JEAN MARY WRIGHT et al., Appellees, v. CENTRAL DU PAGE HOSPITAL ASSOCIATION et al., Appellants.
No. 48075.
Supreme Court of Illinois
May 14, 1976.
For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed. The temporary injunctions restraining the Director of Revenue from transferring the taxes paid by the plaintiff under protest to the State Treasurer for deposit in the general revenue fund are dissolved.
Judgment affirmed.
Howard & French, of Chicago (Richard G. French and Michael C. Kominiarek, of counsel), for appellant Central Du Page Hospital Association.
Frederic O. Floberg, of Chicago (William D. Serritella, Michael J. Critelli, and Ross, Hardies, O‘Keefe, Babcock & Parsons, of counsel), for appellant Dr. John A. Heitzler.
Nat P. Ozmon, Leonard M. Ring and William J. Harte, of Chicago (Laurence T. Stanner, Ralph L. Brill, Karla Wright and Timothy M. O‘Brien, of counsel), for appellee Jean Mary Wright.
Joseph Keig, Jr., and Bennet B. Harvey, Jr., both of Chicago (William G. Schopf, Jr., John A. McLees, and Keck, Cushman, Mahin & Cate, of counsel), for appellee Hartford Casualty Insurance Co.
Wildman, Harrold, Allen & Dixon, of Chicago (Max E. Wildman, James P. Dorr and Kay L. Schichtel, of counsel), for appellee Medical Protective Co.
Wayne A. Lenczycki, of Skokie, and Thomas G. Baffes and Richard J. Daley, both of Chicago, for amicus curiae Protective Medical Association of Illinois.
Burditt and Calkins, of Chicago (Richard E. Favoriti, Tom Scheuneman and Michael V. Hasten, of counsel), for amici curiae Illinois State Medical Society and Jerry M. Ingalls.
MR. JUSTICE GOLDENHERSH delivered the opinion of the court:
In separate actions filed in the circuit сourt of Cook County, Hartford Casualty Insurance Company (hereafter Hartford) and The Medical Protective Company (hereafter Medical Protective) sought declaratory judgments holding invalid section 401a of the Illinois Insurance Code (
In an action filed in the circuit court of Cook County plaintiff Jean Mary Wright (hereafter plaintiff) sought to recover damages from defendants Central Du Page Hospital Association, Dr. John Heitzler, American Hospital Supply Corporation and V. Mueller & Company for personal injuries suffered while confined to the defendant hospital as a patient of the defendant Dr. Heitzler. In her complaint, as amended, she sought a declaratory judgment that sections 58.2 through 58.10 of the Civil Practice Act (
The statutory sections declared unconstitutional are contained in “An Act to revise the law in relation to medical practice.” (Pub. Act 79-960, approved September 12, 1975, effective November 11, 1975.) Section 1 of the Act added sections 58.2 through 58.10 to the Civil Practice Act (
We consider first the contentions of the parties with respect to the sections added to the Civil Practice Act. Section 58.2 provides that sections 58.3 through 58.10 shall apply to all cases in which the “plaintiff seeks damages on account of injuries sustained by reason of medical, hospital or other healing art malpractice” and “shall not apply to any other cases.” Section 58.3 requires the circuit court, “no sooner than 120 days nor later than one year after the parties are at issue on the pleadings” to order the convening of “a medical review рanel to which the case shall be assigned for hearing and determination.” The medical review panel is to consist of one circuit judge, one practicing physician and one practicing attorney.
