Eastin v. Broomfield

• Decision Date: 27 September 1977
• Docket Number: No. 13114,13114
• Parties: Keith A. EASTIN and Rosemary Eastin, husband and wife, Petitioners, v. The Honorable Robert C. BROOMFIELD, Presiding Judge of the Maricopa County Superior Court, the Honorable Rufus C. Coulter, Jr., Judge of the Maricopa County Superior Court, Robert R. Mills, William S. Weast, D. O., and Scottsdale Family Physicians, Ltd., an Arizona Corporation and William R. Gerchick, William R. Gerchick, personally and individually, Real Parties In Interest, Respondents.
• Court: Arizona Supreme Court

Page 744

570 P.2d 744

116 Ariz. 576

Keith A. EASTIN and Rosemary Eastin, husband and wife, Petitioners, v. The Honorable Robert C. BROOMFIELD, Presiding Judge of the Maricopa County Superior Court, the Honorable Rufus C. Coulter, Jr., Judge of the Maricopa County Superior Court, Robert R. Mills, William S. Weast, D. O., and Scottsdale Family Physicians, Ltd., an Arizona Corporation and William R. Gerchick, William R. Gerchick, personally and individually, Real Parties In Interest, Respondents.

No. 13114.

Supreme Court of Arizona, In Banc.

Sept. 27, 1977.

Kenneth Rosengren and Timothy W. Evens, Phoenix, for petitioners.

Burch, Cracchiolo, Levie, Guyer & Weyl, P. A. by Barry A. MacBan, Phoenix, for respondents William R. Gerchick, D. O. and Scottsdale Family Physicians, Ltd.

Snell & Wilmer by Edward Jacobson and Shyrl R. Nielsen, Lewis & Roca by Walter Cheifetz, Phoenix, Brief Amici Curiae for The Arizona Medical Association, Inc. and The Arizona Hospital Association.

Bruce E. Babbitt, Atty. Gen., by Fred W. Stork, Asst. Atty. Gen., Phoenix, Attorneys for Arizona Joint Underwriting Plan.

Snell & Wilmer by John Bouma, Phoenix, Attorneys for Mutual Insurance Company of Arizona.

Fennemore, Craig, von Ammon & Udall by R. C. Mitten and Ruth V. McGregor, Phoenix, Brief Amicus Curiae for Truck Insurance Exchange.

CAMERON, Chief Justice.

We accepted jurisdiction of this petition for special action to consider the constitutionality of the medical liability review panels as provided by A.R.S. §§ 12-567, et seq. In addition to the constitutionality of the statute, we must also consider whether the trial judge was within his discretion in refusing to allow a medical doctor to testify as to the degree of professional skill required by an osteopathic doctor in the prescribing of certain drugs to a patient, and whether the Presiding Judge of the Superior Court was correct in refusing to submit the case to an entirely new panel after the disqualification of one of the members of the first panel.

The facts necessary for a determination of this matter are as follows. Petitioners, Keith A. Eastin and Rosemary Eastin, husband and wife, brought an action against Dr. William R. Gerchick and Scottsdale Family Physicians, Ltd., alleging failure to exercise reasonable care in the administration of the drug Talwin to Keith Eastin. The matter was submitted to a medical review panel as provided by A.R.S. §§ 12- 561 to 569. This Act, Chapter 5.1 of Title 12, was enacted in February of 1976 and provides for the creation of medical liability review panels consisting of a superior court judge, one attorney, and one physician or licensed health care provider in the same field of health care as the defendant (§ 12-567(B)). Upon the filing of a medical malpractice action, the matter must be referred to this medical liability review panel within 10 days after the expiration of the time for defendant's answer (§ 12-567(A)). The matter is then submitted to the panel under such procedural rules as established by the Supreme Court, but with relaxed rules of procedure (§ 12-567(D)). After hearing, the panel files a decision finding either for the plaintiff or for the defendant (§ 12-567(G)).

If either party rejects the decision of the panel, the plaintiff may then proceed with litigation in the Superior Court (§ 12-567(H)). However, if he does proceed, he must post a $2,000 bond secured by cash or its equivalent, and if such bond is not posted before the plaintiff proceeds, the action shall be dismissed (§ 12-567(I)). The same is true of the defendant. If he refuses to accept the recommendations of the panel and does not file the bond, the matter shall proceed in a default manner (§ 12-567(J)). § 12-568 provides for a review of the attorney's fees in a health care action, and § 12-569 provides for the non-admissibility at a subsequent trial of evidence of medical malpractice insurance by a licensed health provider. § 12-567(M) provides that the conclusions of the panel may be admitted into evidence, but the panel members themselves may not be called to testify as to the merits of the case, and the jury shall be instructed that the conclusion of the panel shall not be binding but should be accorded such weight as they choose to give it. § 12-565 abolishes the collateral source rule.

