Oregon Medical Ass'n v. Rawls

• Citation: 557 P.2d 664,276 Or. 1101
• Parties: OREGON MEDICAL ASSOCIATION, a nonprofit corporation, Appellant, v. The Hon. Lester RAWLS, Insurance Commissioner of the State of Oregon, Defendant, an Kaiser Foundation Hospitals, a Callfornia Corporation, and the Permanente Clinic, a partnership, Intervenor-Respondents and Cross-Appellants, and Allan Daniel Sobel et al., Intervenor-Respondents and Cross-Appellants. C. H. HAGMEIER, M.D., Appellant, v. The Hon. Lester RAWLS, Insurance Commissioner of the State of Oregon, Defendant, and Kaiser Foundation Hospltals, a Callfornia Corporation, and the Permanente Clinic, a partnership, Intervenor-Respondents and Cross-Appellants, and Allan Daniel Sobel et al., Intervenor-Respondents and Cross-Appellants.
• Decision Date: 23 December 1976
• Court: Supreme Court of Oregon

Page 664

557 P.2d 664

276 Or. 1101

OREGON MEDICAL ASSOCIATION, a nonprofit corporation, Appellant, v. The Hon. Lester RAWLS, Insurance Commissioner of the State

of Oregon, Defendant,

an

Kaiser Foundation Hospitals, a Callfornia Corporation, and

the Permanente Clinic, a partnership,

Intervenor-Respondents and Cross-Appellants,

and

Allan Daniel Sobel et al., Intervenor-Respondents and

Cross-Appellants.

C. H. HAGMEIER, M.D., Appellant, v. The Hon. Lester RAWLS, Insurance Commissioner of the State

of Oregon, Defendant,

and

Kaiser Foundation Hospltals, a Callfornia Corporation, and

the Permanente Clinic, a partnership,

Intervenor-Respondents and Cross-Appellants,

and

Allan Daniel Sobel et al., Intervenor-Respondents and

Cross-Appellants.

Supreme Court of Oregon, In Banc.

Argued and Submitted Nov. 1, 1976.

Decided Dec. 23, 1976.

Charles D. Ruttan, of Morrison, Dunn, Cohen, Miller & Carney, Portland, argued the cause and filed a brief for appellants Oregon Medical Association and C. H. Hagmeier, M.D.

William L. Hallmark, of Jones, Lang, Klein, Wolf & Smith, Portland, argued the cause and filed a brief for intervenor respondents and cross-appellants Kaiser Foundation Hospitals, and The Permanente Clinic, and Ronald B. Lansing, Portland, argued the cause and filed a brief for intervenor-respondents and cross-appellants Sobel, Scott, Coon, Degner and Ward.

R. Ladd Longquist and Burl Green, Portland, filed a brief amicus curiae for Oregon Trial Lawyers Association.

Before DENECKE, C.J., and McALLISTER, O'CONNELL, HOLMAN, HOWELL, BRYSON and BOHANNON, JJ.

O'CONNELL, Justice.

This is a declaratory judgment proceeding which originated in a complaint filed by the Oregon Medical Association and C. H. Hagmeier, a physician, against Lester Rawls, Insurance Commissioner for the State of Oregon, seeking a decree declaring constitutional ORS Chapter 752.

ORS ch. 752 was enacted by the 1975 Legislature in order to assure that 'physicians in this state be insured for professional liability and that the insurance be available at reasonable rates.' It requires participating physicians to purchase professional liability insurance in varying amounts, depending upon the type of practice of the doctor. Participating physicians, depending upon their risk classifications, also contribute to a Medical Excess Liability Fund which is maintained by the state. In exchange for this participation, the physicians are liable for professional negligence only for the amount covered by insurance. The Act is drafted upon the assumption that any additional amounts owed to a medical malpractice claimant will be recovered from the Excess Liability Fund. The Act also limits recovery by indemnitors of the physician to the amount covered by insurance. ORS 752.050(2) provides, however, that,

'No person other than a claimant, or in the event of the death of a claimant, his personal representative, shall have any claim for compensation, indemnity or contribution from the Medical Excess Liability Fund.'

Kaiser Foundation Hospitals and The Permanente Clinic, a partnership comprised of 141 physicians, intervened seeking a declaration that ORS Chapter 752 sets limits on intervenors' vicarious liability or, if not so construed, then a declaration that the indemnity and contribution provisions of ORS 752.050(1)(2) are unconstitutional.

Allan Daniel Sobel, Charles Brian Scott, James Starner Coon, David Degner, and Lee Ann Ward, as interested citizens, intervened praying for a declaration that ORS Chapter 752 is unconstitutional for various reasons.

Defendant Lester Rawls demurred to plaintiffs' complaints and to both complaints in intervention.

