The Constitutional Considerations of Medical Malpractice Screening

Document Sample
The Constitutional Considerations of Medical Malpractice Screening Powered By Docstoc
					                   THE CONSTITUTIONAL
                    CONSIDERATIONS OF
                  MEDICAL MALPRACTICE
                    SCREENING PANELS
                                          INTRODUCTION

   Malpractice claims filed against health care providers I have increased
steadily during the past decade and this increase can be expected to con-
tinue in the future. 2 From 1966 to 1970 the number of pending medical
malpractice claims in the United States increased eighty-one percent. 3
The number of successful claims and the amounts of the awards have
likewise increased, 4 and as a result, premiums for medical malpractice
insurance have risen significantly. 5 For example, between 1960 and
1970, hospital malpractice premiums increased by 262.7 percent and sur-


       1. A health care provider is a person, corporation, facility, or institution licensed by a state to
deliver health care and professional services as a physician, osteopath, dentist, nurse, physician's
assistant, optometrist, podiatrist, chiropractor, clinical psychologist, anesthesiologist, radiologist,
medical technician, physical therapist, pharmacist, hospital, clinic, nursing home, or extended care
facility, or as an agent of one of the above acting in the scope of his employment. E.g., MD. CrS. &
JUD. PROC. CODE ANN. § 3-2A01(e) (Cum. Supp. 1976); MASS. GEN. LAWS ANN. ch. 231, § 60B
(West Supp. 1976); Mo. ANN. STAT. § 538.010(2) (Vernon Supp. 1976); N.M. STAT. ANN. § 58-
 33-3(A) (Supp. 1976); PA. STAT. ANN. tit. 40, § 1301.103 (Purdon Supp. 1977); VA. CODE §
8-9110) (Cum. Supp. 1976).
      2. Am1iucAN MEDICAL ASSOCIATION, MALPRAcricE IN Focus 12-13 (1975) [hereinafter cited as
A.M.A. REPORT]; see LIBRARY OF CONGRESS CONGRESSIONAL RESEARCH SERVICE, MEDICAL MALPRAC-
TiCE: A SURVEY OF ASSOCIATED PROBLEMS AND PROPOSED REMEDIES 7-8 (1975) [hereinafter cited as
C.R.S. REPORT]; DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, REPORT OF THE SECRETARY's
COMMISSION ON MEDICAL MALPRACTICE 5-10 (1973) [hereinafter cited as H.E.W. REPORT]. The Insur-
ance Services Organization estimates that medical malpractice claims have been increasing at a rate
of 12% annually, and the American Medical Association (A.M.A.), using the 1970 base figure of
26,500 claims filed against health care providers, projects that if this increase rate continues there
will be over 82,000 claims filed in 1980. A.M.A. REPORT, supra at 12.
      3. C.R.S. REPORT, supra note 2, at 7-8. In 1966, there were 1,200 cases pending and in 1970,
there were 32,900 cases pending, resulting in the 81% increase in cases pending during that four-year
period. Yet, the number of cases settled remained relatively the same during that period, with 20,300
settled in 1966 and 22,100 settled in 1970, an increase of only nine percent. Id.
      4. A.M.A. REPORT, supra note 2, at 14-15.
      5. Id. at 20-21; C.R.S. REPORT, supra note 2, at 7-8; H.E.W. REPORT, supra note 2, at 11-12. In
 1966, the total dollar amount spent for medical malpractice insurance was $95,300,000. In 1970, the
same insurance coverage cost the health care providers $370,600,000, reflecting a 289% increase in
premiums for the four-year period. C.R.S. REPORT, supra note 2, at 7-8.
                           THE AMERICAN UNIVERSITY LAW REVIEW                              [Vol. 27:161


geons' premiums by 949.2 percent. 6 Furthermore, these premium in-
creases often have been insufficient to make malpractice insurance profit-
able to the carriers, and, in some jurisdictions, the increases have
threatened insurance availability.'    Physicians' reactions to the insur-
ance situation and the public concern over the ability of the tort system to
handle the increased burden of these claims have directed state 8 and na-
tional 9 attention to the medical malpractice issue.

      6. C.R.S. REPORT, supra note 2, at 28.
      7. In the fall of 1974, Argonaut Insurance Company, one of the leading medical malpractice
insurers, announced a 380% premium increase for northern California physicians and an intention
eventually to withdraw completely from the medical malpractice insurance area in California. Aitken,
Medical Malpractice: The Alleged Crisis in Perspective, INS. L.J. 90 (February 1976). See A.M.A.
REPORT, supra note 2, at 22-23; Schwartz, Societal Responsibility for Malpractice, MILBANK MEMO-
PiAL FUND Q. 469, 474 (Fall 1976). Also, medical malpractice premiums have risen so greatly that
some physicians have elected, on their own, to discontinue their malpractice insurance and to "go
bare." Domette, Going Bare, J. LEGAL MED. 84 (March 1977).
      8. State legislative activity has been increasing steadily in the medical malpractice area since
1970. See HEALTH POLICY CENTER OF GEORGETOWN UNIVERSITY, A LEGISLATOR'S GUIDE TO THE MEDI-
CAL MALPRACTICE ISSUE (1976). Other than the procedural addition of pre-trial screening panels, re-
cent tort reforms enacted by the states include: limitations on liability statutes, changes in statutes of
limitations and informed consent statutes, elimination of the collateral source rule, codification of the
locality rule, modifications of standard of proof statutes, elimination of the ad damnum clause in
pleadings, and limitations on contingency fee sliding scales. Id. at 9-11. See also NATIONAL ASSOCIA-
TION OF INSURANCE COMMIUSSIONERS, MALPRACTICE CLAIMS (May 1977).
      9. In 1969, Senator Abraham Ribicoff, Chairman of the Subcommittee on Executive Reorgani-
zation of the Senate Committee on Government Operations, directed the first federal investigation
into the reasons for the sudden and acute medical malpractice problem in the United States. The
Ribicoff subcommittee documented some of the causes of the problem and concluded: (a) Most
malpractice claims are the direct result of injuries suffered by patients during medical treatment or
surgery, and therefore, some medical specialists such as general surgeons, orthopedic surgeons,
neurosurgeons, anesthesiologists, obstetricians, and gynecologists are in higher risk categories. (b)
The traditional physician-patient relationship is deteriorating. This deterioration is a result of high
public mobility which inhibits growth of trust in physicians, and of the increased specialization of
physicians which leads to an impersonal feeling between the physician and the patient. (c) The public
is developing a poor image of physicians due both to this breakdown of rapport between physicians
and patients and to the increased publicity being given to high malpractice judgments. (d) This poor
public image and growing lack of rapport between physicians and patients contributes to a trend
toward court actions for grievances that were previously not brought. (e) Malpractice claims are
rising sharply. This rise is due not only to the breakdown of the physician-patient relationship but
also to an increased medical load carried by physicians. More people are demanding medical care,
particularly since the enactment of Medicare and Medicaid in 1965. (f) increase in malpractice
                                                                              An
claims results in increased costs for insurance coverage. These increased costs are passed on to
patients in the form of higher charges. (g) The federal government has a role to play in helping to
solve the malpractice problem and should study the area further. SENATE SUBCOMMITTEE ON EXECU-
TivE REORGANIZATION, 91st CONG., 1st SFss., A STUDY ON MEDICAL MALPRACTICE: THE PATIENT
VERSUS THE PHYSICIAN 1-6 (1969).
   In response to the Ribicoff subcommittee's conclusions, in 1971, President Richard M. Nixon
directed the Department of Health, Education, and Welfare to form a Commission on Medical Mal-
practice to study the problem in greater depth. The resulting 1973 Report of the Secretary's Commis-
sion, H.E.W. REPORT, supra note 2, has become the principal source of data on medical malpractice.
It forms the basis for the C.R.S. REPORT, supra note 2, prepared for Congress in 1975.
1977]                          MALPRACTICE SCREENING PANELS


