*1 judgment against given Bank, Center as we have judgment against Westroads a over Center Bank for judgment against Westroads, the amount of the based on its warranties of endorsement as a collect- ing bank. given judgment above,
For the reasons plaintiffs against favor of Westroads affirmed. judgment favor Center Bank Westroads’ cross-claim is reversed and the cause remanded judg- with directions to enter District Court ment in favor of on its Westroads cross-claim against Center Bank for the same amount Westroads required pay plaintiffs judgment on their against Westroads. part part,
Affirmed REVERSED DIRECTIONS. AND REMANDED WITH A. Prendergast , appellees, Richard al. Earl et Benjamin Nelson, Insurance, Director State M. Nebraska, appellant, Balka, Berri Director Benjamin Insurance, Nelson. substitued for Earl 256 N. W. 2d July
Filed No. 1977. 41199. *3 Douglas, Attorney Terry General, Paul L. R. and appellant. Schaaf, for
Erickson, Sederstrom, & Fortune and Johnson Wright, Cline, Williams, Oldfather, & Johnson appellees. Lathrop, Murphy, Miller,
David P. Milton John VanSteenberg, Dolan, Daniel James A. G. R. M. Meyer, Lane, Anderson, Clarence A. H. Ben L. and Stock, Darrell K. for amici curiae. J., Spencer, Boslaugh, before White,
Heard C. White, JJ. Brodkey, Clinton, McCown, J. Spencer, declaratory judgment seeking a
This is a action constitutionality of the Ne- determination Liability Hospital-Medical Act, 44- sections braska Supp., 44-2855, are Rich- 1976. Plaintiffs R. S. 2801to practicing Prendergast, qualified and nurse A. ard anesthetist, Papenfuss, a licensed and L. Harlan Community physician, practicing Elizabeth and St. corporation. nonprofit Center, a Nebraska Health for the State Insurance the Director of Defendant filed after the defend- This action was of Nebraska. implement provisions of the act. refused to ant act constitutional Court found the District carry out his Director of Insurance ordered the stayed required act, the order but duties as constitutional, pending appeal. find the act this We and affirm. right question of the Director as to the
We have no special legislation question the act Insurance granting in aid of an in- of the state and as dividual, the credit ques- corporation.
association, We do or any question right raise the director tion the process injured party due the act denies an right protection, equal of access to the or denies the by jury. of a trial courts and determining While we have been liberal Attorney standing in the name to sue General except standing granted State, we have never had a the defendants direct where either the State or issues raised. interest in and were affected Equali- Board ex v. State See State rel. Sorensen Assessment, 259, 242 N. W. & 123 Neb. zation N. W. 264 (1932). litigant question Ordinarily can unconstitutionality only being when a statute’s applied disadvantage. Brown, to his State *4 (1974). 61, 213 N. Neb. W. 2d by way questions The various herein are raised seeking petition plaintiffs in answer to the to require implement the act. In the defendant to view plaintiffs that are entitled relief fact position they ques- in a seek and the defendant is litiga- portions further of the act to avoid tion some exception and re- tion we make an view all the in this instance questions constitutionality raised in the answer. Legislature act, 1976, L. B. in the Laws
specifically public in- finds and it is in the declares competent hospital terest medical and services public be available to the in the State of at Nebraska prompt costs; methods reasonable and efficient provided eliminating expense as as well expenditure physicians and courts useless of time of claims; and that a nonmeritorious provided efficiently method be resolve meritorious essential claims. also finds the act continuing availability care; assure of medical encourage physicians practice into the of in to enter Nebraska; medicine and to have them remain practice long physicians such qualifications. so as such retain their applies qualified pro- The act to all health care providers” physicians, viders. “Health care includes hospitals. qualify anesthetists, nurse To under provider proof the aсt a of fi- health care must file responsibility nancial with the Director of Insur- pay surcharges ance, and levied for the Excess Lia- bility Fund. provisions ques- the act
We discuss constitutionality tions are raised as to its in the brief patient’s first, however, a of the defendant. We state remedy qualified against care exclusive health provider patient under the act unless provisions act. elected not to come within the provisions, must To avoid its notice of the election in advance of be filed with the Director of Insurance provider Also, no- must be the health care treatment. circumstances as soon as is reasonable under the tified patient effec- This election is has so elected. that tive Every qualified years period sooner revoked. for a unless required provider health care qualified post the act. he has under a notice that *5 provisions of that the contends first The defendant panel creating are void medical review a act contrary they are and effect in that and of no force and of both the state fundamental mandates (2), 44-2840 R. S. federal Constitutions. Section against provides Supp., 1976, “No action as follows: any provider may in be commenced health care a proposed pe- the claimant’s court of this state befоre panel presented review been to a medical tition has pursuant 44-2841and an established to section by panel.” has been rendered attorney, panel acts in an The consists of one who physicians, advisory capacity vote, three without and hospital, provider the health care is a when unless provision party panelist. Each is made for a fourth physi- one to the action shall have the to select upon physician cian, be re- selection such shall quired physicians to serve. The two thus selected physician panelist. shall select the third In the case hospital panelist defendant, be a of hospital the fourth shall by hospital.
