State Ex Rel. Strykowski v. Wilkie

Petitioners, others, Strykowski, ex rel. State Courts, Director Administrative Wilkie, others, Respondents. Argued September 1, 1977.

No. 76-596-OA. January 3, 1978. Decided 434.) reported in (Also 261 N.W.2d petitioners by For the there were briefs Curtis M. Kirkhuff, Rottier, Oldenburg, Daniel A. Lent & argument Kirkhuff, C., by S. and oral M. Curtis Kirk- huff, all of Madison. respondent, argued Wilkie,

For Edwin M. the cause was E. Armstrong, John attorney general, assistant attorney whom on the brief was Bronson Follette, C. La general. respondents, Mary’s

For St. Hospital St. Clare and Hospital, by Axley, Brynelson, there was a brief Herrick Gehl, argument by Eugene & and oral all of Gehl Madi- son. by: Carlson,

Amicus curiae were filed John C. briefs Madison, for Richard L. Cates and Lawton & Cates of by Fund; the Board of State Governors of Insurance Bar Malpractice Wisconsin for The Medical Com- of Wisconsin; by mittee, Kluwin, Bar State of John A. Vugt Kluwin, Eric J. Dunjphy, Van Hankin & Mc- Nulty Milwaukee, Society of for Medical State of Wisconsin; by DeWitt, John H. Lederer and McAndrews Porter, Madison, & S. C. of for the Hospital Wisconsin Association. HANSEN, T.

CONNOE J. The petitioners, all al- leged damages to have sustained as a of result medical petitioned malpractice, court for a of this writ certiorari. granted original commence leave to We an action. petitioners seek Chapter a declaration guarantees Stats., violates equal constitutional protec- of delegation tion an unlawful process, and due constitutes by right judicial trial impairs of of authority, They Ad- jury. of actions of also seek review (hereinafter Adminis- of ministrative Director Courts convening their trator) panels hear six-member malpractice Chapter under 655. claims parties stipulated Hospital to the facts. Clare St. Mary’s respondents in the mal- Hospital, and St. two of practice claims, party respondents on were added as stipulation. by

Briefs amicus curiae the Board have been filed Society Fund, Governors of the Insurance Medical State Wisconsin, Malpractice Medical Committee State Hospital Wisconsin, Association, Bar Wisconsin Academy Lawyers. Wisconsin Each has Trial been considered.

Chapter 655, Stats., by enacted ch. Laws of July 24, 1975, pro- effective established an exclusive prosecution malpractice against cedure for the claims “ provider,” by ealth care 655.001 as defined [h] Chapter 655, Stats., may Under no court action injuries arising maintained for malpractice from medical by until patients’ the matter been reviewed has com- pensation panel. panels by These are convened the Ad- Proceedings ministrator. before a are initiated filing controversy” briefly a “submission states the claim. 655.04. Sec. $10,000 by

Claims under are heard a three-member panel parties hearing stipulate informal unless the to a panel; $10,000 by before a formal claims over heard are panel an informal party requests one unless a formal writing. panel panel A formal is defined 5- as “a patients compensation panel member established under 655.03(1).” 655.001(6), Sec. s. The compоsition Stats. governed panels by formal of these sec. 655.03(1), meaning is at of which issue. neg- convened, panel the issues

Once a determines comparative ligence, damages, applying causation and negligence (2), These principles. 655.065(1), Stats. Sec. by majority 655.16 determinations are made vote. Sec. (2). days may

A court action commenced within be findings panel’s after decision. The a formal negligence panel regard are admis- with to causation damage may trial; sible at award be admitted in judge’s 655.19(1), mem- discretion. Stats. No Sec. may appear at the trial ber counsel as witness. as days, 655.19. If action Sec. no is commenced within may judgment panel’s rendered in with the be accordance order. Sec. 655.20. Compensation Fund, by

The Patients created sec. 655.- 27, Stats., pays portion malpractice of medical 655.27(1). awards It fi- above certain limits. Sec. against providers. nanced assessments health care managed by governors The fund is and “held board proper trust for benefit of insureds and other 655.27(7). Malpractice claimants.” Sec. claimants seek- ing damages $200,000 in excess of must name the fund a defendant, may appear and the fund and defend against (5). the action. Sec. 655.27

Chapter 655, Stats., imposes also certain limitations upon payment malpractice awards. for Awards payments future medical $25,000 paid excess of are expenses to a medical fund and are disbursed as future expenses medical are payments incurred. These continue until amount patient is exhausted or the dies. Sec. 655.015. $1,000,000 Claims in excess of paid in an- nual installments of not $500,000. more than Sec. 655.27 (5) (d). July After 1,1979, awards will automatically $500,000 per limited incident if the fund falls below certain levels. Sec. 655.27 addition, Chapter

In 655, Stats., requires health care providers to maintain insurance specified minimum by liability Chapter 37, ch. Laws also enacted limits. mandatory 1975, provides for the establishment risk-sharing and plans.1 mandatory insurance These risk-sharing provisions dispute. in are not petitions on

The instant three unrelated case concerns arising separate incidents causes of action from three alleged malpractice. medical In each a case submission Stats., controversy filed, pursuant 655.04, to sec. was hearing requesting panel, a formal authorized before as by 655.04(2) (b). sec. The three are consolidated cases proceeding. in this physician nonphysician claim

Each involved both respondents and therefore in need for resulted ambiguous language of construction of the 655.03 governs Stats., (1), panel composition cor- when respondents represent professions. different health care In case each the Administrator convened a six-member panel. panels to limit five Petitioners’ motions challenge were denied. members Petitioners the estab- panels statutory lishment on six-member both grounds. constitutional petitioner Strykowski

The claim of further involves possible against designer cause of action manu- employed facturer of a delivery vacuum extractor in the Strykowskis’ son, infant shortly who died after designer subject birth. The and manufacturer are not Chapter process, however, review respondents Strykowski were not named sub- controversy. mission Strykowskis Counsel for the argues that inability join possible their these tort- panel’s proceedings feasors due denies them process of law. Additional appear facts will dis- cussion of the issues.

Initially we observe that the Administrator contends petitioners’ argument constitutional should not provisions These have been modified ch. Laws of 1,1977. effective November of the rule that one who voluntar-

be considered because attempt ily may later seeks the of a statute benefits challenging escape application the results of its constitutionality. Keehn, its State 74 Wis.2d (1976). con- 547 The Administrator also N.W.2d challenge standing petitioners that the lack tends $10,000 fact that the treat over statutes claims somewhat differently than for than that amount. claims less argued appropriately it can these two

While meritorious, ad- contentions are we believe issues signifi- importance public vanced are considerable juris presented publici they cance. issues are because functioning liability to the health vital care patients’ compensation plan prescribed by the enact- Chapter 655, ment of Stats.2 following therefore considеr We the merits of the issues: (1), Stats., permit

1. appointment Does 655.03 patients’ compensation panels? of six-member Chapter 655, 2. principle Does Stats., violate the equal protection ? laws Chapter 655, Stats., deny

3. Does malpractice medical process victims due of law? mandatory

4. patients’ Does creation of compensa- panels delegation ‍​​‌​​‌​​‌​‌‌​​‌​‌‌​‌​​​‌​​​‌‌‌‌‌‌‌‌‌‌‌​​‌‌​​​​​‌‍tion constitute an judicial unlawful authority? Chapter

5. 655, Stats., Does impair malpractice claim- right by jury? ants’ of trial

PANEL COMPOSITION. panels ordinarily Formal only consist of five members, represent two of whom professions. medical Whenever controversy a submission of physician names both a nonphysician a respondent, however, the Administrator Jensen, Mueller v. 362, 367, 63 Wis.2d ; (1974) N.W.2d 277 Seymour, State v. Wis.2d 128 N.W.2d 680 appoint- Stats., require the 655.03(1), considers sec. ment of a sixth member. hear

