Campbell v. Arnold
590 P.2d 909
Ariz.
1979
Check Treatment

*1 CAMPBELL, Petitioner, W. Duncan ARNOLD, Judge Jack T.

The Honorable Superior Court, Respondent; Lesher, Rucker, & Kimble P. C. Robert Lesher, Tucson, Timothy Ryan, L. 0. husband Buel DANIEL Irene petitioner. wife, Real in Interest. Parties Miller, Feldman, by Stanley Pitt & P. C. No. 13856-PR. Feldman, Warner, Tucson, G. Nanette M. Arizona, Supreme for real in interest. In Banc. CAMERON, Chief Justice. Jan. 1979. This is a for review of a decision

Rehearing 1979. Denied Feb. No. 2 We have May CA-CIV filed 23 47(b), jurisdiction pursuant Rule Rules of 17A A.R.S. need decide only We one peal: May parties with a deci- pursu- sion of a 12-567, bypass ant to A.R.S. in the Court and direct relief Appeals? petitioner, a medical doctor licensed medicine in the State of

is a “licensed provider” health care par- defined 12-561. The real in interest filed a medical ties referred to a matter was panel pursuant 12-567(A). hearing, After the entered the following decision: PANEL: OF THE “DECISION to the panel, all evidence presented votes as follows: the panel votes in favor Member, Slutes, Attorney plaintiff.* *Thjs be explain- that his vote of the panel requests member of in- on the issue he votes for the plaintiff ed formed consent. votes in favor Member, Dr. Christopher the defendant. votes in favor Chairman, Arnold, T. Jack plaintiff. November, 9th day DATED this T. Chairman ARNOLD, JUDGE, JACK T. *2 Christopher Heller, J. such intermediate /s/ MD._ Member HELLER, DR. MEDICAL CHRISTOPHER may provided be by courts Thompson /s/ Slutes__ law, court, such courts inferior superior SLUTES, ATTORNEY Member” D. THOMPSON superior provided court as A motion to reconsider the form of the by justice courts.” by decision was made one defendant. The of our creating Appeals, following entry minute was made: jurisdiction: provided for its legislature has “MINUTES OF MEDICAL MALPRACTICE PANEL: having “The Panel reconvened on 17, 1978, for Jurisdiction and venue January 12-120.21. “§ considering the Defendants’ Motion for Re- purpose shall have: appeals “A. The court of having consideration, Panel concluded that their form of conclusion as filed previous on November 4, jurisdiction in all actions Appellate “1. 1977, was incorrect and not in conformance with A.R.S. proceedings originating permit- or 12-557(F). by from the appealed supe- ted law to be “The Panel did consider Defendants’ Motion Recon- sideration. court, except rior criminal actions involv- “Therefore, the Panel has stated their decision in con- ing crimes for which a sentence of death formance with A.R.S. imprisonment actually or life has been T, imposed. JUDGE And the review its amended “2. Jurisdiction to issue writs of certio- as follows: rari review the lawfulness awards “DECISION OF THE PANEL: of the industrial commission and to enter all evidence presented the panel, judgment affirming setting or aside the finds for all defend- awards. ants. “3. Jurisdiction to issue

