Phoenix General Hosp. v. Superior Court In and For Maricopa County, s. 17194-S

• Decision Date: 23 January 1984
• Docket Number: Nos. 17194-S,17222-SA,s. 17194-S
• Citation: 675 P.2d 1323,138 Ariz. 504
• Parties: PHOENIX GENERAL HOSPITAL, Petitioner, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF MARICOPA; the Honorable Edmund G. Noyes; and Kathleen A. Zaleski, real party in interest, Respondents. Steven J. REINHART, D.O., Petitioner, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF MARICOPA, and the Honorable Warren L. McCarthy, Judge of the Superior Court of Arizona and Medical Liability and Review Panel Chairman, and the Honorable E.G. Noyes, Jr., a Judge of the Superior Court of Arizona, and Kathleen A. Zaleski, a single person, Respondents.
• Court: Arizona Supreme Court

Page 1323

675 P.2d 1323

138 Ariz. 504

PHOENIX GENERAL HOSPITAL, Petitioner, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF MARICOPA; the Honorable Edmund G. Noyes; and Kathleen A. Zaleski, real party in interest, Respondents.

Steven J. REINHART, D.O., Petitioner, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF MARICOPA, and the Honorable Warren L. McCarthy, Judge of the Superior Court of Arizona and Medical Liability and Review Panel Chairman, and the Honorable E.G. Noyes, Jr., a Judge of the Superior Court of Arizona, and Kathleen A. Zaleski, a single person, Respondents.

Nos. 17194-SA, 17222-SA.

Supreme Court of Arizona, In Banc.

Jan. 23, 1984.

Fennemore, Craig, von Ammon, Udall & Powers by R.C. Mitten, Marc Kalish, Phoenix, for petitioner Phoenix General Hosp.

Teilborg, Sanders, Haga & Parks by Richard A. Kent, Phoenix, for petitioner Reinhart.

Wykoff & Charles by Robert A. Hayes, Glendale, for respondent Zaleski. FELDMAN, Justice.

Petitioners in these two special actions, brought pursuant to the Rules of Procedure for Special Actions, 17A A.R.S., are defendants in a single medical malpractice action presently pending before the Superior Court of Maricopa County. The real parties in interest in both special action proceedings are the plaintiffs in the malpractice action. The respondent judges are judges of the Superior Court of Maricopa County who have been assigned to and have ruled on various issues in the malpractice cases.

Section 12-567(A) & (B), 4 A.R.S. (Supp.1983) requires that in all actions brought against a "health provider," the superior court convene a "medical liability review panel." The statute provides that the panel shall hear the case, determine if the evidence supports judgment for plaintiff or defendant, and shall render a decision, finding for the plaintiff or for the defendant. Id. subsects. (F) and (G). The statute further provides that the decision of the panel shall be admitted in evidence at the trial of the case. Id. subsect. (K). In Eastin v. Broomfield, 116 Ariz. 576, 570 P.2d 744 (1977), we upheld these provisions of the malpractice act against an attack based, inter alia, on the argument that the statutory requirements were offensive to art. 6, § 1 of the Arizona Constitution, which vests judicial power in the court system. In so holding, we stated that the decision of the panel was not admitted in evidence as the decision of a judicial tribunal, but, rather, as a statement of opinion to which the jury might give such weight as it deemed appropriate and which was subject to impeachment. Eastin v. Broomfield, 116 Ariz. at 582, 570 P.2d at 750.

Apparently in order to minimize the effect of an expected unfavorable panel result, counsel for the malpractice plaintiffs in the cases at bench appeared before the panel but declined to participate, refused to offer any evidence or to cross-examine, and, in effect, stood mute. No doubt, at the trial which will follow, plaintiffs will argue that the jury should give little weight to the unfavorable panel decision because the panel did not hear the evidence the plaintiffs will have presented to the trial jury.

Dismayed by this "end run", defendants made various motions in the superior court. Defendants attempted to force plaintiffs to litigate before the panel and, failing that, moved the court for an order imposing sanctions, including summary judgment dismissing the malpractice actions. Judge Noyes, a respondent in the special action, denied those motions. He made the following order:

The cases and authorities cited by Defendants firmly establish that a medical malpractice Plaintiff must go before a Medical Review Liability Panel [sic] for a hearing before that Plaintiff is entitled to a trial before a jury. This Plaintiff complied with that Mandate. The Court finds nowhere in the pertinent statutes, rules, and cases authority to support the drastic sanctions sought by Defendants here; namely, Summary Judgment against Plaintiff on the merits of the lawsuit as a penalty for Plaintiff's intentional failure to present anything to the Medical Review Liability Panel [sic], or to Defendants during discovery in connection with that panel. Plaintiff's failure to present any evidence does not preclude the panel from seeking and obtaining evidence: '... the panel may, upon application of any party or upon its own initiative, summon or subpoena any other records, or persons to substantiate or clarify any evidence which has been presented to it and may appoint impartial and qualified health care providers to conduct any necessary professional or expert examination of the Plaintiff or any evidentiary matter and to testify as a witness...' A.R.S. § 12-567(d).

Defendants' Motion for Summary Judgment is denied.

Defendants now seek the intervention of this court by petition for special action, claiming that Judge Noyes abused his discretion or acted without or in excess of his jurisdiction in denying the motions for dismissal. We accepted jurisdiction because the issue is one not yet decided under Arizona law and because the number of cases recently before us on special action petitions indicate numerous unresolved problems with regard to the panel procedure specified by the Act. We believe, therefore, that the cases present matters of public concern and importance. See King v. Superior Court, 138 Ariz. ---, 673 P.2d 787 (1983). We have jurisdiction under Rule 8, Rules of Procedure for Special Actions, 17A A.R.S., and Arizona Constitution art. 6 § 5(3).

In essence, defendants below, petitioners here, argue that the failure of the malpractice plaintiffs to present evidence before the review panel violates the intent of the malpractice act and constitutes a waiver of the right to present their claims to a jury. The malpractice defendants contend that subsection (F) ¹ indicates a legislative intent that evidence be presented to the panel so that it may determine whether the evidence supports judgment for the plaintiff or defendant. They argue that the legislative purpose of the Act is emasculated if plaintiffs stand mute, present no evidence in support of their claims, and then attack the panel's finding at the subsequent jury trial on the ground that the panel did not have all the evidence before it.

The malpractice plaintiffs claim, on the other hand, that the language of subsection (D), providing that "[w]itnesses may be called ... testimony may be taken ... records ... [and] ... statements of fact or opinions ......