    One reaction by the states to this malpractice "crisis" has been to
create pre-trial screening panels, designed to relieve the burdens on the
tort system by sorting out unjustified or nuisance suits against health care
providers and by expediting the disposition of meritorious cases at pre-
 litigation stages."t Twenty-five states have rcently adopted some form
of this innovation that provides for non-binding review of medical mal-
practice claims by a screening panel prior to any court proceeding. 1 1 Al-
though screening panels are a recent innovation, constitutional challenges
to them have been resolved by the Florida Supreme Court,' 2 which up-
held the pre-trial screening panel, and by the Illinois Supreme Court,' 3
which struck it down. Suits also have been decided in the lower state
courts of Indiana, 4 Maryland,1 5 New York, 16 and Tennessee.' 7
    This comment will describe the types, composition, and procedures of
screening panels and then will examine the major issues raised when
screening panels are constitutionally challenged, with a focus on the Il-
linois and Florida decisions. The constitutional considerations relate to
three aspects of screening panels: the restrictions the panels place, in the
first instance, on a claimant's access to the courts; the resulting en-
croachment of the proceedings themselves on the judicial function; and
the admissibility of the panel's findings in a subsequent trial de novo.

                      I.    TYPES,     COMPOSITION,        AND PROCEDURES
                                      OF SCREENING PANELS

   Among the twenty-five state statutes which have created pre-trial
screening panels, the provision that parties submit a medical malpractice

    10. The legislation creating screening panels has been enacted only since 1975 and 1976. Be-
cause the panels are such a recent innovation, it is too soon to evaluate their success. See notes 12-17
& accompanying text infra.
    11. AMERICAN ARBITRATION ASSOCIATION RESEARCH INSTITUTE, STATUTORY PROVISIONS FOR NON-
BINDING REVIEW OF MEDICAL MALPRACTICE CLAIMS app. IV (February 1977). For a listing of the 25
states, see notes 18 & 19 infra.
     12. Carter v, Sparkman, 335 So. 2d 802 (Fla. 1976), cert. denied, 429 U.S. 1041 (1977).
     13. Wright v. Central Du Page Hosp. Ass'n, 63 II1. 2d 313, 347 N.E.2d 736 (1976).
     14. Hewitt v. Gaddy, No. 56-75-1557 (Marion County Super. Ct., Ind., Nov. 23, 1976) (case
dismissed by trial court when plaintiff filed a medical malpractice suit ignoring the provision of
Indiana's law that required the case to be submitted first to a pre-trial screening panel).
     15. Johnson v. Burch, No. 6-099-191 (Baltimore City Ct., Md., June 6, 1977) (mandatory
screening panel held unconstitutional as violation of doctrines of separation of powers, access to the
courts, and denial of right to trial by jury).
    16. Comiskey v. Arlen, 55 App. Div. 2d 304, 390 N.Y.S.2d 122 (1976) (admissibility of
panel's finding at a subsequent trial not unconstitutional as a violation of due process, equal protec-
tion, or right to trial by jury); Halpern v. Gozan, 85 Misc. 2d 753, 381 N.Y.S.2d 744 (1976)
(pre-trial panels not unconstitutional deprivation of the right to trial by jury).
     17. Arnold v. Tennessee, No. A-6030 (Davidson County Ch. Ct., Tenn., Dec. 9, 1975) (man-
datory screening panel held unconstitutional as a denial of free and open access to the courts).
                          THE AMERICAN UNIVERSITY LAW REVIEW                            [Vol. 27:161


claim to a panel varies. In nineteen states, the parties must submit claims
to a panel before they file suit; 18 in the remaining six states, the statutes
make the use of the screening panels voluntary.' 9 The statutes also vary
as to whether the panel's decision is admissible into evidence at a sub-
sequent trial.2 0 For purposes of analysis, panels can be divided into four
types: (1) Mandatory and Inadmissible. Parties must submit their claims
to a screening panel before they initiate a court action, but the findings of
the panel are not admissible in a subsequent court proceeding. (2) Man-
datory and Admissible. Not only must parties submit their claims to a
screening panel before they initiate a court action, but the findings of the
panel are then admissible in a subsequent court proceeding. (3) Voluntary
and Inadmissible. Parties may agree to submit their claims to a screening
panel, but they are not required to do so prior to a court proceeding. If
the parties do submit their claims to a screening panel, the findings of the
panel are not admissible in court. (4) Voluntary and Admissible. Parties
may or may not agree to submit their claims to a screening panel; how-
ever, if a claim is submitted to a panel, the findings are then admissible