DATED this 17th day January, /s/ Jack T- Arnold_ JACK T. ARNOLD, JUDGE, Chairman certiorari and other writs Thompson /s/ D. Slutes_ complete D. THOMPSON SLUTES, ATTORNEY Member Appeals The Court is a court of limited DR. CHRISTOPHER HELLER, MEDICAL Member." jurisdiction specifi and has receiving After the decision of the cally given Morgan to it statute. January dated 17 moved for Investors, Mortgage Continental reconsideration, attaching to his motion 86, 491 App. Shep State affidavits of members D. pard, 2 Ariz.App. 407 P.2d 783 who Slutes stated he had determined that plaintiff prevail we find only on the lim- Nowhere do au ited issue of informed consent and that thority Appeals he for the Court of did not find for the on other review the decisions of the medical practice, Christopher issue of medical panels. Court of D.,M. who stated that he found for course, may review actions of the the defendant on the issues in which the decisions panel. judicial member declined to panels played part. If the reasoning, evidently preferring state his decision of the medical review is erro panel. stand on the decision of the neous and that error has not been corrected motion reconsider was denied. then, judge, appeal, on trial relief, peti From that denial speak. jurisdic Appeals may But in the Court special action tioner the decisions of the medical tion to review jurisdiction be accepted to determination panels public impor question was “of cause the “necessary prop is not prompt resolution.” requiring tance “complete er” for exercise” of the Court provides: jurisdiction. Appeals’ appellate Article Sec. 1 12-120.21(A)(3). We do not an find that the be vested in judicial shall consisting in this judicial department integrated “jurisdiction Mandamus is extraordinary legal legislation. proceeds statute of venue” assumption applicant that the has an authority Neither do find legal right immediate and review of Moore, thing demanded. Graham creating the statute *3 106, (1940). Ariz. 105 P.2d It is a 962 writ liability panel. A.R.S. review medical Hunt, as of right. Campbell issues allow in a medical parties 12-567. To § 442, (1917). 162 P. 18 Ariz. 882 review action to seek malpractice 5.1, 12-567, Legisla- By Ch. A.R.S. § prior to trial every panel decision established ture medical pur- Superior Court would defeat the panels consisting of Superior a Medical Act which Malpractice of the pose attorney practice licensed law in to Ari- system whereby meritorious provide is to a * * zona, physician a licensed to in quickly from “separated claims can be whom, filing to pretrial trial and frivolous ones to complaint malpractice, in medical the action encouraged.” Eastin settlements be] [can must be referred hearing and a held at Broomfield, 583, 576, 116 Ariz. 570 present which both are entitled to 744, Review 751 It is the obligation panel evidence. in the instant Appeals of 12-567(F) “determine, respect with § premature. case was against defendant, to each claim each The granted. for is petition whether the panel evidence to the parties supports judgment all a for the vacated and the order of the Court peals is plaintiff or for the 5.1 defendant.” Ch. is ac- accepting jurisdiction of the legislative attempt an obvious to curb the aside. tion is set oppressive rising and cost of medical care. Camp- Two claims were Dr. against made GORDON, JJ., concur. HAYS and bell, one founded surgical Justice, STRUCKMEYER, dis- Vice Chief that provide and a second he failed senting. interest, in party real Buel with brought against per- a was Dun- information and Initially warnings suit giving by mal- Campbell, M. D. for medical mit the Daniel of informed con- can W. however, in special action sent. The medical panel, He made practice. general finding: Division finds mandamus in “[t]he respondent the decision of amend defendants.” Therefore, Liability Panel to con- which the Review provisions 12-567. decided was whether the decision of A.R.S. § form that alleged complied in his Campbell Dr. stated, Liability As that section re- the members of the Medical one of Panel, pursuant quires Ch. to decide “with Review established * * * Session, 5.1, respect to each claim whether Special First Laws 12-561, supports judg- et acted arbitrar- the evidence a seq., “has in an abuse ment capriciously ily accepting in has failed to discretion and predicate as he has no as a the correct inter- stated that required discretion, was a matter pretation statute public importance requiring prompt resolu- course, an action elementary that It It also said the issue was wheth- tion. that per- compel the will lie in mandamus to is when the decision of er 12-567 satisfied specially act law of an which the formance panel merely general finding. is duty. of Techni- as a State Board imposes Court, however, Bauer, 326 This conceives Registration cal Bolin, Ariz. dissat- dispositive question “May parties is: Adams v. board, board, with a decision of a such isfied as a medical which is 12-567; pursuant to A.R.S. § constituted under state law and upon direct bypass enjoined which is duty. We ques- in of Appeals?” relief This cannot find other adequate remedy is foreign tion serious issue for obtaining available answers up ques- to this time. It is a loaded case the questions involved.” 470 P.2d at 956. tion, obviously designed it is to And see Lawton v. State Accident Insur- bring tion with the action of a medical review prehended, can *4 statutory authority peals again the is in no sense a review of the medical board’s decision. whether on the merits the really is, forth a majority Court’s statement whether a it negative as the Court of Appeals state: to act review the decisions of the ment. A.R.S. It is “Nowhere do we find not answer. The party panels.” determination loaded. This law directs. Here that the Court of Appeals ance venue’ statute of the legislation.” The majority conclude: “We do not find writs of “A. The court of appeals shall have: Fund, [*] Jurisdiction [*] I am in complete disagree- 12-120.21 # issue [*] ‘jurisdiction provides a|s that: [*] It certiorari and other writs necessary and panel was correct. was only Jurisdiction proper accepted by to resolve of whether acted of the Legislature. mandate given This Court is in manda- mus in almost language: identical Appeals’

The Court of action is not with- precedent. out Sowell Workmen’s Court shall have: that where a medical tions er to obtain direct answers to the It said: Compensation report “In Riesland rior tribunal such an evasion of amount contemplation of law. required by court ‘ * * * but did not answer all the (1970), 183, 185, said: to virtual refusal enjoined, Board, v. Bailey, 92 A.L.R. 1207 board public mandamus was Oregon positive or to act at guilty 146 Or. officer In such a case review made court found duty, questions. 574, 578, or infe- (1934), all, prop- as to rections. to act in the manner the law directs. power nals to In hundreds of cases we zona, complete exercise of its visory jurisdiction.” Constitution of Ari- other writs necessary I dissent. 4. Power [*] Art. comply compel of Appeals The Legislature mandamus, [*] boards to issue injunctions with the boards and inferior tribu- [*] ¶ the same [*] * inferior tribunals appellate and Legislature’s have used obviously gave [*] —that [*] re- di- mandamus would afford a HOLOHAN, Justice, concurring: adequate where there was no other by law *.’ remedy provided I concur the dissent.

(Emphasis supplied.) above

The cases which we cited public

involved full-time officers enjoined, duties are but why holdings see reason their no apply temporary not as well to a