BIRD, C. J. I strongly dissent.
Unlike other sections of the Medical Injury Compensation Reform Act (MICRA) which have been upheld by this court, section 6146 of the Business and Professions Code (hereafter section 6146) implicates the fairness of the judicial process itself. (Compare American Bank & Trust Co. v. Community Hospital (1984) 36 Cal.3d 359 [204 Cal.Rptr. 671, 683 P.2d 670] [upholding periodic payment provision]; Barme v. Wood (1984) 37 Cal.3d 174 [207 Cal.Rptr. 816, 689 P.2d 446] [upholding elimination of collateral source subrogation rights].) In effect, section 6146 prohibits severely injured victims of medical negligence from paying the general market rate for legal services, while permitting defendants to pay whatever is necessary to obtain high quality representation.
Out of practical necessity, virtually all plaintiffs use contingent fee arrangements in medical malpractice cases. (See Reder, Contingent Fees in Litigation with Special Reference to Medical Malpractice, in The Economics of Medical Malpractice (Rottenberg edit. 1978) p. 224 [hereafter Contingent Fees]', see also U.S. Dept. of Health, Ed. & Welf., Rep. of Secretary’s Com. on Medical Malpractice (1973) p. 32 [hereafter HEW Report].) In fact, for clients of limited means “the contingent fee arrangement offers the only realistic hope of establishing a legal claim.” (Fracasse v. Brent (1972) 6 Cal.3d 784, 792 [100 Cal.Rptr. 385, 494 P.2d 9]; see also Aronson, Attorney-Client Fee Arrangements: Regulation and Review (1982) 68 A.B.A.J. 284, 286; Contingent Fees, supra, at p. 231; Schwartz & Mitchell, An Economic Analysis of the Contingent Fee in Personal-Injury Litigation (1970) 22 Stan.L.Rev. 1125, 1125-1126; Ranii, ABA Report Suggests Changes in Tort System, National Law J. (Dec. 24, 1984) p. 6, col. 1; ABA Agenda: Shepard Outlines His Goals, 70 A.B.A.J. (Oct. 1984) p. 38 [“The contingent fee truly is the key to the courthouse for many, many of our citizens.”].)
Section 6146 imposes heavy burdens on the ability of severely injured plaintiffs to obtain adequate legal representation. It sets forth a sliding scale of fee limits—the greater the recovery, the lower the allowable percentage. The effect of this approach is to impose drastically low limits on fees in precisely those cases which require a large recovery to make the plaintiff economically whole. For, example, in a case involving a $1 million recovery, the allowable rate would be about 15 percent, less than half of the 33 Vs [935]percent rate that is generally available outside the medical malpractice field. (See generally, HEW Report, supra, at p. 32; see also Cal. Auditor General, The Medical Malpractice Insurance Crisis in California (1975) p. 27 [hereafter Report of the Auditor General].)
Other provisions of MICRA interact with section 6146 to further discourage attorneys from representing severely injured plaintiffs. The collateral source provision (Civ. Code, § 3333.1, subd. (a)) can substantially reduce the damage award, and thus the contingent fee, without decreasing the attorney’s workload.1 The periodic payment provision (Code Civ. Proc., § 667.7) may have the same effect and, in addition, could delay the attorney’s compensation for years.2 Further, the $250,000 limit on noneconomic damages (Civ. Code, § 3333.2) sharply reduces the recovery without relieving the attorney of the most difficult aspects of the malpractice action-proving negligence and causation.3
Since section 6146 affects only medical malpractice cases, attorneys may avoid these problems by refusing to represent medical malpractice victims. Only those lawyers not sufficiently competent or well-established to attract unrestricted business have any financial incentive to represent a severely injured medical malpractice victim. (See Contingent Fees, supra, at p. 219.)4
Section 6146 hampers a victim’s ability to obtain high quality legal representation precisely in those cases where such representation is most essential. Defendants can be expected to concentrate their legal resources on [936]the potential high recovery cases. The statute prohibits plaintiffs from responding in kind. Hence, the legal contest becomes a lopsided mismatch with tort victims on the losing end.
This problem is aggravated by the fact that medical malpractice plaintiffs are even more in need of high quality legal representation than other personal injury plaintiffs. Even MICRA’s principal sponsor has acknowledged that “a malpractice case is extremely difficult to prove, demands a great deal of research into causal factors and exhausts a tremendous amount of time on the part of the attorney.” (Keene, California’s Medical Malpractice Crisis, in A Legislator’s Guide to the Medical Malpractice Issue (Warren & Merritt edits. 1976) pp. 29-30 [hereafter California’s Medical Malpractice Crisis].)
Further, the risk of a zero recovery is high, and the fees collected in successful cases must also compensate the attorney for his or her work on the unsuccessful ones. (See, e.g., Auditor General’s Report, supra, at p. 28 [50 percent of medical malpractice cases are disposed of with no recovery]; Contingent Fees, supra, at p. 227 [of the malpractice claims that go to trial, 60 percent obtain zero gross recovery].)5
Plaintiffs advance three constitutional arguments. They argue that section 6146: (1) infringes on their right to petition the government for redress of grievances and discriminates between litigants according to the content of the views they seek to present to the courts; (2) violates due process by infringing on the right of malpractice victims to retain counsel and by exacerbating the conflict of interest between an attorney and client; and (3) violates equal protection by arbitrarily applying attorney fee limitations only in medical malpractice cases, only to the plaintiffs in those cases, and in a manner particularly burdensome to severely injured malpractice victims with limited means.
I.