     18. ALAsKA STAT. § 09.55.53b(a) (Supp. 1976) (judge may, at his discretion, hear the case
without submitting it to a screening panel); ARiz. REv. STAT. § 12-567 (Supp. 1976); FLA. STAT.
ANN. § 768.44 (West Supp. 1977); Medical Professional Liability Act, Pub. Act No. 219, § -12,
1976 Haw. Sess. Laws 523 (1976); IDAHO CODE § 6-1001 (Supp. 1976); Civil Practice Act, Pub. Act
No. 79-960, § 1, 1975 Ill. Laws, ILL. REv. STAT. ch. 110, § 58.3 (Supp. 1975) (declared uncon-
stitutional in Wright v. Central Du Page Hosp. Ass'n, 63 Ill. 2d 313, 347 N.E.2d 736 (1976); IND.
CODE § 16-9.5-9-2 (1976); LA. REV. STAT. ANN. § 40:1299.47(B) (West Supp. 1977); MD. CTS. &
Jun. PRoc. CODE ANN. §§ 3-2A01 to -2A05 (Supp. 1976) (pre-litigation panel mandatory for claims
of more than $5,000); MASS. GEN. LAWS ANN. ch. 231, § 60B (West Supp. 1976); Mo. ANN. STAT.
§ 538.020 (Vernon Supp. 1976); NEB. REV. STAT. § 44-2840(2) (Supp. 1976); NEv. REV. STAT. §
41A.070 (1975); N.M. STAT. ANN. § 58-33-15 (Supp. 1976); N.Y. JUD. LAW § 148-a (McKinney
Supp. 1976); OHIo REv. CODE ANN. § 2711.21(A) (Page Supp. 1976); PA. STAT. ANN. tit. 40, §
1301.309 (Purdon Supp. 1977); R.I. GEN. LAWS § 10-19-1 (Supp. 1976); TENN. CODE ANN. §§
23-3403(a), (b) (Supp. 1976).
     19. ARK. STAT. ANN. § 34-2603 (Supp. 1975); DEL. CODE tit. 18, § 6802 (Supp. 1976); KAN.
STAT. ANN. § 65-4901 (Supp. 1976) (prior to filing suit use of screening panel is voluntary, but after
suit is filed, the judge may, at his discretion, refer the case to a screening panel); N.H. REv. STAT.
ANN. §§ 519-A: 2 (Supp. 1975); VA. CODE § 8-912 (Supp. 1976); Wis. STAT. ANN. § 655.04 (West
Supp. 1977). In addition to the statutory screening panels, the New Jersey Supreme Court established
voluntary screening panels by court rule in 1966. N.J. Civ. PRAc. R. 4:21.
     20. Seventeen state statutes make some provision for admitting the screening panel decision into
evidence in a subsequent court proceeding. ALASKA STAT. § 09.55.536(e) (Supp. 1976); ARiz. REv.
STAT. § 12-567(M) (Supp. 1976); DEL. CODE tit. 18, § 6812 (Supp. 1976); FLA. STAT. ANN. §
768.44(2) (West Supp. 1977); IND. CODE § 16-9.5-9-9 (1976); KAN. STAT. ANN. § 65-4904(c) (Supp.
1976); LA. REv. STAT. ANN. § 40:1299.47 (I) (West Supp. 1977); MD. Crs. & JUD. NRoc. CODE
ANN. § 3-2A06(d) (Supp. 1976); MAss. GEN. LAWS ANN. ch. 231, § 60B (West Supp. 1976); Nan.
REv. STAT. § 44-2844(2) (Supp. 1976); N.Y. JuD. LAW § 148-a(8) (McKinney Supp. 1977); OHIo
REv. CODE ANN. § 2711.21(e) (Page Supp. 1976); PA. STAT. ANN. tit. 40, § 1301.510 (Purdon
Supp. 1977); R.I. GEN. LAWS § 10-19-8 (Supp. 1976); TENN. CODE ANN. § 23-3409 (Supp. 1976);
VA. CODE § 8-918 (Cum. Supp. 1976); Wis. STAT. ANN. § 655.19 (West Supp. 1977).
19771                        MALPRACTICE SCREENING PANELS


in court. The constitutional challenges thus far have been directed only at
                      21
the mandatory panels.
   The internal procedures and the professional composition of the pre-
trial screening panels vary according to the particular state statute in-
volved, but in form and function most are essentially the same. Gener-
ally, a medical malpractice screening panel consists of a trial judge, a
lawyer, and a physician, each of whom has an equal vote regarding the
panel's decision. 2 2 A judicial officer, either the chief judge of the judi-
cial circuit 23 or the chief justice of the state supreme court, administers
the selection of the panel members. 24 The judge serving on the panel is
an active judge whom the statute generally precludes from hearing the
case should it continue to trial.2 5 The physician and attorney members
are drawn from rosters of licensed professionals who are willing to serve
on such panels. 26 The state medical and legal societies can recommend
names for inclusion on the roster, 2 7 and in some jurisdictions, there is a
provision for the parties to nominate some of the members. 2 8
   The panel holds an adversary hearing. The judge, who serves as the
"judicial referee," presides and makes rulings on matters of evidence
and procedure. 2 9      The rules of evidence are usually followed less
strictly than in a civil trial. 30 The parties and the panel may call wit-

    21. Carter v. Sparkman, 335 So. 2d 802 (Fla. 1976), cert. denied, 429 U.S. 1041 (1977).
Wright v. Central Du Page Hosp. Ass'n, 63 111.2d 313, 347 N.E.2d 736 (1976); Hewitt v. Gaddy,
No. 56-75-1557 (Marion County Super. Ct., Ind., Nov. 23, 1976); Johnson v. Burch, No. 6-099-191
(Baltimore City Ct., Md., June 6, 1977); Comiskey v. Arlen, 55 App. Div. 2d 304, 390 N.Y.S.2d
 122 (1976); Halpern v. Gozan, 85 Misc. 2d 753, 381 N.Y.S.2d 744 (1976); Arnold v. Tennessee,
No. A-6030 (Davidson County Ch. Ct., Tenn., Dec. 9, 1975).
    22. E.g., FLA. STAT. ANN. § 768.44(2) (West Supp. 1977); ILL. REv. STAT. ch. 110, § 58.3
(Supp. 1975) (declared unconstitutional, see note 18 supra); N.Y. JUo. LAW § 148-a(2) (McKinney
Supp. 1975). Contra, IND. CODE § 16-9.5-9-3 (1976). In Indiana, the panel consists of three doctors
and an attorney. The attorney presides over the panel but exercises only an advisory function, as he
has no vote. There is no judicial member. Id.
    23. E.g., FLA. STAT. ANN. § 768.44(1)(c)(2) (West Supp. 1977); ILL. REv. STAT. ch. 110, §
58.4 (Supp. 1975) (declared unconstitutional, see note 18 supra).
    24. E.g., VA. CODE § 8-913 (Cum. Supp. 1977).
    25. E.g., FLA. STAT. ANN. § 768.44(6) (West Supp. 1977); ILL. REv. STAT. ch. 110, § 58.8(4)
(Supp. 1975) (declared unconstitutional, see note 18 supra); N.Y. JUD. LAW § 148-a(4) (McKinney
Supp. 1976).
    26. E.g., ILL. REv. STAT. ch. 110, § 58.4(2) (Supp. 1975) (declared unconstitutional, see note
 18 supra).
    27. E.g., id.; N.Y. JUD. LAw § 148-a(2)(a) (McKinney Supp. 1976).
    28. E.g., ILL. REv. STAT. ch. 110, § 58.5(1) (Supp. 1975) (declared unconstitutional, see note
 18 supra).
    29. E.g., id. § 58.6; FLA. STAT. ANN. § 768.44(2), .44(5), .44(6) (West Supp. 1977).
    30. The Florida statute states: ". . . strict adherence to the rules of procedure and evidence
applicable in civil cases shall not be required ..    " FLA. STAT. ANN. § 768.44(6) (West Supp.
 1977); ILL. REv. STAT. ch. 110, § 58.6(1) (Supp. 1975) (declared unconstitutional, see note 18
supra) (the rules of evidence govern but could be deviated from at the discretion of the panel).
                          THE AMERICAN UNIVERSITY LAW REVIEW                           [Vol. 27:161

nesses who are subject to cross-examination. 3' All testimony is taken
under oath and documentary evidence may be presented. 3 2 In most
states the panels have the same subpoena power to call witnesses and to
require the production of evidence as a state trial court, 33 and parties may
use any discovery procedures authorized by the state rules of civil proce-
dure. 34 The screening panel decides the issue of liability and renders
some form of a written opinion. 3 5 In some states, the panel also deter-
                 36
mines damages.
   A number of provisions in different screening panel statutes attempt to
encourage the finality of the screening panel's decision. Under the now
inoperative Illinois statute, if neither of the parties filed a rejection of the
panel's decision within twenty-eight days, the court could have entered a
judgment based on the panel's decision. 3 7 This procedure generally has
not been followed in most states, and the determination of the screening
panel cannot be binding on the parties. 3 8 Another provision tending to
encourage the finality of the panel's decision is the requirement that the
state medical society assist any party who has accepted the decision, but
who must proceed to court because the other party challenges the deci-
sion. 3 9 The medical society must provide a qualified expert witness for
consultation and, if necessary, for testimony at trial. 40 Probably the


