right to appeal. We believe that a litigant’s right to appeal and the obligations of this court to review a remittitur suggestion outweigh any confusion that may be caused by the remitting party’s reservation of rights. The party including such a reservation has stated nothing more than the obvious, that is, that he has a right to appeal the judgment.

As long as the remitting party makes it clear to the court of appeals that he is accepting the suggestion of remittitur and the consequent reformation of the judgment, additional language reserving the right to appeal amounts to mere surplusage. Accordingly, we hold that a reservation of the right to appeal contained in an otherwise valid remittitur does not amount to a rejection of the remit-titur. Our final inquiry focuses on the standard used by the court of appeals in this case to arrive at the remittitur. As we have stated, the standard is factual sufficiency. Larson, 730 S.W.2d at 641.

To enable this court to determine whether the standard has been properly applied, the court of appeals is obligated to detail and analyze the evidence. See Pool, 715 S.W.2d at 633-35 (Tex.1986). In this case, the court of appeals has dutifully accomplished the task of analyzing the evidence. We are thus able to conclude that the court of appeals applied the proper standard in arriving at the remittitur. In conclusion, we hold that the damages provisions of the Medical Liability Act are constitutional when applied to wrongful death actions.

We hold that damages under the damages cap provisions are to be calculated on a “per defendant” basis. And finally, we hold that a reservation of rights in a remittitur filed in a court of appeals does not deprive a remitting party of the right to appeal. The judgment of the court of appeals is reversed insofar as it remands for a new trial and affirmed in all other respects. Judgment is rendered for the Roses in accordance with this opinion. PHILLIPS, C.J., and DOGGETT, J., dissent joined by RAY and MAUZY, JJ. .

The court of appeals reversed the trial court's judgment notwithstanding the verdict and rendered judgment for the Roses subject to suggested remittiturs. The Roses filed remittiturs in the amounts suggested by the court, but they reserved the right to complain of having been erroneously required to do so. Doctors Hospital then filed a motion for rehearing complaining of the court of appeals' reversal and rendition; the hospital claimed the court of appeals should have remanded for a new trial since the remittiturs had been conditionally filed.

The court of appeals agreed, and wrote an unpublished opinion which remanded the cause for a new trial. The Roses and the hospital filed applications for writ of error complaining of all opinions written by the court of appeals. Our opinion in this case addresses the issues in all court of appeals opinions. . We do not address the applicability of this damages calculation to the comparative negligence situation. This case does not involve a situation in which any defendant is less than completely liable.