Nellie Woods, as Personal Representative of the Estate of John N. Woods v. Holy Cross Hospital

WOODS, Representa- as Personal Nellie Woods, Estate of John N.

tive

Plaintiff-Appellant, al., et HOSPITAL

HOLY CROSS

Defendants-Appellees.

No. 75-3523. Appeals, Court

United States

Fifth Circuit. 26, 1979.

March Kokus, Cohen,

George A. Arthur N. Su- Goldman, Miami, Fla., san plaintiff-ap- pellant. Klein, Fla.,

Larry Beach, West Palm Ed- Pollock, Cal., Angeles, ward I. Los amicus Assn, curiae for Lawyers of Trial of Ameri- ca. Silber,

Barry Gen., L. Atty. Asst. Talla- hassee, Fla., amicus curiae for of Fla. State phy two malpractice committed Fort Regensdorf, Pau^ Rex Conr?J> hospital, all named as defend sicians and a et al- pla-> etc- Holy Cross> Lauderdale. were later ants. Their insurers Hicks, A. Richard Tribble, Mark ^ James Jurisdiction parties-defendant. added as R. Miami, Fla., for Dr. Jefferson Shermrn> citizenship, 28 diversity of was based et al. EdwpAk (1976). sepa The defendants U.S.C. § Mrs. Woods’s com rately moved to dismiss by that her failure to abide alleging plaint, requirement of Florida the mediation TJOFLAT, RONEY, JONES, and Before act precluded 768.44 her section Statutes Judges. Circuit granted the mo The district court ion.3 Mrs. ground tions to dismiss on TJOFLAT, Judge: Circuit condition perform failed to Woods had to exam upon are called this case we In proceeding to her suit precedent Medical Mal Florida’s portions of ine pan Florida before a its whether and determine Law1 by Mrs. Woods appeal was taken el. This claim dismissing that a medical her mandate judgment the final from process prior in a mediation participate complaint. ant must be en in court bringing an action in issues raised various Mrs. Woods has diver court in a district by a federal forced arguments are major appeal. Her this below, reasons set forth For the sity case. Malpractice (1) Medical the Florida follows: meets federal that this we find substantive rather than procedural is Law ap must be and standards constitutional Railroad v. of Erie under the rules and an action. in such plied S.Ct. Tompkins, inappli- is (1938), progeny and its L.Ed. 1188 I case; Flori- and diversity in a cable Woods, federal a citizen Law violates Nellie Medical July da On and process, of the estate due equal protection, the administratrix and of Ohio Woods, her other husband, filed John N. trial standards. We dismiss her late dis- We will arguments court in which as nonmeritorious. district in federal an action seri- major arguments Florida’s cuss Mrs. Woods’s damages pursuant she claimed Florida we set forth the relevant Mr. Woods’s atim after Act2 for Death Wrongful statutory scheme. was cause of death alleged The death. creating juris- merely purpose such for the are sections relevant 1. The (see attached diction. Florida Statutes and 768.47 provisions as these appendix). We construe jurisdictional not addressed The issue was was date this case they effect were neither briefed nor the district court was us, January For the 1978. submitted argued appeal. do not before us on While we disregard any opinion, sub- purposes this point, decide this we note that on the record changes statutes. sequent in these appears us it status before that Mrs. Woods’s as administratrix of her husband’s estate cre- 768.16-.27 §§ Fla.Stat. diversity jurisdiction. valid See O'Brien v. ates Stover, 1971). (8th 443 F.2d Cir. presence questioned the also defendants 3. The as Kenebrew v. Land Cases such Columbia & jurisdiction Mrs. Woods diversity because Co., (5th 1972), 454 F.2d 1146 Timber Cir. the John N. of administration letters held Co., Light 432 F.2d 763 Bass v. Texas Power & Division Probate as issued Estate Woods cert, denied, (5th 1970), Cir. County, Flori- Broward Court of the Circuit clearly 28 L.Ed.2d 324 are complaint, she According Woods’s Mrs. da. present distinguishable on their facts from Ohio; are two defendants is a citizen case. It natural that John Woods’s corporation, citizens, a Florida widow should act as administratrix of his es- (none of which corporate insurers three their tate; appointment her was administratrix princi- their incorporated in or have either apparently improper neither an nor collusive Ohio). Diversity juris- pal place business attempt diversity jurisdiction to create in what were if Mrs. Woods might be defeated diction diversity should not in fact be a action. collusively administratrix named improperly or answers are timely II filed is heard claima panel consisting a mediation cir a state Legislature found as 1975 the Florida judge,5 attorney, cuit and a phy licensed

follows: judge sician. The circuit in a chosen WHEREAS, purchasing the cost of system; “blind” attorney and physician liability insurance professional are chosen compiled from lists by the chief provid- and other health care for doctors judge of each circuit in Florida. past in the few skyrocketed ers has attorney and physician panel members months; and paid are each one hundred dollars for each WHEREAS, it is not uncommon to find day they spend on the panel; both categories high-risk paying physicians to a claim are equally assessed for the pay $20,000 annually; in excess of premiums ment of these fees. A hearing must be held within ten months of the filing of a claim WHEREAS, ultimately the consumer with the circuit court clerk or else the medi bear the financial burdens created must panel’s jurisdiction ation terminates and a insurance; high cost of and by the filed; normal may lawsuit any applicable WHEREAS, legislative without some statute of limitations is tolled from the relief, doctors will be forced to curtail filing aof claim until at sixty least days retire, practice or defen- practices, their after a mediation panel either mails its medicine at increased cost to the sive parties decision to the or jurisdiction has its Florida; citizens otherwise terminated. Discovery rules of WHEREAS, has reached problem the Florida Rules of Civil Procedure are in Florida proportion crisis applied panel at hearings, procedural Preamble to 1975 Fla.Laws ch. 75-9. Ac- and evidentiary rules are less formal than it the Medical Mal- cordingly, adopted ordinary litigation. in civil Parties may practice Reform Act of 1975. 1975 Fla. subpoena and cross-examine witnesses at 75-9, predecessor 1. The Laws ch. § hearings; parties counsel for the may make contained in sections 768.44 and .47 was opening closing judge statements. The Id. provision. 5.§ presiding hearing precluded over a is from section 768.44 creates a Florida Statutes presiding any subsequent judicial over pro system prior bringing under which issue, ceedings arising out of the claim at against osteopathic phy a medical or action panel may and other members act as nei sician, podiatrist, hospital or health mainte any ther counsel nor witnesses at subse organization any in court of the state nance quent of the claim. a claimant must submit liability mediation his claim to medical thirty days completion Within of the panel by filing special the claim on forms any hearing panel files a written decision with the clerk of a state circuit court.4 If which, using specified language, in it finds he is precluded he fails so to file from the negligent defendant was or was not bringing any action based on medical mal accordingly plain- is or is not liable to the “any in court of state of Flori [the panel tiff. A may member concur or dis- See, Corp., e. Riccobono v. Cordis da].” sent to the in writing. liability decision If (Fla.Dist.Ct.App.1977). 805 So.2d is found parties agree panel and the so may proceed properly help After a claim is filed all reach a defend- twenty days regard, ants must answer within or settlement. may In this may proceed á claimant in range else court. If recommend a of damages, reasonable judge 4. “Both under the statute itself and under the 5. The state circuit heads the as a procedures, governing knowledgeable capacity a claim rules and not in his referee essentially describing judge. Parkway a statement of facts is as a state See Koota v. Gen. is, alleged malpractice; plead Inc., Hosp., (Fla.Dist.Ct. acts of 346 So.2d complaint ing comparable App. 1977). to a . . Hosp., Doctor’s 360 So.2d Herrera v. 1978). (Fla.Dist.Ct.App. damages. expressed law has been in various punitive ways, but not recommend test, “substance-procedure” is not admis- whether in a recommendation Any damage trial. any subsequent Tompkins, Erie Railroad v. an “outcome sible into evidence test, Guaranty determinative” Trust v.Co. provides any party if Section York, 89 L.Ed. panel he the decision of a mediation rejects reference to the “discour- on his claim litigation institute based may, agement forum-shopping and avoidance panel findings court. The appropriate in an laws,” inequitable administration of the any subse are admissible into evidence Plumer, 460, 468, Hanna v. findings of quent litigation, specific but 1136, 1142, gener- L.Ed.2d Parties com fact inadmissible. ally Wright, C. Law of Federal Courts upon panel findings opening state ment (3d 1976). any Under ed. §§ just on closing argument ment or relevant tests we are convinced that Florida there other evidence introduced at trial. If must Statutes sections 768.44 and .47 dissenting opinion panel’s was a deci opinion applied in federal court. Our also sion numerical vote of by the fact that heightened this matter admissible into evidence. If a defendant guided by policies underlying we are “the participate fails to in the mediation Plumer, the Erie rule.” See Hanna v. plaintiff may disclose this fact 1141-42; 467-68, U.S. at 85 S.Ct. at Guar- any subsequent civil action. Carter v. York, 108-12, anty Trust Co. v. Sparkman, (Fla.1976), So.2d 65 at 1469-71. S.Ct. denied, cert. 429 97 50 U.S. S.Ct. L.Ed.2d 753 Panel members provides plain that a Section testify not be called to as witnesses con injury tiff whose claim is based on an cerning the merits of a case. The allegedly death caused medical mal panel’s that a is not bind finding instructed practice must submit his claim to a medical ing it but should be accorded such liability mediation before he files an weight as the chooses to ascribe to it. court; action in requires section 768.47 important Sections 768.44 and .47 panel’s admission into evidence of the find parts Malpractice of Florida’s Medical Law. ings any subsequent trial of such a claim. state and They successfully weathered both If sitting diversity federal courts in cases challenges in federal constitutional Carter .47, apply refuse to sections 768.44 and Flor now turn to Mrs. Sparkman. v. We ida’s malpractice statutory medical scheme Woods’s various attacks on these will inequitably administered. Non-resi us. in the case before plaintiffs dent will have a substantial ad vantage ones, over resident as non-resident