Accordingly, panels to he convened six-member Each each of the claims involved this action. public attorney, members, tenured consisted of an two physician, physician from the field medicine same physician respondent and a member from same nonphysician respondent. Peti- health field as a care argue misinterpreted tioners that the Administrator has statute, panels and that the limited to five should be members. 655.001(6), Stats., panel” as

Sec. a ormal defines “[f] patients a compensation panel “5-member established 655.03(1).” (e) (a), (d) under s. and of Subsections provide 655.03(1) panels sec. that formal include shall attorney physician appointed term, a an for a six month lay unambiguous and provisions two members. are These question. and (b) (c) are in not Subsections and govern 655.03(1) the of the the selection remainder of panel. They provide: “ (b) any respondent panel hearing If physi- in is a a

cian, cine physician one practice additional licensed to medi- engaged in practice state and this who in the is medicine similar to respondent appointed that of the and by at random by the administrator from a list submitted examining the medical board. “(c) any respondent If panel hearing a in is a physician, person then one from the same field health care respondent that of the as who is in licensed this state appointed by at random the from administrator a list supplied by appropriate the licensing by state board department the of health and In social services. event that a claim involves more respondent, than one and that respondents specialists areas medi- different cal practice, the administrator special- shall determine ty represented panel.” to be on the (Emphasis supplied.) meaning emphasized language dispute. inis against When a claim is asserted physician both a the Adminis- action, nonphysician, in the is a instant mem- physician empowered between trator to choose nonphysician member (b) and a ber under subsection both required appoint (c) under ? he subsection Or is sixth, physician (b) and under member subsection (c), his nonphysician, under subsection member repre- field to limited discretion selection ? sented each of these members adopted interpretation. The Administrator has the latter practical This court has con- sometimes deferred ambiguous by the adminis- accorded an statute struction tering legislature agency, acquiesced where has argument weight that construction. The has much less origin, when construction of recent however. Gen- D. Board, eral & H. Union v. E. Wisconsin R. Wis.2d 242, 249, 248, N.W.2d The construction question applied April 11, was first on 1976. legislature acquiesced

Nor can it be said that has in the administrative construction of the statute. This particularly apparent in the instant case because since argued legislature 131, this case Was has enacted ch. 1977, published Laws October 1977. Sections enactment, and 14 of this effective November 655.03(1) (b) amend 655.03(2) (a) (3), secs. (b) and (c), Any ambiguity legislative Stats. toas the in intent original the enactment has now vanished. The 1977 legislature amendments make it clear intended panels the formal consist of five and the members panels informal of three members. legislature

areWe satisfied the require intended to appointment of panels. five-member formal This con- supported by struction of statutes is in materials Legislative the Wisconsin Reference Bureau, which ma- properly subject judicial terials notice. Nekoosa-

505 582, Comm., Edwards P. Co. v. Public 8 Wis.2d Serv. 591, 590, 99 821 N.W.2d language disputed

These materiаls that the of sec. show (c), Stats., 655.003(1) an amendment derived from drafting 27, attorney’s notes drafted on June 1975. The following only “Multiple include the instructions: suits — sec’y reg specialty.”3 1 additional M lie.& chooses D— (As enacted, placed power Bill Adminis- this Regulation Secretary Li- trator rather than the censing.) drafting drafting Bill file attor- also includes

ney’s notes of deliberations of the conference com- prepared mittee which the final of the Bill. These version following: notes show the composition

“Panel

it people “Formal— 5 panels ... on these admin, appoints panels “Formal —ct. & chooses specialty rep.”4 if more than 1 enacting legislature In statute, had it the before legislative advice of the reference bureau that: panels “. . . These members; physician, each have 5 attorney an (who chairperson), provider a health care type specialty same respondent (who as the serves for one only), public case and 2 members. . . .”5 statutory language capable was of more than one interpretation. reasonable legislative However, the back- LRB-5835-1, Amendment 6 to Amendment 6 to Senate Assembly Substitute 1 to 725, drafting Bill file for Laws 1975, cb. 37. 4 Legislative attorney’s July 7, 1975, meeting notes of of Con Committee, p. ference bill file for Laws of cb. 37. Analysis LRB-5938/2, Legislative Bur Reference eau, p. 2, in bill file on Laws ch. 37. action together prompt

ground materials, ambiguity, existing clarify any legislature limit legislature intended that the lead to conclude us The Administrator panels members. the formal to five panels. appointing six-member erred EQUAL PROTECTION. constitutionality car- challenges a statute’s One who heavy persuasion. must overcome He burden ries constitutionality in State described presumption of Plante, Paper v. La Wis.2d ex rel. Hammermill Co. (1973): 32, 46, 205 N.W.2d 784 enough respondent doubt : It is that establish “. . constitutionality nor it sufficient to the act’s as unconstitutionality of the act respondent establish Unconstitutionality be probability. act must as a demonstrated Every pre- beyond a doubt. reasonable indulged if all sumption the law at must be to sustain legislative possible and, doubt as to a wherever exists constitutionality, it must favor be resolved enactment’s constitutionality. This court has often affirmed constitutionality presumption that at- well-established taches itself to all legislative acts. . . .” legis- reweigh by The court cannot the facts found any If the lature. court can facts on conceive legislation reasonably based, could it must hold legislation constitutional. State ex rel. Carnation M. P. Emery, 147, 160, Co. v. Wis. N.W. 564 outset, necessary petitioners’ At the it is to consider argument Chapter subject judicial 655 is to strict scrutiny and, therefore, sup- must be overturned unless compelling ported state interest. The “strict scru- tiny” applies only involving standard classifications category “suspect” right. aor fundamental Town of Broek v. Reitz, 87, 93, Vanden 53 Wis.2d 191 N.W.2d

507 appeal 902, Sup. Ct. (1971), 913 92 dismissed 406 U.S. 1608, 813; McGinnis, L. v. 70 31 Ed. 2d Modern Wis.2d 1056, 1072, Chapter in (1975). 236 240 655 N.W.2d volves neither. urge statutory

Petitioners that classifications based on con- “еconomic conditions” which should he suspect. apparently sidered refers to fact This involving (1) only the statute affects those tort claims malpractice distinguishes (2) medical claims over $10,000 from smaller claims. Such distinctions have recognized suspect been criteria criteria. Unlike the traditionally suspect, considered these do classifications personal not involve immutable his- characteristics or patterns political powerless- torical of discrimination and ness. See: San Rodriguez, Antonio School District v. 411 1, Sup. 1278, 93 (1973), U.S. Ct. 36 L. Ed.2d 16 rehear- ing denied, Sup. 1919, 411 93 U.S. Ct. 36 L. Ed.2d 418. Shapiro

Petitioners’ reliance on Thompson, v. 394 U.S. Sup. Ct. (1969), L. Ed.2d 600 is mis- placed. This court has had occasion to consider that case and has it found to be based not on economic cri- teria, right but on the to travel. Town Broek Vanden Reitz, supra, 93. deny Nor does the statute funda- rights. right mental courts, access to the where petitioners opportunity will an jury have for trials, expressly preserved. 655.19, Sec. equal pro- Stats. The tection requires only clause therefore there be a rational basis for the statute. equal protection argument

Petitioners’ parts. has two they challenge First, the fact that applies the act only to malpractice victims and not medical to all tort victims. Second, they attack a series of “subclassifications” with- statutory in the scheme. There is no rational basis for treating malpractice medical claims differently from “mаl- no they there was claims, argue, tort because

other not concerned practice court crisis.”6 This determination, legislative wisdom correctness only there however; whether is to determine its task might leglisature upon which was reasonable basis Agricul- Department Coffee-Rich, Inc. v. have acted. ture, 265, 269, N.W.2d 70 Wis.2d upon basis there is a rational We believe enacting Chapter legislature 655. act when could and did findings suggested by set of its reasons Some findings, 1, 37, in 1975. These eh. Laws of forth great weight. binding carry upon court, while not County, 356, Allis v. Miltvaukee 159 39 Wis.2d West (1968), certiorari denied The 1064. 36 393 U.S. N.W.2d legislature in the of mal- cited sudden increase number malpractice practice suits, awards, size impending premiums, and identified insurance several dangers: costs, prescription health care increased procedures, elaborate “defensive” medical the unavail- ability possibility of certain hazardous services and physicians practices. would curtail their In addi- tion, malpractice resolution of a claim under the tradi- litigation process tional tort require found has been an average patients of nineteen compensation months.7 A panel, hand, on the other must render a decision within days controversy after the submission of is filed. 655.04(4) (a), Sec. Stats. 6 At least conclusion, one court has reached1 the same while disagreed. Compare: Graley others have Satayatham, Ohio Pl., Op.2d 316, Com. 74 Ohio (1976), N.E.2d 832 Center, v. St. Elizabeth Simon Medical Pl., Ohio Com. 3 Ohio Op.3d 164, (1976). 365 N.E.2d 903 7 Stephen Dietz, Baird, K. C. Berul, Bruce Lawrence THE MEDICAL SYSTEM, MALPRACTICE Appendix, LEGAL Re- Secretary’s port Commission On Malpractice, Dept. Medical Health, Education, Welfare, Washington, p C., 1973, D.