administrator selected panel duty “express expert opinion in its writing parties to each of the or not as to whether supports the evidence the conclusion that the defend- ant or defendants acted or failed to act within the appropriate charged standards of care as complaint damages proxi- and as to the issue mately caused failure to act in accordance with such standards.” (3), Supp., provides:
Section 44-2843 S.R. “* * * thirty days, panel shall, render within following expert opinions one or more of the which writing parties: shall be mailed each of “(a) supports The evidence the conclusion that comply appropriate the defendant failed to with the charged complaint standard of care as in the specified particulars;
“(b) supports The evidence the conclusion that applicable met standard the defendant involved ___ required circumstances; care or under “(c) requir- fact, There is material issue of expert ing opinion, bearing liability for considera- specified jury particulars.” the court or tion report, any minority report, of the medical panel shall admissible as evidence in review *6 subsequently brought by claimant action the a report law, but not be conclusive court such shall party right any and either have the to call shall panel member of the medical review as a witness. required appear called, If testify. the witness shall be to and argues panel provisions Defendant violate Ar- I, 13, Nebraska, open, section ticle Constitution provides: “All be which courts shall and every person, any injury lands, done him his person goods, reputation, remedy by shall a have justice law, course of due denial or and administered without delay.” 13, I, Article of the section Consti- general merely tution is a declaration of a funda- principle. duty primary It mental is the of the safeguard rights courts this declaration any way imply However, remedies. not in does Legislature power impose is without a special procedure courts. Claim- before resort to the are not access to the Those ants denied courts. who merely required do elect otherwise are to follow procedure submitting their a certain before claims courts. City Campbell Lincoln, 703, In v. 195 Neb. 240 N. (1976), plaintiffs 2d 339 relied on a constitutional W. claiming provision, the Political Subdivisions Tort by requiring Act the Constitution Claims violated governmental before subdivision suit notice provision, sustaining legislative filed. In was “Finally plaintiff contends the court stated: impose power Legislature a notice had no that requirement with of limitations statute or shorten 104 governmental against
respect subdi- to a tort claim activity. Basically proprietary engaged in a vision powerless Legislature is that the contention is right. as a rule The law itself a common law alter changed at the at the will or even of conduct prevented Legislature consti- of the unless whim tutional Illinois, 113, S. limitations. v. 94 U. Munn 77. not forbid cre- L. Ed. The Constitution does rights, old ones abolition of of new nor the ation recognized by permis- law,
the common to attain a legislative object. Silver, 280 U. Silver v. S. sible 117, challenge 57, 74 involved 50 S. Ct. L. Ed. 221.” Silver guest of Connecticut on con- statute grounds. stitutional Wright Barney,
Defendant cites State ex rel.
(1937),
Neb.
Defendant also relies on v. (1940), 461, 138 Neb. 293 N. W. 375 and Armbruster v. Stanton-Pilger Drainage Dist., 459, 165 Neb. 86 N. W. (1967). necessary 2d Both cases held it was not plaintiffs comply provision for the to a with notice previous filing recovery damages to a suit the for upon I, 21, based Article section Constitution of Ne- specifying property person braska, the no just compensation. be shall taken without Those point There, cases also are not herein. remedy provided by was Constitution without re- necessary plaintiffs striction. It was not for to prove govern- claim that a had been filed with a provided by mental subdivision as its rules when the governmental plaintiffs’ property. unit took many holding contrary
There
Nebraska cases
position
respect
to defendant’s
with
for
claims
damages against
Knapp
See,
instance,
cities.
for
v.
(1961).
City Omaha,
172 Neb.
Defendant cites several cases arbitra- agreements tion which in effect close the doors parties. the courts to the These cases also are not being relevant herein. No claimant is denied access Rather, claimant, courts. unless he has act, an election made not be bound first sub- panel mits his claim to a medical review which ren- precludes finding. way ders a This in access to no the courts for a final determination. The medical panel opinions review is restricted to the three quoted above. ignore dealing should
We the fact we are with subject existing a where law in most instances re- quires expert opinion an a before case can sub- jury. judicial area, mitted In the medical system upon is called to make which determinations require specialized knowledge. in most instances It usually is an area which the trier of fact unin- relatively at formed or least so. provides, delay expense slight
The act at a filing procedure court, suit review to if there frоm evidence submitted determine *8 panel the If determines is for claim. there basis obviously claim, the for the claimant bene- a basis it, there is no basis for If it determines fited. think of the is informed of what others
claimant disagrees, has ac- he still of claim. If he his merits he thinks of what for a vindication to the courts cess provides specifically may rights The law be. his during pe- of limitations is tolled the statute that by subject consideration the matter riod days period panel for of 90 fol- review and medical opinion. lowing its following quotation Illinois, from v. Munn (1876), Campbell 24 L. Ed. cited in
S.U. point: person City Lincoln, is in ‘‘A no of supra, any interest, property, of the com- no vested rule municipal only of one of the forms law. That is mon Rights law, more sacred than other. and is no by property have been created the common which away process; due be taken without but law cannot changed conduct, itself, as a law rule legislature, whim, will, at the of the or even at prevented limitations. In- constitutional unless great remedy deed, of statutes is to de- office they developed, law as are in the common fects changes adapt time and circum- stances.” mandatory prerequi- contends the next
Defendant claims to of submission medi- site cal panel deprivation is a of a review constitutional jury right to a trial in violatiоn state and fed- Defendant calls our Constitutions. attention to eral Nebraska, I, section Constitution of Article which right jury provides: ‘‘The of trial shall remain inviolate,” Seventh Amendment and the the Con- provides per- States, which of the United stitution * * * part: at law ‘‘In Suits common tinent * * preserved by jury *.” shall be trial Defendant previous holdings to our our attention calls further questions negligence jury issues of judge credibility jury sole is the correctly Defendant has stated these witnesses. agree principles do not with the law. We defend-
107 they any way ant, however, by that are in violated provisions of the contested act. The medical re- panel provide view does not decide the case. It does may by jury. evidence which be considered The provision parties net effect of this furnish opinion expert panel. respect, with the of an In this expert testimony it is no different from other re- still, jury ceived at a trial. The remains as the ulti- questions mate arbiter of all fact raised.
Defendant builds much of his case on a recent Illi
Wright
decision,
Page Hospital
nois
v. Central Du
(1976),
Assn.,
313,
63
2d
Ill.
2d
347 N. E.
and an
case,
Ohio
Center,
Simon v. St. Elizabeth Medical
(1976).
issue raised
253
the defendant
Ex
(1920).
U.
S.
S. Ct.
Defendant’s attack on the medical review change not with reference claimed Actually, standard care. the real question crisis in the medical area involves a available medical care for the citizens of the at state a reasonable cost. panel in-
Defendant contends the medical review by jury terferes with constitutional to trial report because the which be introduced in evi- adversely dence, claimant, if adverse to the affects ability jury his would then also obtain verdict. The converse report was
be true. If adverse promote provider, to the medical care would two-way claimant’s equally action. It is a street which parties affects the both not sides. We do accept implication jury defendant’s that a not could panel’s or would evaluate a medical rec- review objectivity, ommendation with follow trial regarding weight given court’s instructions to be experience present expert it. Our with witnesses certainly indicates otherwise.