Plaintiffs filed motions for summary judgment seeking a declaration that ORS Chapter 752 provides that any Oregon physician who complies with the Act is personally immune from liability in excess of his professional liability coverage and that ORS Chapter 752 was constitutional in all particulars. Kaiser filed a cross-motion for summary judgment.

The several suits were consolidated for trial. All parties stipulated that the court could proceed to consider the questions raised in the motions for summary judgment and demurrers filed in the cases as though all parties had filed motions for summary judgment in support of their position; all parties further agreed that if the court found a justiciable controversy, the court could then proceed to consider and decide the cases on their merits, based upon the affidavits and exhibits filed in support of the several motions for summary judgment in each of the cases.

The trial judge rendered a written opinion and a written supplemental opinion, followed by findings of fact and conclusions of law, and entered judgment. The trial court concluded that there was not a justiciable controversy between plaintiffs and defendant Rawls, that there was a justiciable controversy 'between Rawls, the plaintiffs OMA and Hagmeier and the Intervenors Kaiser, Permanente and the Citizens,' and that the controversy was ripe for judicial determination. The decree found ORS Chapter 752 constitutional except insofar as it precluded common law indemnity rights, and further found that complying physicians are personally immune from claims by patients for damages for acts of professional negligence but not personally immune from claims for indemnity in excess of their professional liability coverage.

This appeal is filed to test the trial court's action in finding that the indemnity provisions of ORS Chapter 752 are unconstitutional and in further finding that a physician is not personally immune from claims for indemnity in excess of his professional liability insurance coverage.

Kaiser has cross-appealed from the trial court's ruling that ORS Chapter 752 did not eliminate vicarious liability and that the provision barring contribution claims is constitutional. Citizens have cross-appealed from the trial court's ruling that ORS Chapter 752 is constitutional except insofar as it abolishes common law indemnity claims.

The trial court correctly held that there was not a justiciable controversy between plaintiffs and defendant Rawls. A justiciable controversy does not exist unless the interests of the parties to the action are adverse. ¹ Certainly, this was absent in the suit between Oregon Medical Association and Rawls and in the suit between C. H. Hagmeier and Rawls because in each of these cases both plaintiff and defendant were interested in establishing the constitutionality of ORS Chapter 752.

However, by the intervention of the 'Citizens' and Kaiser and Permanente, the constitutionality of ORS Chapter 752 is attacked and therefore the element of adverseness essential to justiciability is supplied. It is argued, however, that none of the intervenors have standing to raise the issue.

The concept of standing has been described as being among the most amorphous in the entire domain of public law,' ² and that its treatment by the courts has been 'cluttered, confused and contradictory.' ³ Our own treatment of the principle is not without ambiguity. ⁴ The scholars themselves cannot agree upon the essential ingredients of the concept or to which class of cases it is to be applied. ⁵

Fortunately it is not necessary to decide the question of standing in this case because we can dispose of the case on other grounds. Even assuming there is standing, there is the threshold question of whether we should undertake to pass upon the constitutionality of ORS Chapter 752 now or await the day when a patient attacks the statute because he is not completely compensated for his injury as a result of the application of the limitation of liability provision of the statute. Whether we should entertain the suit now or postpone the decision on the constitutionality of the statute depends primarily upon whether we think that the latter course is required to most efficiently ration scarce judicial resources. ⁶

There are reasons other than those underlying the principle of standing for a court to decline to adjudicate a question presented to it for decision. ⁷ Among those reasons are the inadequacy of the delineation of the issues and the insufficiency of the factual data necessary for the resolution of the question presented for adjudiciation. On numerous occasions courts have refused to entertain suits which lack this specificity. Thus, the United States Supreme Court, adhering to the policy of 'avoiding constitutional decisions until the issues are presented with clarity, precision and certainty' has declined jurisdiction because of 'prematurity and comparative abstractness,' or 'uncertainties' which left the Court without an adequate basis for decision. Rescue Army v. Municipal Court, 331 U.S. 549 at 574--576, 67 S.Ct. 1409, 1423, 91 L.Ed.2d 1666 (1947). The Supreme Court has been especially reluctant to pass upon a constitutional question when the facts necessary to decide the case have not been developed through evidence, as distinct from mere allegations in the pleadings or data consisting of opinion, conclusions and interest oriented statements none of which is subjected to the rules of evidence or cross-examination. Thus on one occasion, the court observed that 'only an adjudication on the merits can provide the concrete factual setting that sharpens the deliberative process especially demanded for constitutional decision' ⁸, and that '(m)atter now buried under abstract constitutional issues may, by the elucidation of a trial, be brought to the surface, and in the outcome constitutional questions may disappear.' ⁹

Similar concerns beset us in the present case. On the score of prematurity, there are insufficient facts in the record which point to the immediacy of injury which we have held to be required in order to obtain a declaratory judgment. ¹⁰ We do not have any evidentiary data from which we can predict whether the amount of the verdicts in medical malpractice cases brought against doctors...