87, 103. reasonableness The statute the five criteria satisfies mal- many Medical decisions.8 set forth of this court’s other substantially from practice distinct actions are germane plainly tort actions. classification health purposes. applies all victims of The law act’s legislature de- providers therein. The care as described surrounding mal- medical clares that the circumstances litigation required practice the enactment and insurance legislation. Compensa- upheld In this court the Workmen’s Borgnis against challenge. equal protection Act an tion Co., Work- v. Falk 133 N.W. Wis. compensation) compensation (now hear- men’s worker’s ings although elective, represented a Act, under greater departure than do from common law tort actions panels involved here. Compensation Act, Chapter

Like the Workmen’s Stats., response perceived enacted in economic was Compensation and social crisis. Like the Workmen’s only injured Act, applies persons. it to a limited class of modify procedures Both laws the common law for redress personal injuries. public important in- of The has an legislature’s quality care, terest in the of health the 8 (1) upon All classifications must be based substantial distinc really tions which make one class different from another. (2) adopted germane purpose The classification must be to the of the law. (3) existing upon The classification circum- must be based only preclude stances and must not be constituted so as to addi- tion the to numbers included within a class. (4) may apply, apply equally To whatever class a law it must to each member thereof. (5) The characteristics of each class should be so far different reasonably suggest from those of other classes as to at least the having propriety, regard public good, substantially to of dif legislation. e.g., County ferent See: Dane (1972), v. McManus 413, 423, 198 55 Wis.2d N.W.2d 667.

510 to promote said be

efforts that interest cannot he unreasonable. argument con petitioners’ equal protection also

cerns the creation within of “subclassifications” gov statutory is scheme. Review “subclassifications” legislative applicable ‍​​‌​​‌​​‌​‌‌​​‌​‌‌​‌​​​‌​​​‌‌‌‌‌‌‌‌‌‌‌​​‌‌​​​​​‌‍all principles erned the same Reuter, classifications. State ex rel. La Follette 96, 109, 153 Wis.2d N.W.2d challenge

Petitioners a series of subclassifications. they panels First attack fact formal are avail- single request party if claim able on the of a exceeds $10,000, only stipulation parties on if the but of all $10,000. 655.04(2), claim is less than Sec. Stats. legislature may large reasonably believe claims are likely complex more proofs to involve or numerous panel proceedings would appropri- make formal more legislature ate forum. Thе has established other sim- plified procedures Chapter for small controversies. See (small court); Chapter (summary claims estates). settlement small petitioners

Second, delayed attack the disbursement expense future medical $25,000. awards of more than 655.015, Sec. portion Stats. That for award future expenses medical $25,000 paid excess is to be expenses future medical fund9 and to be disbursed periodic payments expenses for these until the amount patient exhausted or the procedure dies. This was ob- viously intended for benefit the claimant with injuries requiring long-term substantial It treatment. legislation cannot said that unreasonable protection equal denies law. 655.015, Stats., formerly provided Sec. payment for of such awards commissioner of insurance. Ch. Laws of 30, 1977, June effective provide amended this section to payment expenses

for into a “future medical fund.” requirement Third, petitioners attack the defendant Compensation named Patients Fund be (a), 655.27(5) $200,000, Sec. whenever claim exceeds paid $1,000,000 be of Stats., and that excess awards 655.27 $500,000 Sec. of or less. in annual installments integrity (5) (d). provisions protect These the claimants. fund which is established for benefit large inimical very not Delayed payment awards is fund claimant, protects the interest of the to the judgments catastrophic awards or from the effect of solvency the fund. otherwise threaten the which would provisions These are reasonable. recovery challenge

Fourth, petitioners $500,000 occurring malpractice applicable after limit to acts ceiling July (6), takes 655.27 Stats. This 1979. Sec. only levels, if fund falls certain and does effect below expenses. apply There is to medical no conceivable way statutory provision in- which this can effect the petitioners. judicially inappropriate to deem it stant We judgment express prospective application of now on the this statute. challenge fifth

Petitioners’ concerns the victims of acts alleged involving malpractice medical health several providers. applied care As the statute to the was instant they petitioners, required present were their claims panels, single six-member while victims of a tort-feasor present panels. their claims five-member Since we have held that appointing Administrator erred in panels, legislature six-member adopted has re- legislation clarify medial any existing ambiguity, we upon are not called to further proposition. discuss this equal Petitioners’ protection argument final concerns governmental the exclusion of employees and facilities 512 A stat- coverage, (8),

from the 655.001 Stats. law’s Sec. merely be- equal protection clause ute not violate the does its all-embracing. may direct it The state cause is not covering against problems perceives it without laws Metropolitan possible Madison field of abuses. whole 256, 229, 255, Sewerage Committee, v. Dist. 260 Wis. on (1951). 50 424 statute invalid is N.W.2d grounds might gone equal protection it havе because it further than did. does not violate

Our conclusion is that the enactment equal rights protection petitioners. DUE PROCESS. right of a

Petitioners assert there is fundamental They identify aspects of free access to five the courts. they say process impair this review right, denying guaranteed process them the due of law by the fourteenth Con- amendment of the United States I, stitution and 1 art. of the Wisconsin Constitution. right The Administrator contends that no there is courts, except category access to narrow involving relationships cases such fundamental human marriage and divorce. Boddie v. Connecticut, 401 U.S. 371, Sup. 780, (1971); 91 Ct. 28 L. Ed.2d 118 United Kras, States v. Sup. 409 U.S. 34 Ct. L. Ed.2d (1973). precise right Whatever the status of the of access to the courts, process it is clear that due if is satisfied the stat- utory procedures provide opportunity an heard meaningful court at meaningful a time manner. Mathews v. Eldridge, 319, 333, Sup. U.S. Ct. 47 L. process Ed.2d 18 Due re- flexible and quires only procedural protections such particular as the situation demands. Id. finan- in the impermissible burden find an

Petitioners jury to a panel prior trying expense cial case not de- party held, however, that a trial. It has been admin- merely seek process it must prived due because it access has claims before resolution its istrative (3rd Company Train Penn Power the courts. West is This conclusion 1975), 302, 522 313. Cir. Fed.2d process. equally applicable panel review to the obligation neu- to under no constitutional are States inevitаbly disparities make tralize the economic plaintiffs than to the courts different for some resort case Connecticut, supra, Boddie v. this others. Unlike relationship,” a “fundamental human does not involve alleged petitioners to the that are denied access nor is it indigency. au- Petitioners offer no because courts hardship argument, thority and we for their economic persuasive. find it do not up petitioners pleading process

