Comiskey v. Arlen

• Decision Date: 20 December 1976
• Parties: Mitchell COMISKEY, an infant, etc., et al., Respondents, v. Myron ARLEN et al., Appellants, Louis J. Lefkowitz, Attorney-General, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 122

390 N.Y.S.2d 122

55 A.D.2d 304

Mitchell COMISKEY, an infant, etc., et al., Respondents, v. Myron ARLEN et al., Appellants Louis J. Lefkowitz, Attorney-General, Appellant.

Supreme Court, Appellate Division, Second Department.

Dec. 20, 1976.

Martin, Clearwater & Bell, New York City (Steven A. DeMaggio, New York City, of counsel), for appellant Arlen.

Bower & Gardner, New York City (Barbara Pilo, New York City, of counsel), for appellant Brooklyn Jewish Hospital (relying on the brief submitted on behalf of appellant Arlen).

Fuchsberg & Fuchsberg, New York City (Bernard Turkewitz and Norman E. Frowley, New York City, of counsel), for respondents.

Louis J. Lefkowitz, Atty. Gen., New York City (Daniel M. Cohen and Samuel A. Hirshowitz, New York City, of counsel (appearing pursuant to section 71 of the Executive Law and CPLR 1012 (subd. (b)))), appellant.

Before HOPKINS, Acting P.J., and MARTUSCELLO, DAMIANI and SUOZZI, JJ.

SUOZZI, Justice.

The issue presented for review on this appeal is whether subdivision 8 of section 148--a of the Judiciary Law is unconstitutional. The Trial Term held that subdivision 8 violated plaintiffs' constitutional right to a meaningful jury trial. We reverse and hold that subdivision 8 of section 148--a of the Judiciary Law is constitutional.

This is a medical malpractice action arising out of a surgical procedure performed by the defendant doctor on the infant plaintiff at the defendant hospital. At the completion of discovery and all other preliminary proceedings, the case came on for a hearing before a medical malpractice mediation panel (the 'panel') pursuant to section 148--a of the Judiciary Law.

Section 148--a of the Judiciary Law provides, in essence, for the following procedures:

All hearings are held before a panel of three, consisting of a Justice of the Supreme Court, a physician and an attorney (subd. 2). The panel doctor and attorney are chosen from a list prepared by the Presiding Justice of each Appellate Division (subd. 2, pars. (a), (b)). Prior to the hearing date any party may file a written objection to the designation of a doctor or attorney, which objection shall be decided by the Justice presiding as a member of the panel (subd. 2, par. (d)). The specialty involved is determined and communicated to the court by 'the Medical Society of the State of New York, a county medical society and/or the New York Academy of Medicine', after a review of material submitted to the court (pleadings, bills of particulars and medical and hospital records) (subd. 3, pars. (a), (b)). The hearing itself is informal and without a stenographic record (subd. 4). The panel 'may request an additional doctor having particular expertise in the specialty involved to assist it in the determination' (subd. 6).

Subdivision 8 of section 148--a provides:

'8. If the three members of the panel concur as to the question of liability, a formal written recommendation concerning such question of liability shall be signed by the panel members and forwarded to all parties. In such event, the recommendation shall be admissible in evidence at any subsequent trial upon the request of any party to the action. The recommendation shall not be binding upon the jury or, in a case tried without a jury, upon the trial court, but shall be accorded such weight as the jury or the trial court chooses to ascribe to it.

'If the recommendation is read to the jury or by the trial court, the doctor member or the attorney member of the panel, or both of them, may be called as a witness by any party with reference to the recommendation of the panel only. The party calling such witness or witnesses shall pay their reasonable fees and expenses.'

In the case at bar, the panel considered all of the evidence submitted, and the arguments of the parties relating thereto, and determined unanimously that no malpractice was involved. The action was then placed on the regular jury calendar. Before the case could be assigned for trial, however, plaintiffs moved to have the panel's recommendation suppressed.

The Trial Term held that subdivision 8 of section 148--a of the Judiciary Law, which provides for the admissibility of the panel's recommendation into evidence at the trial, was unconstitutional and, accordingly, ruled that it could not be introduced at the trial. In its memorandum decision, the Trial Term stated that '(t)o allow the Panel's recommendation to be introduced into evidence would nullify plaintiff's constitutional right to a meaningful jury trial.' It was the trial court's view that 'to anticipate anything less than a full and complete adoption by the jury of the Panel's recommendation as to liability is unrealistic and strains credulity.'

In my view, the Trial Term erred in holding subdivision 8 of section 148--a of the Judiciary Law to be unconstitutional.