The defendant refers trial court Comiskey reported Arlen, at Law Week judge where a trial found act un- the New York to be *11 constitutional. Defendant’s brief must have been opinion by written before that Su- was reversed the preme Appellate Depart- Court, Division, Second 1976). (Dec. Supp. ment, N. Y. 2d 122 fol- lowing quotation appellate opinion perti- the from “The the nent: whole thrust of Trial Term’s deci- assumption jury was its no evaluate sion a medical that could panel’s recommendation objectivity, with regarding or follow a court’s instructions trial assump- weight given
the to it. That tion serve as the basis was unwarranted cannot unconstitutionality ‘His- a since declaration of jurors part proven torically, independence. for the have their most unique
They guard roles with a their (Halpern supra, p. 759, jealousy’ Gozan, at 381 N. 748).” p. Y. S. 2d at legislative argues is a next the act at-
Defendant judici- usurp judicial granted tempt the functions ary by of the State Nebraska. He the Constitution panel the of its duties im- nature contends jurisdiction permissibly courts in restricts V, 9, of Nebraska section violation Article provides section the District Constitution. That ju- chancery law have and common Court shall both Legis- jurisdiction risdiction and such other may provide. lature respect,
In on this defendant relies the Illinois previously to. case referred He overlooks fact provides statutory that the Nebraska act an elective remedy, present a in the Illi- feature which was not distinguish nois He fails to fact law. also panel in the medical review the Illinois case was not panel provide panеl a evidence but was to de- controversy. panel proceed- Illinois, cide the In ing adversary party permitted was and each was call and cross-examine witnesses. The Illinois panel opinions rendered written conclusions of fact and conclusions of law. reading
A of the Nebraska act demonstrates panel’s provide the review sole is to an ex- function pert opinion by based on evidence submitted to it parties. is not It no an arbitration board and has au- thority dispose of the action. Nebraska act promote early disposition many an should cases voluntary brings parties settlement. It to- gether after the facts are available both sides and both sides have heard the voiced the re- panel. pre- view trial This in effect is in the of a nature way
settlement It conference. no en- powers prerogatives croaches on the of the court. argues panel also Defendant the medical review denies to the citizens of this state their equal protection process and due of the law. He *12 provisions apply only the act to states those providers partici- health care who have chosen to par- pate. this He then assumes inasmuch as ticipation voluntary, any it be at terminated argues provider reсeiving time. He a health care simply par- adverse his an could terminate ticipation report longer and the no admis- would be against any subsequent brought him in sible action injured patient. argu- the his Defendant builds (2), premise. ment on a false R. Section 44-2821 S. Supp., provides: provider “If a health care qualify 44-2855, shall under 44-2801 to the sections against patient’s provider remedy exclusive care health * * * provided shall be as sections 44-2801 patient 44-2855, to unless shall have not to elected provisions come under of section 44-2801 to 44- 2855.” reasonably pos-
It is incumbent on this when court rights and sible consistent with to re- constitutional validity all as solve of its constitutional doubts of a in favor statute validity. possible, If a statute way negative should construed such a as to infirmity. However, constitutional we see no can provision possible way under attack can be con- strued defendant contends. act,
Under the all claims or causes of aris- action ing patient provider while the health care subject provisions were would be terms and of the act
subject adjudication to the act. in accordance with provisions parties each of the While change could his or her before a of ac- status cause par- arose, if cause arose while the tion of action subject subject thеy act, were ties remain its as to that cause action until determination. argues equal pro- is denied
Defendant claimant process the medi- tection of the law due because only respect panel provided with cal review causes of action arising such under act and apply generally procedure with does reference *13 arguing Essentially, defendant tort claims. all spe- single people operates for a out class to the act relationship to treatment, no rational but bears cial legislation. legitimate purposes do not We of the the agree. pub- purpose the “to serve act is
The stated of the by providing for method an alternative lic interest improve determining malpractice in order to claims qual- improve availability care, its of medical the ity thereof, and to insure the the and to reduce cost coverage availability malpractice at insurance specifically reasonable found and declared it rates.’’ public in the that interest hospital competent avail- medical services be public reason- able to in the State of Nebraska at the pointing up Legislature is in a crisis able costs. The public using welfare, and the area of health and police power еffect a solution. state to partially an-
The issue of been classification Taylor Karrer, swered 196 Neb. N. W. (1976), malpractice 2d which action was plaintiff attacking special which the was statute malpractice for there of limitations actions. We “ Legislature may held: ‘The make reasonable persons, corporations, property classification of purposes legislation concerning for them, but upon classification rest of situ- must real differences surrounding ations and the members circumstances subject legislation of the class relative to ” appropriate which render its enactment.’ We fur- “ competent Legisla- ther said: ‘While it for the classify purposes legislation, ture to for classi- fication, valid, to be rest on some reason of must public policy, some of situa- substantial difference naturally suggest circumstance, tion or would justice expediency legislation that respect or with of diverse ” objects holding In to be classified.’ public policy, was there some reason sub- some circumstance, stantial difference of or situation naturally suggested justice expediency or legislation respect actions, with we leg- said: there “There substantial reasons regard this islative discrimination have seen in recent litigation field. We years growth mаlpractice point where numerous insurance companies have withdrawn from this field. Insur- practically prohibitive many ance rates are so that professional people unprotected must remain either pass charges along patients the insurance to their and clientele the form of exorbitant fees and unduly public charges. This burdens which re- quires professional services.” *14 Reisdorff, 165, v.