Next, attack the set section, respondents 655.12, are Under this Stats. required response to file an a submis- not answer to argue controversy. that denies Petitioners this sion arguments opportunity them and meet the know opposing contrary parties, to fundamental con- cepts play. of notice and fair give litigants a fourteenth amendment not does right

property any particular pleading pro- form of or Coubal, 247, 255, cedure. State v. See: 248 21 N.W. Wis. (1945). recently 2d 381 court held This that the de- mortgage fendants two foreclosure actions were process by denied due the failure of another defendant alleging against to serve them with its answer claims mortgaged property. process This court held that due requirements met were because re- defendants had adequate ceived notice of complaints, the claims in the 514

n withwhich Flood, Lipeles they v. had served. been Similarly, a 417, Wis.2d N.W.2d malpractice notice medical claimant available has through discovery process. Be- respondents’ defenses unlikely provide or useful an detailed cause answer any information,10 prejudicial minimal if not effect nonexistent. petitioners next claim that two of five- because Chapter providers, members are health care

Stats., right impartial them a denies an decision argument appears upon the maker. This to be based presumption providers prejudiced. all health care interpreta- know no rule of We law constitutional support proposition. tion such a general rule, a process it As can be stated that the due hearing requirement requires fair those who pecuniary have substantial proceeding in a interest adjudicate dispute. should not Berryhill, v. Gibson 564, 579, Sup. (1973); U.S. Ct. 36 L. Ed.2d 488 Village Monroeville, Ward 57, 60, Sup. 409 U.S. 93 80, Ct. 34 L. Ed.2d 267 Ward in- was a case volving mayor a judge who also sat as a in certain minor mayor responsible village offenses. The was for the fi- nances, and portion village a substantial finances were imposed derived from fines in the court over presided. Gibson, which he In supra, the Alabama Board Optometry composed entirely was private prac- begun titioners. The Board had efforts to revoke licenses of all optometrists Alabama employed by cor- porations nearly optometrists one-half all in — 10 optional prepared The by form answer the office of the Ad merely ministrator parties, identifies the states the nature injury, claimant’s condition and inj'ury indicates whether less than or $10,000, mоre than and either admits or denies that (1) client, claimant (2) was a treated, (3) was suffered from malpractice, an act of (4) and damages. is entitled to

515 understandably it was Gibson and In both Ward state. The process. due denied were the defendants held that 510, Ohio, U.S. Tumey 273 v. reached result was same in which (1927), a case Ed. Sup. 437, L. 749 Ct. 71 47 only if costs judge fees presiding received defendant was convicted. foregoing lead to cases that the do not believe We 655, by Chapter panels, constituted that as conclusion that or deny impartial tribunal Stats., petitioners an process. they due violate Examining Board, 44 Optometry Wis.2d

In Kachian argu- rejected an (1969), this court N.W.2d inescapable unconstitutional ment that there was an optometrist sat an involved when financial interest the state optometrists member of judgment a of other optometry. court said: board examiners a that . It held matter of law “. . cannot be as a occupation profession is dis- member of certain or serving qualified on an administrative that fact from dealing occupation.” profession such board Optometry Examining Board, supra, 12. at Kachian v. adjudicator, disqualify This court an has said pecuniary interest must be: direct, interest, “. . . certain and immediate indirect, contingent, or re- incidental not one mote.” Goodman v. Co., 248 Electric Power Wisconsin Jur., (1945), quoting Wis. Judges, N.W.2d Am. p. 773, sec. 57. argue petitioners panel members who are providers financially health care interested in along they, decisions because with all other health care providers state, pay in the annual to main assessments patients’ compensation However, any tain the fund. fi 655, nancial interest inherent in the Chapter structure of 516 disqualifica speculative require

Stats., too and is remote adjudicators contrary, tion.11 Absent evidence to integrity. persons honesty presumed must be and Larkin, Sup. 35, 47, 95 Ct. 421 See: Withrow U.S. 1456, (1975). 43 L. Ed.2d 712 not no

Petitioners’ claim actual There is is one of bias. suggestion any panel that ill will or member them bears may particular a financial It has stake their' claims. alleged be assumed if actual bias such were demonstrated, panel subject members would be duty disqualification. common-law Kachian v. See: Optometry Examining Board, supra, 12, at 13. Because there bias, is no indication of actual and because procedure statutory for the selection does suggest probability systematic prejudice, bias or requirements process of due are satisfied. Naus Cf. Sheboygan Falls, v. Jt. D. No. 1 114, S. 104, 76 Wis.2d (1977). N.W.2d Screening There is an additional panels consideration. required highly to consider and decide technical medical special issues. expertise Without the of medical- ly-trained panel members, purposes the central statutory entire holding scheme would be frustrated. In professionals could serve on administrative boards dealing professions, with their own court, this in Kaehian, supra, 12, at asked ‘“What are the alternatives?’ . . . preferable, Would it be workable, even to have the giving dentists bar optometrists giving examinations pharmacy tests?” The same concern relevant here. year preceding February In the 1977, the fund levied against 5,389 physicians, hospitals assessments and 319 nurse Progress anesthetists. Report, Functional Wisconsin Patients Compensation February Fund, 28, 1977, pp. public 11-12. As a record, report subject judicial this notice. Dehnart v. Cf. Brewing Co., Waukesha Wis.2d 124 N.W.2d 664 emasculate would Disqualification of medical members panel process. the review its considering panel, com- the the

Therefore, of size members, panel the of position, the method of selection single the on member’s service shortness of relative monetary substantial panel, of the fund the size composi- contributors, hold that the we cannot number of process of under due tion constitutes denial of or federal constitutions. either the state grounded objection, only indirectly on An additional ability the Pa- process clause, of the due concerns against Compensation claims tients Fund defend $200,000. 655.27(5), Peti- See: excess sec. Stats. argue provision makes the interest tioners this malpractice to those the medical fund adverse duty claimant in violation of trustee’s and therefore for benefit of insureds and to hold “in trust res proper other Sec. 655.27 claimants.” Trmts, (1959), (2d) Section 178 of the Restatement p. states: beneficiary duty trustee is de- “The under a estate, may

fend actions which result in a loss the trust unless all it not under the circumstances reasonable is to make such defense.” time, At p. 393, of the Restatement same supra, (2d), says: trust, “When there are two or more of a beneficiaries duty

the them.” impartially trustee under a to deal question by defending against here whether, cer- large tain actions, fulfilling duty the fund is the first or violating the second.

The Board of Governors the insurance fund its argues brief amicus may curiae the fund defend against groundless exaggerated what it believes to be petitioners, rely In re on hand, claims. on the other Cudahy Family Trust, Wis.2d N.W.2d (1965), that a must court held trustee this advocacy assume of several rival claimants one benefit, private ato trust. The for the fund is held providers both malpractice the insured health care imply resisting victims. claims, that Petitioners favoring providers fund would be insured health at care expense favoring victims, would be some vic- tims over others. upon by petitioners

The ordinarily ap- rule relied is plied when the trustee a stands as rival stakeholder for claimants to the benefits; same trust the resolution of disputes such has no adverse effect on the trust assets properly and is a matter of indifference to the trustee. apply reasonably This rule not does where the trustee determines Thus, that the claim is adverse the trust. this court point was careful to supra, that Cudahy, out did not involve “a obviously claim ... so without merit it that inis effect an Cudahy, adverse claim.” supra, 157. Supreme Court of Colorado has held thаt public a pension trustee of duty fund has a to resist the unqualified claims pension applicants. That court said: .“. . It is within the power, duty and is the of a trustee to institute proceedings action and protec- for the tion of estate, the trust . . legal . steps take all (cid:127) (cid:127) reasonably . necessary with objec- relation to those tives. . . .” Brisnehan v. Central Bank and Trust Com-

pany, 47, 51, Colo. 299 Pac.2d 113 (1956). We proposition believe this is sound. On face, its therefore, right the fund’s to defend

against certain actions does violate its responsi- trust bilities. mal- argument process due