   31. E.g., FLA. STAT. ANN. § 768.44(6) (West Supp. 1977); ILL. REV. STAT. ch. 110,
§ 58.6(2) (Supp. 1975) (declared unconstitutional, see note 18 supra).
   32. FLA. STAT. ANN. § 768.44(6) (West Supp. 1977); ILL. REV. STAT. ch. 110, § 58.6(2) (Supp.
1975) (declared unconstitutional, see note 18 supra).
   33. E.g., FLA. STAT. ANN. § 768.44(6) (West Supp. 1977); ILL. REV. STAT. ch. 110, § 586(2)
(Supp. 1975) (declared unconstitutional, see note 18 supra).
    34. E.g., FLA. STAT. ANN. § 768.44(5) (West Supp. 1977).
    35. E.g., id. § 768.44(7); ILL. REV. STAT. ch. 110, § 58.7(1) (Supp. 1975) (declared unconstitu-
tional, see note 18 supra); N.Y. Juo. LAW § 148-a(8) (McKinney Supp. 1976). In New York, the
recommendations as to liability are reduced to writing only if the panel's decision is unanimous;
Florida and Illinois provide for written dissents. But see IND. CODE § 16-9.5-9-7 (1976) (an Indiana
panel, the voting members of which are doctors, can decide only the issues within the members'
medical expertise, such as whether the standard medical procedures were followed in a particular
treatment. They can make no determination if there is a significant issue of fact outside this exper-
tise).
    36. E.g., ILL. REV. STAT. ch. 110, § 58.7(l) (Supp. 1975) (declared unconstitutional, see note
18 supra). But see FLA. STAT. ANN. § 768.44(8) (West Supp. 1977), under which the panel can act
on the issue of damages only with the consent of the parties.
   37. ILL. REV. STAT. ch. 110, § 58.8(2) (Supp. 1975) (declared unconstitutional, see note 18
supra). Also, if the parties agree at any time in writing to be bound by the panel's decision, a
judgment may be entered. Id. § 58.8(1).
   38. See, e.g., FLA. STAT. ANN. § 768.47(1) (West Supp. 1977).
   39. ILL. REv. STAT. ch. 110, § 58.8(5) (Supp. 1975) (declared unconstitutional, see note 18
supra). The Illinois statute makes no provision for compensation of these expert witnesses by anyone
other than the party calling them. Id.
   40. ld.
                            MALPRACTICE SCREENING PANELS


most effective of the provisions encouraging finality are those that allow
the opinion of the screening panel to be admitted into evidence at any
             41
later trial.
   In any event, the parties may proceed to a trial de novo after the
screening panel procedures have been completed. In this sense, screening
panels can be distinguished from arbitration panels 42 because they do not
make any final, binding determination of the claim; rather, they make
findings of fact and determinations of the merits of each claim, which the
parties may or may not accept. Screening panels are not an alternative to
the current tort system but an additional layer which requires the parties
to go through an added step before litigating the matter in a state trial
court.


                              II.   AccEss    TO THE COURTS


   When the plaintiff must submit a medical malpractice claim to a pre-
trial screening panel as a condition precedent to filing suit, this additional
procedure restricts his access to the courts and thereby his right to a trial
by jury. The disincentives of the added time and expense also burden the
parties. The costs of the panel are assessed against the losing party 43 or
apportioned between both parties. 44 Furthermore, the plaintiff may have
to present the same case twice, thereby undergoing a greater expense for
compensating his witnesses. 45 If a claimant pursues the matter to trial
after the screening panel procedure, the additional proceeding also ex-
tends the time for the entire case. Moreover, his right to trial by jury is
both delayed by and conditioned upon his having first submitted his case
to a screening panel. The important question is whether these disincen-
tives limit access to the courts in a manner that violates the due process
or the equal protection clauses of the fourteenth amendment to the United
States Constitution or that violates the guarantee of a trial by jury under
state constitutions.


    41. See notes 128-66 & accompanying text infra.
    42. See note 81 infra.
    43. E.g., Carter v. Sparkman, 335 So. 2d 802, 805 (Fla. 1976), cert. denied, 429 U.S. 1041
(1977); ILL. REV. STAT. ch. 110, § 58.9(3) (Supp. 1975) (declared unconstitutional, see note 18
supra).
    44. Eg., VA. CODE § 8-920 (Cum. Supp. 1976); see ILL. REV. STAT. ch. 110, § 58.9(2) (Supp.
 1975) (declared unconstitutional, see note 18 supra).
    45. See, e.g., N.Y. JUD. LAw § 148-a(6) (McKinney Supp. 1976); VA. MED. MAL. R. PRAC.
7(e).
                           THE AMERICAN UNIVERSITY LAW REVIEW                              [Vol, 27:161


                             A.     The Fourteenth Amendment
1. Due process
   A plaintiff's access to court rarely has been reviewed on due process
grounds. 4 6 Rather, the due process clause has usually been invoked to
protect the rights of one who is required to defend himself in court. 4"
The constitutional considerations of due process traditionally have been
                                                                           48
satisfied by providing an interested party with notice and a hearing,
requirements that are not applicable to medical malpractice claimants who
first must submit their claims to a screening panel. Furthermore, the fed-
eral courts have considered access to state civil courts an issue of primary
state concern and have accorded state legislatures great latitude in estab-
lishing and altering the governing procedures for access to their courts. 49
   An apparent exception to this traditional approach has arisen in cases
in which the financial inability to pay even minimal costs has barred
indigents from access to courts. 50 In Boddie v. Connecticut, 5 1 the
United States Supreme Court ruled that the requirement that certain fees
be paid before a divorce suit could be filed violated the due process
rights of indigents who could not afford to pay the fees. The importance
to society of the substantive issue-the dissolution of marriage-and the
state's involvement in regulating this fundamental relationship prompted
the court to apply due process protection to the plaintiff.5 2 This depar-
ture, however, was articulated within the framework of the traditional due
process approach. Since a person must go to court to lawfully dissolve
his marriage, the Court in Boddie considered the plaintiff in a divorce