In Botsch Neb. 226 N. 193 W. 2d (1975), constitutionality 121 where Ne- guest upheld, quoted braska statute was we from Dandridge Williams, 471, v. U. 397 S. 90 S. Ct. “ (1970), Ed. L. 2d as follows: ‘In the area of welfare, economics and social a State does not vio- Equal merely late the Protection Clause because the imperfect. classifications made its laws are If basis,” the classification has some “reasonable it simply does not offend the Constitution because the nicety “is classification not made with mathematical practice inequality. or because in it in some results * * * problems government practical are ones may justify, they rough require, and if ac- do — illogical, may be, commodations and unscien- * * * statutory tific. aside A discrimination will not be set any reasonably may if state of facts be con- * * * justify Equal to ceived it. But the Protection require Clause does not a State must choose be- attacking every aspect problem tween tacking of a or not at- * * * problem enough at all. It rationally the State’s action be based and free from ” invidious discrimination.’ - The classification does basis. have a reasonable Legislature to acted meet a crisis situation. We hesitancy Legislature holding no have could just, fair, reasonable connection and have found promotion legislation health, of the and the with the safety, comfort, the citizens Ne- and welfare of previously indicated, have we no As we braska. reason legislation, question to the need for the and produce evidence to defendant has failed the which would indicate otherwise. right dealing fundamental to ade- with the
We
type
provide
quate
care,
this
medical care. To
necessary
try
Legislature
to
has found it
to elim-
claims
to
inate nonmeritorious
recovery in
those claims
limit
the amount
attempt
crisis,
merit. To
to meet a
found
have
experiment
Legislature is free
and to innovate
will, or
and to do so at
even “at the whim.’’ Munn
Illinois,
94 U. S.
We consistent dic- Constitutions, tates state federal distinguish pass a law which seeks between dif- *15 types conditioned, This ferent however, tort actions. is
upon being those distinctions reasonable grounded upon real differences inherent those clearly pre- tort actions. The section which most question places the is sents the one which a limit of upon recovery upon $500,000 the in actions based medical is no similar where there limi- upon recovery Regard- tation actions. in other tort ceiling damages, less of extent of the re- covery $500,000. is argued ceiling judgments
It is that a on constitutes special provider privilege health care seriously injured patient. an undue restriction on the respect In this it must be remembered the Nebraska procedure election, is an one. elective Under guarantees the act the claimant an assured fund of payment any malpractice $500,000 for the claim may remedy he have. Under the common law he guarantee and, no had such as in the case of the plaintiff Prendergast, who has been unable to ac- quire any malpractice insurance, likelihood collecting judgment quite a substantial could be re- mote.
Additionally, pro- thе claimant is assured of a provide impar- cedure which will him access an panel tial medical review to determine whether provider applicable health care met the standard of agrees return, care. In claimant his election ceiling. sufficiently $500,000 We have answered by holding the defendant’s contention heretofore public policy classification rests on reasons of and a pro- substantial difference between medical care say viders and other tort-feasors. Suffice it to safeguard only the constitutional is offended if the grounds wholly classification rests irrelevant objective. the achievement of the state’s presumed Our is to have acted within power despite prac- its constitutional tice its laws not set aside the fact inequality. result in some We will statutory if discrimination state reasonably justify of facts exists it. We hold a legitimate legislative objective being furthered proper. the act. We find the classification Noth- ing suggests, in the act infers, as defendant that the legislation involved was enacted for the relief of the provider. was, medical care The enactment and so appears public be, to us to in the interest. This is paramount. argues impairs obliga-
Defendant next the act contract, I, tion of in contravention of Articlе section challenges pro- Constitution of Nebraska. He *16 provides be that credit shall act which vision of the given respect medical insur- nonrefundable with to paid by premiums benefits, or for the obligation less all ance impairment There is no claimant. provision purpose is elim- The of this
of contract. resulting possible from double recov- windfalls inate ery damages. policy the benefits under which
If the insurance they provides paid insur- are refundable to the recovery party company in in a third event ance action, by refundability the act. is not affected such judgment against Being refundable, the credit only apply. provided would not It is the act an over- situations where the claimant received op- damages payment credit becomes that the of his Nothing impairs any in the contract. erative. act only provision effect of is The has collected reimbursement where claimant
of insurance benefits required he not to to from some other source which is pay judgment back from the that credit is allowed provider by reim- the health care reason of that judgment bursement. amount reduced outstanding accordingly, nothing any but affects contracts. remedy elective, for
Since the no basis exists complaint. remedy elective, Even if the were provision сategory this be in same as the would ceiling provided by justified by reason the act and is public purpose sought act. served problem presented, In view of the sought to eliminate windfalls. (3), Supp., argues R.
Defendant 44-2834 S. section appears option 1976, legal contractual exclude the
representation upon contingent fee. based patient The to have section states: ‘‘A shall agree attorney’s attorney pay with his satisfactory per mutually diem basis.” services on a requires objectionable could This not be since agreement right. attorney such attorneys’ subject provides act also that all fees are *17 by attorneys courts, are offi- to review but since existing of cers of the court this is not out line with practice. malpractice of on the Much the literature contingent crisis fee as the attacks root contingent evil. question the act eliminates fees is a Whether Regardless we need not decide. of fee arrangement, authority we hold the was its within requiring arrangements be that fee sub- ject by to review the courts. Supp., Defendant attacks section R. S. (4), 44-2836 provides: “Any provision policy
1976, which at- tempting modify liability to limit or the in- of contrary provisions surer to the of sections 44-2801 to be shall void.’’ doWe not understand de- 44-2855, fendant’s concern. This seem section would not be different from other references in the insur- requiring ance field the insurance carriers to cover liability they purport See, the instance, which for insure. relating section R. R. S. 48-146, compensation provides insurance, workmen’s in which part: policy against liability “No of insurance arising this under act shall issued it con- be unless agreement tains of the insurer it will promptly pay person to the entitled to the same all * * act, benefits conferred *.” this alleges grants
Defendant next the act the credit of individual, association, the state in aid an or cor- way may poration. The act in no be construed to grant impair credit of the state. an It creates liability among which, excess fund out other things, $100,000 claims excess than but less paid. are to Provisions are also made $500,000 payment money for the from the fund of on account liability primary pursuant issued insurance capitalization provisions the act. for this surcharges fund will come from annual ex- premium paid by percent of ceed the annual providers $100,000 basic medi- health care for their malpractice liability cal insurance It is also policy. funded be as- by special surcharges which sessed in an amount proportionate surcharge provider paid previ- each health care to the fund ously premiums as well as amounts received for medical written for malpractice insurance certain providers health care who to sec- qualify purshant 44-2837 to tions 44-2839 of the act.
