State ex rel. Schneider v. Liggett

• Decision Date: 10 March 1978
• Docket Number: No. 49446,49446
• Citation: 576 P.2d 221,223 Kan. 610
• Parties: STATE of Kansas, ex rel. Curt T. SCHNEIDER, Attorney General, Petitioner- Appellee, Kansas Hospital Association, the Kansas Medical Society, the Kansas Health Care Provider Insurance Availability Plan, Intervenors-Appellees, v. Byron Timothy LIGGETT, M.D., Respondent-Appellant.
• Court: Kansas Supreme Court

Page 221

576 P.2d 221

223 Kan. 610

STATE of Kansas, ex rel. Curt T. SCHNEIDER, Attorney General, Petitioner- Appellee, Kansas Hospital Association, the Kansas Medical Society, the Kansas Health Care Provider Insurance Availability Plan, Intervenors-Appellees, v. Byron Timothy LIGGETT, M.D., Respondent-Appellant.

No. 49446.

Supreme Court of Kansas.

March 10, 1978.

Syllabus by the Court

1. The power of the state to regulate and license professions is not limited to fitness to practice, but may also include requirements to protect and promote the public health, safety, morals, peace, quiet, and law and order.

2. The mandatory malpractice insurance provision of the Kansas Health Care Provider Insurance Availability Act (K.S.A. 1976 Supp. 40-3401, et seq. (now 1977 Supp.) ) bears a reasonable relationship to the health and welfare of the citizens of this state and does not violate the due process clause of the state and federal Constitutions.

3. The provisions of the Kansas Health Care Provider Insurance Availability Act (K.S.A. 1976 Supp. 40-3401, et seq. (now 1977 Supp.) ) bear a substantial relationship to the purpose of the legislation and do not violate the equal protection clause of the state and federal Constitutions, notwithstanding the fact they apply to both high risk and low risk practitioners but not to nurses and dentists.

Michael S. Holland, of Holland & Rupe, Russell, argued the cause and was on the brief for the respondent-appellant.

Donald R. Hoffman, Asst. Atty. Gen., argued the cause and Curt T. Schneider, Atty. Gen., was with him on the brief for the petitioner-appellee.

Wayne T. Stratton, of Goodell, Cogswell, Stratton, Edmonds, Palmer & Wright, Topeka, argued the cause and Charles R. Hay, Topeka, and Jerry M. Ward, of Ward & Berscheidt, Great Bend, were with him on the brief for the Kansas Hospital Association and the Kansas Medical Society, intervenors-appellees.

L. M. Cornish, Jr., of Glenn, Cornish & Leuenberger, Topeka, argued the cause and was on the brief for the Kansas Health Care Provider Insurance Availability Plan, intervenor-appellee.

OWSLEY, Justice:

This is an appeal from an action wherein Dr. Byron Timothy Liggett was enjoined from practicing medicine until he obtained medical malpractice insurance as required by K.S.A.1976 Supp. 40-3401, et seq. (now K.S.A.1977 Supp. 40-3401, et seq.). The doctor challenges the constitutionality of the act on the grounds it denies him (1) substantive due process of the law, and (2) equal protection of the law. For the reasons set forth herein we find the act constitutional.

The Kansas Health Care Provider Insurance Availability Act was passed by the 1976 legislature as a partial response to increasing pressure brought upon Kansas health care providers because of the national medical malpractice crisis. The primary feature of the act is the requirement that all health care providers operating within the state must obtain professional malpractice liability insurance (40-3402) and pay a surcharge to the health care stabilization fund (40-3404). The law requires the provider to carry a basic policy of $100,000 per occurrence and an annual aggregate of $300,000 for all claims made during the period. The stabilization fund provides for the payment of claims in excess of policy limits. Included in the act is a provision requiring every health care insurer to participate in an apportionment plan whereby any health care provider may obtain liability insurance from the plan if insurance from a conventional source (40-3413) is not available.

The problem of obtaining and maintaining affordable malpractice insurance came before the legislature in 1971, 1973 and 1975. As a result, the legislature enacted a law in 1975 requiring all health care insurers to report their claims experience to the commissioner of insurance (K.S.A.1975 Supp. 40-1126, et seq.). In 1976, however, the problem had grown to such proportions it received full legislative attention. A legislative interim committee was told in detail how insurance costs had skyrocketed on present policies, policies were unavailable for new doctors, insurers were beginning to withdraw from the medical malpractice field, and the availability of medical service in some Kansas communities was threatened. In response, the committee proposed twelve bills, including the act in the present controversy.