Initially, I agree with the contention of the Attorney-General (who has appeared to defend the constitutionality of the statute) that the Trial Term acted prematurely in ruling on the constitutionality of subdivision 8. Constitutional questions should not be reached unless their disposition is necessary. Any constitutional objection to the procedures of the panel would be better treated at the trial, when, pursuant to the statute, the panel's recommendation can be admitted into evidence at the request of any party and be given its proper weight in accordance with the trial judge's instructions. Indeed, this latter procedure was utilized in the recent case of Halpern v. Gozan, 85 Misc.2d 753, 381 N.Y.S.2d 744, which also originated in Queens County. In Halpern v. Gozan (supar), the Trial Term (Leonard Finz, J.) held that subdivision 8 of section 148--a of the Judiciary Law was constitutional. That ruling was made after completion of a trial during which a panel's recommendation finding liability was admitted into evidence. In Halpern, the jury found for the plaintiff. At the trial's conclusion, the defendant moved to set the verdict aside, raising a constitutional challenge to subdivision 8 of section 148--a of the Judiciary Law. The trial court denied the motion and held that the statute was constitutional.

Accordingly, and in view of the fact that the constitutional issue is now before us, and in view of the fact that there is a conflict on the issue between two Trial Terms in Queens County--the holding in Halpern was never appealed--the constitutional issues raised herein will now be dealt with on their merits.

A finding of unconstitutionality should not be lightly undertaken by courts of first instance. 'A statute should not ordinarily be set aside as unconstitutional by a court of original jurisdiction unless such conclusion is inescapable. Courts of first instance should not exercise transcendent power to declaring an act of the Legislature unconstitutional except in rare cases involving life and liberty, and where the invalidity of the act is apparent on its face' (see McKinney's Cons. Laws of N.Y., Book 1, Statutes, § 150, pp. 312--313, and the cases cited thereat).

The whole thrust of the Trial Term's decision was its assumption that no jury could evaluate a medical malpractice panel's recommendation with objectivity, or follow a trial court's instructions regarding the weight to be given it. That assumption was unwarranted and cannot serve as the basis for a declaration of unconstitutionality since '(h)istorically, jurors for the most part have proven their independence. They guard their roles with a unique jealousy' (Halpern v. Gozan, supra, at p. 759, 381 N.Y.S.2d at p. 748).

More importantly, a finding of unconstitutionality herein is precluded by the decision of our Court of Appeals in Montgomery v. Daniels, 38 N.Y.2d 41, 378 N.Y.S.2d 1, 340 N.E.2d 444, and by the decision of the Supreme Court of the United States in Exparte Peterson, 253 U.S. 300, 40 S.Ct. 543, 64 L.Ed. 919.

In Montgomery v. Daniels (supra), the Court of Appeals upheld the constitutionality of article 18 of the Insurance Law ('the no-fault statute'), and specifically stated (38 N.Y.2d at p. 53, 378 N.Y.S.2d at p. 11, 340 N.E.2d at p. 451):

'We conclude that the partial abolition here of an accident victim's right to sue for damages caused by another's negligent action does not deprive the victim of a right or interest protected by the due process clause of either our State or the Federal Constitution.'

The court, in Montgomery, specifically rejected plaintiffs' argument that the nofault statute (1) denied them due process of law by unconstitutionally abrogating their common-law right to sue in tort without providing an adequate substitute remedy and (2) infringed on their right to a jury trial.

In rejecting these attacks on the no-fault statute, the court restated the holding of the Supreme Court in Munn v. Illinois, 94 U.S. 113, 134, 24 L.Ed. 77, that '(a) person has no property, no vested interest, in any rule of the common law. That is only one of the forms of municipal law, and is no more sacred than any other. Rights of property which have been created by the common law cannot be taken away without due process; but the law itself, as a rule of conduct, may be changed at the will, or even at the whim, of the legislature, unless prevented by constitutional limitations. Indeed, the great office of statutes is to remedy defects in the common law as they are developed, and to adapt it to the changes of time and circumstances' (see, also, Arizona Employers' Liab. Cases, 250 U.S. 400, 421, 39 S.Ct. 553, 63 L.Ed. 1058).

In discussing the plaintiffs' claim that the no-fault statute had infringed on their right to a jury trial, the court, in Montgomery, cited Mountain Timber Co. v. Washington, 243 U.S. 219, 37 S.Ct. 260, 61 L.Ed. 685. In the latter case, the Supreme Court considered challenges made under the Seventh Amendment to the Federal Constitution (which preserves the right to a jury trial in language similar to that contained in the New York...