Plaintiffs urge that the fee limits imposed by section 6146 infringe on their constitutional right to petition the government for redress of griev[937]anees. They contend that their ability to obtain competent legal representation, which is essential for the effective prosecution of a medical malpractice complaint, is heavily burdened. Further, they suggest that selective imposition of restrictions on “person[s] seeking damages” for injuries due to medical malpractice (§ 6146, italics added) impermissibly discriminates among litigants according to the content of the views they wish to present to the courts. Only plaintiffs are prohibited from hiring attorneys at the market rate, while defendants are free to pay any amount—by contingent fee or otherwise—which may be necessary to obtain quality representation.6
The right of petition is protected by the 1st and 14th Amendments to the United States Constitution and article I, section 3 of the California Constitution. It encompasses the right of access to the courts for the resolution of civil disputes between private parties. (See, e.g., California Transport v. Trucking Unlimited (1972) 404 U.S. 508, 510-511 [30 L.Ed.2d 642, 646, 92 S.Ct. 609]; United Transportation Union v. Michigan Bar (1971) 401 U.S. 576, 578-579 [28 L.Ed.2d 339, 343, 91 S.Ct. 1076]; City of Long Beach v. Bozek (1982) 31 Cal.3d 527, 532-534 [183 Cal.Rptr. 86, 645 P.2d 137], vacated [on other grounds] (1983) 459 U.S. 1095 [74 L.Ed.2d 943, 103 S.Ct. 712], opn. reiterated on remand (1983) 33 Cal.3d 727 [190 Cal.Rptr. 918, 661 P.2d 1072].)
Litigants are entitled to petition the courts not only to advocate changes in public policy, but also to obtain monetary compensation. (See, e.g., Mine Workers v. Illinois Bar Assn. (1967) 389 U.S. 217, 223 [19 L.Ed.2d 426, 431, 88 S.Ct. 353]; Railroad Trainmen v. Virginia Bar (1964) 377 U.S. 1, 8 [12 L.Ed.2d 89, 94, 84 S.Ct. 1113, 11 A.L.R.3d 1196]; City of Long Beach v. Bozek, supra, 31 Cal.3d at p. 534; Payne v. Superior Court (1976) 17 Cal.3d 908, 914 [132 Cal.Rptr. 405, 553 P.2d 565].)
As a general matter, the Legislature may regulate commercial activities. (See, e.g., Williamson v. Lee Optical Co. (1955) 348 U.S. 483, 488 [99 L.Ed. 563, 572, 75 S.Ct. 461]; United States Steel Corp. v. Public Utilities [938]Com. (1981) 29 Cal.3d 603, 613 [175 Cal.Rptr. 169, 629 P.2d 1381].) However, economic activity that is essential to the effective exercise of a First Amendment right may be restricted only where necessary to serve a compelling governmental interest. For example, in Buckley v. Valeo (1976) 424 U.S. 1, 51-54 [46 L.Ed.2d 659, 706-708, 96 S.Ct. 612], the Supreme Court struck down a statutory limit on the amount a political candidate could spend on his campaign. The First Amendment was implicated because political advocacy required the expenditure of funds to pay for the use of the electronic media. (Id., at pp. 35-39 [46 L.Ed.2d at pp. 696-699]; see also Citizens Against Rent Control v. Berkeley (1981) 454 U.S. 290, 296, fn. 5 [70 L.Ed.2d 492, 499, 102 S.Ct. 434].) Here, in the judicial context, the expenditure of money for attorney fees is no less essential to the exercise of First Amendment rights.
In what appears to be the only reported decision that directly addresses a First Amendment challenge, a federal district court issued a preliminary injunction barring the enforcement of a limit on attorney fees in cases where veterans seek death and disability benefits. (See National Ass ’n of Radiation Survivors v. Walters (N.D.Cal. 1984) 589 F.Supp. 1302, 1323-1327, 1329, Walters v. National Assoc, of Rad. Survivors (1984) — U.S. — [83 L.Ed.2d 698, 105 S.Ct. 588] [prob. jurisdiction noted], — U.S. — [82 L.Ed.2d 908, 105 S.Ct. 11] [stay granted by Rehnquist, J.], — U.S. — [83 L.Ed.2d 178, 105 S.Ct. 238] [request to vacate stay denied by court] [hereafter Walters].)7
The Walters opinion warrants extensive quotation. “While the Supreme Court has never directly addressed the question presented here, its cases establish the principle that the First Amendment rights to petition, association and speech protect efforts by organizations and individuals to obtain effective legal representation of their constituents or themselves. In particular, it has held that the First Amendment rights of petition, speech, and association protect union members’ efforts to, through their union, advise injured workers to obtain legal advice and to recommend specific lawyers [citation]; a union’s employment of a salaried attorney to represent its members in workers’ compensation litigation [citation]; and to employ counsel to represent members, to furnish names of injured members to attorneys, and to accept compensation for soliciting clients for counsel [citations] .... The Court has explicitly declared that the principle underlying this series of cases should be applied broadly to protect First Amendment rights: [939][S] ‘. . . . The common thread running through our decisions ... is that collective activity undertaken to obtain meaningful access to the courts is a fundamental right within the protection of the First Amendment. However, that right would be a hollow promise if courts could deny associations of workers or others the means of enabling their members to meet the costs of legal representation.’ United Transportation Union, [supra,] 401 U.S. at 585-86, 91 S.Ct. at 1082-83. [1] It is evident that the First Amendment protects individuals ’ rights to obtain the adequate legal representation necessary to ensure their rights of petition, access to the courts, and association, just as it protects organizations ’ rights to such representation. As the Supreme Court made clear in Bates v. State Bar of Arizona, 433 U.S. 350, 376, 97 S.Ct. 2691, 2705 n. 32, 53 L.Ed.2d 810 n. 32 (1977) the principle underlying the NAACP and union solicitation cases extends to individual efforts to obtain legal assistance. The Court was protecting the organization’s [sic] efforts because the organizations were working on behalf of their members: [1] ‘Underlying [these cases] was the Court’s concern that the aggrieved receive information regarding their legal rights and the means of effectuating them. This concern applies with at least as much force to aggrieved individuals as it does to groups.’ 433 U.S. at 376 n. 32, 97 S.Ct. at 2705 n. 32. ...” (Walters, supra, 589 F.Supp. at pp. 1324-1325, italics added.)
Compare the principal cases relied upon by the majority. They were all decided before 1930. (See maj. opn., ante, at pp. 926-927.) None addressed the right to petition.8 This omission is not surprising considering that, as one commentator has argued, the First Amendment was largely forgotten at that time. (See Rabban, The First Amendment in its Forgotten Years (1981) 90 Yale L.J. 514, 521 & fn. 21.)