Ill suitors avoid the pro simply by bringing Mrs. Woods’s most troublesome vision their actions in court; consequently, that sections 768.44 and .47 are federal argument is the worst form of forum-shopping rather than substantive and thus will be procedural encouraged. As observed, inapplicable in a district court we have Legislature should be rule, in a acted in diversity general case. As a fed 1975 to avert what it viewed as an diversity applies impending case the district court crisis in eral the health care field. state. An integral part the substantive law of forum of its action require was to Tompkins, malpractice 304 58 Erie Railroad v. claimants to submit their (1938); mediation, “thereby 82 L.Ed. 1188 Owl & claims to reducing S. Ct. Turtle, Co., Indemnity 554 Inc. v. Travelers cost of medical insurance and (5th 1977). ultimately expenses.” Cir. The test for the F.2d Carter v. application opposed Sparkman, of state as to federal at 806.6 We would So.2d do below, infra, diversity see note 17 evidence. Under Erie a 6. As we discuss federal court important part permit panel findings of the mediation is the must such to be admitted admissibility panel findings into into in evidence a Florida-law-based mal- Flotemersch v. Bedford Aug. 1976); legislative response damage to the grave County Hospital, General Medical Florida’s 69 F.R.D. evidenced apply the mediation Richards, refused to Cline v. (E.D.Tenn.1975). if we Law cases. We decline diversity requirement (E.D.Tenn.1978) F.Supp. (implies v. Inter Cf. Woods step. such a to take court would enforce mediation Co., Realty ease). diversity In each of these cases barring (1949) (state statute 93 L.Ed. the district court dismissed a qualified to do corporations foreign plaintiff action because the had failed to in state courts suing from in state business comply statutory with a state scheme simi action); 1A diversity in federal barred suit Hernandez) as in Wood v. (or identical, lar Vestal, Moore, Taggart, A. & J. Wick W. J. to that of Florida Statutes sections 768.44 ¶ 0.317[6], at Federal Practice er, Moore's and .47. We have examined Wheeler v. 1978). (2d 3236-38 ed. Shoemaker, (D.R.I.1978), 78 F.R.D. 218 holding that sections that our We note proffered which Mrs. Woods has as support diversity in a applied .47 must be 768.44 and argument for her sections 768.44 the result reached in accord with case is applied and .47 should not be in this case. decisions. federal court least six other We find that Wheeler here; inapplicable Baltimore, Inc., Hospital Davison v. Sinai malpractice statutory it involves a frame Perry v. Sol- (D.Md.1978); F.Supp. 778 significantly work different from pres Hospital, Memorial No. 78- diers & Sailors ently before us.7 10, 1978); Wells v. (M.D.Pa. Apr. holding, As a result of our before a (E.D.Mo.1977); McCarthy, F.Supp. 688 plaintiff may bring non-resident a Florida- College Medical & v. Hahnemann Marquez diversity malpractice law-based action he (E.D.Pa.1976); Hospital, F.Supp. 972 Hernandez, (N.D.Fla. steps must first follow the No. 76-81 set forth in Wood State courts even under the new [Federal See Stonehocker General Rules action. (4th Corp., Cir. 587 F.2d Stonehocker v. Motors General Motors Evidence].” 1978); Conway Leaman Tank Corp., v. Chemical 587 F.2d at 156. (Texas Lines, Inc., (5th 1976) 540 F.2d 837 Cir. wrongful of sur- death action fact rule that in viving spouse’s 7. In Wheeler the court was faced with motions remarriage is ad- liability to refer an action to a medical media background evidence but inadmissi- missible as panel, tion not a motion to dismiss. As the damages applies mitigation in diversi- ble for ty of district court the Rhode Island construed Medi case); (effect pre- cf. Fed.R.Evid. cal Reform Act of it acts to sumption regarding state law claim determined malpractice refer a state court action to a medi (rule privilege by law); state Fed.R.Evid. 501 panel añer the ation action is filed in state law); concerning by state law claim ruled state stated, panel oper As the court court. “[t]he (competency of witness con- Fed.R.Evid. 601 cerning essentially adjunct ates as an of the [Rhode state law claim determined superior courts.” 78 F.R.D. at 219. Island] 803(8)(C) (factual finding law); re- Fed.R.Evid. 768.44, section as well as the statutes Under investigation sulting not excluda- from official cited, applied in the other cases we have untrustworthy). hearsay appears unless As ble malpractice proceed claimant must before a treatise, “there are circum- is stated in one panel prior bringing mediation court; an action in admissibility question stances in which panel of the mediation re satisfaction a state substan- so intertwined with evidence is quirement juris precedent is a to the condition the state rule . will be tive rule that any any diction of court in medical mal give in order to full effect followed practice-based g., action. E. Riccobono v. Cor Wright policy.” A. substantive 9 C. & state’s Miller, Corp., (Fla.Dist.Ct.App.1977). dis 341 So.2d 805 Practice and Procedure § Federal Conway, A state-mandated referral to mediation after an did court in 326-27 As clearly recognize action is filed differs from a state statu one of those in [section 768.47] “we up tory jurisdic evidentiary bound rules which is so scheme wherein mediation is a rare any action; prerequisite law that federal courts with state substantive tional court it was sitting recognized should accord it the same in [Florida] in Wheeler that Rhode Island’s mal give in order to full as state courts practice significantly” treatment scheme “differs from policy.” 540 substantive effect to (or Florida). [Florida’s] in Tennessee 78 F.R.D. at some matters of at 838. F.2d “[T]here Accordingly, regard 221. Mrs. Woods’s re they policy should be ac- so basic that State inapposite. liance on Wheeler as they have in the same treatment corded the encouraged forum-shop in the federal must to do so he If he fails 768.44.8 section courts, inequitably would be justice ap- plain a resident same result face plied between resident and non-resident state court— in a Florida face would tiff malpractice claimants. until he abides action of his dismissal no undue det He will incur 768.44. section IV provision since abiding by this riment tolling of for the 768.44(4) provides that a Having section decided federal di during limitations statute any applicable versity apply pan must the mediation court media After process.9 law, provisions the mediation el of Florida we turn to Mrs. diversity court completed, arguments. constitutional tion Woods’s federal findings panel the admission We that both the permit must note the outset Spark see Carter v. pursuant provisions particular, to section into evidence man, denied, mal cert. (Fla.1976),10 action based any subsequent 335 So.2d 802 view the result of In our L.Ed.2d 753 claim. essential, otherwise the malpractice and the medical media holding is our Erie and its offspring requirements would be tion of a number of other principles have general,11 successfully would be states in with- plaintiffs violated —non-resident stated, 768.44(l)(a) grounds re- on either state or federal if Carter section we have 8. As today; Sparkman quires claim to a were before it we are bound o’f a submission liability panel before suit decision that the Florida its 1976 medical may McCorkle, in the state of Florida. Shaw filed in court are constitutional. See (5th 1976); presumably be within the discretion of F.2d lines, Cir. Alaska Air It would stay judge Corp., for a reasonable district a federal Inc. v. Lockheed Aircraft pending F.Supp. (D.Alaska 1977). filed in district court time an action compliance section 768.44’s mediation with panel such rather than to dismiss See, Broomfield, Eastin v. 116 Ariz. might par- outright; such a result action banc) (1977) (en (mandatory 570 P.2d 744 ticularly appropriate where the statute of limi- liability referral of claim medical Kerr, to run. See Pritchett v. tations is about equal protection; review not violation of (Fla.Dist.Ct.App.1978). So.2d 972 mandatory referral of claim to and intro- panel findings duction of into evidence at sub- applies diversity the statute of court 9. A federal sequent trial not violation to trial Thea- the forum state. L. C. L. limitations of jury); Goldman, La., Everett v. 359 So.2d Indus., Inc., tres, Pictures Inc. v. Columbia (1978) (mandatory use of medical re- 1978); Goodbody (5th & Co. v. Cir. F.2d McDowell, equal protection view violates neither (5th 1976). F.2d 1149 Cir. process); Attorney nor substantive due Gen. v. Johnson, 282 Md. 385 A.2d 57 argued that because of a 10. Mrs. Woods has (mandatory use of health claims arbitration Justice Adkins stated concurrence in which equal protection; not violation of re- issues . which case raises “[t]his quired panel again submission of claim to question the wisdom of our earlier me to cause rulings court, admissibility presumptive to trial constitutionality,” Sim on the Act’s panel finding subsequent 1358, at Faust, (Fla.1978), correctness of trial 358 So.2d 1359 mons v. right jury trial); of to Sparkman's violation Paro v. question v. hold should Carter we ing Mass., Longwood Hosp., 369 N.E.2d 985 .47 under sections 768.44 and are valid (1977) (mandatory screening before medi- both Florida and the United the constitutions of tribunal, malpractice hardly disregard cal the conclu We can States. rejected by constitutionality holding claimant whose claim is post tribunal in Carter sive of prosecution concurring opinion Sparkman bond before further violate because of v. Supreme justice equal protection procedural single Court neither nor or sub- of Nelson, Simmons, process); Prendergast in which he was stantive due v. a concurrence 97, (1977) (use by justices joined 199 Neb. 256 657 the other five decid N.W.2d of none of supreme panel equal ing medical court’s con review violates neither that case. A state protection process; pan- binding upon nor due use of review state’s law is us. struction of that admissibility report subsequent el and Dist. No. I v. Horton at Hortonville Joint School 482, 488, jury trial); Ass’n, right trial not violation of key 96 to Educ. Comis- ville Arlen, 304, 2308, 2312, (1976); 1 Tennon v. v. 55 A.D.2d 390 N.Y.S.2d 122 49 L.Ed.2d (1976) (submission Ricketts, 1243, (5th 1978). of claim to medical mal- Cir. 574 F.2d panel, admissibility speculation mediation of unan- to as to wheth must not resort We panel concerning Supreme rule Flori imous recommendation liabil- Court would er the Florida ity equal subsequent Malpractice at unconstitutional trial not violation Medical Law da’s by state court determinations state and are not bound based on both challenges stood issues, United While on federal constitutional grounds.12 federal constitutional jury trial); process, right protection, 13, to due section of the Illinois Constitution. In so Hosp., - Pa. -, however, holding, imply v. Children’s Parker we do not that a (1978) (mandatory use of mediation A.2d 932 pretrial panel procedure valid cannot be de- findings admissibility panel, into evi vised. process right nor to neither due dence violates 324, (emphasis 63 Ill.2d at 347 N.E.2d at 741 Wilkie, Strykowski trial); jury v. State ex rel. added). Note, Malpractice Medical Media 491, (1978) (manda 261 N.W.2d 434 Wis.2d 81 tory patients’ Analysis, A tion Panels: Constitutional compensation panel review of all 322, (1977); Note, Fordham L.Rev. malpractice neither claims violates Medical Statute —Medical Mal panel, process; equal protection nor due use of Unconstitutional, practice Statute Declared admissibility panel findings subsequent Arneson, 214. In 1977 Wis.L.Rev. Su cf., trial); right jury to trial not violation preme specifically Court of North Dakota stat Medicine, Bd. of 97 Idaho Jones v. State ed that: “None of the before us chal denied, cert. 555 P.2d 399 lenges constitutionality of North Dakota’s (1977) (statute set 53 L.Ed.2d 97 S.Ct. ceiling malpractice panel proce claim review medical dure, malpractice recovery ac in medical on express opinion and we therefore no on tions, physicians hospitals required subject.” Thus, N.W.2d at 131. nei insurance, malpractice mal created maintain practice supports position argued ther case in fact panels; of con after discussion review by by Mrs. Woods. We are more troubled process equal protection and due stitutional Graley Simon and cases. We do observe that case for determina court remanded standards both are the decisions of trial courts. Ohio To malpractice crisis met whether facts tion knowledge, constitutionality the best of our Liggett, standards); Schneider v. State ex rel. panel requirement mediation Ohio’s has not (1978) (provision 221 purchase malpractice 576 P.2d 223 Kan. requiring yet Supreme been addressed the Ohio Court. physicians originally We further note that trial courts held crisis, malpractice response to valid insurance panel requirements mediation unconstitutional proc equal protection or due violation of not ess). Florida, Louisiana, Maryland York, Page Hosp. and New Wright v. Du But see Central subsequently Ass’n, but were overruled in the cases Ill.2d 347 N.E.2d (mandatory persuaded we have set forth medical review unconstitu above. We are provision weight authority violated state tional because that the of state court is more against vesting prohibition fairly represented by functions cases such as Carter v. nonjudicial personnel; application Broomfield, of unconsti Sparkman, Eastin v. Everett v. panel provision was unconstitutional tutional Goldman, and the like than the trial court trial; jury provision right set restriction Graley. decisions in Simon and $500,000 malpractice recovery ting maximum subjected 12. While state laws are to federal unconstitutional); v. Elizabeth Medi Simon St. requirements equal protection process and due Center, Op.3d 355 N.E.2d 903 3 Ohio cal amendment, fourteenth U.S.Const. (compulsory provi (Ct.Com.Pl.1976) mediation XIV, 1, amend. the seventh amendment § equal protection; admissibility of violates sion apply in state trial does not court. panel findings arbitration Bombolis, Minneapolis St. L. R. R. v. & trial); cf. Arneson Ol violates 211, 217, 596-97, 60 L.Ed. son, (N.D.1978) ($300,000 270 N.W.2d (1916); Div., Wartman v. Branch Civil recovery malpractice provision, re maximum Court, County County, Milwaukee 510 F.2d quirement physicians obtain Thus, (7th 1975). Cir. while various protection equal violates due insurance process); 316, both state courts have used equal protection federal and state Satayatham, Graley Op.2d 74 Ohio and due standards in (Ct.Com.P1.1976) (parts 343 N.E.2d 832 testing requirements, no state equal protec Malpractice Law violate Ohio statutory court has tested a tion). against scheme the federal seventh amendment the last four cases we have cited can Each of right (which preserved must be a federal distinguished from the case before us. In case, diversity court even in a Simler v. Con Wright, Supreme the Illinois Court held the ner, 221, 222, 609, 610-11, 372 U.S. 83 S.Ct. 9 jury to trial was violated the mal- (1963); L.Ed.2d 691 Ammons v. Franklin Life panel provision only practice review after it Co., 414, (5th 1965)). Ins. 416 Cir. provision 348 F.2d on a declared that unconstitutional Still, many provi ground. purely states have constitutional constitutional As the state amendment, stated, modeled after the seventh sions court Lenore, Mandatory Malpractice we have held that these statutes see Medical Because panels providing are un- Panels —A Constitutional Examina for medical review Mediation constitutional, tion, 416, (1977); procedure it follows that 44 419 n. 29 Ins.Couns.J. prerequisite Comment, prescribed therein as the to The Constitutional Considerations of Panels, impermissible Screening restriction on the trial right is an 27 Am. Medical I, by jury guaranteed by 161, construing article of trial U.L.Rev. 171-72 and in 1172 374, 673, U.S. 98 Woods, 420 F.2d S.Ct. 54 L.Ed.2d ex Moore v. 618 rel.