Defendant contends the risk writing of this medical insurance manager certain health care providers unable to obtain elsewhere may result in the loan of the credit of the Nebraska, XIII, State violation of Article sec- tion Constitution He Nebraska. likewise con- tends that the provisions of this act creating fund out of which certain claims in certain amounts *18 be paid may to result in a loan of the credit of the Nebraska, XIII, State of contrary to Article section 3 Constitution. There is no merit to these con- tentions. in the act
Nothing any way implies the state is be obligated with to the respect excess liability fund or liable for any other amounts pursuant due the act. Defendant argues the state would have a obligation moral to compenstate a victim. How such a moral obligation could arise he does not Clearly, state. in view of the constitutional provi- state, sion concerning credit of the there is no way make a claim against the state for any bal- ance due on a judgment.
The act provides for a special surcharge on all health care providers who have qualified under act if the amount on hаnd is insufficient to permit full payment of all claims allowed against the fund during year. calendar This is in addition to the annual premiums to be required paid by health care providers to the subject act.
Defendant next challenges the elective character of the Nebraska law the basis of sufficiency of argues reasonably notice. He “can it be said that patient, seriously injured pa- an unconscious ill or patient transported tient, matter, or for that into state, the State of Nebraska from another has con- failure, sented to the limitations of this act his prior receipt treatment, to have written the Director Insurance and informed the health care provider of his declination?” This same situation is many present persons charged areas. All knowledge provisions They with of statutes. procedure adopted by must take note of the them. procedure When that is not unreasonable or arbi- trary, there are no constitutional imitations reliev- ing conforming them from to it. North Laramie Hoffman, Land Co. 268 U. S. 45 S. Ct. (1925). L. Ed. 953 Compensation pro- The Workmen’s Act makes no being vision for notice before bound the act. The provides respect is, notice it as in this case with patients, a notice of an election not to come under point the act. The to be stressed is that the election any regardless is available to be made at time patients need for medical attention. Those who preserve rights want their common law can ad- vise Director of Insurance of their election to- day, They tomorrow, or at time. so, must do they however, before obtain the health care service. obligation So far as their concerned, to advise their doctor is requires only the law the notice be given as soon as is reasonable under the circum- provided stances. a notice *19 by providers. posted the health care be The act delegates responsi- to the Director of Insurance the bility determining of the size and other details notice. argues
Defendant an otherwise unconstitutional justified act cannot be on the basis of the societal alleged circumstances under which it be adopts have been enacted. Defendant the strawman legis- assumes the judge, the Ohio trial used or insurance lation was enacted to relieve doctors do not ac- burden. We of some of their companies insurance Doctors premise. defendant’s cept fi- against are able to themselves companies protect pa- on to their by passing nancial burdens the cost so, part created they doing tients. Because were necessary deemed it problem. available quali- to exercise its to make police power for the prices fied medical services at reasonable violation public. We find no constitutional Nebraska this effort. Defendant seeks other at- distinguish legislative limiting liability quid pro quo at tort tempts He Workmen’s principle. argues Compensation deprive Act did not of common law employee matter, for damages injury. his As a practical risk, assumption contributory negli- doctrines and fellow servant defense the em- gence, precluded from ployee recovering anything by virtue of the in- sustained jury through of his em- negligence For this reason defendant the em- ployer. argues was not ployee deprived any benefit significant when theoretical right recovery of common law from damages his was altered en- employer actment of the workmen’s compensation statutes. He then points out employee to the extent an had an action against his at common law employer for a tort-related injury, Compensa- the Workmen’s tion Act gave him a remedy substitute theo- retical common law cause of action which he had against his It employer. gave employee to be compensated having without demon- strate any fault on his which employer, part was a very and benefit for the significant substitute injured employee.
There is no if a com- argument merit mon law right away something is to be taken must event, however, given the Ne- return. In *20 provides quid pro quo. braska law In return for rel- atively remedy minor restrictions and the patient ceiling $500,000, of receives assurance of collectibility any judgment of recovered and the panel experts. benefit of the of a As pointed collectibility judg- heretofore, out value, ment is matter considerable as demon- plaintiff strated the evidence in this case that the Prendergast, except law, for the new would not be acquire any malpractice able to insurance. quote again Taylor Karrer,
We from v. 196 Neb. (1976), 581, following: 244 N. 2d 201 W. “There legislative are substantial reasons discrimina- regard to this tion field. We have seen in recent years growth litigation malpractice point companies where numerous insurance have from prohibitive withdrawn this field. Insurance rates practically many professional so that people unprotected pass must either remain charges along patients insurance to their and clien- charges. tele in the form of exorbitant fees and This unduly public requires profes- burdens which quid pro quo sional services.” While no is neces- sary, provided by one is the act.