By contrast, the cases relied upon by plaintiffs were all decided after the United States Supreme Court had taken on the task of interpreting and enforcing the guarantees of free speech and petition. (See, e.g., cases cited ante, at pp. 926-927.) Judge Patel’s opinion in Walters, supra, 589 F.Supp. 1302, carefully analyzed this body of First Amendment jurisprudence and concluded that an attorney fee limit infringed on the right of petition. I believe her conclusion is sound.
[940]Since representation by counsel is essential to the effective exercise of an individual’s First Amendment rights to petition and to access, the right to obtain counsel can only be restricted where necessary to achieve a compelling state interest.
The attorney-fee limitation should be subjected to particularly vigorous scrutiny since it also runs afoul of the constitutional ban on content discrimination. In regulating the exercise of First Amendment rights, the government may not pick and choose what views may be heard. (See Police Department of Chicago v. Mosley (1972) 408 U.S. 92, 95-96 [33 L.Ed.2d 212, 216-217, 92 S.Ct. 2286]; Environmental Planning & Information Council v. Superior Court (1984) 36 Cal.3d 188, 197 [203 Cal.Rptr. 127, 680 P.2d 1086].)
Section 6146 facially discriminates against persons desiring to prove medical negligence. It restricts only the fees that may be paid by “any person seeking damages in connection with an action for injury or damage against a health care provider based upon such person’s alleged professional negligence . . . .” (Italics added.) It leaves intact a defendant’s right to pay fees—contingent or otherwise—of any amount consistent with general law.9
Two justifications are advanced in support of section 6146. The first is that the limits are necessary to ensure that plaintiffs receive a greater percentage of the recovery. The second is that the statute serves the overall purpose of MICRA—the preservation of medical malpractice insurance. Neither of these justifications withstands strict scrutiny.
[941]Allowing plaintiffs to retain a greater percentage of their recovery is a legitimate interest. However, it is not a compelling one. As explained by the court in Walters, such a paternalistic argument is disfavored in the context of the First Amendment. (See Walters, supra, 589 F.Supp. at p. 1327.) It is entirely inappropriate for the state to “protect” an individual by suppressing his or her exercise of a First Amendment right.
Moreover, section 6146 is not necessary to protect a plaintiff’s recovery. Section 6146 will often operate to force the early settlement of meritorious claims, resulting in a reduction in a plaintiff’s recovery in many cases. (See post, at pp. 944-946.) Curiously, in cases involving serious injuries with potentially large recoveries, attorneys may be discouraged from taking meritorious cases to trial even though to do so might significantly increase the plaintiff’s recovery. In cases involving smaller potential recoveries, section 6146 may actually increase the attorney’s contingent fee since the fee schedule set out in section 6146 can be expected “to provide a floor, as well as a ceiling, on the percentage rate charged.” (Comment, Of Ethics and Economics: Contingent Percentage Fees for Legal Services (1983) 16 Akron L.Rev. 747, 755 [hereafter Ethics and Economics].)
It is also argued that section 6146 serves MICRA’s overall purpose of preserving medical malpractice insurance. In this view, limits on contingent fees will reduce the amount of damages that insurers are required to pay. Assuming arguendo that the preservation of medical malpractice premiums is a compelling state interest, the attorney fee limits are by no means necessary to serve that interest.
Section 6146 will provide little, if any, relief to insurers. Since attorney fees are paid out of the plaintiff’s recovery, fee limitations merely reapportion the award between the plaintiff and his or her attorney. Juries are prohibited from considering attorney fees in making damage awards. (Bauguess v. Paine (1978) 22 Cal.3d 626, 634 [150 Cal.Rptr. 461, 586 P.2d 942].) The available evidence indicates that this prohibition is effective. (See California’s MICRA, supra, at p. 943, and sources cited therein.)
Section 6146 can provide relief to defendants and their insurers only by forcing plaintiffs to settle claims for amounts far below their actual value and/or by reducing the number of claims filed. Indeed, at the time that MICRA was enacted, the Auditor General pointed out that “[u]nless the amount of medical malpractice settlements continuéis] to increase in the future there will be little if any effect on medical malpractice rates as a result of limitations imposed on attorney contingency fees.” (Report of the Auditor General, supra, at p. 30, italics added.) Indeed, because section 6146 provides defense attorneys with an incentive to run up costs in cases [942]with potentially large recoveries (see post, p. 947), section 6146 may be expected to increase malpractice premiums.
Section 6146 significantly infringes on plaintiff’s First Amendment right to petition and does so based on the content of a plaintiff’s claim. Therefore, it must be shown to be necessary to achieve a compelling state interest. Defendant has not met this burden. Accordingly, section 6146 is invalid.
II.
Next, plaintiffs contend that section 6146 violates plaintiffs’ right to due process of law. “The due process clauses, federal and state, are the most basic substantive checks on government’s power to act unfairly or oppressively.” (Hale v. Morgan (1978) 22 Cal.3d 388, 398 [149 Cal.Rptr. 375, 584 P.2d 512].) Due process requires that legislation be “reasonable and proper,” not “arbitrary and oppressive.” (Id., at p. 399.) The limits imposed by section 6146 must be rationally related to the Legislature’s purposes in enacting the statute.
The majority conclude that limiting the compensation that plaintiffs’ attorney may receive does not violate due process because it “does not in any way abrogate the right to retain counsel.” (Maj. opn., ante, at p. 926.) However, section 6146 does significantly interfere with the right of certain victims of medical malpractice to retain counsel. (Ante, at pp. 934-938.) Further, it exacerbates the conflict of interest between plaintiffs and their attorneys inherent in the contingent fee arrangement.
In support of their holding, the majority cite a number of existing attorney-fee limits which have withstood legal challenge. (Maj. opn., ante, at p. 926.) However, these limits can in no way be compared to the severe limits imposed by section 6146.
