Boucher v. Sayeed

• Decision Date: 14 April 1983
• Docket Number: Nos. 82-97-M,s. 82-97-M
• Citation: 459 A.2d 87
• Parties: Anthony BOUCHER v. Syed SAYEED et al. John JOSEPH v. Louis A. SAGE et al. P., 82-101-M.P.
• Court: Rhode Island Supreme Court

Page 87

459 A.2d 87

Anthony BOUCHER v. Syed SAYEED et al.

John JOSEPH v. Louis A. SAGE et al.

Nos. 82-97-M.P., 82-101-M.P.

Supreme Court of Rhode Island.

April 14, 1983.

Mandell, Aisenberg & Goodman, Ltd., Martin W. Aisenberg/Mark Mandell, Decof & Grimm, Leonard Decof, Peter Cerilli, Providence, for plaintiffs.

Iannuccillo & Hines, Richard A. VanTienhoven, Hanson, Curran & Parks, Kirk Hanson/Dennis J. McCarten, Rice, Dolan, Kiernan & Kershaw, John F. Dolan, Providence, for defendants.

OPINION

KELLEHER, Justice.

We have consolidated these petitions for the common-law writ of certiorari and have agreed to review orders entered in two unrelated medical malpractice actions by two different justices of the Superior Court, each of whom had vacated the assignment of each case for a preliminary hearing at which a determination was to be made by each justice concerning whether the evidence presented at the hearing, "if properly substantiated * * * would be sufficient to raise a legitimate question of liability appropriate for judicial inquiry or whether the plaintiff's case is merely an unfortunate medical result." The vacating of each assignment was based upon each justice's belief that the preliminary-hearing procedures mandated by the Medical Malpractice Reform Act of 1976, specifically G.L. 1956 (1981 Reenactment) §§ 10-19-1, -2, -3, -4, and -5, violated the plaintiffs' federal constitutional right to equal protection of the laws.

We begin our consideration of the various positions espoused by the litigants with a backward look to the mid-1970s and the Legislature's response to certain events that, for want of a better phrase, could be described as the mid-1970s medical malpractice crisis. On the morning of March 31, 1976, there appeared on page B-7 of the Providence Journal an article headlined "House Gets Proposed Cure for Malpractice Problem." The article, after informing the reader that on the previous day a bill resulting from a study by a twenty-five-member commission had been introduced in the Rhode Island House of Representatives, described the proposed legislation as an effort to "stave off a threatened doctors' strike in protest against mounting malpractice insurance premiums that they were being forced to pay."

On page 1 of its report, the medical malpractice commission acknowledged that there was a "medical malpractice problem," the immediate cause of which was the high cost and the scarcity of medical malpractice insurance, which in turn was due to an increase in the number of claims, an increase in the amount of damage awards, and the insurers' long-standing policy of offering insurance on an "occurrence" basis. ¹ These conditions, the commission observed brought about a situation in which insurers were seeking an increase in premiums or, in some instances, a complete withdrawal from the medical malpractice facet of the industry; and physicians in turn were resentful of "steep increases in premium rates (especially those in the high-risk specialties) and refuse to practice at all without some kind of insurance protection. The threat of a doctors' strike creates a crisis which state government must solve."

One of the commission's proposed solutions to the crisis was the creation of medical-liability panels. The terms of this concept were spelled out in section 6 of the 1976 legislation and consisted of the addition of chapter 19 to title 10 of G.L.1956 (1969 Reenactment). This legislation provided that, if possible, any Superior Court malpractice suit was to be initially considered within ninety days of its inception by a mediation panel consisting of a special master, a physician, and an attorney. The trio was selected by the presiding justice of the Superior Court. The masters were taken from a rotating panel of masters appointed by the presiding justice, whereas the physicians and attorneys were selected from lists provided to the presiding justice by the Rhode Island Medical Society and the Rhode Island Bar Association respectively. Witnesses could be subpoenaed to testify at the hearing held by the panel on its own initiative or upon motion of either party. The hearing was to be conducted pursuant to the rules of evidence and the procedural rules employed in the Superior Court. The panel's findings on the facts and its conclusions of law were to be reduced to writing. Damages were to be itemized in regard to the relevant category, such as future medical expenses or loss of earning capacity. Either party could reject the panel's findings and continue the action in court. All of the panel's findings except those relating to damages were admissible at trial.