    46. Boddie v. Connecticut, 401 U.S. 371, 375-76 (1971). The Court recognized the general
inapplicability of the due process clause to a plaintiff's access to court but found an exception to this
axiom in the case of a divorce action by an indigent. Id.
    47. Id.
    48. E.g., Boddie v. Connecticut, 401 U.S. 371, 377-79 (1971); Hardware Dealers Mut. Fire Ins.
Co. v. Glidden Co., 284 U.S. 151, 158 (1931).
    49. Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 551-52 (1949). In upholding a state
requirement that a large bond be posted as a condition precedent to bringing a stockholder's deriva-
tive action in the case of certain stockholders, the Court stated: "A state may set the terms on which
it will permit litigations in its courts." Id. See, e.g., Lindsey v. Normet, 405 U.S. 56 (1972)
(restriction on defenses in action by landlord against tenant not violation of due process because
tenant could bring his own action); Jones v. Union Guano Co., 264 U.S. 171 (1924) (statute requir-
ing state testing of fertilizer before an action could be brought in a state court for crop damage from
use of that fertilizer held not a violation of due process).
    50. Boddie v. Connecticut, 401 U.S. 371 (1971); see also NAACP v. Patty, 159 F. Supp. 503
(E.D. Va. 1958), rev'd on other grounds sub nom. Harrison v. NAACP, 360 U.S. 167 (1959)
(statute making a crime the employment of an attorney for proceedings in which the employer is not
a party and has no interest ruled unconstitutional as a violation of due process of law).
    51. 401 U.S. 371 (1971).
    52. Id. at 376.
19771                         MALPRACTICE SCREENING PANELS


suit to be in a situation analogous to that of a defendant who is required
to go to court and defend his rights. Therefore, the plaintiff is entitled to
a hearing under the due process clause. 53 Beyond the exception for in-
digents' access to divorce proceedings, the Boddie case specifically re-
frained from declaring any significant inroads into state prerogatives to
regulate access to state courts: "The legitimacy of the State's monopoly
over techniques of final dispute settlement, even where some are denied
access to its use, stands unimpaired where recognized, effective alterna-
tives for the adjustment of differences remain." 54
   The situation of the medical malpractice claimant is clearly distinguish-
able from Boddie. Screening panels do not bar access to a forum for
dispute settlement, but rather they are specifically designed to facilitate
the settlement of cases. 5 5 Panels only delay access to court because of
the added time and financial burden of the second hearing, and the
claimant ultimately may take his claim to court. 56 Furthermore, a per-
son's general right to bring suit has never been held to rise to the con-
stitutional level of the fundamental right to contract and dissolve mar-
riage. 57 Accordingly, no real due process issue arises where the added
burdens of the screening panel procedure restrict, but do not deny, a
medical malpractice claimant's access to the courts. 5 8

2.      Equal protection
   The equal protection clause of the fourteenth amendment, 59 on the
other hand, raises a more substantial issue.6" State legislation establish-

     53. Id. at 375-76. Later cases have limited the application of Boddie. See United States v. Kras,
409 U.S. 434 (1973) (rationale of Boddie held inapplicable to the filing fee for bankruptcy on the
ground that bankruptcy did not rise to the same constitutional level of importance); Ortwein v.
Schwab, 410 U.S. 656 (1973) (appellate court's filing fee did not deprive an indigent of due process
where it prevented him from appealing the results of an agency hearing on welfare payments because
the due process clause guaranteed only a hearing and not any appeal therefrom).
     54. 401 U.S. at 375-76.
     55. See notes 1-17 & accompanying text supra.
     56. See Carter v. Sparkman, 335 So. 2d 802, 807 (Fla. 1976) (concurring opinion), cert. denied,
429 U.S. 1041 (1977).
     57, See Ortwein v. Schwab, 410 U.S. 656 (1973); United States v. Kras, 409 U.S. 434 (1973);
Comiskey v. Arlen, 55 App. Div. 2d 304, 390 N.Y.S.2d 122 (1976).
     58. See, e.g., Lindsey v. Normet, 405 U.S. 56, 65-66 (1972) (restriction on defenses in suit by
landlord against tenant held not violation of due process); Cohen v. Beneficial Indus. Loan Corp.,
337 U.S. 541, 552 (1949) (security bond requirement as prerequisite to suit held not violation of due
process); Jones v. Union Guano Co., 264 U.S. 171, 181 (1924) (statute requiring state testing of
fertilizer prior to any action for crop damage from use of the fertilizer held not to be a violation of
due process).
     59. U.S. CONST. amend. XIV, § 1.
     60. This same issue can also arise under a variety of state constitutional provisions that guarantee
equal protection of the laws or forbid special legislation.
                           THE AMERICAN UNIVERSITY LAW REVIEW                             [Vol. 27:161


ing mandatory screening panels discriminates against the medical mal-
practice claimant because it treats him differently from all other personal
injury claimants, who have direct access to the court. The equal protec-
tion clause does not, however, prohibit all state legislative classifications.
The state may classify and thus discriminate if there is a rational relation-
ship between the legislative classification and a permissible state
end."' A higher standard of review 62 is not appropriate unless the state
has abridged a fundamental right 6 3 in its classification or has created a
suspect classification. 64
   The equal protection issue was argued before the Supreme Court of
Florida in Carter v. Sparkman. 65 The court upheld the constitutionality
of the screening panel requirement on the ground that it was a valid
exercise of the state's police power. 66 The court noted that the pre-liti-
gation burden on claimants was severe, but it found that, even though
this burden "reaches the outer limits of constitutional tolerance," 67 the
screening panel requirement was a valid legislative attempt to deal with
the "malpractice crisis" and had the permissible purpose of protecting
the general health and welfare of the citizens of Florida. 68
   The Carter case involved the application of the traditional equal pro-
tection standard under which the challenged legislation enjoys a strong
presumption of validity and must be upheld where there is any reasonable
basis for its classification. 6 9 The court recited that the legislature created
mandatory screening panels at a time when Florida citizens were
threatened with a drastic reduction in the availability of medical care be-
cause of the high cost of malpractice insurance. 70 This legislative reac-
tion sought to decrease insurance costs by removing both patently frivo-
    61. E.g., Lindsey v. Normet, 405 U.S. 56 (1972); Jones v. Union Guano Co., 264 U.S. 171
(1924). See generally Railway Express Agency v. New York, 336 U.S. 106 (1949); Lindsley v.
Natural Carbonic Gas Co., 220 U.S. 61 (1911).
    62. This higher standard of review under the equal protection clause is more difficult for states to
overcome than the rational basis test because it places the burden on the state to justify the classifi-
cation by showing that it is necessary to carry out a compelling state purpose. See, e.g., Roe v.
Wade, 410 U.S. 113 (1973); Kramer v. Union Free School Dist., 395 U.S. 621 (1969).
    63. E.g., Roe v. Wade, 410 U.S. 113 (1973) (right to privacy); Kramer v. Union Free School
Dist., 395 U.S. 621 (1969) (right to vote); Shapiro v. Thompson, 394 U.S. 618 (1969) (right to
travel); NAACP v. Alabama, 357 U.S. 449 (1958) (freedom of association). The Court has not held
any rights other than these four to be fundamental.
    64. E.g., Graham v. Richardson, 403 U.S. 365 (1971) (national origin); Hunter v. Erickson, 393
U.S. 385 (1969) (race and religion).
    65. 335 So. 2d 803 (Fla. 1976), cert. denied, 429 U.S. 1041 (1977).
    66. Id. at 805.
    67. Id. at 806.
    68. Id. at 805-06.
    69. Id. at 805; see also Railway Express Agency v. New York, 336 U.S. 106 (1949); Lindsley
v. Natural Carbonic Gas Co., 220 U.S. 61 (1911).
    70. 335 So. 2d at 805.
19771                           MALPRACTICE SCREENING PANELS