States Estelle, vote, 1970); (1978); Carter, v. 1260, (7th Smith Bullock v. 405 1262 Cir. U.S. 134, 849, we do 647, (N.D.Tex.1977), 661 31 F.Supp. (1972); 92 L.Ed.2d 92 445 S.Ct. state decisions rele these various travel, 618, consider v. Shapiro Thompson, 394 U.S. of Mrs. Woods’s to our consideration 1322, vant (1969); 89 22 S.Ct. L.Ed.2d 600 nowWe make our claims. constitutional association, freedom of NAACP v. Ala- provisions the Florida examination of own 449, bama, 1163, 78 357 U.S. 2 S.Ct. L.Ed.2d to their constitutionali determine in order (1958). 1488 subjected Statutes to strict ty. scrutiny have frequently been found to vio- late equal protection. In all other cases EQUAL A. PROTECTION state laws were tested under rational standard, basis under which: specific points Before turn to on equal protection attack Mrs. Woods’s equal safeguard The constitutional [of .47, we set forth sections 768.44 protection] if the classifi- offended applied to be when a state appropriate test grounds wholly cation rests on irrelevant equal pro- on federal challenged statute objec- to the achievement State’s Traditionally, pro- grounds. equal tection legislatures presumed tive. State scheme, analysis a two-tier with was tection within have acted their constitutional scrutiny the strict applying either or courts power that, despite practice, fact scrutiny basis standard. Strict was rational inequality. their result laws some A a state statute contained applied whenever statutory discrimination will not be set or “suspect limited a “fun- classification” reasonably aside if statement of facts in- right.” Suspect classes have damental justify be conceived to it. cluded, race, Florida, g., McLaughlin e. v. 420, Maryland, v. 366 425- McGowan U.S. 184, 283, 13 222 379 U.S. 85 S.Ct. L.Ed.2d 26, 1101, 1105, 81 6 L.Ed.2d 393 S.Ct. Richardson, v. (1964); alienage, Graham 403 (emphasis added). 1848, 365, 29 91 L.Ed.2d 534 U.S. S.Ct. years equal In level of recent another California, ancestry, Oyama (1971); and v. arguably appeared has protection analysis 269, 332 U.S. 92 L.Ed. scrutiny and the rational ba between strict (1948). rights Fundamental have been test, scrutiny” sis “means test. See Gun rights “explicitly implic- as defined those ther, Evolving Doc Foreword: Search itly guaranteed by the Constitution.” San Changing trine Court: A Model on a v. Ro- Independent Antonio School District Protection, Harv.L.Rev. Equal 33-34, Newer driguez, U.S. S.Ct. new standard a (1972). 20-24 Under this (1973). rights 36 L.Ed.2d 16 Such challenged whether a state include, inquires court Wade, g., privacy, those of Roe v. substantially statutory classification fur 410 U.S. 35 L.Ed.2d 147 S.Ct. Redhail, legislative purpose;13 v. (1973); marriage, purported Zablocki it thers a does, Equal they apply . . . The Protection Clause such however, deny legis- power applied panels both States the have state courts analysis E. different treatment be accorded to law. late that case seventh amendment persons supra. placed Ac- a statute into different in note 11 cited the state cases wholly the basis criteria unre- cordingly, determi- classes on state court we are aided objective A much lated to the of that statute. clas- trial as based on the nations reasonable, arbitrary, “must be predicated federal sification those ground process grounds. and must rest some differ- equal protection and due Hof, 1, 23, having a fair and substantial relation to Capital ence Traction Co. per- object legislation, 580, 589, all so that L.Ed. 873 S.Ct. similarly shall be treated sons circumstanced alike.” scrutiny apparent origin of the means 75-76, (quoting F. S. Id. at S.Ct. at following language may be in the test found Royster Virginia, Guano Co. Reed, Reed v. from (1971): L.Ed.2d

