Wright v. Central Du Page Hospital Ass'n

• Decision Date: 14 May 1976
• Docket Number: No. 48075,48075
• Citation: 63 Ill.2d 313,347 N.E.2d 736
• Parties: , 80 A.L.R.3d 566 Jean Mary WRIGHT et al., Appellees, v. CENTRAL DU PAGE HOSPITAL ASSOCIATION et al., Appellants.
• Court: Illinois Supreme Court

Page 736

347 N.E.2d 736

63 Ill.2d 313, 80 A.L.R.3d 566

Jean Mary WRIGHT et al., Appellees, v. CENTRAL DU PAGE HOSPITAL ASSOCIATION et al., Appellants.

No. 48075.

Supreme Court of Illinois.

May 14, 1976.

Howard & French, Chicago (Richard G. French and Michael C. Kominiarek, Chicago, of counsel), for appellant Central Du Page Hospital Association.

Ross, Hardies, O'Keefe, Babcock & Parsons, Chicago (Frederic O. Floberg, William D. Serritella, and Michael J. Critelli, Chicago, of counsel), for appellant Dr. John A. Heitzler.

William J. Scott, Atty. Gen., Chicago (Paul J. Bargiel and Patricia rosen, Asst. Attys. Gen., of counsel), for appellant Robert B. Wilcox.

Nat. P. Ozmon, Leonard M. Ring, and William J. Harte, Chicago (Lawrence T. Stanner, Ralph L. Brill, Karla Wright and Timothy M. O'Brien, Chicago, of counsel), for appellee Jean Mary Wright.

Keck, Cushman, Mahin & Cate, Chicago (Joseph Keig, Jr., Bennet B. Harvey, Jr., William G. Schopf, Jr., and John A. McLees, Chicago, of counsel), for appellee Hartford Cas. Ins. Co.

Wildman, Harrold, Allen & Dixon, Chicago (Max Wildman, James P. Dorr, Kay L. Schichtel, Chicago, of counsel), for appellee The Medical Protective Co.

Burditt & Calkins, Chicago (Richard E. Favoriti, Tom Scheuneman, and Michael V. Hasten, Chicago, of counsel), for Amici curiae Illinois State Medical Society and Jerry M. Ingallis, M.D.

Wayne Lenczycki, Skokie, Thomas G. Baffes, M.D., and Richard J. Daley, Chicago, for Amicus curiae.

GOLDENHERSH, Justice:

In separate actions filed in the circuit court of Cook County, Hartford Casualty Insurance Company (hereafter Hartford) and The Medical Protective Company (hereafter Medical Protective) sought declaratory judgments holding invalid section 401a of the Illinois Insurance Code (Ill.Rev.Stat.1975, ch. 73, par. 1013a). The cases were consolidated, and the circuit court entered a declaratory judgment holding the statute unconstitutional. Robert B. Wilcox, Director of Insurance (hereafter Director), named as a party defendant in both cases, and the Illinois State Medical Society and Jerry M. Ingalls, described as a physician, president of the Illinois State Medical Society and as representative of a class of Hartford policyholders, named as parties defendant in the Hartford suit, appealed. Rule 302(a) (58 Ill.2d R. 302(a)).

In an action filed in the circuit court of Cook County plaintiff Jean Mary Wright (hereafter plaintiff) sought to recover damages from defendants Central Du Page Hospital Association, Dr. John Heitzler, American Hospital Supply Corporation and V. Mueller & Company for personal injuries suffered while confined to the defendant hospital as a patient of the defendant Dr. Heitzler. In her complaint, as amended, she sought a declaratory judgment that sections 58.2 through 58.10 of the Civil Practice Act (Ill.Rev.Stat.1975, ch. 110, pars. 58.2 through 58.10), section 21.1 of the Limitations Act (Ill.Rev.Stat.1975, ch. 83, par. 22.1), and section 4 of Public Act 79--960 (Ill.Rev.Stat.1975, ch. 70, par. 101) were unconstitutional. The circuit court entered a declaratory judgment holding sections 58.2 through 58.10 of the Civil Practice Act and section 4 of Public Act 79--960 (Ill.Rev.Stat.1975, ch. 70, par. 101) invalid and found that there was no just reason to delay enforcement or appeal. Defendants Central Du Page Hospital Association and Dr. Heitzler appealed. (Rule 302(a).) The circuit court ordered this case consolidated with the previously consolidated cases filed by Hartford and Medical Protective and the matter came to this court as a single appeal.