lous and clearly meritorious cases from the courts, thereby reducing the
defense costs of the insurers. 71 While noting that the legislation would
tend to increase the costs of litigation of those claimants who proceed to
trial, the court deemed this inequity insufficient to invalidate the entire
procedure because there was some rational relationship between the
legislation and the permissible state end of ensuring the availability of
medical care for all citizens. 7 2
   The traditional analysis which the Florida court employed in reaching
its decision is appropriate for an equal protection challenge to medical
malpractice screening panels, since there is no suspect classification 71 or
abridgement of a fundamental right 71 to trigger a higher standard of re-
view. 75 The court in Carter properly accepted the problem, the "mal-
practice crisis," and the dimensions of that problem as stated by the
legislature.76 Since the court found some rational relationship between
the remedy, screening panels, and the stated problem, it correctly applied
the traditional equal protection standard of review in upholding the
screening panel statute. Therefore, although the requirement of a screen-
ing panel as a condition precedent to a trial restricts a claimant's access
to the courts, it does not violate the equal protection clause of the four-
teenth amendment.
                               B.     The Right to Trial by Jury
   The fourteenth amendment does not guarantee the right to trial by jury
for civil cases tried in state courts. 7 7 However, almost every state con-
    71. Id. at 806.
    72. Id. at 807-08 (England, J., concurring). The Supreme Court has allowed the states broad
discretion in exercising their police powers within the equal protection clause in a manner that tends
to restrict access to their courts. Some examples are Cohen v. Beneficial Indus. Loan Corp., 337
U.S. 541 (1949) (in a shareholder's derivative suit, requirement that plaintiffs who owned less than
five percent of the corporation's stock post a large bond before suit could be considered in the state
courts); Hardware Dealers Mut. Fire Ins. Co. v. Glidden Co., 284 U.S. 151 (1931) (requirement that
fire insurance company, as a prerequisite to doing business in the state, include in all policies an
agreement to submit to binding arbitration the issue of amount of damages for all claims); Jones v.
Union Guano Co., 264 U.S. 171 (1924) (requirement that, as a prerequisite to filing any suit against
a fertilizer supplier for damages to crops resulting from use of the fertilizer, a portion of the fertilizer
be submitted to a state agency for chemical analysis).
    73. See note 64 supra.
    74. See note 63 supra.
    75. See note 62 supra.
    76. Under traditional equal protection analysis, a reviewing court must accept the state's prof-
fered rationale for the legislative classification and must uphold the legislation if there is any rational
relationship between the problem and the classification, even though the court may consider the
classification unwise or undesirable. See notes 159-61 & accompanying text infra.
    77. Minneapolis Ry. v. Bombolis, 241 U.S. 211 (1916). See also Chicago R.I. & P. Ry. v.
Cole, 251 U.S. 54 (1919), in which the Court provided a discussion of the almost unlimited powers
of the states to govern the use of a jury in state civil cases.
                          THE AMERICAN UNIVERSITY LAW REVIEW                           [Vol. 27:161

stitution contains such a guarantee,7 8 usually stated in terms that have
been construed to preserve the right to a jury trial as it existed at com-
mon law at the time the state's first constitution was enacted. 79 The
central issue here is whether the burden of mandatory screening panels as
a condition precedent to a jury trial is so great as to deny, in effect, the
state constitutional right to that jury trial.
   The leading case concerned with the right to a jury trial in state civil
cases is In re Smith. 80 The court upheld a Pennsylvania statute that
required a mandatory pre-trial mediation procedure, termed "arbitra-
tion," 81 that was similar to a mandatory, inadmissible malpractice
screening panel. Under the Pennsylvania statute, either party could re-
quire the mediation procedure for small claims. 8 2 The board could make
findings of law and of fact and enter an award from which the losing
party, after paying all the costs of the initial procedure, could appeal in a
trial de novo, before a jury.83 If the losing party failed to make a timely
appeal, the award would be given the effect of a judgment rendered by a
court. 84
  The Pennsylvania Supreme Court upheld the mediation procedure on
the grounds that, while the jury trial may have been delayed, either party
could ultimately have it. 85 The court reasoned that constitutional
guarantees did not prohibit all procedures inconsistent with the form of a
traditional common law trial but rather preserved the substance of the
jury right: "The only purpose of the constitutional provision is to secure
the right of trial by jury before rights of person or property are finally
determined."      86    The court did recognize, however, that excessive pro-

    78. 50 C.J.S. Juries § 10(a) (1947).
    79. E.g., ILL. CONST. art. I, § 13; see Wright v. Central Du Page Hosp. Ass'n 63 I11.2d 313,
323-24, 347 N.E.2d 736, 740-41 (1976).
    80. 381 Pa. 223, 112 A.2d 625 (1955), appeal dismissed sub nom. Smith v. Wissler, 350 U.S.
858 (1955).
    81. Although this Pennsylvania mediation procedure was termed arbitration by the statute and the
court, technically, it was not arbitration because the losing party was not finally bound by the panel
determination. Instead, the party could seek a trial de novo. "Arbitration statutes are defined ... as
those which provide for binding determinations, with no option of de novo trial." Ladimer, Statutory
Provisionsfor Binding Arbitration of Medical Malpractice Claims, INS. L.J. 405, 406 (July, 1976).
See text accompanying note 42 supra.
     82. 381 Pa. at 225, 112 A.2d at 627.
     83. Id. at 226, 112 A.2d at 627.
     84. Id. at 227, 112 A.2d at 628. But see McClure v. Boyle, 3 Ohio Op. 2d 100, 141 N.E.2d 229
 (1957), in which an Ohio court refused to accord a Pennsylvania arbitration judgment full faith and
 credit because it did not result from a judicial proceeding.
     85. 381 Pa. at 231, 112 A.2d at 629. Contra, Grace v. Howlett, 51 Ill. 2d 478, 283 N.E.2d 474
 (1972) (small claims mandatory arbitration procedure modeled after Pennsylvania's procedure held
 unconstitutional).
     86. 381 Pa. at 230-31, 112 A.2d at 629.
1977]                         MALPRACTICE SCREENING PANELS


cedural restrictions could abridge the right to a jury trial, but only to the
extent such restrictions are so onerous as to make the right "practically
unavailable. ' 87 In applying this test of practical availability, the court
generally approved the requirement that the losing party pay the costs of
the proceeding before being able to appeal to a trial de novo, but it
invalidated certain fees that could be so high as to preclude appeal. 88
   Under the rationale of Smith, the overriding factor is that the parties to 89
a malpractice claim ultimately may have their right to a trial by jury.
The court did not find all restrictions unconstitutional, but instead
imposed a test of practical availability. In Smith, the court approved a
procedure more burdensome on litigants than a mandatory medical mal-
practice screening panel. The Pennsylvania statute required costs to be
assessed against the losing party as a prerequisite to his right to a jury trial
but it provided no refund should he ultimately prevail in court. 9 0 Under
the usual screening panel provisions, on the other hand, the costs of the
screening procedure are either assessed to the party who ultimately
loses, 91 or apportioned between both parties. 92 Under the rationale of
Smith, then, the burden of first submitting a claim to a screening panel is
not so onerous as to deprive the claimant of his state constitutional right
to a trial by jury. The parties are not ultimately barred from obtaining a
jury trial and the restrictions on their right to that trial are not as burden-
some as those approved by the court in Smith.