H73 leg- between legitimacy legislative of the ed connection ends and question does Redish, under Legislative Response means. See for the classification rationale islative scrutiny While the means the Medical Insurance Crisis: examination. legislature more latitude gives a standard Implications, Constitutional 55 Tex.L.Rev. test, a scrutiny requires it strict than the 759, (1977). At 771-72 least one commenta justification for a stat- give greater state questioned tor has whether the means scru re- normally than is classification utory Id. at 773. Even if exists. tiny test in fact basis analysis. rational quired for test, a there is such it be limited to Maryland v. sex, McGowan suspect a statute “quasi” classifications such as Under if a only rational test Reed, basis the classification examined in Reed v. falls before grounds “wholly on irrel- rests classification 251, 92 S.Ct. 30 L.Ed.2d U.S. legitimate state to achievement a evant” Redish, supra, at 773-79. (1971). See Such scrutiny there under means purpose, but a inapplicable presently test is in the case relationship between be a substantial must before us.14 challenged legisla- means of the ends and The Florida provisions issue rational basis applying A court tion. need not be evaluated the strict scru under legislative defer to a generally test will standard, as tiny suspect neither a class nor will be accom- the stated end holding right a is fundamental involved in the clas means, but under by the chosen plished made sifications sections 768.44 scrutiny carefully a court studies means Accord, e. Everett v. Gold- suppos- and .47.16 assumptions underlying factual 560, 561-62, (1920)). malpractice. Regulation prac- claim for 64 L.Ed. 989 40 S.Ct. Gunther, supra, at 25-37. does tice of medicine not involve a fundamental See class, right Johnson, suspect McNaughton see v. scrutiny adopt anal the means 14. We refuse 242 U.S. 37 S.Ct. 61 L.Ed. Medicine, ysis in Jones State Bd. of utilized (1917); Mathews, 352 319, cf. Florida v. 526 F.2d 859, 870-71, (1976), 97 Idaho P.2d (5th 1976) (special licensing Cir. denied, 97 S.Ct. cert. nursing home administrators does not involve Redish, (1977). supra 780- L.Ed.2d 82. Even if such however, suspect right); class or fundamental neither here, analysis applied were bringing malpractice should the of a action. and .47 in our view sections 768.44 argument fair constitutional because of the still be sections 768.44 and .47 at would and substantial relationship deny partially classi malpractice between the least a claimant ac- thereby the im these fication made portant cess to the courts and restrict a funda- object Legislature was right the Florida mental is ill-conceived. Access to the by adopting attempting independent them. See right; to achieve courts is not it is accord- special protection only right infra. our discussion ed when the through claimant wishes to assert such access made section 15. The classifications preferred given a status and thus entitled to (1) ways: medical might in several be viewed special protection and if there is no alternative malpractice victims versus victims of other specially protected right in which that forum torts, (2) ver- tortfeasors Congressional may be enforced. Research Ser- tortfeasors, (3) types medical mal- sus other vice, The Constitution States of the United practice plaintiffs versus medical America, Analysis Interpretation 1527 defendants, malpractice claims or medical (1973 Nowak, Supp.1977); & J. R. Rotunda & addition, types sec- of claims. In other versus tion 768.47 Young, Handbook J. Law Constitutional might the clas- be deemed to create Thus, Conn., in Boddie v. While 17 infra. sifications discussed note 28 L.Ed.2d possible have these classifications not all of only place was the forum in which the Woods, reject challenged Mrs. been divorce, indigent plaintiff could there- obtain a challenges against equal protection provisions the Florida by dissolving relationship fundamental upon any As we based of them. marriage protecting the fundamental below, Legislature had a the Florida discuss to free association. held that the The Court specially distinguishing rational basis by setting could not inhibit state mandatory filing court access classifications; consequently potential these of such making fees after a court special treatment constitutional. obtaining forum for When a a divorce. stated, special suspect claim involves not entitled to fun- classes and we have As protection, race, alienage, access to the courts rights ances- constitutional may include damental association, marriage, if be hindered there is a rational basis for try, privacy, vote; Schwab, doing. to a so Ortwein to extend such status we refuse 1174 Crisis, Medical man, La., 1256, (1978); Malpractice 6 1266 Fla.St.U.L. 359 So.2d Johnson, 274, v. 282 Md.