First, the majority note that attorney fees are legislatively regulated in California in both worker compensation proceedings and in probate matters. As one commentator has noted, these schemes are easily distinguishable from section 6146. (California’s MICRA, supra, at p. 945.) Under the Workers’ Compensation Act, injured parties do not have to prove negligence. (Lab. Code, § 3600.) Hence, the attorney faces far less risk of a zero recovery. Moreover, the statute provides for “[a] reasonable attorney’s fee,” which allows a judge the flexibility to fix a fee which takes into consideration the complexity of the case and the time and effort of the attorney. (Lab. Code, § 4903.) Under the Probate Code, an attorney is compensated for the actual work done for the estate. (Prob. Code, §§ 900, 910, 911.) The only way an attorney could fail to receive compensation is [943]if he or she does no work. The Probate Code also allows a judge to recognize an attorney’s extraordinary services by an award of fees. (Prob. Code, § 910, subd. (a).) In short, fee restrictions in the workers compensation and probate contexts are not likely to discourage attorneys from working in those fields, since the legal work is relatively simple, the risks are low and compensation is available which is commensurate to the services performed.
Contrast this situation with that of the plaintiff’s attorney in a malpractice action with a contingent fee arrangement. The attorney will receive no compensation unless there is a recovery in the case. One study indicates that over 400 attorney hours are spent on the average malpractice case which results in a “zero recovery” after trial. (Contingent Fees, supra, at p. 218, fn. 22.) Faced with the combined effect of the fee limitation and other MICRA provisions (e.g., the collateral source provisions (§ 3333.1), the $250,000 ceiling on noneconomic damages (Civ. Code, § 3333.2), and the periodic installment provision (Code Civ. Proc., § 667.7), many attorneys can be expected to cease to represent malpractice victims with valid claims. As a result, the most severely injured clients may be unable to secure representation, especially if their cases involve complex or difficult factual issues, problems of proof, or expensive expert testimony.
The majority stress that in some states (e.g., New Jersey and New York) limits on the contingent fees available to attorneys in all personal injury action have been upheld. (Maj. opn., ante, at p. 926.) However, rather than lending support to the majority’s position, reference to the New Jersey and New York schemes highlights two of the most pernicious aspects of section 6146.
First, section 6146 singles out and imposes a burden on only one narrow subclass of personal injury victims. Attorneys may still find ample unrestricted work elsewhere. When the risks and cost associated with general personal injury work are not as great as for medical malpractice, and the potential compensation is much greater, common sense tells us that attorneys will abandon the medical malpractice field. By contrast, the New Jersey and New York schemes restrict broad fields of practice, leaving attorneys little room for escape. (See, e.g., American Trial Lawyers Ass’n v. New Jersey S. Ct., (1974) 66 N.J. 258 [330 A.2d 350, 351, fn. 3] [all tort actions other than subrogation claims]; Gair v. Peck (1959) 6 N.Y.2d 97 [188 N.Y.S.2d 491, 160 N.E.2d 43, 45, fn. 1, 77 A.L.R.2d 390] [all personal injury and wrongful death actions].)10
[944]Second, unlike the New Jersey and New York schemes, section 6146 has no provision for higher fees in exceptionally difficult cases. Section 6146 would prohibit a plaintiff from exceeding the limits even where the difficulty of his or her case is so great that a lawyer could not be retained at the specified máximums. (Compare American Trial Lawyers Ass’n v. New Jersey S. Ct., supra, 316 A.2d 19, 28 [upholding contingent fee limits in part because exceptions are permitted in special circumstances]; Gair v. Peck, supra, 160 N.E.2d at p. 53 [same].)
Similarly, the attorney fee limits imposed for actions brought under the Federal Tort Claims Act are distinguishable from the limits imposed by section 6146. The Federal Tort Claims Act applies only to claims against the government. Because of federal concepts of sovereign immunity, the government has been free to prohibit any tort claims against itself. While such claims are now allowed, some limitations on those claims have been justified as reasonable exercises of the police power. By contrast, section 6146 operates to limit the right of individuals to contract for representation in actions between private parties. The limitations cannot be justified by references to “protecting] the Treasury from frauds and imposition.” (Maj. opn., ante, atp. 926, quoting Calhoun v. Massie, supra, 253 U.S. at p. 173 [64 L.Ed. at p. 843].) Instead, section 6146 directly interferes with the judicial process by imposing an unfair disadvantage on one party in a legal dispute.
Section 6146 violates due process because it is not sufficiently related to the purposes it was enacted to achieve. Instead of protecting plaintiffs’ recoveries, it operates to reduce them. Instead of reducing the number of frivolous claims, it restricts the number of meritorious claims by limiting medical malpractice victims’ access to adequate representation.
Simple calculations indicate that section 6146 will often operate to discourage litigation in a manner which results in a reduction rather than an increase in a plaintiff’s recovery. An example serves to illustrate the point. This example assumes a medical malpractice case which would result in a $250,000 verdict after trial.
[945]Studies indicate that plaintiffs who settle before trial receive approximately 75 percent of their potential verdict. (Danzon & Lillard, Settlement Out of Court: The Disposition of Medical Malpractice Claims (1983) 12 J. Legal Stud. 345, 375.) Plaintiffs and amici note that, prior to MICRA, most plaintiff attorneys employed contingent fee agreements in which the attorney received a greater percentage of the recovery if the case proceeded to trial than if it settled before trial—typically 25 percent to 33 percent if the case settled and 40 percent or more if the case went to trial.11
Prior to the enactment of section 6146, the $250,000 hypothetical case which went to trial would yield approximately $150,000 for the plaintiff and $100,000 for the plaintiff’s attorney, assuming that the attorney received a 40 percent contingent fee. If the same case had settled prior to trial for 75 percent of its value or $187,500, the plaintiff would have received approximately $125,062 and the plaintiff’s attorney $62,437, assuming a 33VS percent contingent fee. Since the increase in compensation for the attorney might be over $37,000, the plaintiff’s attorney obviously had a strong incentive prior to MICRA to ensure that the victim was more fully compensated for his or her injury.
Under section 6146 a $250,000 verdict would yield $183,350 to the plaintiff and $66,650 to the plaintiff’s attorney, assuming the attorney received the maximum fee permitted by section 6146.12 If the case settled prior to trial for 75 percent of its value or $187,500, plaintiff’s attorney might charge according to the guidelines of section 6146 rather than his or her former fee schedule to avoid the loss of income caused by MICRA. Under this scenario, plaintiff would receive $128,975 and his attorney $58,525. (See Note, Ethics and Economics, supra, 16 Akron L.Rev. at p. 755 [“While [maximum fees schedules] are intended to eliminate the disproportionate fee an attorney might take from large recoveries, in practice they tend to provide a floor, as well as a ceiling, on the percentage rate charged”].)