Section 58.4 provides that the panels shall be chosen from rosters maintained by the chief judge of each judicial circuit. The rosters are to include at least five circuit judges, at least 20 practicing physicians licensed to practice in Illinois who are willing to serve on panels and are recommended by a recognized medical society, and at least 20 practicing attorneys licensed to practice in Illinois who are willing to serve on medical review panels and whose names have been provided by a bar association having membership in the circuit. It provides for assignment to panels on a rotation basis from these rosters. Section 58.5 permits selection of panels, by unanimous agreement of the parties, from physicians and attorneys who may or may not be on the roster and provides for the selection, by unanimous agreement of the parties, of a circuit judge to serve on the panel. (
Section 58.6 is concerned with procedure. Proceedings before the panel are to be “adversary, and each party may call and cross examine witnesses and introduce evidence as at a trial in the circuit court.” The panel has the power of subpoena, “to be exercised as in the circuit court,” and it “may call witnesses, examine evidence, call for additional or particular evidence, and may examine or cross examine witnesses as it may determine to be appropriate.” The circuit judge is to preside over the proceedings and decide procedural and evidentiary issues, and the proceedings may be conducted in any county in the judicial circuit, as determined by the panel. Section 58.7 provides that the panel shall make a “determination on the issue of liability and, if liability is found, on the issue of fair and just compensation for damages.” The determinations of the panel are to be made in a written opinion stating its conclusions of fact and conclusions of law, and a dissenting member may file a written dissent.
Section 58.8 governs the effect of a decision of the panel. If the parties agree in writing to be bound by the determination of the panel, its decision is binding and conclusive, and judgment may be entered thereon. If the parties do not agree to be bound by the panel‘s determination and the panel‘s decision is unаnimous, a party must reject the decision in writing within 28 days of receipt of service of the written opinion or be deemed to have accepted it. Whenever the parties have not unanimously agreed to be bound by the determination of the panel and have not unanimously accepted the determination, the panel judge is to conduct a pretrial conference and the case is to proceed to trial as in any other civil case. The determination of the panel is not admissible at any subsequent trial in the circuit court.
Section 58.9 provides that the expenses of the panel
The parties have briefed and argued a number of questions, and briefs, urging reversal of the judgment, have been filed by amici curiae Illinois State Medical Society and its president, and by an amicus calling itself the Protective Medical Association of Illinois, but not otherwise described or identified. In a section of their brief, headed “Interest of the Amici Curiae: The Health Care Crisis,” amici Illinois Statе Medical Society and its president describe the “rapid and disproportionate rise in malpractice claims and high dollar awards and settlements” and argue that “While concededly, it is an initial move and hardly the last, nor should it be, Public Act 79-960 represents a reasonable response to a problem confronting the vast majority of the people of the State of Illinois.”
Although the circuit court found the legislation concerning the medical review panels constitutionally defective for a number of reasons, we need consider only whether it correctly held that it was violative of article VI, sections 1 and 9, of the Illinois Constitution for the reason that it “vests essentially judicial functions in nonjudicial personnel” and of article I, section 13, for the reason that its provisions “impair and violate plaintiff‘s constitutionally protected interests in trial by jury.”
Article VI of the Constitution, in pertinent part, provides that “The judicial power is vested in a Supreme Court, an Appellate Court and Circuit Courts” (section 1), and that the circuit court shall have “original jurisdiction of all justiciable matters *** [and] shall have such power
The application of principles of law is inherently a judicial function (People v. Bruner (1931), 343 Ill. 146) and article VI, section 1, of the Constitution vests the exclusive and entire judicial power in the courts. (Agran v. Checker Taxi Co. (1952), 412 Ill. 145.) Under these statutory provisions the physician and lawyer member of the medical review panel are empowered to make conclusions of law and fact “according to the applicable substantive law” (par. 58.7) over the dissent of the circuit judge. This, we hold, empowers the nonjudicial members of the medical review panel to exercise a judicial function in violation of sections 1 and 9 оf article VI of the Constitution.
We consider next whether the circuit court correctly held that these statutes violate article I, section 13, of the Constitution, which provides that “The right of trial by
The report of the Constitutional Convention Committee on the Bill of Rights stated that the Committee voted to submit a proposal in the form of section 13 of article I and went on to say:
“After considering numerous proposed exceptions to the right of trial by jury the Committee concludеd that all were inappropriate. One proposal would have authorized the General Assembly to modify the right to trial by jury ‘in suits between private persons for damages for death or injury to persons or property.’ The Committee adopted such language on its initial vote, for the purpose of giving the General Assembly authority to prescribe new methods of determining facts in civil cases in order to combat congestion and other problems in the courts. Upon reconsideration the Committee concluded that such an exception was unjustified because these objectives could be sought by administrative and legislative reforms without diluting fundamental jury trial guarantees.” 6 Record of Proceedings, Sixth Illinois Constitutionаl Convention 27 (hereafter Proceedings).
