McGuffey v. Hall
| Decision Date | 21 June 1977 |
| Citation | 557 S.W.2d 401 |
| Parties | Harold B. McGUFFEY, etc., et al., Appellants, v. William W. HALL, M. D., et al., Appellees. William W. HALL, M. D., et al., Cross-Appellants, v. Harold B. McGUFFEY, etc., et al., Cross-Appellees. John B. FLOYD, Jr., M. D., et al., Cross-Appellants, v. W. Neville CAUDILL, M. D., in his official capacity as President of the Kentucky Peer Review Organization, Inc., etc., Cross-Appellees. |
| Court | United States State Supreme Court — District of Kentucky |
Richard S. Smith, Gen. Counsel, Joseph D. Hudson, Dept. of Ins., Frankfort, William E. Scent, Tarrant, Combs & Bullitt, Lexington, Victor Fox, Asst. Atty. Gen., Frankfort, for appellant and cross-appellee Harold B. McGuffey, Com'r.
Don H. Major, Mulhall, Major, Turner & Taylor, Louisville, for appellant and cross-appellee W. Neville Caudill, M.D.
Morton J. Holbrook, Ronald M. Sullivan, Jesse T. Mountjoy, Sandidge, Holbrook & Craig, P.S.C., Owensboro, for appellees and cross-appellants William D. Hall, M.D., et al.
Kent Masterson Brown, Joseph L. Arnold, Robert M. Odear, Lexington, for appellees and cross-appellants John B. Floyd, Jr., M.D., et al.
John C. Darsie, Jr., Gen. Counsel, Lexington, for amicus curiae University of Kentucky.
Carl L. Wedekind, Jr., Stites, McElwain & Fowler, Louisville, for amicus curiae Kentucky Medical Ass'n.
Edgar A. Zingman, Grover C. Potts, Jr., J. Baxter Schilling, Wyatt, Grafton & Sloss, Louisville, for amicus curiae Kentucky Hospital Ass'n.
At its regular session in 1976 the General Assembly enacted a bill entitled, "AN ACT relating to health care malpractice insurance and claims." § 1 of the Act stated its purpose and § 11 its effective date. § 9 was an amendment of KRS 311.377, and the remaining eight sections became part of KRS Chapter 304, Title 10. In two separate declaratory judgment actions which eventually were consolidated various parties challenged the constitutional validity of the Act and certain of its provisions. The case was submitted to the trial court on briefs and the pleadings and culminated in a judgment declaring §§ 10(3), 10(8)(c), and 10(9) unconstitutional and the remainder of the enactment valid. The matter comes to this court on appeals and cross-appeals and, in addition to the parties, other interested organizations have been allowed to participate in the argument as amici curiae.
All of the objections raised in these two lawsuits were aimed at §§ 9 and 10 of the Act. Hence the judgment of the trial court was a bit too broad in declaring that with certain exceptions the entire enactment is valid. Other individual sections and subsections are in issue only insofar as it is claimed that by reason of constitutional defects in §§ 9 and 10 the whole Act is void. As a passing caveat, however, and without implying any approval of the other unlitigated portions of the Act, we express deep misgivings with respect to § 3, which relates to procedure and appears clearly to invade the rule-making authority of the court.
The first and most serious objection to § 9 is that it is not germane to the subject of the Act and therefore falls athwart § 51 of the Kentucky Constitution. 1 We think the point is well taken. The subject of the Act is not, as the Commissioner argues, "health care," but "insurance and claims." The nouns "insurance" and "claims" are restricted by the modifying adjective "malpractice," which is further restricted by the term "health care" used in an adverbial sense. Hence the title reaches only such subjects as have some reasonable relationship to medical malpractice claims or insurance.
As indicated in the first paragraph of this opinion, all of the operative contents of the Act were created as sections of KRS Chapter 304 except for § 9, which was an amendment of KRS 311.377. KRS Chapter 304 is the Insurance Code. KRS Chapter 311 is entitled, "Physicians, Osteopaths and Podiatrists," and excepting a provision for anatomical gifts relates entirely to the practice of medicine, osteopathy and podiatry. Before its amendment by the Act in question KRS 311.377 was a simple little statute providing that physicians and dentists shall not be liable in damages for good-faith actions taken by them in the performance of their duties as members of certain specified peer review boards. The 1976 Act replaced it with a new statute consisting of seven subsections providing in substance as follows:
(1) The content of what formerly was KRS 311.377 is broadened in scope to protect not only the members of certain review groups, but also other participants, employes and advisers, and to embrace review groups constituted by various agencies not theretofore enumerated in KRS 311.377. Among the review groups listed in the new statute are "professional standards review organizations," or PSRO's, which are regional boards created by federal law in connection with what are commonly called the Medicare and Medicaid programs. 2
(2) The proceedings and records of the review groups mentioned in subsection (1) are made immune "to discovery, subpoena, or introduction into evidence, in any civil action in any court or in any administrative proceeding before any board, body, or committee, whether federal, state, county, or city."