                   III.    ENCROACHMENT ON THE JUDICIAL FUNCTION

   The employment of judges and laymen in a joint adjudicative role
further complicates the novel questions raised by medical malpractice
screening panels. When the statutes creating these panels were drafted,
there were no direct precedents to answer such questions as whether the
legislature would be encroaching upon the judicial power or whether a


    87. Id. at 231, 112 A.2d at 629.
    88. Id. at 232, 112 A.2d at 630. In Smith, the court found unconstitutional the requirement that
the losing party pay the fees of the arbitrators where those fees totaled $225 in a case involving less
than $500. Id.
    89. See Carter v. Sparkman, 335 So. 2d 802 (Fla. 1976), cert. denied, 429 U.S. 1041 (1977);
Halpern v. Gozan, 85 Misc. 2d 753, 381 N.Y.S.2d 744 (Sup. Ct. 1976); In re Smith, 381 Pa. 223,
112 A.2d 625 (1955), appeal dismissed sub nom. Smith v. Wissler, 350 U.S. 858 (1955). But see
Wright v. Central Du Page Hosp. Ass'n, 63 Ill. 2d 313, 347 N.E.2d 736 (1976); Grace v. Howlett,
51 111. 2d 478, 283 N.E.2d 474 (1972). See note 112 infra for discussion of the right to trial by jury
in Illinois.
    90. In re Smith, 381 Pa. 223, 227, 112 A.2d 625, 628 (1955).
    91. See note 43 & accompanying text supra.
    92. See note 44 & accompanying text supra.
                          THE AMERICAN UNIVERSITY LAW REVIEW                          [Vol. 27:161


judge could constitutionally perform his duties in concert with and on an
essentially equal footing with laymen. An attempt to define the nature of
the pre-trial screening panel proceedings is the starting point for an in-
quiry into these issues.
   Certain aspects of the screening panel proceedings, such as the multi-
member board with expertise in the area, 93 and the power to relax the
rules of evidence, 94 are similar to administrative proceedings. The anal-
ogy, however, fails upon comparison of the panel's role in the context of
medical malpractice litigation to an administrative board's role as an ad-
judicative, quasi-judicial entity. The essence of the administrative ad-
judicative power is that it flows of necessity from a function delegated by
the legislature. 9 5 That is, the adjudicative power is incidental to the
administrative body's primary function of administering and enforcing the
law over which the legislature has given it jurisdiction. 9 6 Screening
panels, on the other hand, are directly interposed into a well-established
judicial procedure to which the litigants have access by constitutional
right, 97 and over which the screening panels have no administrative juris-
diction. Also, the relationship of the screening panel to the courts is dif-
ferent from that of an administrative body to the courts. The screening
panel statutes provide for a trial de novo in the court of record that would
have original jurisdiction over the medical malpractice suit,9 8 while the
review of an administrative proceeding is generally on a more restricted
basis. 99 The court's review of an administrative determination is limited
 to whether the legislative delegation of power is valid, whether the ad-
ministrative body has acted within the scope of that power, and whether
                                                        0
 the decision of the body is arbitrary or capricious. 1 0 Furthermore, the
 administrative body's findings of fact are taken as conclusive if reasona-
bly supported by the evidence. 1 1 Generally, the reviewing court does
    93. See, e.g., Great Northern Ry. Co. v. Merchants Elevator Co., 259 U.S. 285 (1922) (courts
will defer to administrative bodies on complicated factual matters within the expertise of the ad-
ministrative bodies).
    94. See, e.g., Richardson v. Perales, 402 U.S. 389 (1971) (hearsay admissible in administrative
hearing).
    95. See, e.g., Grand Trunk W. Ry. v. Indus. Comm'n, 291 Ill. 167, 125 N.E. 748 (1919).
    96. Id.
    97. E.g., FLA. CONST. art. I, § 21; ILL. CONsT. art. I, § 13.
    98. E.g., FLA. STAT. ANN. § 768.47 (West Supp. 1977); N.Y. JUD. LAW § 148-a(7) (McKinney
Supp. 1976). Where the screening panel's opinion is admissible, arguably the subsequent trial will
not be a trial de novo. See notes 133-43 & accompanying text infra.
    99. See, e.g., NLRB v. Hearst Publications, Inc., 322 U.S. 111 (1944) (board's determination
that newsboys are employees accepted by the Court was within delegated powers and warranted by
the record).
   100. See, e.g., 5 U.S.C. § 706 (1970).
   101. See, e.g., Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951) (agency determination
upheld where supported by substantial evidence).
19771                        MALPRACTICE SCREENING PANELS


not act on the merits of an administrative case but rather reviews the
propriety of the administrative action. 10 2 In contrast, the findings of a
screening panel are not conclusive and binding on the court, and the
claimant may proceed to a trial de novo in which the court assesses the
                                                    1 3
                                                     0
merits of his case from a newly created record.
   The function of screening panels is to decide what are essentially pri-
vate controversies. Although administrative bodies have the power to de-
                                                                           0
                                                                          1 4
cide private controversies, as in the area of workmen's compensation,
this power has been granted only where the state's police power has al-
lowed the promulgation of new substantive standards along with ad-
ministrative machinery to enforce those standards.' 0 5 To turn all medical
malpractice litigation over to administrative adjudication would abridge
the litigants' constitutionally protected rights to a judicial forum without
the quid pro quo that was held to be determinative in upholding the
                                                        06
constitutionality of workmen's compensation laws.1
   Therefore, despite certain similarities to administrative proceedings,
medical malpractice screening panels do not sit as administrative boards,
nor do their determinations have the same effect as administrative deter-
minations. Rather, they are essentially a new layer in the judicial process.
The few cases that have discussed this aspect of screening panels have
treated them as a judicial proceeding, not as a quasi-judicial, administra-
tive one. 10 7 The only function of screening panels is to hear those con-
troversies between private parties that courts exclusively tried prior to the
introduction of panels, and that parties may now take into court after the
panel has acted, just as if there had been no screening panel.' 0 8 A sit-
ting judge presides, and in at least one jurisdiction, the statute provided
that, if the losing party did not file written exceptions to the panel's


   102. Compare Far East Conference v. United States, 342 U.S, 570 (1952) (injunction against dual
rate system denied because of failure to first submit case to Federal Maritime Board) with Federal
Maritime Bd. v. Isbrandtsen Co., 356 U.S. 481 (1958) (board's approval of dual rate structure
overruled as a violation of a federal statute).
   103. See note 98 & accompanying text supra.
   104. See New York Central R.R. v. White, 243 U.S. 188, 194 (1917).
   105. See Brown, AdministrativeCommissions and the Judicial Power, 19 MINN. L. REV. 261, 304
(1935).
   106. 81 AM. JUR. 2d Workmen's Compensation § 21 (1976). In most jurisdictions, the employee's
loss of the common law right of action against his employer for work-related injuries under work-
men's compensation statutes has not been considered a deprivation of property without due process of
law because the employee received as a substitute the quid pro quo of a certain remedy. Id.
   107. See Carter v. Sparkman, 335 So. 2d 802, 807-08 (Fla. 1976) (concurring opinion), cert.
denied, 429 U.S. 1041 (1977); Wright v. Central Du Page Hosp. Ass'n, 63 Ill. 2d 313, 322, 347
N.E.2d 736, 739-40 (1976).
   108. See note 98 supra.
                            THE AMERICAN UNIVERSITY LAW REVIEW                              [Vol. 27:161

unanimous decision, the court of record could enter the decision as a
judgment. 0 9
   That screening panels carry out judicial rather than administrative
functions does not necessarily invalidate them. The panels must be
characterized further by analogy to normal stages of litigation. The
choices are two: screening panels can be considered a substitute for a
trial, or they can be considered a type of pre-trial settlement conference.