An amendment was approved (3 Proceedings 1432) and Proposal No. 4 of the Committee on Style, Drafting and Submission (6 Proceedings 204) contained the following:
“Section 9. Trial by Jury
The right of trial by jury as heretofore enjoyed shall remain inviolate, except that in civil cases the General Assembly by law may provide for juries of not less than six nor more than twelve and for verdicts by not less than three-fourths of the jurors.”
The debates (3 Proceedings 1426-1432; 4 Proceedings 3640) reflect that all efforts to amend the proposal of the Committee on the Bill of Rights were ultimately defeated and section 13 was approved by the Convention. The Explanation to the voters (7 Proceedings 2686) stated:
“This section is the same as Articlе II, Section 5 of the 1870 Constitution, except that it deletes an out-dated reference to the office of justice of the peace, which has been abolished.”
In People v. Lobb (1959), 17 Ill. 2d 287, 298-99, the court said:
“Section 5 of article II of the Illinois constitution provides that ‘The right of trial by jury as heretofore enjoyed, shall remain inviolate.’ We have construed these words to mean the right of a trial by jury as it existed under the common law and as enjoyed at the time of the adoption of the respective Illinois constitutions. [Citations.] The right of trial by jury as it existed at common law is the right to have the facts in controversy determined, under the direction and superintendence of a judge, by the unanimous verdict of twelve impartial jurors who possess the qualifications and are selected in the manner prescribed by law. [Citations.]
* * *
The constitutional guarantee of the right of trial by jury is not so inelastic as to render unchangeable every characteristic and specification of the common-law jury system. Flexibility for the adjustment of details remains, as long as the essentials of the system are retained.”
Because we have held that these statutes providing for medical review panels are unconstitutional, it follows that the procedure prescribed therein as the prerequisite to jury trial is an impermissible restriction on the right of trial by jury guaranteed by article I, section 13, of the Illinois Constitution. In so holding, however, we do not imply that a valid pretrial panel procedure cannоt be devised.
We note that although the order entered by the circuit court holds sections “58.2 through 58.10 and each of them” unconstitutional no specific reference is made
We consider next the provision of section 4 of Public Act 79-960 (
Plaintiff argues that by denying recovery for loss and damage in excess of $500,000 the General Assembly has arbitrarily classified, and unreasonably discriminated against, the most seriously injured victims of medical malpractice, but has not limited the recovery of those victims who suffer moderate or minor injuries. She points out that the burden of this legislative effort to reduce or maintain the level of malpractice insurance premiums falls exclusively on those extremely unfortunate victims who most need financial protection.
In Hall, at a time when the Wrongful Death Act limited recovery to $25,000 (see
In Cunningham, the court held that there was no common law action for damages against a supplier of alcoholic liquor for injuries inflicted by an intoxicated person, or resulting from intoxication, that such cause of action was created by the Dramshop Act of 1872, and that section 14 of article VI of the Dramshop Act (
Defendants cite the Workmen‘s Compensation Act (
The Workmen‘s Compensation Act provides for the payment of the employee‘s medical expenses and payment of compensation for the duration of his incapacity, which may exist throughout his life. Public Act 79-960 abolished no common law defenses, nor did it purport either to alter the essential elements of a cause of action for medical malpractice or lessen the plaintiff‘s burden of proof. Furthermore, the very seriously injured malpractice victim,
Defendants argue that there is a societal quid pro quo in that the loss of recovery potential to some malpractice victims is offset by “lower insurance premiums and lower medical care costs for all recipients of medical care.” This quid pro quo does not extend to the seriously injured medical malpractice victim and does not serve to bring the limited recovery provision within the rationale of the cases upholding the constitutionality of the Workmen‘s Compensation Act.