Attorney 423, Redish, General (1978); Rev. supra, 424 at 759- 57, (1978); 308-311, 62; 77-78 Com- A.2d Note, 385 Malpractice The Medical Florida 12, ment, Consequently, at 171. supra note 1975, 50, Reform Act 4 Fla.St.U.L.Rev. a rational basis for the only there need 51, (1976). generally Roth, The See by them— made classifications Malpractice Medical Insurance Crisis: Its of economics and social In the area Causes, Effects, Proposed Solutions, the welfare, does not the violate a State (1977). 44 Ins.Couns.J. 469 This crisis merely Clause because Equal Protection would not to the injury cause health by its made laws are the classifications industry care to the citizenry but also classification has some imperfect. If Florida; physicians prac curtailed their basis,” it does not offend the “reasonable tices, retired, practiced defensive medi simply because the Constitution classifi- cine and other care providers health re made with cation “is not mathematical both quantity stricted their services in practice it results in nicety or because quality of health care Florida would di inequality.” some minish. significant causing One factor Williams, 471, 485, Dandridge v. 90 rising insurance was an rates increase in 1153, 1161, 25 L.Ed.2d 491 S.Ct. malpractice litigation, and one way to re v. Natural (quoting Lindsley Carbonic Gas duce such was litigation to screen out non- 78, Co., 61, 337, 340, 220 31 S.Ct. 55 U.S. through meritorious claims use of liabil (1911)). L.Ed. 369 ity mediation panels. Steinberg, Medi provision a state When does not cal Malpractice Legislator’s Reform Act — A violate a fundamental “the burden View, 510, (1975); 49 Comment, Fla.B.J. 513 to establish the upon the state rationali Recent Legislation Medical — A restriction, but is ty of its the chal First Checkup, 50 Tul.L.Rev. wholly lenger to show that restriction is addition, (1976). In such panels could en Schmidt, v. arbitrary.” 460 F.2d Karr courage settlement of meritorious banc) (footnote omitted), (5th Cir.) (en claims, since after found a mal denied, cert. U.S. S.Ct. 34 practice negligent defendant he would be accord, (1972); v. Lehnhausen L.Ed.2d encouraged the dispute to settle rather than Co., Parts Lake Auto Shore proceed to a which trial in finding 364-65, S.Ct. L.Ed.2d 351 would be introduced into evidence against special We note circumstances Roth, See, him. supra, at 495. The gave to Florida’s which rise Medical Mal use of panels, as well as the of 1975. As practice Reform Act stated in provision for the admission of law, supra, preamble to this the Florida evidence, findings in was a reasonable Legislature a crisis had devel found legislative response prob health oped industry in Florida’s care be Moreover, lem. we note that such panels malpractice insurance rising cause of rates. have apparently proved successful in Flori 805; Sparkman, See Carter So.2d da. In the commentator, words of one Ashler, Malpractice Insurance— Medical While medical mediation View, panels Regulator's 49 Fla.B.J. 506 have French, relatively existed for a (1975); Departs from Tra short time and no Response formal Legislative dition: The data have been collected on a (1973) (state right. event, tion of a 35 L.Ed.2d could fundamental recipient’s significantly court access set- do not restrict welfare find that these appeal ting filing from restrict fee for adverse welfare claimant’s access Kras, decision); United States court since after a mediation makes its (1973) (required finding may proceed 34 L.Ed.2d a claimant to file a court prior discharge payment filing delay filing fee action. The incidental an action valid). bankruptcy was Since we hold that no the mediation causes does not is affected fundamental the Florida court constitute a denial of access. laws, denial of court access is not the restric- Arizona, Louisi highest the state courts the results of quantifying basis statewide Massachusetts, Nebraska, date, ana, feel Maryland, most observers activity to panel is an panel system the Division of Appellate mediation and Wisconsin and the that York, The settlement see note Supreme success. Court of New the unqualified being expedited, Co., claims is supra. Cf. Jones v. Union Guano meritorious being weeded merit are lacking claims L.Ed. claims are still out, truly disputed and (state agri state (1924) provision requiring to panels appear The jury. the going to fertilizer department analysis culture screening mechanism effective an provide damages from bringing to of claim for prior hardship on the undue imposing without manufac against use of fertilizer fertilizer system is the And participants. upheld prece turer as reasonable condition settling functioning purest in its suit; required admission of bringing dent to form — disputes. true report into evidence at subse analysis quent against equal protec French, the rational held valid at 428. Under supra, attacks).18 analysis process tion and due equal protection standard of basis consti clearly make the Florida B. DUE PROCESS In classifications.17 tutionally permissible major challenge The second constitutional with the Florida Su finding, agree so against sections 768.44 Mrs. Woods raises Spark- decision in Carter Court’s preme process.19 .47 is a claimed denial of due holdings of and analogous man, well as the (of course, panel general duce no evidence before the part on the medi- attack a of her 17. As framework, apparently acting panel Woods so he runs the risk that the will Mrs. ation argues equal pro- defendant). violates Herrera v. that section 768.47 find for the See Doc- litigation creating special Hosp., (Fla.Dist.Ct.App. a class 360 So.2d 1092 tection in which the tor’s findings 1978). of a mediation subsequent We trial. as evidence in admitted upon The decision in Jones was based infirmity. equal protection perceive no such special incident to a determination difficulties stated, 768.44 and .47 sections As we have involve crop yield poor was caused of whether a suspect nor a fundamen- neither a class problem. some other defective fertilizer or upholding applicable right, is the rational basis test so tal here. requirement the state that fertilizer admissibility panel findings is a The subjected analysis to chemical panel process. be Court part of the mediation critical power provide Comment, Roth, 497; Analy- state has “[a] stated and certaining supra, An See sis of State require Responses a more definite method of as- Legislative to the Medi- Crisis, a better the essential facts and basis Malpractice L.J. 1975 Duke cal may upon determinations be mal- which state medical At least fifteen 1461-62. evidentiary pro- 282. Medi- made.” 264 U.S. at cal 44 S.Ct. at contain such an laws Note, malpractice Malpractice also claims Media- claims are which Medical vision. See expert opinion Analysis, supra present special problems, since A Constitutional tion Panels: clearly testimony generally important a rational is ele- at 352. There and ment in their resolution. note basis for See, Lenore, accordingly provision, it does this and Comment, equal protection. clearly supra note at 418. Florida has the not violate power provide require Woods’s supra argument As for Mrs. note at 182-84. a more defi- panel-finding-admissibility ascertaining the essential facts nite method for physi- protection equal through because a violates rule cian incident to a medical the use of an malpractice claim may participate screening body in the medi- expert not to choose such as a thereby avoiding process, thereby risk that a panel, supplying ation presented finding may him will be adverse to a better basis such a claim. See id. at 425. which a court resolve trial, subsequent in a to the we think problem equal protection possible argues following 19. Mrs. Woods that the viola- regard resolved in this was process operation tions of due flow from the 768.44 in of section construction conclusive (1) Malpractice the Florida Medical Law: Sparkman, in which So.2d at Carter courts; (2) delay denial access to the physician’s that the fact of court held filing of a court action incident to the medi- may process to invoke the mediation failure arbitration; mandatory process; (3) ation any subsequent presented trial. as evidence at panel findings in evidence at a Note, the admission Pan- Mediation Medical See els: trial; (5) malpractice Analysis, supra claim- note A Constitutional (cid:127) inability prospective voir dire media- ant’s that even when a further note We at 338-39. held, pro- tion members. hearing choose to a claimant Supreme distinguished Court has be- So far as the proc- due equal concerned, ess is protection tween due the absence of “ other restriction, ‘Due constitutional process’ emphasizes follows: fairness a state is free adopt whatever policy between the and the economic State individual deal- may reasonably be deemed promote ing State, regardless with of how other public welfare, and to enforce that policy individuals in the same situation by legislation adapted to purpose. its ‘Equal treated. protection,’ on the other The courts are authority without either hand, emphasizes disparity in treatment or, declare such policy, when it is de- a State between classes of individuals clared legislature, to override it. arguably whose situations are indistinguish- If the passed laws are seen to have a Moffitt, 600, 609, able.” Ross 417 U.S. 94 reasonable relation to a proper legislative 2437, 2443, 41 (1974). S.Ct. L.Ed.2d 341 purpose, and are arbitrary neither nor already disposed Since we have of Mrs. discriminatory, the requirements of due equal protection objections Woods’s process satisfied, judicial deter- provisions, only we now need exam- mination to that effect renders a court ine the manner in which these statutes af- (cid:127) functus officio. dealings fect fairness of between a mal- 536-37, U.S. at practice claimant and the state. The Su- S.Ct. at 515-16. If a regulation is preme recently Court observed that: reasonable in relation to its subject and adopted in the interests of the It is now well legis- established that community, it does not violate substantive lative adjusting Acts the burdens and process. due West Coast Hotel Co. v. Parr- benefits of economic life come to the ish, 57 S.Ct. 81 L.Ed. 703 presumption Court with a of constitution- (1937). ality, and that the burden is on one com- plaining of a due process violation to es- prove compel must The state tablish that the legislature has acted only a law if it restricts a ling reason for arbitrary way. and irrational right; long so as such a fundamental Usery Co., v. Turner Mining rationally Elkhorn is not a law need affected 1, 15, 2882, 2892, government U.S. end. legitimate 49 L.Ed.2d relate to a (1976). totally arbitrary We find that in this case Mrs. when a law is a “Only liberty Woods has fallen far short will it violate the meeting deprivation her guarantee.” J. No process burden. substantive due wak, Young, supra note R. Rotunda & J. While there was a time when sub discussed, already have sec at 410. As we process stantive due weapon was used as a and .47 restrict no fundamental tions 768.44 through which state laws regulating social adopted to achieve an rights. They were and economic activities were frequently in end, public preservation important validated, see, e. g., York, Lochner v. New the residents of quality health care for S.Ct. L.Ed. 937 of a reasonable They part Florida. were (1905), beginning with York, Nebbia v. New pressing public to a legislative response U.S. S.Ct. 78 L.Ed. 940 appear achieving to be problem, and (1934), this use process of substantive due adopted. were Con purpose they for which was abandoned. In Nebbia the Court stat we find that these do sequently, ed that: to substan not violate Mrs. Woods’s function application of courts in the [T]he Accord, tive Everett v. process. due of the Fifth and Fourteenth Amendments Goldman, La., 1256, 1268(1978). 359 So.2d is to determine in each case whether cir- cumstances vindicate the challenged reg- We now turn to specific Mrs. Woods’s due ulation as a reasonable gov- exertion of process arguments. supra. See note 19 authority ernmental or condemn it as ar- regard With to the denial delay of and bitrary or discriminatory. . claims, access to court we need merely refer previous points. agree they to our discussion on these are sent the names of five attor- neys supra. physicians. note 16 Sections 768.44 and .47 See These names are ran- domly they violate due no more than vio selected from a prepared by list judge chief a Florida equal protection lated in these two areas. circuit. parties have ten days in Sparkman, Carter v. at 807 which they So.2d may challenge the named attorneys J., Comment, (England, concurring); supra physicians cause, and if a challenge 169; note cf. Jones v. Union Guano cause succeeds the challenged name is Co., 68 L.Ed. 623 stricken and a new name is added to those provi Her contention that these already under consideration. The actual process by requiring sions violate due arbi panel members are chosen when parties tration of claims reflects a con alternately strike names from those provid- fusion between arbitration and mediation. ed them until the names of only one attor- generally implies While arbitration ney physician and one remain. After the are bound an arbitrator’s deci panel is parties chosen the sion, mediation, merely requires a may question physician the and attorney screening, process party or after which a to determine if either of them has a state proceed free to to court and file his claim. regarding of mind the subject matter at 796; Redish, 768, Note, supra, at See Medi issue, hand, the case at any parties or cal Mediation Panels: A Con directly indirectly or involved in case, said Analysis, supra stitutional note at 323. prevent that will him acting from with required non-consensual arbitration State impartiality. Upon a determination by malpractice might present of medical claims judicial the referee that panelist either see, problems,20 g., Redish, e. constitutional cannot act with complete impartiality, 796-800; Note, supra at Medical Mal the referee shall pa- remove said practice Mediation Panels: A Constitutional nelist. 