Petitioners’ fifth their causes present all practice victims should he able liability products including on a those based action — allege Strykowskis single theory proceeding. a—in against a vacuum manufacturer of a cause of action delivery in addition of their extractor used child against providers. the health care to a of action cause re- procedural process in the denial due We see no alleged malpractice claimant quirement ‍​​‌​​‌​​‌​‌‌​​‌​‌‌​‌​​​‌​​​‌‌‌‌‌‌‌‌‌‌‌​​‌‌​​​​​‌‍medical panel against providers proceed before health care against all commencing prior action consolidated be'joined ain parties potential All could tort-feasors. decision, which its action once had made court days time sub- than from the would no more controversy 655.04(4). was filed. Sec. mission comparable proceed- than procedure less harsh This single ings compensation. A work-related under worker’s liability liability, employer injury may products involve liability in party compensation and third under worker’s negligence. percentage negligence attributable The Nevertheless, may party sharply to each contested. against employer is employee’s remedy exclusive compensation. employer cannot be inter- worker’s negligence pleaded employee’s ac- defendant in the against parties. Regal 6Ware, tion third Albert v. 519, (1959). Wis.2d 240 95 N.W.2d Chapter Stats., delay 655, proceedings, which opportunity action, for a are ob- consolidated no more jectionable compen- than these well-established worker’s procedures, employee’s sation under which cause fragmented. permanently action is upon, develop, touch but Petitioners do not the further argument process right due that a common-law of re covery may providing quid pro not be limited without quo thereby disadvantaged. party Relying who is

520 White,

on v. dictum Railroad in New York Co. Central 188, (1916), 243 Sup. 247, U.S. 37 61 L. Ed. 667 Ct. quo quid pro test courts some states have fashioned a legislation rights.'12 for We which alters common-law adopting this are no aware of decision this court test,13 required by nor it of the United decisions controlling, Supreme States It is therefore not Court. adopt dowe not now it. OF DELEGATION JUDICIAL AUTHORITY. petitioners Chapter 655, Stats., con- contend VII, Constitution, travenes art. sec. of the Wisconsin judicial power which vests the of the state the courts. They argue causation, panels that because the determine negligence damages, they required and because are apply comparative negligence statute, sec. 895.- 045, generally and are applicable “bound the law to civil actions” in the proceeding administrative before them, they 655.17(1), judicial usurping au- thority.14 Perhaps rights this would be so if the petitioners terminated with the determination of panel. However, usurpation judicial there no au- 12 See: Medicine, Jones v. State Board 859, 97 Idaho 399, (1976) (rejecting Pac.2d quid pro quo test), Comment, Perspective A Constitutional on the Indiana Medical Malpractice Act, 51 Journal, 143, Ind. Law 149-152 Royal Indemnity Co., See: Hunker v. 588, 608, 57 Wis.2d (1973), recognizes 204 N.W.2d 897 the existence jurisdictions. doctrine in other Wright Page Hosp. See: Du Ass’n., Central 63 Ill.2d (1976), 347 N.E.2d 736 which held panels the medical review by created the unconstitutionally Illinois statute ju exercised power. dicial judiciary Under the Illinois statute a member of the required participate was in the administrative determination negligence damages by of panel, and the and the vote of the judiciary member of the could be lay overridden the members panel. only petitioners afforded thority here are the because not they panel, the judicial of review of the determination has court. This court to a novo in a are entitled trial de authority may gms¿-judicial constitu- often held that tionally delegated and administrative be to commissions Board, Corp. agencies. R. Dunphy Boat E. Wisconsin County v. Forest (1954); 267 Wis. N.W.2d Langlade 605, 45 County, 76 N.W. Wis. Indus- compensation statutes, the the

Under worker’s through its try, Commission, Labor & Human Relations concerning hearing examiners, decides controversies injuries and commission’s work related diseases. subject only judicial Sec. are limited review. orders Nevertheless, system invade 102.23, the does not Stats. upholding province of In constitu- the courts. tionality Compensation Act, this court of the Workmen’s said: . . do We not consider Industrial Commission vesting court, Com- nor do we construe act as meaning judicial the con- powers of

mission within the body It is arm an administrative or stitution. of government which in the course its administration of questions empowered a law is to ascertain some of fact doing apply existing acts thereto, and quasi-judicially, law and in so judicial thereby but it is not vested with power in the constitutional sense. many “There com- are such administrative bodies or increasing complexity missions, and modern with government likely they di- seem increase rather than thought may easily Examples of, minish. boards, be —town health, review, boards of boards boards equalization, utility commissions, public railroad rate They perform commissions all come within this class. very important government, in our duties scheme but they legislatures acting . . . courts. While scope duty, jurisdiction, lawfully within its or its it is may called, sometimes such board be endowed very powers, may broad given its conclusions great dignity force, may so that courts not reverse proof satisfactоry they them unless be clear and wrong added.) Borgnis (Emphasis are . . .” v. Falk Co., supra, 358, 359. patients empowered Similarly, compensation panels are existing apply ascertain facts and law thereto. distinguish Borgnis Co., supra, Petitioners would Falk v. ground compensation proceedings on the that worker’s they do not negligence, involve nor do determinations damages, by statutory ascertain which are fixed sched- argument ignores panel’s ules. This find- fact that ings, compensation subject awards, unlike to a trial findings particular de novo. The are entitled to no weight, reviewing opportunity and the court has full panel’s test the conclusions.

Administrative plainly boards and commissions are giKm-judicial able to authority. exercise fact, In this court has held that: involving “. . . inquiries judicial duties [S]ome may delegated

their nature where the to administrative officers subject judi- acts such officers are later Family cial 2d grounds, Corp. review.” Finance Sniadach, 37 Wis. 163, 176, (1967), N.W.2d 259 reversed on other Sup. 395 U.S. Ct. 23 L. Ed.2d (1969) (Emphasis added.) reasons, For these we do believe enact- ment Chapter 655, Stats., an constitutes unconstitu- judicial tional power. exercise

TRIAL BY JURY. I, Art. provides, Wisconsin Constitution part: right “The by jury of trial shall remain inviolate, and shall extend to all regard cases at law without to amount in controversy; . . .” panel Petitioners contend that process review is in- compatible guarantee with this respects. in two First, proceed- argue inherent they expense Second, subsequеnt trial. ings accessibility aof limits the findings under- argue admissibility panel they that the facts. right jury the determine their to have cuts expert produce argue to the need petitioners that unusually testimony malpractice actions medical makes screening panel, and costly in the absence even Stats., un- by Chapter 655, procedures created that the put proof fairly to in his twice —once a claimant force this time trial. view the and a second at We before legislative strong argument the enact- in favor of as a They procedures as those here involved. ment of such encourage settlements, and “weed out” frivolous claims justly whereby entitled to com- provide a means those early disposition their pensation can claims. secure Bal- directed to La v. Bowe Our attention has been thazar, v. 419, (1923), State 244 180 193 Wis. N.W. Graf, 179, 240 72 Wis.2d N.W.2d 387 While right importance of the these cases underline suggest by they particular jury, trial do not procedure be forms of familiar to common law must legislature preserved may modify pro- old inviolate. cedures, right ones, or new if the create substantive ex jury preserved. rel. Sowle v. in State trial Thus Brittich, (1959), 96 Wis.2d N.W.2d 337 this court upheld a statute which modified the standard for waiver jury paternity trial at cases. The court said 360: right by jury, “While defendant has a ato trial right he has no vested under the constitution Wisconsin right may to the or time in manner which that exer- procedural cised or expressly waived. Those are matters by left for dеtermination . law . .” protect plaintiff against Nor does the constitution implicit bringing costs jury. his action before a ap Graf, quoted supra, State In court Corriston, proval (1862): from Adams v. Minn. “ guarantee citizen ‘The to the Constitution does right protects litigate simply expense, the him injuriously law, without but unreasonably imposition from of such terms as right remedy in to a interfere with his ” justice.’ impede due administration Chapter imposes in-

Whether unreasonable or jurious light pur- its costs should be determined Balthazor, poses. supra, La Bowe v. In the court leg- quite clearly found that “it was the intention of discourage impose high jury islature fee in order to by jury.” contrast, trials In there no indication Chapter discourage Indeed, 655 is intended to trials. identifying focusing complex issues, panels aid jury go determination of those cases which do to trial.