Hence, after MICRA, if the case settles before trial, the attorney’s compensation is not significantly less than if the case had gone to trial. However, the plaintiff’s recovery is reduced by almost $55,000. The plaintiff in a malpractice case which settles before trial may recover little more than half [946]his or her actual damages—a smaller percentage and less in absolute terms than would have been received prior to the enactment of section 6146.
This illustration demonstrates how section 6146 exacerbates the conflict of interest between plaintiffs and their attorneys in contingent fee arrangements. (See maj. opn., ante, at pp. 928-929.) After MICRA, although a plaintiff might significantly increase his or her recovery by going to trial, the marginal increase in attorney fees might not cover the expenses involved in producing expert witnesses, marshalling exhibits, and conducting the trial itself. The pressure on a plaintiff’s attorney to settle a meritorious case before trial is overwhelming.
Thus, section 6146 will produce a greater number of settlements with lower recoveries. However, it will do so at a heavy price both to the injured plaintiff and his or her relationship with the attorney. Rather than helping the malpractice victim as the majority contend, section 6146 will often result in a smaller recovery for the plaintiff and a significant ethical dilemma for the attorney. “Limits on contingent fees decrease settlement size, increase the likelihood that a case is dropped, and decrease the likelihood of litigation to verdict. . . . [F]ee constraints will limit expenditure on litigation at the cost of reduced compensation to plaintiffs.” (Danzon & Lillard, Settlement Out of Court: The Disposition of Medical Malpractice Claims, supra, 12 J. Legal Stud, at p. 375.) These results are exactly contrary to those forecast by the majority.13
[947]As for reducing the number of claims filed, it appears that health care providers believed prior to MICRA that the use of contingent fee arrangements in medical malpractice cases encouraged the filing of claims which would otherwise not have been made. (See Rottenberg, Introduction, in The Economics of Medical Malpractice, supra, p. 7; Comment, Recent Medical Malpractice Legislation—A First Checkup (1976) 50 Tulane L.Rev. 655, at p. 670.)
In at least one respect, the health care providers were probably right. “[Contingent fees have indeed ‘contributed’ to the recent [medical malpractice] crisis to one limited, but very important extent; i. e., they have opened the courthouse door for those who could not otherwise afford an attorney.” (Aitken, Medical Malpractice: The Alleged “Crisis” in Perspective (1975) 3 Western St.U.L.Rev. 27, 36.)
While discouraging frivolous and meritless suits is a legitimate state interest, there is no evidence that the number of frivolous claims in the medical malpractice field is high, or that such claims contribute to the cost of medical malpractice premiums. On the contrary, the difficulty in proving medical malpractice and the high risk of zero recovery make attorneys very selective about the cases they are willing to pursue. (See Comment, Recent Medical Malpractice Legislation—A First Checkup, supra, 50 Tulane L.Rev. at p. 671; Rottenberg, Introduction, in The Economics of Medical Malpractice, supra, at pp. 7-8; Propensity to Litigate, supra, at pp. 194-197.) Even insurers have acknowledged that attorneys reject the vast majority of malpractice claims they see. (See, e.g., Criteria Lawyers Use in Accepting or Rejecting Medical Malpractice Cases, Malpractice Digest [published by St. Paul Fire and Marine Insurance Company for its medical liability insurance policyholders], (Sept/Oct 1978) at p. 2; see generally Propensity to Litigate, supra, at p. 194.)
The absence of any evidence that prior to the enactment of MICRA there was an inordinate number of frivolous medical malpractice claims filed strongly suggests that section 6146 actually operates to discourage the filing of meritorious claims. The attempt to reduce malpractice premiums by reducing the number of meritorious malpractice claims filed is exactly the sort of “arbitrary and oppressive” legislative action which the due process guar[948]antees must operate to prevent. (See Hale v. Morgan, supra, 22 Cal.3d at pp. 398-399.)
In fact, rather than lowering premiums, section 6146 may work to increase them. While section 6146 discourages attorneys from representing medical malpractice plaintiffs in cases involving extensive damages, it encourages defense attorneys to devote their utmost time to these very cases. While the costs involved encourage plaintiffs to settle cases, defense attorneys, who are paid on a per diem basis, can afford to undertake extensive and costly discovery prior to settlement. Thus, defendants can exert even greater pressure on plaintiffs to settle cases for a minimum recovery or to drop suits completely.
Hence, rather than lowering malpractice premiums, the increased defense costs which may result from this legislatively created legal mismatch, and which are paid directly by the insurance companies, may operate to increase malpractice premiums. What rational basis can there possibly be for attempting to lower malpractice premiums by creating an incentive to increase the cost of malpractice defense?
The attorney fee limitations imposed by section 6146 reduce plaintiffs’ recoveries, exacerbate the conflict of interest between attorneys and their clients, and restrict the filing of meritorious claims. The statute does not bear a reasonable relationship to the legislative purposes of protecting plaintiffs’ recoveries and lowering malpractice premiums. Thus, it violates the due process guarantees of the state and federal Constitutions.
III.
Section 6146 also violates the equal protection clause of the California Constitution. (Cal. Const., art. I, § 7.) Section 6146 creates several classifications. First, it affects only those tort victims who are injured by medical malpractice. Second, it disproportionately burdens the most seriously injured medical malpractice victims. Third, it places restrictions only on medical malpractice plaintiffs, not defendants.
Plaintiffs and amici argue that this court should apply strict or intermediate judicial scrutiny to determine whether section 6146 violates equal protection. They assert that that section affects two fundamental interests—the right to petition the government (see, e.g., California Transport v. Trucking Unlimited, supra, 404 U.S. 508, 510-511 [30 L.Ed.2d 642, 646]) and the due process .right to retain counsel (see, e.g., Mendoza v. Small Claims Court (1958) 49 Cal.2d 668, 673 [321 P.2d 9])—and classifies on a suspect [949]basis—wealth (see Serrano v. Priest (1971) 5 Cal.3d 584, 597-598 [96 Cal.Rptr. 601, 487 P.2d 1241, 41 A.L.R.3d 1187]).