At the hearing of the panel, the petitioners called a Dr. John Palmer as an expert witness. Dr. Palmer possessed a Bachelor's, Master's, and Doctor's degrees in Pharmacology as well as a Doctor's degree in Medicine. Dr. Palmer is a licensed internist in Arizona and an Assistant Professor of Internal Medicine at the University of Arizona Medical School. Because the defendant Dr. Gerchick is a Doctor of Osteopathy and Dr. Palmer is a Doctor of Medicine, the trial court would not allow Dr. Palmer to testify as to the standard of care required of Dr. Gerchick in the administration of drugs.

Also at the first hearing, it appeared that the medical member of the review panel, a Doctor of Osteopathy, had been suspended from the practice of osteopathic medicine for three months for the abusive and unprofessional prescription of narcotic drugs and was on probation at the time of the hearing. The doctor was excused, but instead of starting over with a new panel as petitioner requested, the Presiding Judge of Maricopa County appointed a new medical member and proceeded with the hearing.

From these rulings the petitioners brought a petition for special action which also questions the constitutionality of the Act.

A. CONSTITUTIONALITY OF THE ACT

Petitioners contend that the Act is unconstitutional for the following reasons:

1. The medical review panels violate the petitioners' right to trial by jury.

2. The introduction of the panel's finding at the subsequent trial is an impermissible comment on the evidence by the judge.

3. The medical review panel usurps the judicial function of the court.

4. The medical review panel denies equal protection of the laws.

5. The abolition of the collateral source rule is a "special law" in violation of Arizona Constitution, Art. IV, Part 2, § 19; is a limitation on damages contrary to Arizona Constitution, Art. II, § 31 and Art. XVIII, § 6; and also is a denial of due process and equal protection of the laws.

6. The requirement of a $2,000 cost bond is a denial of the equal protection of the laws.

At the outset it should be noted that there is a strong presumption supporting the constitutionality of a legislative enactment and the party asserting its unconstitutionality bears the burden of overcoming the presumption. State v. Krug, 96 Ariz. 225, 393 P.2d 916 (1964); Landgraff v. Wagner, 26 Ariz.App. 49, 546 P.2d 26 (1976).

1. Right to trial by jury.

Petitioners contend that A.R.S. § 12-567, which requires that the party submit his case first to the medical liability review panel and then permits the introduction of their findings to the jury, violates their right to trial by jury as guaranteed by Art. II, § 23 of the Arizona Constitution.

The Act provides that upon the filing of a medical malpractice action the matter shall be referred to a panel for its review. The panel is to find either for the plaintiff or for the defendant on each claim presented, and by the terms of A.R.S. § 12-567(M), its conclusions are admissible in any subsequent trial on the matter. A.R.S. § 12-567(M) further provides:

"Parties may, in the opening statement or argument to the court or jury, comment on the panel's conclusion in the same manner as any other evidence introduced at trial. Panel members may not be called to testify as to the merits of the case. The jury shall be instructed that the conclusion of the panel shall not be binding but shall be accorded such weight as they choose to give it."

We do not agree that this provision violated the petitioners' right to trial by jury. Once the panel has considered the evidence and a decision has been rendered, either party is free to proceed to trial and present his case to a jury. A.R.S. § 12-567(H). The jury remains the final arbiter of the issues raised and the facts presented. The statute does not take away the right of the party to have the matter finally and fully determined by the jury.

Petitioners further contend that no jury will be able to objectively evaluate the conclusion reached by the panel or to follow the court's instructions as to how much weight they are to accord such finding, and that, in effect, this procedure violates the plaintiffs' right to trial by jury. Again, we do not agree.

In Meeker v. Lehigh Valley R. R. Co., 236 U.S. 412, 35 S.Ct. 328, 59 L.Ed. 644 (1915), the United States Supreme Court rejected an assertion similar to the one made by petitioners here. In that case the court held that a provision permitting the introduction of the prior findings and order of the Interstate Commerce Commission as prima facie evidence of facts contained therein in a civil action by a shipper against a defendant carrier, does not violate the right to trial by jury. In reaching that conclusion, the court said:

"It is also urged, as it was in the courts below, that the provision in § 16 that, in actions like this, 'the findings and order of the Commission shall be prima facie evidence of the facts therein stated' is repugnant to the Constitution in that it infringes upon the right of trial by jury and operates as a denial of due process of law.

"This provision only establishes a rebuttable presumption. It cuts off no defense, interposes no obstacle to a full contestation of all the issues, and takes no question of fact from either the court or jury. At most, therefore, it is merely a rule of evidence. It does not abridge the right of trial by jury, or take away any of its incidents." 236 U.S. at 430, 35 S.Ct. at 335, 59 L.Ed. at 657. See also Ex Parte Peterson, 253 U.S. 300, 40 S.Ct. 543, 64 L.Ed. 919 (1920) and Comiskey v. Arlen, 55 A.D.2d 304, 390 N.Y.S.2d 122 (1976).

In Meeker, supra,...