Li Petri v. Turner Construction Co. (1967), 36 Ill. 2d 597, presented a situation that is almost the converse of this case. There a $70,000 judgment was entered against two defendants for a death resulting from a violation of the Structural Work Act (
We have considered the arguments of defendants that the General Assembly may effect reform “one step at a time,” that in so doing it “may select one phase of one field and apply a remedy there, neglecting the others” (Williamson v. Lee Optical of Oklahoma, Inc. (1955), 348 U.S. 483, 489), and that under Davis v. Commonwealth Edison Co. (1975), 61 Ill. 2d 494, the classification created by this legislation is not unreasonable or arbitrary. We do not agree. Although we do not hold or even imply that under no circumstances may the General Assembly abolish a common law cause of action without a concomitant quid pro quo, we have consistently held that to the extent that recovery is permitted or denied on an arbitrary basis a special privilege is granted in violation of the Illinois Constitution. (Grace v. Howlett (1972), 51 Ill. 2d 478; Harvey v. Clyde Park District (1964), 32 Ill. 2d 60.) We are
We consider next the question of the constitutionality of section 401a of the Illinois Insurance Code (
“No insurance company licensed or authorized to write insurance covering medical, hospital or other healing art malpractice shall refuse to renew any existing policy providing such coverage at the rates existing on June 10, 1975, unless such company shall have provided sufficient evidence to justify such increase to the Director of Insurance, provided that the Director shall not approve such increase until after public hearings have been held and the increase justified from data from the books and records of such company.”
Hartford and Medical Protective argue that section 401a denies them equal protection and due process of the law in violation of the fourteenth amendment of the Federal Constitution and section 2 of article I of the Illinois Constitution; that it constitutes special legislation in violation of section 13 of article IV of the Illinois Constitution; that it constitutes an unlawful delegation of legislative authority prohibited by section 1 of article IV of the Illinois Constitution; that it impairs the obligation of contract in violation of section 16 of article I of the Illinois Constitution; and that, in violation of section 8(d) of article IV of the Illinois Constitution, it does not deal with the same subject matter as the rest of the act. We find it necessary to consider only the classification created by section 401a which Hartford and Medical Protective contend is a special law, and a denial of equal protection of the law.
By its terms section 401a regulates medical malpractice insurance rates on policies that were in existence on June 10, 1975, and not those written after that date. The
People ex rel. East Side Levee and Sanitary District v. Madison County Levee and Sanitary District (1973), 54 Ill. 2d 442, 447, involved a statute which provided:
“Any sanitary district organized, operated and maintained pursuant to the provisions of this Act which lies in 2 counties and which has an equalized assessed valuation for tax purposes of $100,000,000 or more, upon the effective date of this amendatory Act of 1972, is divided for more effective administrative and fiscal control into 2 separate districts ***.”
We said: “The briefs cite no reasons, and none are apparent to us, for restricting the advantages of ‘more effective administrаtive and fiscal control’ to those two-county districts which on December 22, 1972, (the effective date of the Act), had an equalized assessed valuation of $100,000,000, and not extending the same advantages to those districts reaching that valuation level at a subsequent time. [Citations.] It is our opinion that a general law could have been made applicable, and that Public Act 77-2819 therefore violates the constitution‘s prohibition against special legislation.” 54 Ill. 2d 442, 447.
We find the foregoing language apposite here. We have considered the Director‘s argument that section 401a, read in pari materia with article XXXVI of the Insurance Code (
Affirmed in part and vacated in part..
MR. JUSTICE UNDERWOOD, concurring in part and dissenting in part:
I agree with the court‘s holding that the limitation on policy rate increases set forth in section 401a of the Insurance Code (
Resolution of the problem presented by section 4 of Public Act 79-960 (
There is no question that the legislature has the power, within constitutional limits, to restrict or even eliminate common law rights. As was said in Werner v. Southern California Associated Newspapers (1950), 35 Cal. 2d 121, 125-26, 216 P.2d 825, 828:
“‘Except as the Constitution otherwise provides, the Legislature has complete power to determine the rights of individuals. (See Delaney v. Lowery, 25 Cal. 2d 561, 568 [154 P.2d 674].) It may create new rights or provide that rights which have previously existed shall no longer arise, and it has full power to regulate and circumscribe the methods and means of enjoying those rights, so long as there is no interference with constitutional guaranties.’ (Modern Barber Col. v. California Emp. Stab. Com.Silver v. Silver, 280 U.S. 117, 122 [50 S. Ct. 57, 74 L. Ed. 221]; Langdon v. Sayre, 74 Cal. App. 2d 41 [168 P.2d 57].)”