Finally, defendant takes issue with the conclusion upholding guest statute, this court’s sec- prece- 39-6,191, tion R. R. S. constitutes some Legislature’s limiting damages dent for the recover- malpractice argues able in cases. He lim- is not a damages. itation on It is the limitation on the host duty requiring higher showing driver’s of willful principle true, and wanton conduct. This is but the guest is the same. The statute does affect the result jury degree trials, negli- since it increases gence proven which must in order to establish a guest enacting claim. In the medical damage doing limitations, no legislatures than more of other states have done the enactment no-fault statutes tort actions. again Illinois, 113, 24 L. 94 U. S. v. refer to Munn We property, person inter- no no vested 77: “A Ed. est, common law.” rule of the Johnson, 149 Neb. 30 N. W. In Sommerville (1948), *21 are rules of con- said: “There two 2d 577 we long state. followed this construction stitutional legislature construing all reason- ‘In an act of its constitu- must be resolved in favor able doubts 28, tionality.’ Co., Oil 61 Neb. 84 State v. Standard elementary it is not ‘It within N. W. 413. province legislative act un- of the courts annul clearly provision provisions its contravene a less so clearly against law, or is so of the fundamental it public policy, Abie that no other resort remains.’ 153, Weaver, 922.” 227 N. W. State Bank v. 119 Neb. Every legislative before this court sur- comes act constitutionality. presumрtion rounded with presumption the act under re- This continues until provision clearly appears some to contravene view of the exhaustively have reviewed Constitution. We many urged by in his the defendant contentions duty imple- his attack on the which it now is act ment. He has We find no merit in his contentions. proof him. failed to meet the assumed burden judgment affirmed, District Court proceed to immedi- defendant is directed to ately implement the act. Affirmed. dissenting concurring part, J.,
Clinton, part. my
Today knowledge, court, this to the best history is, the first what for the time in its renders part, advisory respect opinion. In most this an lamentably disregards functions its constitutional future, course, if court. This followed political implications for the future welfare ominous of this state. numerous occasions
We have said upon constitutionality pass of a courts except person rights statute at the suit of a whose adversely provisions affected of the stat- challenged utes which are as unconstitutional. State Douglas Gradwohl, 745, ex rel. v. 194 Neb. 235 N. W. Blackledge 854; 188, Richards, 2d v. Brown, 231 N. Neb. 319; 61, W. 2d 712; State v. 2d Neb. 213 N. W. Howell, 503, v. Ritums 190 Neb. 209 N. 2dW. Metropolitan 160; Utilities Dist. v. Merritt Beach Co., 783, 626; Hai’, 179 Neb. 140 N. W. 2d Bali Inc. v. Liquor Commission, 1, Nebraska 236 N. Control 195 Neb. 614; 767, Mattson, 2dW. Stanton 175 Neb. v. courts, course, N. 123 W. 2d 844. Other enunciate principle. Oklahoma, the same Broadrick v. 413 U. League 830; S. 93 S. Ct. 37 L. Ed. 2d of Ne- Municipalities Supp. Marsh, braska 209 F. 189. prеcept special application
The above is but a of a upon principle fundamental constitutional founded separation powers. the doctrine of the It is not a judicial advisory opinions. function to render See *22 Douglas supra, Gradwohl, State ex Clinton, rel. responding J., to the dissents in that case. Courts constitutionally opinions only can render where a presents controversy case an actual between the liti- gants. Nebraska State AFL-CIO v. State of Nebras- ka, also, 445 F. See, 2d 1333. E. of Richard Judge, Robinson, Supp. Chief 319F. 239. separation powers
The doctrine of is embodied explicitly. in the Nebraska State Constitution “The powers government of this state are divided departments, Legislative, into three distinct Ex- person Judicial, ecutive and no or collection of being persons departments, one of these shall exer- any power properly belonging cise to either of the except others, expressly as hereinafter directed or permitted.” II, 1,§ Art. Constitution of Nebraska. principle is embodied in the Constitution of implicitly. See, United States Forkosch Constitu- (2d Ed.), p.9, 11; Antieau, § tional Law Modern p. Law, 11.13, § Constitutional 200. Under this doc- provided by specific except trine, con- as otherwise provision, of the three branches none stitutional any power properly government longing be- exercise shall the other. judicial power precise is not de- nature of the did not need to be as Constitutions. It fined history a matter of at was known as its nature adopted. time the Constitutions were judicial legal scholar has stated One power The first charac- three characteristics. Rights of arbitration. he describes as that teristic judge or before a in an action must be contested is a conflict between can act. Unless there court powers parties, its act and a court does not particu- quiescent. short, have In the court must a Legis- function. The case to decide before it can lar lature, statute, hand, a on the other when enacts principle general application. It establishes does not decide individual contests. a judicial power fol- The second characteristic principle applies lows from the first. The court a simply special an- set of facts. The court does general immediately principle binds nounce which litigation. parties particular others than the The may, principle which how- the court announces precedential ever, of fu- have in the decision effect ture contested cases. judge
The third court or characteristic is that a though begin cannot initiate оr court Even an action. dispute, intervene it cannot aware of a parties to a on its own contro- initiative. One of the versy jurisdiction of the court must first invoke the prescribed by in the manner law. some purpose separation *23 the of The of the doctrine preserve powers independence of each of the government in their own re- the three branches of tending prevent spective proper spheres, thus despotism oligarchy the or the judges, of an dictatorship executive, the the or or cooperative foregoing. In combination of the the purpose Brandéis, “[The was] words of Justice not promote efficiency preclude but to the exercise of arbitrary power. purpose The not to avoid fric- was by tion, but, means of the inevitable friction incident powers governmental distribution among departments, people three to save the from autocracy.” Myers States, v. United 272 U. S. Forkosch,
S. Ct.
It is a matter of observation that part legislators, executives, most and administrators very knowledge have limited of what doctrine of separation powers imports. courts, ought expected hand, other to be to have this knowl- edge. dividing lines, The courts must observe the always clearly by drawn, be sure not and to do so appropriate exercise We of self-restraint. must independence, upon lose our nor intrude government functions of the other two branches of by becoming political processes. embroiled inevitably upon Yet we will if launch the uncon- we process rendering advisory stitutional and unwise opinions nonjusticiable opinions causes, is, questions law, rendered on abstract where the person of constitutional in a case is rendered where no rights challenged whose are affected party proceeding law is a before the court. Attorney openly General, case, in this ac-
knowledges represents persons that he no whose rights provisions constitutional affected challenges validity the statute which he and whose purports only justiciable the court to determine. The issue before the court the act vidual, association, in this case is the claim that
grants the credit of state in aid of an indi- corporation. agree I that the Department Director of the of Insurance and the At- torney may raise this issue and General it is justiciable, join portion opinion. and I in that *24 as to the issues decided numerous other
On all the constitutionality portions statute, of the of various litigation party in this before this court is no there whose provi- rights This includes are affеcted. experts. opinion panel providing of a for the sions panel experts case, or ren- in this has acted No person any opinion, affected has been and no dered equal opinion. by protection The same is true of such they process relate to and due claims ceiling judgments such claim that and the upon of the courts. intrudes the function statute necessity justici- general of the issue of the On the Separation ability Forkorsh, decisions, The see Supreme Powers, Court of L. 529. The Colo. Rev. Oregon, Oregon Assn. v. in the case Medical Rawls, to de- 276 Ore. 557 P. 2d was asked constitutionality of a statute similar termine including pro- many respects us, to the one before liability. limiting to decide the vision It declined question among for, reasons, in the “abstract” other justiciable opinion points That the lack of a issue. reasons, out advanced, addition to those here for de- clining constitutionality. to decide abstract issues of only saving grace portions opin- of the of the exception opinion I ion which take is that acknowledges justicia- openly the issues are that making the court “an ble and that this case exception” justiciability requirements separation powers. constitutional doctrine on the hoped only It is to be this is the sole and ex- ception thаt will ever be made. giving Attorney of advice is the function of the departments,
General for the state and its various depart- other counsel which the or its various state may employ. persons ments These are members of government. the executive branch of Private liti- gants must seek Ar- advice from their own counsel. justiciable controversies is the bitration function my view, under the Constitution. It is of the courts given, in this case is for the reasons particulars itself, indicated, in the an unconstitu- act I tional this court. For that reason cannot fully join therein. dissenting part. J., C.
