Arneson v. Olson

• Decision Date: 11 August 1978
• Docket Number: No. 9468,9468
• Citation: 270 N.W.2d 125
• Parties: Charles A. ARNESON, Harry M. Butler, Jr., Donald A. Carlsen, and Glenn M. Thoreson, Plaintiffs and Appellees, v. Allen I. OLSON, Attorney General for the State of North Dakota, Byron Knutson, Insurance Commissioner for the State of North Dakota, and N. A. Macdonald, B. Jayapathy, A. F. Samuelson, A. J. Overland, G. L. Hamilton, J. E. Adducci, D. E. Wolf, J. J. Moses, G. M. Johnson, and J. A. Leigh, as Members of the State Board of Medical Examiners, Defendants and Appellants. Civ.
• Court: North Dakota Supreme Court

Page 125

270 N.W.2d 125

Charles A. ARNESON, Harry M. Butler, Jr., Donald A. Carlsen, and Glenn M. Thoreson, Plaintiffs and Appellees, v. Allen I. OLSON, Attorney General for the State of North

Dakota, Byron Knutson, Insurance Commissioner for the State

of North Dakota, and N. A. Macdonald, B. Jayapathy, A. F.

Samuelson, A. J. Overland, G. L. Hamilton, J. E. Adducci, D.

E. Wolf, J. J. Moses, G. M. Johnson, and J. A. Leigh, as

Members of the State Board of Medical Examiners, Defendants

and Appellants.

Civ. No. 9468.

Supreme Court of North Dakota.

Aug. 11, 1978.

Thomas O. Smith, Bismarck, for plaintiffs and appellees.

R. W. Wheeler, Sp. Asst. Atty. Gen., Bismarck, for defendants and appellants Allen I. Olson, Atty. Gen., and State Board of Medical Examiners.

William S. Murray, Sp. Asst. Atty. Gen., Bismarck, for defendant and appellant Byron Knutson, Ins. Commissioner.

Frederick E. Saefke, Jr., Bismarck, for Bruce Braun, amicus curiae.

VOGEL, Justice.

We are required in this appeal to determine the constitutionality of a part of Chapter 251, 1977 Session Laws, described as "AN ACT to limit professional liability of qualifying health care providers to patients electing to be bound, to create a trust fund for the benefit of patients suffering damage caused by negligence of the health care provider, and to establish a commission on medical competency." Chapter 251 is codified as Chapter 26-40.1, N.D.C.C., containing the provisions as to medical malpractice claims and the establishment of a patient trust fund, and Chapter 43-17.1, N.D.C.C., containing the provisions establishing a commission on medical competency. No attack is made upon the constitutionality of the commission on medical competency, and we therefore express no opinion as to it. We hold that Chapter 26-40.1 is unconstitutional.

I. THE STATUTE

The general purposes of Chapter 26-40.1 are stated to be ". . . to assure the availability of competent medical and hospital services to the public in North Dakota at reasonable costs; to provide prompt and efficient methods for eliminating the expense involved in nonmeritorious malpractice claims; to provide adequate compensation to patients with meritorious claims; and to encourage physicians to enter the practice of medicine in North Dakota and remain in such practice as long as they are qualified to do so. The legislative assembly finds that the exercise of the sovereign and police power of this state for the good of the majority of its citizens is necessary to improve the availability of medical care, to assure its competency, and to reduce the cost thereof." Sec. 26-40.1-01, N.D.C.C.

Section 26-40.1-02 defines the terms used in the Act. The term "health care provider" is restricted to physicians only by the definition that the term "includes a person, corporation, facility, or institution authorized by law to provide professional medical services As licensed physicians." (Emphasis added.) Section 26-40.1-02, subsection 4.

The term "physician" is defined as "a person engaged in the practice of medicine in this state pursuant to the provisions of chapter 43-17." Section 26-40.1-02, subsection 10. Chapter 43-17 relates to the licensed practice of medicine, surgery, and obstetrics, and by Section 43-17-02 excludes dentists, optometrists, Christian Science practitioners, medical officers of the armed forces of the United States, the Public Health Service, and the Veterans Administration, doctors of chiropractic, and chiropodists. These definitions also exclude from the operation of Chapter 26-40.1 such persons involved in health care as nurses, pharmacists, and nurse-anesthetists.

Other definitions will be referred to later in this opinion.

Section 26-40.1-03 provides that if a health-care provider qualifies under the statute, the patient's exclusive remedy against the provider for alleged professional negligence, failure to provide care, failure to obtain informed consent, or any other claim based upon alleged professional negligence shall be as provided by the statute if the patient has consented to be governed by it.