This court has repeatedly held that the prohibition against special legislation, which the majority holds this limitation to be, “does not mean that a statute must affect everyone in the same way” (Davis v. Commonwealth Edison Co. (1975), 61 Ill. 2d 494, 498), for “perfect uniformity of treatment of all persons is neither practical nor desirable” (Grasse v. Dealer‘s Transport Co. (1952), 412 Ill. 179, 193). A statute is presumed valid even though some inequality results (McGowan v. Maryland (1961), 366 U.S. 420), and the burden of demonstrating that a classification is unreasonable or arbitrary is upon the person attacking the validity of the classification. (People v. Palkes (1972), 52 Ill. 2d 472, 477.)
“A classification, however, cannot be arbitrary or unreasonable. It must be based on a rational difference of condition or situation existing in the persons or the objects upon which the classification rests. (Illinois Coal Operators Association v. Pollution Control Board, 59 Ill. 2d 305, 311; Youhas v. Ice, 56 Ill. 2d 497, 500; Begich v. Industrial Com., 42 Ill. 2d 32, 35; People ex rel. County of Du Page v. Smith, 21 Ill. 2d 572, 578.) This was described in People ex rel. County of Du Page v. Smith, 21 Ill. 2d 572, 578, where this court said: ‘If there is a reasonable basis for differentiating between the class to which the law is applicable and the class to which it is not, the General Assembly may constitutionally classify persons and objects for thе purpose of legislative regulation or control, and may pass laws applicable only to such persons or objects.’ A differentiation or distinction ‘is not arbitrary if any state of facts can reasonably be conceived that would sustain it.’ Illinois Association of Fire Fighters v. City of Waukegan, 37 Ill. 2d 423, 425, quoting Bagdonas v. Liberty Land & Investment Co., 309 Ill. 103, 110.” Davis v. Commonwealth Edison Co. (1975), 61 Ill. 2d 494, 497.
Much has been written and said in recent times about the current “crisis” in the area of medical malpractice resulting from substantial increases in the numbers of cases filed and amounts of jury verdicts, enormous increases in malpractice insurance premiums, threatened walkouts and strikes by doctors, etc. The briefs of the defendants in this case maximize the problem and those of the plaintiffs minimize it. Theory, fact and fiction are well-nigh inextricably intermingled. Despite this, it is cleаr that serious problems do exist (see, e.g., Plant, The Medical Malpractice “Crisis“, vol. 20, No. 2, p. 13, Law Quadrangle Notes, U. of Mich. Law School), to which a majority of the States have responded with legislative action in various forms, including new means of providing malpractice insurance, limitations upon contingency fees of lawyers, screening panels to hear claims, maximum liability limits, etc. (State Government News, January, 1976, vol. 19, Issue No. 1, p. 8). While the trial courts of several States have considered challenges to these legislative products, they do not yet
It is quite true that the $500,000 limitation upon recovery bears most heavily upon the severely injured person. A stronger case for the limitation would exist if it permitted unrestricted recovery of actual expenses, for it is conceivable, as the majority emphasizes, that with today‘s inflated costs, total expenses of treatment and care for a seriously and permanently injured person could exceed the allowable recovery. To be weighed against that rather remote possibility, however, is the vital interest, if not the absolute necessity, of society in having adequate health care available at reasonable cost. To the admittedly imprecise extent that the recovery limitation here in question contributes to that goal, far more persons are benefited than in any other area in which similar litigation occurs.
Given the fact that serious problеms do exist; that, while not all of them are unique to the medical malpractice area, it is that area in which they appear most acute; that health care costs affect virtually all persons; that “A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it” (McGowan v. Maryland (1961), 366 U.S. 420, 426); that “reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind“; and that “the legislature may select one phase of one field and apply a remedy there, neglecting the others” (Williamson v. Lee Optical of Oklahoma, Inc. (1955), 348 U.S. 483, 489); and that the $500,000 limitation still affords entirely adequate protection to the vast majority of victims of medical malpractice, I am not prepared to hold it an impermissible exercise of legislative discretion.
MR. JUSTICE RYAN joins in this partial concurrence and partial dissent.