341-42; Analysis, supra note 768.44(2)(h) Fla.Stat. (1977). § We find 189, 193, problems B.Y.U.L.Rev. but no such that process this selection fully comports only are when evident mediation is re with due process standards.21 See Attorney quired. below, As we more fully discuss Johnson, 274, 296, General v. 282 Md. admissibility of mediation find (1978). A.2d ings at a trial does not unduly rejected Having affect the fairness of that trial and there all of Mrs. Woods’s due process against a attacks process fore does not constitute due viola sections 768.44 .47, Finally, find that these tion. Mrs. Woods’s contention that do not violate the federal right process to due the method for the selection of mediation law. process puzzles members violates due 768.44(2)(g) us. provides Section that C. RIGHT TO JURY TRIAL parties malpractice to a dispute may agree upon physician attorney upon a to serve Mrs. Woods’s final against attack sections panel, they the mediation and if do not so 768.44 and .47 is her contention they express opinion regarding physicians screening panel, 20. We no the consti- on a and the denial tutionality requiring right of a statute the arbitration present of the all causes of action in a of such claims. single (since proceeding a claim might arise out of circumstances wherein not 21. We note that Mrs. Woods did not exhaust potential all pro defendants were health care range potential due violations pretrial See, mediation). viders entitled to which have been in the raised various attacks Strykowski Wilkie, State ex rel. 81 Wis.2d upon requirements. Other 491, 512-20, (1978). 261 N.W.2d supposed violations have included the limita- potential While we need not address such due right recovery tion of a common law without process challenges decision, in this we note providing quid pro quo disadvantaged a persuaded by that we are no more them than party, burdening of a claimant Supreme Strykow was the Wisconsin Court in proceedings, infringe- with the cost two ski. right hearing ment of the to a fair before an impartial presence tribunal because of the her without merit. The seventh amendment restrict unconstitutionally combine jury prescribe stage trial.22 “does not at what right amendment seventh must, demanded, if questions by jury amendment action a trial seventh Two screening a con making had, may be imposed does or what conditions presented: unduly bur jury trial, to a trial the demand precedent dition of such consistent trial; (2) does Capital right to such a to it.” ly preserving den the with a mediation Hof,24 into evidence of Traction Co. the admission usurp the func finding liability panel’s Nothing L.Ed. 873 S.Ct. jury.23 requires tion of in the seventh amendment that a its the earliest findings possi make Screening and the Seventh Mandatory 1. litigation; of civil ble moment the course Amendment: ulti mately of fact they determine the issues if the de argues Mrs. Woods cannot be prerequisite settled deter to the mediation lay incident In re matter of law. Peterso as a unconstitutionally infringes upon her sev mined n,25 right. contention is This L.Ed. enth amendment law, by jury away is not where the value in taken Suits at common case “In dollars, controversy twenty it shall exceed which is secured the constitution. by jury preserved . 44-45, . . shall be (emphasis 174 U.S. at 19 S.Ct. at 597 VII. added). amend. U.S.Const. Congress Just as free to was increase the holding supra that the for our 23. See note jurisdiction justices peace because of admissibility findings important panel is so of a public,” “the interest and convenience of the panel part mediation framework that of the Legislature constitutionally the Florida could in a federal must be enforced section 768.47 that, determine practice litigation because of an increase in mal- diversity case. changes in and other circum- stance, notably Supreme Capital Court ex- had ex- the medical crisis Traction the 24. In health, Congress public and the in which attendant risk to the amined a statute peace public jurisdiction justices required malpractice of the the the of interests of tended ac- Columbia, by special panel of who were deemed in the District tions to be heard a mediation officials, judicial right to civil cases in III non-article before the could exercise their to a controversy did not ex- jury the amount which trial. Although the stat- three hundred dollars. ceed upheld against In re Peterson the Court could, justice peace provided that the of the ute upon challenges seventh amendment a federal dis- action, party request of a the em- the to appointment trict court’s of an auditor who any “jury” panel that of twelve men and a charged was justice peace appealed could be of the decision preliminary investigation to make a as to jury supreme court a trial de novo in the of in the District provision facts, witnesses, the hear the examine the Columbia, alleged was that the of it parties, accounts of the and make and file a to erected an unlawful hindrance the report court, in the office of the clerk of this jury holding right trial. After the to simplifying with a view to peace the issues empaneled justice for the the “jury” the of the jury, finally any but not to determine jury, a common law the court of did not constitute upheld action, eventually in the provid- issues of all issues the trial. the final determination it the statute because trial, jury of jury to be made the fact on and for a seventh amendment ed that: stated 304, 253 U.S. at was further 40 S.Ct. at 544. The auditor distributing legislature, in the express opinion his ordered to record, on power hand, on the between courts of one disputed several of fact. The issues Court held justices peace sub- or other and that the use of an auditor was other, constitutional— magistrates, with on the a ordinate “it cannot be an deemed undue obstruction of prevent unnecessary delay un- view to jury right require preliminary to a to a trial expense, considera- must have a reasonable ble 310, hearing discretion, whenever, before Id. at opinion, an auditor.” 40 S.Ct. in its be- at 546. general litigation, of increase in or oth- cause why compulsory circumstances, reason change exists refer- [N]o the interest of er it, simplify public clarify require ence to an auditor to to en- of convenience pecuniary may large findings issues and to make tentative within reasonable bounds the law, arises, not be made at freely intrusted when occasion as of the classes of claims amounts justices compulsory special to of references to the first instance the decision right provided, always, equity. peace, masters are trial made in Reference of As stated the Florida Su tates of the seventh amendment. Once the preme Sparkman,26 Court Carter has considered the evidence and ren party dered its decision either to the claim" opposed Although generally courts are trial; proceed jury free to to a the jury being placed rights to burden on the will remain ultimate arbiter of the case. aggrieved persons enter the courts Mrs. long right So Woods’s have her there be reasonable re- fully finally claim by jury determined prescribed Typical strictions law. ex- preserved, she cannot heard be to com fixing of a within amples are the time her plain to a has been brought, which be payment suit must unconstitutionally Accord, restricted.27 deposits, pursuit of cer- reasonable cost Broomfield, 576, Eastin v. 116 Ariz. zoning tain relief administrative such as (1977) (en banc); P.2d Attor matters compensation workmen’s ney Johnson, General 282 Md. 297- claims, newspa- or the (1978); A.2d Lenore, 71-75 see pers given of retraction be- 420-21; supra Redish, note supra, at for libel filed. fore an action 796; Note, Medical Malpractice Mediation If a at 805. federal court So.2d may") Panels: A Analysis, Constitutional supra complicated matter constitutionally refer note 329-31. master, special In re auditor or see 2. Admission of Findings Panel in Evi- Peterson; Crateo, Intermark, Inc. v. Inc. Subsequent dence at Trial and the Seventh Inc.), (In Crateo, re F.2d Amendment: denied, (9th Cir.), cert. (1976) (reference 50 L.Ed.2d Mrs. Woods maintains that pre master, complicated special read matter findings sentation liability at a ing report not violation of master’s jury trial will so influence the amendment); 53; of seventh Fed.R.Civ.P. it will jury that be unable independently to Lucas, 5A J. Moore & J. Moore’s Federal question liability, particular examine 1977), 153.14[3], (2d at 3037-38 ly Practice ed. precludes since section 768.47 the calling liability it utilize a may certainly members to testify regarding the die-) violating without merits of the case.28 We are unable to person complicated questions of fact to a contention is untenable. Both Ortwein v. specially appointed Schwab, 656, 1172, to hear the and evidence 93 S.Ct. 35 L.Ed.2d findings long recog- make thereon has been (1973), Kras, 572 and United v. States appropriate proceeding an ac- nized as an 631, (1973), 93 S.Ct. 34 L.Ed.2d 626 stand tion at law. proposition may for the that reasonable fees be added). (emphasis at It Id. at 548 S.Ct. prerequisite bringing set as a to a court action is no less constitutional to refer a medical mal- long so as a being fundamental is not claim, practice generally com- which involves supra. asserted therein. See note 16 More- fact, plicated supra, issues of see note 18 to a over, unprecedented. such fees are not at all specially appointed that will hear the special When a federal court orders the use of a findings evidence and make thereon it was than party compensate master it order a to the compel to to the In re reference auditor his 53(a). master services. Fed.R.Civ.P. Battin, Colgrove generally Peterson. See v. clearly Such a constitutional. See 149, 156-57, 2448, 2452-53, U.S. S.Ct. (court may constitutionally In re Peterson or- (1973). 37 L.Ed.2d 522 parties pay stenographer’s der to auditor’s and supra 26. See note 12 for our of the discussion fees); Capital (parties cf. Traction Co. v. Hof addressing seventh amendment state cases required be to bear the cost of two trials jury challenges to trial-based to mediation action). of the same panel requirements. appellees argued 28. The have that Mrs. complained 27. Mrs. further that Woods has objection Woods’s seventh amendment to the 768.44(2)(i)’s requirement section that the at- panel findings admission of into evidence is not torney physician members of the mediation yet adjudication ripe for because day district paid per be one hundred dollars as yet court has not been compensation called to admit their services and that these findings equally against parties such into evidence either on behalf fees be assessed the unduly appellees Mrs. the claim burdens a claim- Woods some or all of the court, jury. agree. ant’s access to and thus to a This We do herein. not have We held that Meeker, 768.47(2) provision upheld section 768.47 Section contention. this accept evidence; facie prima establishes no rule of jury shall that provides specifically “[t]he merely jury give it states that the should conclusion that be instructed panel findings weight appro- such as it feels but shall binding, not be hearing panel shall priate. Supreme In In re Peterson the they choose weight as such accorded again Court addressed admission into finding partic- is a The to it.” ascribe containing report opinions evidence of a conclusive, form of relevant, but not ularly disputed several issues of fact. See note 25 dis- parties The evidence. The stated that: supra. Peterson Court same witnesses present are free pute will ... be admitted at jury they report The the trial before exhibits jury trial as evidence of facts and panel, and presented therein; findings embodied but it will be conclusions from its own may draw treated, most, prima at facie evidence it re- doing if in so testimony, even their The will remain thereof. as free finding. We observe panel’s jects call, examine, and cross-examine wit- has on Supreme Court United States report as if the had not been made. nesses admission of approved the occasions several jury trial No incident of the is modified before a findings into evidence expert away either the preliminary, or taken rejected seventh consistently has hearing tentative before the auditor or challenges procedure. to such a amendment report may put. the use to which his Railroad, Valley Lehigh Meeker 59 L.Ed. 644 310-11, 35 S.Ct. (empha U.S. at 546 U.S. provision in held that a Supreme Court added). sis We cannot see substantive providing Act the Interstate Commerce procedure approved difference between the of the Interstate findings and orders in Peterson and that called for section were admissible Commission Crateo, Intermark, Commerce 768.47.29 Inc. v. Inc. of the facts stated facie evidence prima (In Crateo, Inc.), (9th re 536 F.2d repa- to enforce a brought denied, therein in a suit Cir.), cert. violate the seventh award did not