The proceedings preliminary introduction of is to trial objectionable. not in itself Proceedings admin- before an agency may degrees istrative varying expense involve of delay. and Even substantial, where those costs are how- litigants ever, generally would-be required, under the requirement, exhaustion-of-remedies to avail them- proceedings coming selves the administrative before instances, court. In including some compen- worker’s proceedings, sation opportunity jury their for trial is completely panel foreclosed. The procedure review im- poses greater no burden than these pro- administrative ceedings and constitutionally is therefore valid. аrgue

Petitioners next that admissibility findings likely is to have an undue jury. influence on the They rely on Simon v. St. Elizabeth Medical Center, supra, 908, in which an Ohio trial court found that admissibility of the decision of medical malpractice ar- : bitrators

525 party’s substantially a effectively reduces . “. . party per- must that ability case, prove his because was the arbitrators jury that decision of suade easily accomplished in view incorrect, a task traditionally accorded weight juries which have added testimony experts .” . . however, per- Simon, procedure The under review trial, practice which testify mitted at the arbitrators jury and likely the influence on to increase would 655, 655.19. Chapter Stat. under Sec. which forbidden right indicated that Furthermore, in Simon court testimony ul- by jury precludes on the expert trial malpractice cases, a conclusion timate fact in issue in contrary in this state. to the established rule 111, Dohner, 409 Rabata v. 45 172 N.W.2d Wis.2d 907.04, (1969); sec. Stats. Supreme Il Court has also held Illinois- right jury malpractice statute trial.

linois denied conelu-sory, purely was discussion of this issue court’s guidance ver,15 for this offers no court. howe opposite conclusion, have reached an Other courts rejected jurors improperly have the notion will be findings. by panel Broomfield, Eastin v. influenced 116 576, (1977); Prendergast Nelson, Ariz. Pac.2d v. 570 744 ; Halpem Gozan, v. (1977) Neb. N.W.2d 1976); (Sup. 85 Misc.2d 381 N.Y.S.2d Ct. Comiskey Arlen, App. Div.2d 390 N.Y.S.2d 122 foregoing 1976). (Sup. Each concerned Ct. cases statutory procedure, a distinctive none of which were prоcedure identical to the now before this court. 655.19, Stats., provides part

Sec. in that: 15 providing “Because we have held that these statutes for panels unconstitional, pro it medical review follows prescribed prerequisite jury cedure as the therein trial is an impermissible right by jury restriction on of trial . . .”. Hosp. Wright Page Ass’n., supra, Du v. Central 324. at

526 findings “(1) except order, for dam- ... and ages in awarded, any panel admissible formal shall be any county court, action in the amount circuit or and damages discretion, ad- may, awarded at the be court’s in missible such action . . . .” argue jury Petitioners that the will be unable to evaluate findings panel’s objectivity, and order with right infringed by jury of trial will therefore be upon. disagree. not We The medical does review case; questions decide the the ultimate of all arbiter jury. fact interpretations

Given a choice of reasonable stat- ute, this court must select the construction which results constitutionality. Lynch State ex rel. v. Conta, 71 662, 689, Wis.2d (1976); 289 313 N.W.2d Feest v. Allis- Corp., Chalmers 760, 767, 68 Wis.2d 229 651 N.W.2d (1975). This court has deficient construed statutes constitutionally include required provisions. ex State rel. Farrell v. Stovall, 59 148, (1973) ; Wis.2d 207 N.W.2d 809 ex State rel. Matalik v. Schubert, 315, 57 Wis.2d 204 (1973); N.W.2d 13 State, 505, Huebner v. 33 Wis.2d 147 (1967). N.W.2d 646 In State ex rel. Chobot v. Cir- cuit Court, 61 Wis.2d 212 (1973), N.W.2d we interpreted 944.21(1) (a), Stats., by changing this previously court’s mandated obscenity definition of comport with the obscenity constitutional definition of set forth Miller v. California, Sup. U.S. Ct. L. Ed.2d There we said: "... duty court has uphold [T]his the statute past if it can a supplied has deficiencies to savе Chobot, statute . .” supra, . at 367. We conclude that review, statutes under as we them, construe do interfere with the right constitutional by jury. of trial findings, orders,

Panel may awards upon based majority panel. vote Sec. 655.05, Chapter Stats. dissenting minority any or indicate whether not 655 does evidence. admissible is also report panel members any con- majority report and that the conclude both We part dissenting as curring report admissible shall be or findings panel’s and order. par- provide that expressly the Chapter not 655 does order, findings and may upon panel’s the ties comment may to provide introduced evidence be does it nor findings order. support panel’s rebut, or explain, completely cover However, to few statutes can be written Chapter 655 do not consider all areas of concern. We opening or clos- preclude party, in the course to either report commenting upon panel’s ing arguments, from may on other manner comments made in the same as be commenting composition of evidence, upon the or from proceedings. does panel panel or the nature Nor panel’s preclude party impeaching the the act either from by report competent parties free evidence. The remain examine, call, and cross-examine as if witnesses report all; not at ma- had been made show that presented panel; terial to the or evidenсe was demon- panel proceedings were less detailed or strate jury comprehensive panel’s than the trial itself. weighed findings simply and order are evidence any jury accepted rejected, other evidence. findings panel, by majority vote, to make “. . .

upon case,” the ultimate facts in the and to file involved “. an order which . . state its determination as shall rights any parties and include award to be 655.16, findings, In made.” Sec. Stats. its [wjhether . to determine “. . the actions or omissions provider negligent the health care were . . and “. negligent, actions or omissions such were whether [i]f negligence injury patient.” caused or death to the 655.065. Sec. panel’s findings

The into evi- admitted and order are jury to dence therefore aid the in its deliberations. We require panel consider the secs. 655.065 and 655.16 to findings regard to to upon make the with ultimate facts allegation malpractice (i.e., each of determine whether respondent casually negligent), the or and was was findings evidentiary primary to make of facts the which, by reasoning process from inference, and the of findings ultimate facts are determined. These should help clarify issues, and the are often focus highly technical, jury. panel’s for of the the benefit findings findings will thus in the nature of of fact. They panel’s shall not contain the conclusions of law. statutory admissibility believe the

We find ings is, essence, and orders a rule of evidence. Comis key Arlen, 809; v. supra, Lehigh at See: & Co. v. Meeker Valley R.,R. 412, 430, Sup. 328, 236 35 59 Ed. U.S. Ct. L. (1915); Vаlley 473, Lehigh R., Mills v. R. 238 U.S. Sup. Ct. 59 L. Ed. 1414 Similar statutory provisions in other states have been charac- evidentiary allowing terized as specialized rules form expert opinion. Broomfield, supra, Eastin v. at 749; Prendergast Pac.2d Nelson, supra, v. at 256 N.W. 2d 666, Comiskey Arlen, supra, at 309. Thus viewed, admissibility the panel’s findings is con- stitutionally unobjectionable litigants because have no rights particular vested rules of evidence. State ex rel. v. Brittich, supra, Sowle at 360. proper application rule, any this with as rule evidence, responsibility is the of the trial court. No plate jury

boiler instruction can be drafted to cover all factual However, situations. the trial court shall instruct jury clarity simplicity the with and to the end that find- panel’s jurors that the impressed with the fact jury, ings binding upon but way in no and order are only, weight weight, and are to be accorded such such jury give trial court may them. The choose jury ‍​​‌​​‌​​‌​‌‌​​‌​‌‌​‌​​​‌​​​‌‌‌‌‌‌‌‌‌‌‌​​‌‌​​​​​‌‍jury effect that the further to the shall instruct and final of the issues raised remains the arbiter upon determination, presented based facts its evidence, of all prevail.16 will its consideration safeguards opinion that, we We are outlined, Chapter provides adequate opportunity have challenge findings panel, order infirmity there will be no constitutional to con- prerogatives jury. taminate the of the are exclusive We that, proper the confident instructions from trial findings court, jury panel’s be to the will able evaluate objectivity. independence and order with and requiremеnt prior to believe the of review We comparable compulsory trial is to the reference of a case parte In Ex special 300, Peterson, to a master. 253 U.S. Sup. (1920), Ct. 64 L. Ed. 919 a federal district court case had been referred an factual auditor for expression and for an the determinations of auditor’s opinion disputed report, on the The if issues. auditor’s accepted by court, the trial was to at the be admitted Supreme trial. the The issue before Court was whether procedure impaired right by jury this the of trial court, federal under seventh the amendment of the United States Constitution.