The statutory sections declared unconstitutional are contained in 'An Act to revise the law in relation to medical practice.' (Pub.Act 79--960, approved September 12, 1975, effective November 11, 1975). Section 1 of the Act added sections 58.2 through 58.10 to the Civil Practice Act (Ill.Rev.Stat.1975, ch. 110, pars. 58.2 through 58.10); section 2 amended section 21.1 of 'An Act in regard to limitations' (Ill.Rev.Stat.1975, ch. 83, par. 22.1); section 3 added section 401a to the Illinois Insurance Code (Ill.Rev.Stat.1975, ch. 73 par. 1013a), and section 4 limited the maximum amount recoverable 'on account of injuries by reason of medical, hospital or other healing art malpractice' (Ill.Rev.Stat.1975, ch. 70, par. 101).

We consider first the contentions of the parties with respect to the sections added to the Civil Practice Act. Section 58.2 provides that sections 58.3 through 58.10 shall apply to all cases in which the 'plaintiff seeks damages on account of injuries sustained by reason of medical, hospital or other healing art malpractice' and 'shall not apply to any other cases.' Section 58.3 requires the circuit court, 'no sooner than 120 days nor later than one year after the parties are at issue on the pleadings' to order the convening of 'a medical review panel to which the case shall be assigned for hearing and determination.' The medical review panel is to consist of one circuit judge, one practicing physician and one practicing attorney.

Section 58.4 provides that the panels shall be chosen from rosters maintained by the chief judge of each judicial circuit. The rosters are to include at least five circuit judges, at least 20 practicing physicians licensed to practice in Illinois who are willing to serve on panels and are recommended by a recognized medical society, and at least 20 practicing attorneys licensed to practice in Illinois who are willing to serve on medical review panels and whose names have been provided by a bar association having membership in the circuit. It provides for assignment to panels on a rotation basis from these rosters. Section 58.5 permits selection of panels, by unanimous agreement of the parties, from physicians and attorneys who may or may not be on the roster and for the selection by unanimous agreement of the parties, of a circuit judge to serve on the panel. (Ill.Rev.Stat.1975, ch. 110, par. 58.5(1).) Section 58.5 also provides the method of selection of the panel other than by unanimous agreement of the parties, the method and reasons for disqualification of a panel member, and the acceptance of the assignment and disclosure of any conflict of interest by the panel members.

Section 58.6 is concerned with procedure. Proceedings before the panel are to be 'adversary, and each party may call and cross examine witnesses and introduce evidence as at a trial in the circuit court.' The panel has the power of subpoena, 'to be exercised as in the circuit court,' and it 'may call witnesses, examine evidence, call for additional or particular evidence, and may examine or cross examine witnesses as it may determine to be appropriate.' The circuit judge is to preside over the proceedings and decide procedural and evidentiary issues, and the proceedings may be conducted in any county in the judicial circuit, as determined by the panel. Section 58.7 provides that the panel shall make a 'determination on the issue of liability and, if liability is found, on the issue of fair and just compensation for damages.' The determinations of the panel are to be made in a written opinion stating its conclusions of fact and conclusions of law, and a dissenting member may file a written dissent.

Section 58.8 governs the effect of a decision of the panel. If the parties agree in writing to be bound by the determination of the panel, its decision is binding and conclusive, and judgment may be entered thereon. If the parties do not agree to be bound by the panel's determination and the panel's decision is unanimous, a party must reject the decision in writing within 28 days of receipt of service of the written opinion of be deemed to have accepted it. Whenever the parties have not unanimously agreed to be bound by the determination of the panel and have not unanimously accepted the determination, the panel judge is to conduct a pretrial conference and the case is to proceed to trial as in any other civil case. The determination of the panel is not admissible at any subsequent trial in the circuit court.

Section 58.9 provides that the expenses of the panel shall be apportioned among the parties equally, except that a party who rejects a unanimous decision of the panel and who fails to prevail on a trial of the case may, pursuant to section 41 of the Civil Practice Act, on motion and hearing, be taxed with the reasonable attorney's fees of the prevailing party, the costs of the panel and the costs of the trial. Section 58.10 authorizes this court to adopt supervisory rules not inconsistent with the statutory provisions.

The parties have briefed and argued a number of questions, and briefs, urging reversal of the judgment, have been filed by Amici curiae Illinois State Medical Society and its president, and by an Amicus calling itself the Protective Medical Association of Illinois, but not otherwise described or identified. In a section of their brief, headed 'Interest of the Amici Curiae: The Health Care Crisis,' Amici Illinois State Medical Society and its president describe the 'rapid and disproportionate rise in malpractice claims and high dollar awards and settlements' and argue that 'While concededly, it is an initial move and hardly the last, nor should it be, Public Act 79--960 represents a reasonable response to a problem confronting the vast majority of the people of the State of Illinois.'

Although the circuit court found the legislation concerning the medical review panels constitutionally defective for a number of reasons, we need consider only whether it correctly held that it was violative of article VI, sections 1 and 9, of the Illinois Constitution for the reason that it 'vests essentially judicial functions in nonjudicial personnel' and of article I, section 13, for the reason that its provisions 'impair and violate plaintiff's constitutionally protected interests in trial by jury.'

Article VI of the Constitution, in...