The Medical Malpractice Reform Act of 1976 took effect on September 1, 1976. Time marched on until October 9, 1980, when the presiding justice of the Superior Court wrote to Governor J. Joseph Garrahy and, after detailing various statistical data relating to the performance of the mediation panels during a four-year period, stated: "I think it is fair to say that the consensus of the majority [a group of interested attorneys, doctors, and governmental officers who had conferred with the presiding justice] is that the Rhode Island procedure has failed to achieve the objective for which it was designed." ² Later, the presiding justice released statistics that indicated that as of November 19, 1980, of the 266 mediation panels appointed since the effective date of the act only 57 panels had resolved the controversies brought before them; the remaining 209 controversies were still unresolved.

The Legislature responded to the presiding justice's comments with the introduction on March 12, 1981, of Senate bill No. 81-991. When the bill emerged from the Senate Judiciary Committee on May 8 as "81-991 (Substitute A)," Senator Revens, in moving its passage, described the 1976 mediation system as "a failure." ³ The substitute bill became law on May 18, 1981, and was designated by the Secretary of State as P.L.1981, ch. 187. Today it is cited as G.L.1956 (1981 Reenactment) chapter 19 of title 10 (1982 Cum.Supp.).

With its adoption of P.L.1981, ch. 187, the Legislature amended chapter 19 of title 10 in its entirety and established a substantially different system for the processing of medical malpractice complaints. The 1976 three-person panel was replaced by a Superior Court justice who was to hold a preliminary hearing within ninety days of the filing of the health-care provider's answer ⁴ to the plaintiff's complaint. The justice who conducts the hearing can sua sponte subpoena records or individuals to supplement the evidence presented by the parties as well as appoint impartial experts to examine either the plaintiff or relevant evidentiary material. ⁵ Designated as admissible evidence at the hearing are "hospital and medical records, nurses' notes, X-rays and other records kept in the usual course of the practice of the health care provider without the necessity for other identification or authentication * * *." ⁶ The hearing justice is also authorized to consider "statement[s] of fact or opinion on a subject contained in a published treatise, periodical, book or pamphlet or statements by experts without the necessity of such experts appearing at said hearing." ⁷

Once the hearing is completed, the trial justice is required to "make a finding of fact as to whether the evidence presented if properly substantiated and viewed in the light most favorable to the plaintiff would be sufficient to raise a legitimate question of liability appropriate for judicial inquiry or whether the plaintiff's case is merely an unfortunate medical result." ⁸ If the finding is one of unfortunate result, the action "shall be dismissed with prejudice." ⁹ Although the act is silent about a finding "sufficient to raise a legitimate question of liability," it seems safe to say that the controversy would proceed to a de novo hearing held, in most instances, before a Superior Court jury. A "health-care provider" is defined as a "licensed physician as defined in section 5-37.1-1 or a hospital, clinic, health maintenance organization or professional service corporation providing health care services and organized under chapter 5.1 of title 7." ¹⁰ A physician is defined in § 5-37.1-1 as any person who has been licensed by the state "to practice allopathic or osteopathic medicine." Physicians with a doctor of medicine degree are often referred to as allopaths. State ex rel. Carpenter v. Cox, 61 Tenn.App. 101, 115, 453 S.W.2d 69, 75 (1969).

One more brief look backward is in order before we turn to the merits of the pending appeals. The front page of the Providence Evening Bulletin for June 10, 1975, carried a story bearing a headline that read, "Panel Set Up to Insure Rhode Island Doctors." The story revealed that the Director of Business Regulation had announced the enactment of an emergency regulation and the creation of a medical malpractice Joint Underwriting Association, a shared-risk pool in which all insurers would participate and physicians would have a choice of claims-made coverage or occurrence coverage. In 1976, ¹¹ with its enactment of P.L.1976, ch. 1, the Legislature amended title 42 of the General Laws by the addition of ch. 14.1, thereby validating the 1975 emergency regulation and designating the Joint Underwriting Association as the exclusive agency through which medical malpractice insurance would be written in the state. Later in the session, with the enactment of P.L.1976, ch. 79, the exclusive clause was deleted, but the Association was authorized to issue malpractice and incidental liability insurance to physicians, hospitals, and other health-care providers.

With this historical perspective in mind, we turn to the merits of the appeals before us. The trial justices below ¹² ruled that the 1981 statute impermissibly discriminated between certain classes of individuals. Specifically, they found that no rational basis existed to support the...