White, Thomas, agree majority opinion I with the that the creation authority by Legis- insurance *25 lending lature does not credit of the constitute “the XIII, 3, state” in Consti- violation of Article section tution of Nebraska. agree power Legis-
I that it of was within the malpractice lature determine medical a although crisis exists us does not record before reflect existence of such a crisis. If there has explosion malpractice claims, been an result- ing inundation has not reached this court.
The five such cases this has heard in last court years comprise percent two 1 less than the docket I this court. further reduction in note the recent malpractice by medical rates the Director of Insur- stipulated parties. by ance as in thе record province Were it within the of this court to deter- emergency mine a whether exists to war- sufficient separate differing rant the medical treatment of body from the remainder of the tort unhesitatingly suggest law, I would evi- that no such yet presented However, dence has been us. as the majority opinion suggests, is a matter this Legislature, spoken. and the majority opinion characterizes the action as a “declaratory judgment seeking action a determina- constitutionality tion of the of the Nebraska Hos- pital-Medical Liability Act, to 44- sections 44-2801 Supp., 2855, majority R. S. 1976.” judgment this court then affirms of the trial so, court the act is constitutional. We do many Judge instances, points Clinton’s dissent presence rights person out, might without whose adversely affected of the act. sections 128 long-established principle that this
It has been the constitutionality pass upon the of a will not court except person rights whose at the suit statute are adversely provisions of the stat- affected challenged as unconstitutional. State utes which Douglas Gradwohl, 745, N. W. rel. v. 194 Neb. 235 ex Blackledge 854; 188, Richards, 231 v. Brown, 194 Neb. N. 2d 61, 319; 213 2d 2d State v. 191 Neb. N. W. W. 712; 503, Howell, 209 v. 190 N. W. 2d Ritums Neb. Metropolitan 160; v. Beach Utilities Dist. Merritt 626; Hai’, Co., 783, Inc. 140 W. 2d Bali Neb. N. Liquor Commission, 1, Nebraska Control Neb. 614; Mattson, 236 N. W. 2d Stanton v. Neb. declaratory judgment N. 2d A action 123 W. 844. requirement. standing Pro- does not alter this basic ceedings declaratory judgment for a extend to the validity justiciable, is a de- statute when there respect controversy parties terminable between rights to Dist. v. Hall thereof. Nebraska Reclamation Mid-State
County,
Adherence to have the above would *26 only majority opinion properly ited the issue — provides an raised before the act whether Despite grant the unconstitutional of state credit. parties adversity lack of the concrete between any opinion majority raised, further the constitutional issues exception in- in
decided to “make an this questions stance and review all the of constitu- tionality Di- raised in the answer” of the defendant rector of Insurance. majority opinion
The is con- statement that the act interpreted stitutional should a determina- as tion that all sections of the act are constitutional. Only challenges majority those in the discussed opinion argued have court. been this briefed and appeal The is limited to consideration of a cause on argued. assigned and errors which have been those 841, Sullivan, N. W. 2d 550 Schetzer v. 193 Neb. 229 (1975); Dobberstein, McClellen v. Neb. (1973). 2d 559 The
N. W. defendant has not chal- lenged majority numerous act. sections the The opinion only should be limited those issues which assigned argued. have been majority opinion necessity concludes that insuring adequate perceived by
of Legislature as health care
justifiеs completely different treat- against medical-hospital as ment claims en- tort liability genuinity tire tort field. The of the “mal- practice subject lively insurance” crisis de- charged by bate, as rates carriers this providers vis-a-vis, state health care the an- paid nounced totals claimants this state. previously conceded,
IAs have it is within the power determine existence malpractice of a medical This and act crisis thereon. power to act is not without limitation. ac- is, tion must be reasonable. The test as the ma- jority points out, that of the reasonable rela- tionship purpose of the means utilized to the to be Assuming, majority however, achieved. as does the opinion, Legislature may appropriately limit and alter the common law of action of justify claimants, it is difficult the reasonable re- justified Legisla- lation ture to some the area of concern of the employed. the means provisions restricting potential act, Two liability providers of health care clearly legisla- special cases, are unconstitutional Supp., provides 44-2819, tion. Section R. S.