As discussed previously, I would hold that the fee limits not only implicate the rights of petition and due process, but also violate them independently of the equal protection guarantee. Moreover, section 6146 selectively burdens a group defined—practically, if not intentionally—on suspect grounds. Although several groups are burdened by section 6146, only plaintiffs of modest means are truly unable to escape its restrictions. For these plaintiffs, the sole feasible method of financing protracted and expensive malpractice litigation is to “borrow” from the hoped-for recovery. (See Contingent Fees, supra, at p. 224 and discussion ante, p. 934.) By contrast, affluent plaintiffs, as well as defendants, can evade the limits by contracting for legal services on an hourly basis.
Plaintiffs correctly observe that in reviewing legislation that affects fundamental rights, this court has regarded the disparate imposition of burdens according to wealth as an additional factor warranting strict scrutiny. (See, e.g., Serrano v. Priest, supra, 5 Cal.3d at pp. 593-598.) In my view, plaintiffs’ argument for some level of heightened scrutiny has merit. However, I find it unnecessary to reach this contention since section 6146 cannot withstand any meaningful level of judicial review.
To pass the equal protection rational basis test under the California Constitution, legislative classifications must bear a “substantial and rational” relation to a legitimate state purpose. (Brown v. Merlo (1973) 8 Cal.3d 855, 872-873, 882 [106 Cal.Rptr. 388, 506 P.2d 212, 66 A.L.R.3d 505].) In determining the purpose of the statute, the reviewing court decides whether the asserted goal is realistically conceivable. (Cooper v. Bray (1978) 21 Cal.3d 841, 848 [148 Cal.Rptr. 148, 582 P.2d 604].) And, the court must conduct “a serious and genuine judicial inquiry into the correspondence between the classification and the legislative goals.” (Ibid., italics in original; see also Newland v. Board of Governors (1977) 19 Cal.3d 705, 711 [139 Cal.Rptr. 620, 566 P.2d 254].)
In Carson v. Maurer (1980) 120 N.H. 925 [424 A.2d 825, 12 A.L.R.4th 1] [hereafter Carson], the New Hampshire Supreme Court overturned a similar contingent fee scale for attorneys representing medical malpractice plaintiffs. Applying “intermediate” scrutiny, the court reasoned that “[t]he regulation of attorney’s fees solely in the area of medical malpractice inevitably will make such cases less attractive to the plaintiff bar. Consequently, [the statute] ‘will at least somewhat deter the litigation of legitimate causes of actions, thus creating a potential impediment to injured individuals’ access to courts and counsel.’ ” (Id., at p. 839.)
[950]Also, in Heller v. Frankston (1983) 76 Pa.Commw. 294 [464 A.2d 581], the court invalidated fee legislation similar to section 6146 on separation of powers grounds. Though the court did not reach the equal protection issue, it cited Carson, supra, 424 A.2d 825 in a favorable manner. (Id., at p. 586, fn. 12.)14
Three justifications are advanced in support of section 6146. First, it is asserted that section 6146 serves the legitimate purpose of ensuring that the plaintiff receives the bulk of the recovery. (California’s Medical Malpractice Crisis, supra, at p. 31.) However, if this is the purpose, there is no rational basis to single out medical malpractice contingent fees for special treatment. (Cf. Echlin v. Superior Court, supra, 13 Cal.2d 368, 374-375 [invalidating regulation of some but not all contingent fees where the evil sought to be avoided was characteristic of all attorney fees];15 see also Carson, supra, 424 A.2d at p. 839.)
Indeed, the section’s narrow reach negates any protective effect by permitting attorneys to avoid the restrictions by seeking work from the great majority of tort victims who are not covered by the fee restrictions. By contrast, statutes that have been upheld on this rationale do not leave enough unrestricted areas of private practice to permit the wholesale abandonment of covered plaintiffs. (See, e.g., American Trial Lawyers Ass’n v. New Jersey S. Ct., supra, 330 A.2d 350; Gair v. Peck, supra, 160 N.E.2d 43.) In such cases, the only person “protected” by the statute is the negligent defendant who escapes liability because the plaintiff is unable to obtain representation.
The majority assert that the special burdens imposed on medical malpractice victims are justified by the legitimate purpose of reducing medical malpractice premiums. It is hypothesized that plaintiffs might be willing to settle for lower total recoveries if they pay a smaller percentage in attorney fees. [951](See maj. opn., ante, at p. 931.) However, this argument ignores the reality created by this statute.
Section 6146 is grossly underinclusive with regard to the objective of reducing premiums. It is not disputed that defendant and plaintiff legal fees consume about the same proportion of the premium dollar. (See California’s MICRA, supra, at p. 943, fn. 687.) Furthermore, according to a systematic study of medical malpractice attorney fees, plaintiff fees are not significantly greater than defendant fees. (See HEW Report, supra, at p. 33.) Hence, there is no rational basis for cutting costs by restricting plaintiffs while leaving defendants free from restrictions.
Indeed, restrictions on defense fees would yield a far greater potential reduction on premiums than equivalent restrictions on plaintiff fees. Defense fees are paid directly out of insurance funds. A $1 reduction in the fee could yield a $1 reduction in premiums. By contrast, plaintiff fees are paid out of the plaintiff’s recovery. The costs to the insurance company for any given amount of recovery are the same regardless of the size of the fee. (See generally, California’s MICRA, supra, at p. 943.) Hence, the relation between plaintiff fees and premiums is—as the majority impliedly admit— speculative and indirect.
Second, the majority suggest that the Legislature may properly limit contingent fees in order to discourage frivolous suits. (Maj. opn., ante, at p. 931.) However, this purpose is not consistent with the narrow reach of the statute. The danger of frivolous suits is not confined to the medical malpractice area. Indeed, the exceptionally difficult and risky character of medical malpractice litigation provides lawyers with an extra incentive to screen out frivolous claims.16
Finally, the majority point out that plaintiffs in medical malpractice actions are subject to various other provisions of MICRA that limit their recoveries. Hence, “[t]he Legislature may reasonably have concluded that a limitation on contingency fees in this field was an ‘appropriate means of protecting the already diminished compensation’ of such plaintiffs from further reduction by high contingency fees.” (Maj. opn., ante, at p. 932.)