Writing court, for the Justice BRANDEIS said: “. . . The command Seventh Amendment that right by jury preserved’ ‘the of trial shall be does not require practice procedure that old forms of re- be prescribe precise We do not intend to the form or contents suggest subject may of such an instruction. We be by appropriate Jury consideration for the Civil Instructions Com Judges. mittee of the Wisconsin Board of Circuit Court R.R. tained. v. New Mexico & Southern Walker Pacific Jersey, Co., Twining Compare v. New U.S. 596. prohibit 211 U.S. It the introduction 101. does not actually in determining facts

new issue, for what methods rules prohibit nor it of new does introduction Changes de- may of evidence. made. New these be may adapt vices present institution be used to the ancient it instrument needs and to make of an efficient changes Indeed, justice. in the such administration of right. preservation are tatiоn limi- essential to the The by merely enjoy- imposed the Amendment right by jury obstructed, ment that be not trial by ultimate determination of issues fact jury be not interfered with. (( “Nor unduly can the order he held unconstitutional as interfering fact, fury’s with the determination issues of express because it directs the auditor to form opinion upon an dispute. report and items in The facts will, rejected by court, unless at be admitted jury trial findings evidence of as facts and embodied

therein; parties . . . call, will remain as free examine, report and cross-examine witnesses if had not been made. jury No incident of the trial away modified by or taken either preliminary, tenta- hearing tive before the auditor or the use report may his put. added.) . .” (Emphasis . Ex parte Peterson, supra, at 309-311. report parte auditor’s in Ex Peterson, supra, was subject approval rejection to the court, of the trial while a panel’s findings medical review and order are necessarily admissible 655.19, under sec. Stats., if re- stricted in contents to encompassed those matters within the statute as we have construed However, it. in Meeker Lehigh Valley & Co. R., supra, Supreme R. the Court statutory provision considered a closely analogous to the question statutes here. Meeker was a civil action brought Regulate under the Act to Commerce for the purpose recovering damages of sustained as a result of allegedly discriminatory unreasonable and freight rates. Interstate the prоceeding The action a before followed had Commerce Commission in the Commission and question found that were unreasonable the rates awarding dam- discriminatory an and had made order ages plaintiff. to of the Act the sixteen Under section findings Regulate Commerce, and the Commission’s “'prima, were evidence order to be admitted as facie any facts therein stated” in suit for enforcement argued defendant Commission’s order. The railroad infringed right by jury. provision this of trial Supreme rejected argument Court this said: only provision presump- “This establishes rebuttable interposes It defense, no tion. full cuts off no obstacle question issues, no contestation all the and takes jury. of fact from therefore either court or At most merely abridge it is a rule It of evidence. does not right Nor does by jury away any of trial or take of its incidents. any process it wise a denial work of due Lehigh supra, . . Valley law. .” Meeker R., & Co. v. R. at 430. parte While Ex Peterson, supra, and Meeker & Co. v. Lehigh Valley R., supra, R. concerned federal con- statute, stitution respectively, and a federal find we persuasive. Meeker, their rationale As contrasted to supra, findings “prima where the were admitted as facie” evidence, Chapter findings under of the particular weight, are accorded no held that we have jury provisions Chap- shall so be instructed. 655, Stats., abridge ter we them, as have construed do rights petitioners by jury. a trial Stats., We therefore conclude that 655.03(1), does appointment not authorize the panels, six-member challenges petitioners, those advanced we Chapter constitutionally 655 to hold valid enactment. By Rights declared and cause remanded Court. — proceedings for further opinion. consistent with this 532

ABEAHAMSON, ‘part). (dissenting J. I consider following malpractice this medical statute within context: extrajudicial favorably disposed

Courts should be settling imposed upon disputes. hardships methods of The litigants by already our over-crowded court dockets legislature scope need not be belabored. The broad has problems experiment to deal with economic and with problems. solutions to economic “The criterion of con- stitutionality judges] is not whether we believe [the good.” public law to be for the Adkins v. Children’s Hospital, 525, 567, (Holmes, (1923) U.S. J. dissenting opinion). Our task tois determine whether clearly provision. statute contravenes constitutional legislative All presumed constitutional, any acts and doubts that exist must be resolved favor of the con- stitutionality of a Smith, statute. Buse v. 74 Wis.2d (1976) N.W.2d and (dis- cited cases therein senting opinion). This court is not legislature, legislative it should policy not make for the state. I majority believe that the has exceeded limits of judicial seeking construction in uphold the constitu- tionality 655.19, Stats., provides: panel may “No member participate in the trial either as counsel or witness .... “(1) findings order, damages except for awarded, any panel formal any shall be admissible in county circuit awarded court, or damages the amount of may, at the discretion, court’s admissible such action .... “(2) findings any and order of informal shall not any be admissible in court action. No statement expression opinion made in the course of an in- panel hearing formal is admissible in evidence either as an admission or any otherwise in court action.”

I. In uphold effort its the constitutionality of sec. 655.19, majority opinion fails to grips come to written the statute de- question: the threshold does by prive parties question the raised a fair trial? The parties panel’s jury the whether a can the is evaluate findings objectivity im- the and order with or whether pact findings panel’s of the and recommendations —which subject challenge by adversary proce- are not to usual overpowering dures —is so that the trial infected with is prejudicial question. taint. The court the never discusses Instead, proceeds duty it into presumed with to read the it constitu- statute those elements will make which tionally valid. majority merely

I the submit that the has not followed require cases it interpret cited which this court to stat- application ute so that valid or allow the its which impose upon statutory well-accepted court to the scheme a procedure process equal protection assure due to majority laws. I believe the has written a new statute it has written as if the were con- all modifications stitutionally mandated. majоrity opinion says that “few statutes can be completely

written to cover all areas of True. concern.” attempt major- Nevertheless, in an fill in the gaps, to the ity provisions without hesitation the borrows from “medical statutes” of other and adds them states to policy our statute. These are choices should by legislators, made not several members of this court. legislative improperly This court has made policy deci- telling legis- sions constitutional terms without the specifically wrong lature where it went it statute wrote. If statute revision, is defective and needs explain why court should where and allow legislature to make the revisions. Indeed the Wisconsin legislature itself well aware the need to revise chapter Representative Joseph 655. Czerwinski, State C. Chairman, Committee, Health Assembly, Wisconsin legislator intimately with involved attempt Wisconsin’s cope to malpractice with medical crisis, wrote: availability Assembly “. . felt that insurance . The make steps take that the state

was issue and should directly physicians were unable insurance available if only that should obtain it. The state able believed Senate unavail- make available if insurance was insurance fundamental privately, undertake but also should system liability insure revisions the tort voluntary provide medical market would continue malpractice insurance. position, its “Neither House receded from Assembly forth result between Bill back 725 bounced two houses. . . . strоngly satisfy “. . . I to would note that in the order divergent extremely complex Houses, the an views of two upon time. prepared had in a bill to be and acted short already in- We have had two bills to correct trailer equities will be hasty suspect I we created this enactment. amending correcting many years.” the bill for (Wisconsin’s Legisla- Malpractice Crisis, Medical in A Issue, to Malpractice tor’s Guide tional the Medical Na- Legislatures of 55.) (1976), p. Conference State findings If the panel’s of submission the trier to the fact challenge being of permitted without a direct in- is valid, legislature policy (1) the has two basic choices: it can the findings; (2) eliminate the submission of or provide safeguards it can sufficient to the assure that probative panel’s findings value of the will as evidence outweigh prejudicial legislature their If effects. the were to decide implement might the choice, second it not “safeguards” the choose majority same opinion the does. it majority Indeed is if saying unclear the all or merely “safeguards” some of the it sets forth are con- stitutionally required. always trial Must the court sub- dissenting report mit the panel? of the Must the trial always parties court the allow to comment panel’s on the report argument? Must always the trial court allow parties present the impeach witnesses panel’s the findings? (What allowing about support witnesses explanation or in panel’s the findings?) Must findings findings panel’s always ultimate include as to findings primary evidentiary facts and but or facts majority’s (This part conclusions law? opinion especially Lawyers troublesome. and courts great findings difficulty distinguishing have between facts, primary facts, evidentiary of ultimate facts expect conclusions of panel law. How can we make panel’s this distinction? if What will be done findings majority do not opinion’s description?) fit the give cautionary Must trial court instruction to the jury in each case? safeguards

If all of constitutionally these required, likely result point malpractice is that the focal question trials will panel of whether erred rather than whether provider the medical I care erred. do not believe this is the majority end result for which the legislature aimed.