any payment to a claimant from nonrefundable plan, by reimbursement insurance medical reason injury, may alleged of his against be taken as a credit any judgment rendered under the аct. This concept significant deviation from the total is a negligent party may escape pay- in that a restitution *27 damage ing portion he causes. Section for Supp., 44-2825, 1976, limits the total R. S. amount re- provider care the act from health under coverable Supp., 44-2825, Likewise, R. S. $500,000. section shifting provides the burden from the for a tort-feasor, responsible provider but, here, the health source, but to a collateral is shifted not burden himself. victim majority opinion suggests, If, the collateral as the cases, in health care rule enriches claimants source every why The it not do so other tort case? does operating vehicle is not a motor entitled tort-feasor personal pru- resources or credit from to receive analysis, Nor, his victim. under the same dence of justification limiting the maximum is there judgment, since other recoverable tort- amount liability. enjoy do not such limited feasors provisions III, Article violate section Such provides: Constitution, which “The the Nebraska pass special shall not local or laws * * * any following say: cases, that is any “Granting corporation, association, or indi- privileges, special immunity, or exclusive vidual * * * general whatever; franchise where a law can applicable, special no law shall be made be en- acted.” Suрreme
The Idaho Court was faced with the recovery special legisla- issue limitation as same Medicine, in Jones v. State Board of tion Idaho (1976). ceiling 859, $150,000 P. 2d 399 There the was per passing court, claim. while not protection equal challenge limitation, did special legislation hold that was not under the the However, Constitution. Idaho basis holding provision court’s the Idaho Constitu- prohibits special only regard tion which laws specifically matters mentioned therein. Jones provision opinion contrasted this to the California Constitution which against a “catch-all restriction special general ap- laws where a law would ply.” suggests holding The court there a different
131 liability special legisla- on an issue of limitation as provision tion be in order a under constitutional as such California’s. majority opinion
The discusses Wright the Illinois Su- preme Page Court’s decision Central Du (1976), Hospital Assn., 313, 2d 2d 111. 347 N. E. constitutionality in relation to the of medical review panels. Wright, In the Illinois court held also that recovery malpractice of limitation actions consti- special legislation tuted of violation the Illinois being equal pro- Constitution, as well as of a denial tection under the federal and Illinois Constitutions. issue, Like the Nebraska ute statute the Illinois stat- provided ceiling recovery. $500,000 a arguments The Illinois court summаrized against argues the limitation: “Plaintiff de- nying recovery damage for loss and in excess of Assembly arbitrarily $500,000,the General class- unreasonably ified, against, discriminated seriously injured malprac- most victims of medical recovery tice, but has not limited the of those vic- injuries. tims who suffer moderate or minor She points legislative out that the burden of this effort to reduce or maintain the level of insur- premiums exclusively extremely ance falls on those protec- unfortunate victims most who need financial The Illinois tion.” court concluded: “We are of the recovery only limiting in medical mal- arbitrary practice $500,000 actions is and consti- special a law in tutes violation section 13 of Ar- Constitution, IV of the 1970 and we so ticle hold.” Page Hospital Wright Assn., supra. v. Central Du IV, Constitution Article section of the Illinois Assembly pass provides: “The General shall no general special law or local when a law or can be * * applicable *.” made strikingly III, to Article The section similar sec- Constituion, the Nebraska which states tion applicable general a law can be made no “where opin- majority special shall be enacted.” law provisions partial reliance on the elective ion’s reality misplaced. the freedom to the act is and is not a claimant was considered elect provision ig- easily demonstrable. Such an election bargaining very inequality power. The nores nature places person’s patient him in status a position bargaining which makes effective diffi- covered, A to be from which cult. to elect not might only a denial service from the hos- result *29 hardly pital physician geographical area, can in a implicit be The consid- be said to without coercion. eration the result in termination of that election give by providers services, or refusal health care to knowledge patient service, of that the because Department previously filed a notice with the state thought- covered, to cause a of Insurance not be will right. person exercising ful use in the to caution summary, majority opinion agree I with the In Liability Hospital-Medical Act the Nebraska grant provide does not an unconstitutional of state only parties the had credit. This was the issue only standing issue this court to raise and the should opinion’s holding majority of have decided. The constitutionality only of is limited to those is- the act 44-2825, 44-2819and discussed therein. Sections sues Supp., limiting liability a tort-feasor’s R. S. under the special legis-
act, as are unconstitutional by prohibited III, section lation Article Ne- constitutionally These braska Constitution. defec- by provisions process arе not the election tive cured by provided the act. joining partially J., in the dissent of
Clinton, White, Thomas, C. J. join White, Thomas, J.,
I in the dissent of C. with following exception. For the reasons stated in my opinion dissenting part majority, from the appropriate express opinion an I do not consider unconstitutionality party no of an act where rights thereby party whose affected is proceeding, any appropriate more than I consider it portion to hold that some of the act is constitutional party there no where the before this court affected provision question. join in I do Therefore not in portion Thomas, White, J., of the dissent of C. expresses unconstitutionality. which an toas particularly join portion I in the of the dissent majority opinion appears which notes that while give approval constitutionality blanket deciding act, it should not considered as constitutionality portions the act the consti- tutionality argued. of which is not even dissenting part. J.,
McCown, generally Judge I concur the dissent C. except agree Thomas White that I do that there problem standing pos- constitutional in the ture of this case. dissenting part. J., Boslaugh, agree Judge
I with C. diffi- Thomas White it is separate cult to sustain the mal- classification practice upon claims which basis evidence provisions regard is available. The in the act illusory, an election a claimant are unrealistic and requirement and the that nonrefundable medical re- *30 applied imbursement against insurance as a credit judgment against negligent a a health care provider is invalid. agree standing
I do not defendant lacked question constitutionality act. The is- standing sue of was never raised in the District Court.
The law not is clear as to when an administrative may implement legislative officer act on refuse to a ground See, Horn v. it unconstitutional. Van 62, 365; Abbott, State ex rel. S., 64 16 C. J. 46 Neb. N. W. p. Law, 82b, § Constitutional 252. Where the act question expenditure public funds involves the rights state, and affects the all the citizens public a interest determination constitutionality possible. as be obtained soon upon good Here the defendant acted in faith and Attorney ex rel. advice General. See State Meyer Peters, v. 2d 188 Neb. N. W. 738.
Although court, this in the exercise of its discre- tion, refuse to decide issues tendered in a de- claratory judgment action, in this the issues raised great public case were of interest. This court would guilty public been have refused of a if it had disservice presented. decide the issues County Hall, appellants, al., et James S. Reed body Inc., appellees, politic, al., Sidney, et interveners-appellants. corporation, al., et N. W. 2d 861 July 41112. No. Filed 1977. Tracy, Leininger, Dowding,
Luebs, for Beltzer & appellants interveners-appellants. Grimminger, appellee.
Sam J., Heard before Spencer, Boslaugh, White, C. JJ. McCown, Clinton, White, Brodkey,