ration The mere unavaila 50 L.Ed.2d that: observed Court amendment. bility testimony members for a rebut- does render section only establishes provision This Id.; accord, unconstitutional. It cuts off no de- Eastin presumption. table Broomfield, 580-81, a full 116 Ariz. fense, no obstacle to interposes issues, (1977) (en banc). and takes P.2d of all contestation from either court or question no of fact heavily relies on two Mrs. Woods therefore, most, merely it is At jury. decisions, Wright Page court v. Central Du abridge the It does not rule of evidence. Association, Hospital 63 Ill.2d jury, away any or take of by of trial N.E.2d 736 and Simon v. Eliza St. anywise does it work a its incidents. Nor Center, Op.3d beth Medical 3 Ohio law. process of denial of due (Ct.Com.Pl.1976), N.E.2d 903 for her propo 335; admissibility requirement at see Mills v. sition that at Id. Railroad, discussed, already 35 invalid. As we have see Valley Lehigh Wright in supra, Unlike the note 11 does not fact stand 59 L.Ed. integral part master is admissible as evidence of Florida’s of the matter section 768.47 is an malpractice litigation report may response medical he found and that this be read to to the consequently jury. 53(e)(3); problem the dictates of and that see Fed.R.Civ.P. 5A J. diversity application Lucas, (| require supra, 53.14[3], its in a case. Erie J. at Moore & 3037- address, clearly appropriate us to special It is for 38. While reference to a master is to be reject, rule, chal- Mrs. Woods’s seventh amendment exception rather than the and in a admissibility requirement lenge at this complicated should be made when case resolved, time. 53(b), issues must be Fed.R.Civ.P. we appropriate feel that a case is for provided the basis rule 29. In re Peterson supra. such a reference. See note report special provides of a which that disregarded whom the claim made point. this and to the Simon ad- licensing ministrative holding profes- board such an aberrational decision —its sional. process Service of shall be effect- been implicitly issue has or ed as provided by law. Constructive ser- rejected a number of other specifically vice bemay provid- effected as rejection their join cases. We by ed law. that accordingly hold the admis Simon (c) All named defendants in sibility provision of section 768.47 does not the claim an shall file answer to such unconstitutionally usurp function of a days claim within 20 of the date of ser- jury. Accord, amendment-required seventh vice. No other pleadings shall be al- Hospital Davison v. of Balti Sinai lowed. If no is filed answer within such Inc., more, F.Supp. (D.Md.1978); limit, time jurisdiction of the media- Nelson, 97, 107-10, Prendergast 199 Neb. tion panel subject over the matter shall (1977); Comiskey 256 N.W.2d 665-66 terminate, may proceed and the parties Arlen, 304, 308-10, A.D.2d N.Y.S.2d accordance with law. (1976); Lenore, supra see note (2) The judge judicial chief of each cir- 422; 792-93; Redish, at supra, Com cuit shall list prepare persons availa- ment, 179-82; Note, supra note Medi ble to serve on liability mediation Malpractice Mediation Panels: A cal Con panels whose purpose hear, shall be to note Analysis, supra stitutional at 331- disposition of, facilitate the all medi- cal malpractice arising actions within the jurisdiction of the circuit. The number Y persons on the list shall be determined above, by the judge, they For the chief but reasons set forth find shall be in sufficient numbers to efficiently correctly carry the district court held out the intent of this section. Each hear- 768.44 Florida Statutes sections and .47 are ing, provided for, as hereinafter shall be constitutional, they applied must be before a panel, three-member hereinafter case, diversity court in a a federal and that “panel,” referred to as the “mediation Woods’s must complaint Mrs. be dismissed panel,” panel,” or “hearing composed as for failure to abide mediation re- judicial referee, follows: a who shall be 768.44. quirement section the presiding member the hearing pan- AFFIRMED. el; a physician; licensed attorney. judicial referee shall be a circuit APPENDIX judge. appointments Such referees shall be made sys- “blind” (1977): Medical liability Fla.Stat. § tem. The other members shall be panels; membership; hearings.— selected in accordance with the following (l)(a) Any person representative his or procedure: claiming damages by reason of injury, (a) A list physicians prac- licensed to death, monetary or loss on account of tice under 458 or chapter chapter 459 alleged malpractice any medical or shall prepared by judge. chief osteopathic physician, podiatrist, hospital, making list, judge the chief may ac- organization health maintenance cept the recommendations of recognized against whom he believes there is a rea- professional medical societies. The list claim sonable basis for a shall submit shall, possible, if be divided into lists of such claim to an appropriate medical lia- physicians according particular the bility panel before that claim specialty of each. court any be filed in of this state. (b) A list of qualified attorneys shall be (b) shall pro- Claims be made forms prepared by judge. the chief In making vided the circuit court and shall be list, the judge the may accept chief the initially court, clerk filed with the of that recognized recommendations of profes- copies person with the against legal mailed to sional societies.