[952]This theory exhibits a kind of cruel humor. According to the majority, the Legislature, having severely reduced malpractice victims’ compensation, decided to “protect” plaintiffs from further reductions by prohibiting them from paying the market rate for legal representation. Unfortunately for malpractice victims—and for the majority’s theory—the Legislature omitted to ensure that plaintiffs could obtain adequate legal services at the rates specified by section 6146, or that plaintiffs would actually retain a higher percentage of their recoveries.
If anything, MICRA’s other provisions provide a rational basis for higher contingent rates in the medical malpractice area. As explained above, several of these provisions reduce the plaintiff’s recovery without decreasing his or her attorney’s workload. (See ante, at p. 935.) Hence, to obtain the same fees that are available to them elsewhere, attorneys would have to charge higher percentage rates.
In my view, the statute cannot withstand any meaningful level of judicial scrutiny. The selective imposition of restrictions on medical malpractice victims’ ability to hire competent attorneys cannot rationally be reconciled with any of the asserted purposes. Accordingly, I would hold that section 6146 violates the equal protection guarantee of the California Constitution.17
IV.
By inhibiting the ability of medical malpractice plaintiffs—but not defendants—to contract for legal representation, section 6146 directly implicates the fairness of the judicial process. In a misguided effort to lower malpractice premiums, section 6146 restricts victims’ access to the courts based on the content rather than the merit of their claims, reduces the recovery for medical negligence to far below a plaintiff’s actual damages, and discriminates against the most severely injured victims, particularly those of limited means—all under the guise of “protecting” malpractice plaintiffs.
Section 6146 infringes on fundamental First Amendment rights and violates both the due process and the equal protection guarantees of the Con[953]stitution. The relationship between its purposes and the means used to achieve those purposes is so tenuous and speculative, and the harm caused by the provision so apparent, that it cannot withstand judicial scrutiny.
By upholding section 6146, the majority do a grave injustice to victims of medical malpractice in this state and to well-established principles of constitutional law.
Mosk, J., and McClosky, J.,* concurred.
Appellants’ petition for a rehearing was denied May 8, 1985, and the opinion was modified to read as printed above. Bird, C. J., and Mosk, J., were of the opinion that the petition should be granted.
Civil Code section 3333.1, subdivision (a) permits the introduction of evidence concerning collateral source payments, such as disability insurance, to medical malpractice plaintiffs. The jury may then reduce the damage award by that amount. This provision does not lessen the plaintiff attorneys’ job of proving negligence, causation, and damages.
Section 667.7 of the Code of Civil Procedure provides that in cases involving awards of $50,000 or more in “future damages,” the court must, upon request of either party, order that this portion of the award be paid in periodic installments. If the plaintiff dies before receiving the entire award, the remainder, with the exception of damages for loss of future earnings, reverts to the defendant. (See American Bank & Trust Co. v. Community Hospital, supra, 36 Cal.3d at p. 368, fn. 8.)
The precise impact of section 667.7 on attorney fees is open to question, since the statute does not explicitly preclude the possibility that the attorney fees could be paid in a lump sum at the time of judgment.
It is noteworthy that 60 percent of lawyers polled recently, including both plaintiff and defense attorneys, opposed a medical malpractice bill which will be introduced in the 99th Congress. Seventy-nine percent of those opposed to the bill felt that it would unfairly restrict the scope of damages an injured patient can recover. (Reskin, Lawyers Oppose Medical Malpractice Bill, 71 A.B.A.J. (Jan. 1985) p. 40.)
“[A] limit on the percentage that a lawyer may retain of a gross recovery is a 100 percent marginal tax on earnings per dollar of gross recovery.” (Contingent Fees, supra, at p. 219, fn. 24.) Obviously, such a tax creates a powerful disincentive to work on covered cases.
The majority imply that the high rate of zero recovery in medical malpractice cases is due to an inordinate number of frivolous or meritless claims. (Maj. opn., ante, at p. 931.) The more likely explanation is that there is a “salient difference between litigation for medical malpractice and other forms of accident liability.” (Green, Medical Malpractice and the Propensity to Litigate, in The Economics of Medical Malpractice, supra, at p. 194 [hereafter Propensity to Litigate].) Modern medicine is highly complex and technical, and there is often a significant lag time between the date of the wrongful act and the date an injury is perceived. These factors present special difficulties in gathering evidence and proving negligence in medical malpractice cases. (Id., at pp. 196-197.)
The majority dismiss this contention by analogizing to California’s ban on contingent fees for legislative lobbyists. (Maj. opn., ante, at p. 927, fn. 5; Gov. Code, § 86205, subd. (f).) This analogy is not persuasive for several reasons. First, there is no evidence that such a ban selectively disadvantages any interest group in the political process. I would hope that a total ban on contingent attorney fees in malpractice or personal injury litigation would raise concerns even for the majority, since it would clearly prevent all but wealthy victims from pursuing claims. Second, the term “contingent fee” as used in the context of this case is somewhat different from its use in the lobbyist statute. Unlike attorneys, lobbyists do not normally vie to recover a specific sum of money, a percentage of which could readily be paid to them. Third, the ban on contingent fees for lobbyists applies across the board to representatives of all viewpoints. Surely, the majority would not argue that a ban on contingent fees only for those who lobby on behalf of medical malpractice victims would be permissible.
The fee constraint in Walters, a $10 maximum, is drastically lower than the limits allowed by section 6146. However, it may be argued that the limit in Walters was enacted to protect veterans from overreaching when they are dealing with a government agency, the Veteran’s Administration, which has as its very purpose the advancement of veterans’ interests.
The majority place particular reliance on Calhoun v. Massie (1920) 253 U.S. 170 [64 L.Ed. 843, 40 S.Ct. 474], in which the Supreme Court concluded that “[t]he constitutionality of [attorney fee regulation] . . . resembling in its nature the exercise of the police power, has long been settled.” (Id., at p. 174 [64 L.Ed. at p. 846], quoted by the majority, ante, at p. 927.)