Section 26-40.1-04 provides that a patient or his representative may elect to be bound by the terms of the statute by signing an acknowledgment on forms to be furnished by the Insurance Commissioner. The consent may be made by a mother for an unborn or newborn child or by a guardian or parent or representative of a minor or incompetent. If emergency treatment is required, the provisions of the chapter apply without consent. Otherwise, if consent is not given, the physician shall decide whether he will or will not provide services to the patient.

Section 26-40.1-05 provides that no claimant may recover for failure of the physician to obtain his informed consent unless he establishes "that a reasonably prudent person in the claimant's position would not have undergone the treatment had he been properly informed and that the performance of the treatment was the proximate cause of the injury and damages claimed."

Section 26-40.1-06 provides that no proceedings governed by the provisions of the chapter shall be joined with any action for recovery of damages against any health-care provider not qualified under Chapter 26-40.1, nor shall any cause of action under the chapter be assignable. Thus, under the terms of the statute, a joint cause of action against two physicians, one qualified under the Act and one not, involving the same surgical procedure, jointly performed by both, would have to be split into two separate actions. Similarly, a qualified doctor could not be joined as defendant with a pharmacist or a nurse or a nurse-anesthetist, even though the action is based upon joint negligence. ¹

Section 26-40.1-07 specifies that no liability for professional negligence may be imposed against a health-care provider "unless expert medical testimony or an admission of fault by the health care provider is presented regarding the alleged deviation from the appropriate standard of care in the specific circumstances of the case and the causation of the alleged injury or death. Where evidence is presented that the injury or death occurred due to a foreign substance which was unintentionally left within the body of a patient following surgery or due to a surgical procedure which was performed upon the wrong patient or the wrong organ, limb, or part of the patient's body, medical expert testimony shall not be required, and such evidence shall constitute a rebuttable presumption that the personal injury or death was caused by negligence." The effect of this provision is to severely limit the application of the doctrine of res ipsa loquitur ² in medical-negligence cases, and require expert medical testimony to establish negligence except in very limited situations.

Section 26-40.1-08 eliminates the "collateral source" doctrine heretofore approved by this court in Ostmo v. Tennyson, 70 N.D. 558, 296 N.W. 541 (1941), and Regent Cooperative Equity Exchange v. Johnston's Fuel Liners, Inc., 122 N.W.2d 151 (N.D.1963), and provides that damages for bodily injury or wrongful death under the statute, which includes damages for out-of-pocket expense for care, are to be reduced by any "nonrefundable medical reimbursement insurance benefit, less premiums paid by or for the claimant over the immediate preceding five years." Thus, the tortfeasor is to have the benefit of insurance privately purchased by or for the tort victim, except to the extent that five years' premiums will be repaid.

Section 26-40.1-09 requires all health-care providers within the State to file proof of financial responsibility in the amount of $100,000 for each occurrence. Without such insurance the health-care provider is not qualified under the statute. Under Section 26-40.1-10, failure to qualify subjects the provider to immediate cancellation of his license to practice.

Section 26-40.1-11 limits the liability of a health-care provider qualified under the Act to $300,000 for all claims arising from any one occurrence.

Section 26-40.1-12 provides that financial responsibility may be established by filing proof of insurance by a policy of professional liability insurance in the amount of $100,000 per occurrence. Such insurance may limit total liability in any policy year to $300,000 for all occurrences or claims made in any policy year.

Section 26-40.1-13 requires 60 days' notice of cancellation of insurance, and Section 26-40.1-14 permits advance payments by a health-care provider or insured to a claimant, with the right to offset such payments against final judgment. Advance payments are not subject to refund by the recipient.

Section 26-40.1-15 provides for the creation of a patient trust fund to be administered by the Commissioner of Insurance. The fund is to be financed by assessments on health-care providers, who may be assessed not to exceed 150 percent of the cost of the qualifying liability insurance coverage as determined by the Commissioner. A surcharge is provided if the fund becomes inadequate to meet existing and contingent liabilities.

Section 26-40.1-16 provides that a court in its discretion may provide in a judgment for payments from the trust fund to a judgment creditor in regular intervals rather than in a lump sum if the damage award exceeds $100,000. It also provides that

"A judgment entered in the manner provided by this section may be subject to modification or termination on the basis of specified contingencies."

Section 26-40.1-17 provides for suit in district court "without a jury" and "naming the fund as defendant" if the liability insurer agrees to settle its liability by payment of the policy limit of $100,000 and the claimant demands additional payments. It also provides that the fund may stipulate for settlement of the excess claim, with approval by the court if the court is satisfied that the stipulation is reasonable. It is further provided that

"The court, however, shall have continuing...