from the lists of five attorneys and five attorneys and (c) physicians Names of physicians, parties agree the shall on one to, off, panel or taken the added may be attorney physician and one to serve on judge at his by the chief any at time list hearing panel. If the parties the are discretion; however, names added to all agree, unable to each side shall then at the bottom placed list shall be the names from the alternately strike attor- list. the neys’ physicians’ list and from the list (d) attorney or selected physician A separately, striking with the claimant particular hearing panel for be on the first, until each side has stricken two himself or be chal- may disqualify case remaining names from each list. The lenged for cause. attorney physician and shall serve on the not to exceed shall (e) filing A fee $25 hearing panel. judge in each established the chief

be (h) panelists, After selection of the the paid to the clerk circuit and shall be judicial party and either referee filing fee shall court. the circuit attorney to question physician the and expenses incidental meet such used to has a state of if either of them determine may incur. the subject matter at is- regarding mind the days after service (f) Within 30 sue, hand, any parties or di- the case with the parties the shall file process, case, indirectly or involved in said rectly designating type the clerk a document acting that will him from with prevent who should hear the specialist medical a determination impartiality. Upon do not parties the event the claim. judicial panelist the referee that either judicial the refer- agree specialist, on the impartiality, with complete cannot act In no the determination. ee shall make judicial pa- the referee shall remove said practi- one medical shall more than event nelist. panel. serve on a mediation tioner (i) non-judicial panelists the Each of agree upon a doctor (g) parties If both day expenses for paid per shall be $100 hearing the attorney to serve on day portion day spent each or of a for stipulate. so In the panel, they may upon hearing panel. the The court shall agreement no is reached within event pay- parties equally assess both for specialty of the days after determination expenses panelists. ment of such involved, the clerk parties mail to the shall shall, the advice and (3) The clerk with described the members hereinafter and their coun- cooperation parties random, names, of five attor- selected date, time, sel, place for fix a hearing members of the neys who are hearing claim before the hearing on the names, selected at ran- panel list and the hearing shall be held within panel. The dom, designated physicians of five was filed the date the claim days hearing members of the specialty who are unless, good cause clerk with the or, desig- impractical list if it is referee, judicial order of the shown physicians by specialty, nate is extended. extension such time Such random, names, physi- of five selected at exceed 6 months from the date shall not regard specialty. without There- cians hearing on the is filed. If no the claim after, members so selected shall 10 months of the is held within merits disqualify which to days have 10 within filed, jurisdiction of claim is date the themselves, parties shall have the subject matter panel on the the mediation challenge panel in which to same time terminate, may pro- and the shall A decision on chal- members for cause. with law. ceed in accordance by agree- lenges for cause shall made toll filing of the claim shall (4) The there or referee. If ment limitations, and such statute of applicable disqualifications challenges remain tolled limitations shall statute cause, appoint clerk shall additional written hearing panel issues its the Thereafter, until required. panel members panel

The shall decide the issue of liabili- jurisdiction panel the of the decision or ty and shall state its conclusion in sub- event, any terminated. otherwise stantially following the language: days have 60 from the date party shall (a) “We find the defendant was action- hearing panel of the the decision ably negligent in his care or treatment of the parties the or date on which mailed to we, patient the therefore, and find for jurisdiction panel of the is otherwise the the plaintiff”; or complaint in which to file a in terminated (b) “We find the defendant was not circuit court. actionably negligent in his care or treat- allowed uti- (5) parties All shall be we, therefore, of the and patient ment by any discovery procedure provided lize for the defendant.” find Rules of Civil the Florida Procedure. be all Any arising signed by for relief out of the The decision shall mem- motion however, discovery procedure hearing panel; shall be any use of such bers the by judi- referee. The decided panel may member of the file written may cial referee in his discretion make concurring dissenting opinion. or limitations on the extent of reasonable (8) finding liability, After a if the discovery. parties agree, adverse the may con- (6) The claim shall be submitted the the purpose tinue mediation for of assist- procedural hearing panel under such rules ing parties the in reaching a settlement. Supreme be established the event, In such the shall also make a Court; however, strict adherence to the recommendation as to a range reasonable procedure evidence applica- rules and damages, any, if which should be in cases required. ble civil shall be awarded in the case. recommenda- called; may be all testimony Witnesses include, damages tion as to shall in sim- oath; testimony may shall be under be terms, ple, concise some breakdown as to orally the panel taken either before or portion damages of the recommended records, copies deposition; x-rays, attributable to: produced other documents be (a) Past and estimated health future or panel; considered and the right expenses custodial care attributable to witnesses subpoena and evidence shall ob- alleged malpractice, or tain as all other proceedings in in circuit court. The of cross-exami- (b) Any of the other elements of dam- all nation shall obtain as to witnesses who age: person.

testify parties Both be shall 1. Enumerated s. 768.21for wrong- entitled, individually through coun- death, ful or sel, opening make closing .state- Recognized by the Florida Stan- transcript ments. No or record of the Jury dard Instructions as elements of required, shall proceedings any but damages injuries due to negligence. party may proceedings have the tran- However, shall not have the judge presiding scribed or recorded. The punitive determine damages. hearing preside at the any shall not Any findings of damages shall not be arising out of the claim or any hear admissible in evidence in a subsequent in the case not with application connected trial. itself. No other hearing hearing pan- el shall in a participate (9) member trial aris- No hearing member claim, either as counsel or ing libel, out of damages shall liable in slan- der, witness. or defamation of character of any party to the proceedings days completion after the Within any action taken hearing, hearing panel shall recommendation made such member acting with the within a written decision clerk file his capacity official thereupon shall mail as member of the copies court who hear- ing panel. their concerned and counsel. to all plan.

itself with the wisdom of the A state bad, good program can be both or ei- (1) subsections provisions of (10) The ther, and still be rational so as to hurdle the any to applicable (9) shall not be through equal protection constitutional obstacles of insti- has been formal suit in which case The process. program, and due success of of those the effective date to prior tuted thereof, provide key does not lack July 1975. subsections, shall be which constitutionality, only rationality or the (1977): mal- Civil medical Fla.Stat. § thereof. lack actions; procedures; admissibility evidence.— any party rejects the (1) In the event Liability Medical Media-

decision Panel, may the claimant institute

tion in the

litigation based the claim Furthermore, any court.

appropriate action, the trial medical civil CITY LODGE NO. IN- CRESCENT shall conducted without the merits on TERNATIONAL ASSOCIATION OF insurance, insurance cov- any reference AND MACHINISTS AEROSPACE joinder of the insurer as a code- erage, or AFL-CIO, WORKERS, Plaintiff-Appel- suit. in the fendant lant, (2) hearing panel The conclusion of the liability the issue of be admitted on any subsequent trial.

into evidence BOLAND MARINE AND MANUFAC- However, findings specific no of fact COMPANY, INC., TURING admitted into evidence at trial. shall be Defendant-Appellee. opening in the may, statement or Parties No. 77-1067. jury, the court or comment argument panel’s conclusion in the same Appeals, United Court of States any other evidence introduced manner Fifth Circuit. dissenting opinion, trial. If there is a March 1979. vote of the shall the numerical also Panel members be admissible. testify called to as to the merits of the

case. The shall be instructed that hearing panel conclusion of the shall binding, but shall

not be be accorded such

weight they choose to ascribe to it. of this section shall applicable

not be case in which prior suit has been instituted

formal section, date of which

the effective this July

shall be

RONEY, Judge, concurring: Circuit by Judge in the result reached

I concur ground plan that the on the

Tjoflat claims handling relationship standard re- the rational

meets constitutionality, par- which all

quired agree proper to be test. Once here

ties met, neither federal

that standard this Court should concern nor

Government

Case Details

Case Name: Nellie Woods, as Personal Representative of the Estate of John N. Woods v. Holy Cross Hospital

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Mar 26, 1979

Citation: 591 F.2d 1164

Docket Number: 75-3523

Court Abbreviation: 5th Cir.