In relying on this line of reasoning, the majority ignore the more recently articulated principle that laws which actually affect the exercise of First Amendment freedoms cannot be sustained merely because they deal with some evil within the state’s legislative competence. (Mine Workers v. Illinois Bar Assn., supra, 389 U.S. at p. 222 [19 L.Ed.2d at pp. 430-431].)
If the statute also restricted the use of contingent fees by defendants, it would still be vulnerable to a challenge. Such additional restrictions would have no practical effect since defendants utilize hourly or per diem fee arrangements.
It is noteworthy that the disparate treatment of plaintiffs and defendants has led some commentators to conclude that the fee restrictions were specifically intended to restrict plaintiffs’ access to the courts. (See Jenkins & Schweinfurth, California’s Medical Injury Compensation Reform Act: An Equal Protection Challenge (1979) 52 So.Cal.L.Rev. 829, 944, fn. 696 [hereafter California’s MICRA]; see also Contingent Fees, supra, at p. 215 [“[T]he effect of limiting attorney fees is, quite intentionally, to discourage use of attorney time in prosecuting malpractice claims.”].) This argument appears particularly compelling when the fee restrictions are viewed in the context of other MICRA provisions, which forthrightly provide special relief to healthcare providers and their insurers at the expense of medical malpractice victims. (See, e.g., Civ. Code, § 3333.2 [limit on noneconomic damages in medical malpractice actions]; Civ. Code, § 3333.1 [abrogation of the collateral-source rule in medical malpractice actions]; Code Civ. Proc., § 667.7 [periodic payment of medical malpractice judgments].)
Normally, the question of legislative motivation does not arise where—as here—a restriction is facially discriminatory. Such enactments are subject to strict scrutiny. However, since the majority have declined to recognize this problem (see maj. opn., ante, at p. 932), I point out this additional difficulty. Some distinguished commentators have suggested that facially neutral restrictions enacted for the purpose of restricting content should be subjected to the strictest form of scrutiny. (See, e.g., Tribe, American Constitutional Law (1978) pp. 591-594; Ely, Democracy and Distrust (1980) pp. 111-115.)
The majority also state that California’s scheme is “not usually low.” (Maj. opn., ante, at p. 928.) As the majority concede, the New Jersey scheme would allow a greater recovery [944]in the case before this court than is available under MICRA. (Id., fn. 6.) More importantly, New Jersey’s rule allows attorney fees to be awarded in excess of the limits in exceptional cases. (See American Trial Lawyers Ass’n v. New Jersey S. Ct. (1974) 126 N.J.Super. 577 [316 A.2d 19 at p. 28].)
The maximum percentages prescribed under the federal statutes which limit attorney fees would allow attorney fees of over $100,000 in this case. (See 28 U.S.C. § 2678 [Federal Tort Claims Act provides for a fee of 25 percent after court action and 20 percent of any recovery.obtained prior to such action]; 42 U.S.C. § 406(b)(1) [Social Security Act provides for reasonable fees not in excess of 25 percent of plaintiff’s recovery].) In any event, as discussed, post, (dis. opn. at p. 944) these statutory schemes are distinguishable from section 6146.
In this case, the plaintiffs and their attorneys had contracted for a 25 percent contingent fee. The trial court expressly noted that that fee was “reasonable,” and would have been awarded were it not for the restrictions imposed by section 6146.
This hypothetical does not take into account the possible reduction in recovery which results from the application of Civil Code section 3333.1, which abrogates the collateral source rule. When section 3333.1 is applied, plaintiff’s recovery will be even smaller, with a corresponding reduction in plaintiff’s attorney’s fee.
As the following table demonstrates, a reduced recovery for a plaintiff is likely whether the value of the case is large or small. All calculations are based on a pre-MICRA fee schedule of 40 percent to the attorney after trial, and 33 VA percent to the attorney if the case is settled before trial. Post-MICRA calculations assume the application of the maximum fees allowable under section 6146.
Two courts have upheld similar contingent fee limits. (See Johnson v. St. Vincent Hospital, Inc. (1980) 273 Ind. 374 [404 N.E.2d 585, 602-603]; DiFilippo v. Beck (D.Del. 1981) 520 F.Supp. 1009, 1012.) The majority suggest no reason why these decisions are more consistent with the California Constitution than Carson. At a minimum, the gravity of the affected interests and the relatively suspect character of the statutory classifications underscore the necessity for a meaningful level of judicial review. However, neither of these courts considered the full impact of selective fee limits on the fairness of the judicial process.
In Echlin, this court struck down a statute which classified on the basis of the nature of the attorney fees contract. Attorneys who were to receive a contingent fee other than money were not protected by the statute. The court found “no natural, intrinsic or constitutional distinction justifying such discrimination” and held the statute void. (Echlin v. Superior Court, supra, 13 Cal.2d at p. 375.) The majority fail to adequately explain why section 6146, which restricts only contingent fee agreements but no other form of contract for payment of attorneys’ fees, is not as arbitrary and invalid as the statute at issue in Echlin. (See maj. opn. at p. 932, fn. 10.)
ironically, the majority grasp at the high rate of zero recoveries to support the notion that there are special problems of unregulated fees in the medical malpractice area. It is suggested that the high incidence of failure might indicate that an unusually large proportion of frivolous claims were filed.
This creative theory ignores the fact—not seriously disputed by anyone—that once a rate of failure becomes known, lawyers take it into account in choosing whether or not to accept a case. Naturally, a high risk of failure discourages attorneys from bringing frivolous claims which yield no attorney fees, and which yield no recoupment for the high discovery and trial preparation costs which attorneys must incur in handling such cases.
The majority have also provided no guidance to plaintiffs in this case about the rate at which they will be permitted to contract with their attorneys for representation against the remaining defendants. While the claims against the present defendants have settled, the claims against the other defendants remain to be litigated. If the plaintiffs are limited to paying their attorneys only 10 percent of any further recovery, the level of representation will undoubtedly have to be severely curtailed, assuming the attorneys can afford to continue representation. Section 6146 limits the fees an attorney may collect for representation against “a health care provider” (italics added). Since the statute refers to a single defendant, it must be presumed that the limitations imposed by section 6146 apply separately to the recoveries against each individual defendant, rather than to the aggregate recovery.
Assigned by the Chairperson of the Judicial Council.