II. 655.19(1) provides Sec. at trial submission figure award of the dollar within —the —is Nothing discretion of the trial court. in ch. 655 gives the trial upon court the basis which to exercise this discretion. I assume this court can the review trial court’s exercise of discretion for abuse of discretion. have We repeatedly held that the exercise of discretion must de- pend on reasonably facts are of record or that are derived inference from the record and of the basis that exercise of discretion should be set forth. This court will not find an abuse of discretion if the record shows that discretion inwas fact exercised and if the record that there shows is reasonable for basis the trial court’s determination. only logical upon basis which the trial court can its

exercise discretion is that it panel finds the acted on good and of evidence basis sufficient figure. Although this represents award reasonable power re- permitted the of court trial court has jury verdict, permit the trial mittitur after we do not jury reasonable court to advise as to its view of the range awarding damages. so, Perhaps If for should. we 655.19, squarely presented by Stats., issue is majority do so. be decided. fails to should

III. justice impartial A decision- central element making. A an decision maker who has interest litigation fairly adjudicate the outcome of the cannot possible precision It is not case. define degree disqualify type pecuniary interest which will Tumey Ohio, a decision maker. The test forth in v. set (1927) personal 273 U.S. is whether the interest one which: possible temptation average . “. . would offer a to the judge forget proof required man as a the burden of might ... or which lead him not to hold the balance nice, clear and [parties] true between the .” . . . direct; The financial need interest not be an indirect may prejudicial. financial benefit also be Ward Village Monroeville, (1972); 409 U.S. 57 Gibson v. Berryhill, I U.S. do not read Gib- disqualifying profession son pass- of a as members from ing qualifications applicants on the for admission reviewing profession passing judgment or from professional. on conduct presence Thus providers health care objectionable on the is not per majority’s attempt se. The peti- to characterize argument assuming tioners’ that all health pro- care prejudiced viders are is unfair and inaccurate. profession had Gibson of who involves the members speculative than financial interest caused remote, more by decreasing increasing the potential competition in on profession. Supreme The relied United Court States the trial of the to conclude court’s view facts case that which the had a financial interest members made circumstances, them biased. these no show- Under ing particular panel need made the is that member totally Supreme less than fair. Rather the United States possibility that Court found the mere of unfairness was McCormack, bias, For a sufficient. discussion of see Purpose Hearing Due Process: Fair or Vehicle Review, Davis, Judicial (1974); Tex. L. Rev. for Administrative Law ch. 12 issue the case the annual instant is whether against

assessment the medical members the extra is panel suspect. the element makes The dimensions the financial stipu- interest were not forth set majority determining, lation or briefs. The thus with- any support, “any out factual that financial interest inherent in the Chapter Stats., structure of is too speculative remote require disqualification.” I court, any do believe this on record, this can reach conclusion bias medical members.

I majority that opinion believe should be read the “financial members, allow bias” of the medical if any shown, by can be on parties be commented opening closing arguments, by presentation wit- cautionary in the nesses and instruction.

IV. Obviously majority 655.19, Stats., believes legislature, permitting as written the submission panel’s findings deprives order, parties holding If a fair court, trial. of this I would relating offending parts 655.19, Stats., strike the of see. procedure for to the If a valid submission. there is submitting findings evidence, panel’s I order as legislature, believe its creation for the court. is this I am authorized to that Mr. Justice Heffernan state joins opinion. in this

DAY, (dissenting). part J. I that of from dissent majority opinion 655.19(1), that holds Stats, right guaranteed jury not offend the trial does a Stats, by pro- 665.19(1), Wisconsin Constitution. : vides findings order, damages “The except awarded, for any panel any

of in circuit or awarded formal shall be admissible in action county damages court, and the of amount may, discretion, at the court’s be admissible such action . . .” majority opinion (p. The 18): states special expertise medically-trained “Without panel members, purposes the central of the entire statu- tory scheme would be frustrated.” majority says (p. The then 27): statutory “We believe admissibility panel of evidence. find- ings and is, orders in essence, a rule . . . statutory provisions Similar in other states have been characterized form of evidentiary allowing specialized rules a expert opinion. . . . viewed, Thus the admis- sibility panel’s findings constitutionally is unob- jectionable particular litigants ‍​​‌​​‌​​‌​‌‌​​‌​‌‌​‌​​​‌​​​‌‌‌‌‌‌‌‌‌‌‌​​‌‌​​​​​‌‍because rights have no vested rules evidence.” It is more than a mere rule of evidence when the opin- “expert” ions of an subject are not to cross-examination. very The right essence of a trial is the to examine and designation cross-examine witnesses. The panel find- ings “specialized as a expert form of opinion” dif- up a ficult is made rationalize. formal physician respondent, physician and if then an- a is physician, provider other if health care other than physician respondents is one of the then a member designated particular occupation to be member. remaining person panel three of the five members attorney appointed an the administrator two public attorneys appointed by the members who are not governor year for terms. fail to see the two We where theory expertise physician lies that here. If the the is provider “experts” and the other health care the are lay- attorney members; three the other people, the two any “experts” are no more than member of jury. lay may people The three outvote the two members yet majority the health in care field and the under opinion, opinion negligence, their on and in the causation given jury damages, discretion court’s “expert are then to the as opinion” opportunity no for cross-examina- by clearly party. my opinion either in tion This invades province jury impermissible the and is under our Constitution. Wisconsin Stats, opinion рro- 655.015,

I am also that see. viding expenses that ah for medical in award future paid $25,000 to excess be to the future medical ex- is pense payments periodic fund and to be disbursed for expenses until the amount those is exhausted or majority opinion dies, claimant is unconstitutional. The says (p. 13), procedure obviously “This was intended for injuries the benefit of the claimant with substantial re- long quiring term treatment . . .” to I see no “benefit” If claimant. for award payments medical him, future to was made he could accumulating help it invest and be interest meet medi- they payments provision cal arise. There no for in- payments terest for amounts withheld under the statute. 3.37 Code, Insurance Wisconsin Administrative pursuant

(4) (h), established the commissioner Stats, 655.015, provides part: injured person “. . . should the become deceased allocation, there is balance in his account amount organization person insurer, shall be returned to the responsible establishing for the account.” only arrangement one benefit under this insurer. If the claimant dies this becomes windfall balancing provision, benefit to insurer. There is no providing necessary expense pay- such as medical ments will for continue the life of the claimant if amount part awarded is exhausted. The risk is all on It the claimant. fundamental lacks fairness and vio- equal protection lates the provisions of the United States any Wisconsin Constitutions. I would hold that expense award for future paid medical must damage claimant as other elements of an award for paid under the act.

I am authorized to state that joins Justice Heffernan joins this dissent and that Justice in that Abrahamson part concerning of this dissent 655.015, Stats.

Case Details

Case Name: State Ex Rel. Strykowski v. Wilkie

Court Name: Wisconsin Supreme Court

Date Published: Jan 3, 1978

Citation: 261 N.W.2d 434

Docket Number: 76-596-OA

Court Abbreviation: Wis.