(3) Nothing in subsection (2) is to be construed as restricting the right to discover or use in civil actions or administrative proceedings any evidence discoverable independently of the review proceeding mentioned in subsection (1).
(4) No person who presents or offers evidence in the aforementioned review proceedings, or who was then a member of the review group, may refuse to testify, except as provided in subsection (5), in discovery or upon the trial of a civil action as to any evidence covered in subsection (3) or as to any information within his own knowledge.
(5) No person shall be permitted or compelled to testify concerning his own or any other testimony except that of a defendant given in the review proceeding, or concerning any opinion formed by him as the result of such proceeding.
(6) In an action involving the denial of staff privileges by a health care entity, representatives of that entity may with its permission testify concerning any evidence presented in the proceedings leading to the denial in question.
(7) Nothing in § 9 is to be construed as restricting the presentation of testimony, records, findings, opinions, etc., "or other actions" of any review group mentioned in subsection (1) in any statutory or administrative proceeding relating to its functions or duties.
Although conduct that results in a malpractice claim may also eventuate in a peer review proceeding, the relationship between the two is purely coincidental. A peer review is not designed to serve any purpose of a malpractice claim, and to the extent that the confidentiality conferred upon it serves to protect those who participate in the proceedings, it is a protection against suits for defamation, not malpractice.
§ 51 of the Kentucky Constitution has enjoyed, or suffered, an extremely liberal construction over the years, and we realize that time and technology have diminished the risks of deception it was intended to guard against. Still, however, it is not a lifeless anachronism, and there are wholesome limits to what can be loaded into one bill. We have only to ponder the incredible morass in Washington, D.C., to be admonished against what can happen to legislation when it can be made up, sidetracked, taken apart, switched around and put together again like a freight train. Happily, our Constitution does not permit it. We are of the opinion that the subject-matter of § 9 of the Act is not sufficiently related to malpractice claims or insurance to satisfy Const. § 51. See Stovall v. Cook, Ky., 512 S.W.2d 487 (1974).
We agree also with the contention that insofar as § 9(2) of the Act purports to include federally-constituted PSRO's it invades a field the Congress has chosen to occupy and therefore has pre-empted. § 1166 of the 1972 Social Security Amendments 3 provides in effect that all information acquired by a PSRO shall be confidential except as otherwise provided by regulations issued by the Secretary of HEW. Legislation or regulation in the same area by the various states would engender that very confusion the doctrine of pre-emption serves to prevent. Cf. Pennsylvania v. Nelson, 350 U.S. 497, 504, 76 S.Ct. 477, 100 L.Ed. 640 (1956); Charleston & Western Carolina R. Co. v. Varnville Furniture Co., 237 U.S. 597, 604, 35 S.Ct. 715, 59 L.Ed. 1137 (1914).
The remaining attacks on § 9 of the Act are less persuasive. The protection against liability extended by subsection (1) does not violate Const. § 54. 4 See Jacobs v. Underwood, Ky., 484 S.W.2d 855, 857 (1972), which we decline to overrule. Though we are unaware of the source of authority by which the legislature of this state may determine just what shall be admissible and not admissible in the federal courts or in the courts and administrative tribunals other than our own, we are not convinced at first blush that the evidentiary limitations placed upon the proceedings of review groups by subsections (2) and (5) conflict with §§ 2, 5 3, 6 14, 7 59, 8 or 60 9 of the Kentucky Constitution. We refrain, however, from passing final judgment in that respect in this opinion.
§ 10 of the Act consists of nine subsections, as follows:
(1) A state agency named the Kentucky Patients' Compensation Fund (hereinafter called the Fund) is created within the Department of Insurance, and is to be managed under regulations of the Commissioner of Insurance.
(2) Every physician licensed and practicing in Kentucky and every hospital located in Kentucky shall be a member of the Fund, except that the Commissioner may grant an exception to "any physician who has a limited practice, or is in such special circumstances that he should not reasonably be required to participate in the fund."
(3) Every member of the...
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