The original bill did not require mandatory insurance coverage, nor did it require payment of the surcharge. These provisions were added by the legislature at the behest of Insurance Commissioner Fletcher Bell. The mandatory coverage provision, it was alleged, would provide for the financial stability of the insurance availability program and would assure all Kansans they would have a source of recovery for damages resulting from malpractice.

During the hearings on the bill Kansas dentists and nurses asked to be exempted from the proposed legislation. Both groups testified they were not experiencing the problems of malpractice associated with other health care providers and they could obtain adequate amounts of low cost insurance from their national associations. It was stated that many nurses worked on a part-time basis and the proposed mandatory insurance requirement, if applied to them, would economically force them out of practice.

Pharmacists, originally exempted from the act, asked to be included because they were beginning to experience malpractice and insurance availability problems similar to doctors and hospitals. The legislature made the insurance coverage mandatory and included pharmacists but exempted dentists and nurses.

The main thrust of Dr. Liggett's attack on the act is that it requires him to obtain liability insurance before he may engage in the practice of medicine. He argues he was already qualified and licensed to practice medicine prior to the time the law went into effect; therefore, he has a vested right to practice medicine and the state cannot now impose any additional requirements which might take away that right. He further argues that any requirement affecting the right to practice a profession must be directly related to a person's ability to practice that profession before the condition is constitutionally valid. He also claims, and the state candidly admits, that the presence or absence of insurance does not affect his competence as a physician; it affects only the ability to satisfy a judgment if he should successfully be sued for negligence or malpractice.

In all fairness to Dr. Liggett it should be noted that no one has alleged he is incompetent or unfit to practice medicine, and to our knowledge he has not been sued for malpractice, nor have any complaints been lodged against him. He simply refuses to purchase the required insurance or to pay the surcharge.

We live in a dynamic society and the law must change responsively to the needs of the people. No person has a vested right in any rule of law entitling him to insist it shall remain unchanged for his benefit. (New York Central R.R. Co. v. White, 243 U.S. 188, 37 S.Ct. 247, 61 L.Ed. 667.) Events transpiring after the passage of a law may require changes and place a citizen in a position different from that which he occupied prior to the change. (Pinnick v. Cleary, 360 Mass. 1, 271 N.E.2d 592 (1971),42 A.L.R.3d 194.) The Fourteenth Amendment to the United States Constitution and Section 18 of the Kansas Bill of Rights do not constitutionally prohibit changes in the law which affect a person's rights as they existed at common law. In Williams v. City of Wichita, 190 Kan. 317, 374 P.2d 578, we said:

". . . (T)he 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. That the legislature may change the principle of the common law and abrogate decisions made thereunder when in its opinion it is necessary to the public interest is well settled . . . ." (pp. 331-32, 374 P.2d p. 589.)

In Manzanares v. Bell, 214 Kan. 589, 522 P.2d 1291, considering the mandatory no-fault insurance law for Kansas motorists, this court stated:

"While Section 18 of the Bill of Rights provides a broad field for the protection of persons, property and reputation, the vested rights contained therein are subject to change by legislative power, where the change is reasonably necessary in the public interest to promote the general welfare of the people of the state. We have never held one to have a vested right in the common-law rules governing negligence actions so as to preclude substituting a viable statutory remedy for common law causes of action. . . ." (p. 599, 522 P.2d p. 1300.)

Defendant's constitutional rights are not violated merely because the statutes require him to do something which was not required of him when he first obtained his license to practice medicine.

We turn to the due process and equal protection arguments raised by defendant. In order to properly resolve these issues it is necessary to understand the distinction between these two constitutional concepts. In Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341, the court explained:

". . . 'Due process' emphasizes fairness between the State and the individual dealing with the State, regardless of how other individuals in the same situation may be treated. 'Equal protection,' on the other hand, emphasizes disparity in treatment by a State between classes of individuals whose situations are arguably indistinguishable. . . ." (p. 609, 94 S.Ct. p. 2443.)

The standard of review in a due process case has fluctuated in response to society's changing attitudes concerning the proper role of the judiciary in the examination of social and economic regulations imposed pursuant to the state's police power. In the past courts often struck down laws with which they disagreed on the basis that due process was violated. (See, e. g., Tyson & Brother v. Banton, 273 U.S. 418, ...