                                       A.      Trial Substitute
   The role of the judicial member of a medical malpractice screening
panel involves sharing the judicial power with laymen to an unpre-
cedented extent. Although the judicial member of the panel may rule on
any procedural and evidentiary matters, his power to determine the ulti-
mate issues-liability and, in some cases, damages-is equal to the
other members of the panel. To reach its final opinion, the panel finds
facts and applies the law to these facts. Should the panel proceedings be
considered a substitute for a trial, the lay members of the panel may be
seen as usurping the judge's conventional position. A corollary of this
proposition is that, since no aspect of a screening panel is equivalent to a
jury, the use of panels deprives litigants of their constitutional right to a
trial by jury. Instead of the traditional common law trial in which a judge
rules on the law and a jury finds the facts, a vastly different procedure is
substituted.
   In Wright v. Central Du Page Hospital Association, 10 the Supreme
Court of Illinois characterized the state's medical malpractice screening
panel as a trial substitute, and held the panel to be unconstitutional on
those grounds. The court held that an encroachment on the judicial
power, which the Illinois Constitution vested exclusively in the courts,
existed, because the powers of the attorney and physician members of the
panel equaled the power of the judge to apply the law to the ultimate
issue."' The court also held that the pre-trial screening panels deprived
the litigants of their constitutional right to trial by jury. 1 12

    109. ILL. REV. STAT. ch. 110, § 58.8(2) (Supp. 1975) (declared unconstitutional, see note 18
supra).
    110. 63 Ill. 2d 313, 347 N.E.2d 736 (1976).
    111. Id. at 322, 347 N.E.2d at 739-40.
    112. Id. at 323, 347 N.E.2d at 740. The court's rationale for finding a violation of the right to
trial by jury is less than clear. While the court used the word "restriction" on that right, it stated that
its holding flowed naturally from its first holding of an unconstitutional encroachment on the judicial
power. Id. at 224, 347 N.E.2d at 741. If the right to a jury flows naturally with the power of the
judiciary, then it appears that the court considered the screening panel procedures an attempt to
exercise judicial power without the constitutionally required trappings. This interpretation of Wright
19771                         MALPRACTICE SCREENING PANELS


   The language of the screening panel statute itself may provide strong
support for considering the panel as a trial substitute. The drafters of the
Illinois statute which was declared unconstitutional in Wright chose to
delineate, in judicial terms, the powers and functions of the panel. They
described the panel's function as an adversary proceeding where wit-
nesses could be examined and evidence could be introduced "as at a trial
in the circuit court"; the panel also had subpoena power "to be exercised
as in the circuit court." 113 Furthermore, under certain circumstances,
the decision of the panel would be binding and could be entered as a
judgment. 114 The language of the statute, therefore, described the func-
tions and powers of the panel in terms applicable to a trial court, thereby
supporting the conclusion that the panels were exercising the same pow-
ers that had been vested in trial courts.
    If pre-trial screening panels are considered as substitutes for the tradi-
tional common law trial, they will violate most state constitutions by
compromising and diluting the traditional role of the judge and by failing
to provide for a jury. The constitutional defect is not the elimination of
the right to a common law trial because there may be such a trial after
the screening panel's proceedings have been completed. The issue is
whether the legislature has the power to establish such a procedure as a
trial substitute and to empower the members of the panel-judge, physi-
cian, and attorney-to carry it out. If a state constitution requires that
judicial trials conform substantially to the common law model, the legis-
 lature cannot substitute for a trial a screening panel where the judge does
not perform his traditional role and where no jury is provided. In effect,
 the constitutionally guaranteed common law trial becomes an appellate
 procedure, even though de novo, rather than a judicial proceeding of first
 impression.

                                 B.     Settlement Conference
   An alternative to the trial substitute view analogizes medical malprac-
tice screening panels to pre-trial settlement conferences rather than to a
is consistent with the court's earlier decision in Grace v. Howlett, 51 Ill. 2d 478, 283 N.E.2d 474
 (1972). In that case, the court rejected an argument that a small claims mandatory arbitration proce-
dure similar to the Pennsylvania model in In re Smith was a "pre-trial procedure," and held it
unconsititutional because it usurped the original jurisdiction of the circuit courts and denied the liti-
gants' right to trial by jury. Id. at 490, 283 N.E.2d at 480-81. Contra, In re Smith, 381 Pa. 223, 112
 A.2d 625 (1955), appeal dismissed sub nom. Smith v. Wissler, 350 U.S. 858 (1955).
    113. ILL. REV. STAT. ch. 110, § 58.6(2) (Supp. 1975) (declared unconstitutional, see note 18
supra); see Wright v. Central Du Page Hosp. Ass'n, 63 Ill. 2d 313, 320, 347 N.E.2d 736, 738
 (1976).
    114. ILL. REv. STAT. ch. 110, § 58.8(2) (Supp. 1975) (declared unconstitutional, see note 18
supra); In Grace v. Howlett, 51 111. 2d 478, 283 N.E.2d 474 (1972), the Illinois Supreme Court
                          THE AMERICAN UNIVERSITY LAW REVIEW                         [Vol. 27:161


trial. This position recognizes the judge's duties on the panel as judi-
cial, 115 but does not raise the issues of encroachment on the judicial
power or elimination of the jury. Rather, it relies on the permissibility of
the judge's role in a pre-trial settlement conference and on the availability
of the common law trial after the screening panel proceeding as a suffi-
cient guarantee of the litigants' constitutional right to that forum. 116
   This position was articulated in Carter v. Sparkman, 117 in which the
Florida Supreme Court upheld the constitutionality of Florida's screening
panel statute. The concurring opinion characterized the screening panel as
something other than the "judicial forum" of the traditional common law
trial but found no constitutional guarantee of immediate access to a for-
mal trial." 8 The screening panel itself was characterized as a permissi-
ble pre-trial procedure: "The [screening] panel becomes, in essence, akin
to a required pre-trial settlement conference, a procedure common in
many jurisdictions at the onset of litigation." 119
   Although the functional effect of the screening panel statutes in Florida
and Illinois were substantially the same, the statutes themselves were
treated differently by the courts in Carter and Wright. One explanation
for this divergent treatment, however, may be found in the terms of the
different statutes. As previously noted, the now inoperative Illinois statute
defined the procedures of the panel in judicial terms.' 1 0 The statute also
delineated the powers of the panel in judicial terms. The panel could
determine both liability and damages,' 2 1 and a court could enter a judg-
ment on the panel's determination. 1 22 Under the Florida statute, the
panel has less formal judicial powers and operates more like a mediation
procedure. The panel initially decides liability and then mediates the
damages only if both parties agree. 123 Furthermore, the Florida statute
makes no provision for a court to enter a judgment on the panel's deter-
mination. If the parties do not settle privately, the plaintiff has to for-
                                            24
mally file suit for the case to continue.'
found constitutionally objectionable a mandatory arbitration procedure, the decision of which would
be entered as a judgment of a court unless reversed on appeal. Id. at 490, 283 N.E.2d at 480.
   115. Carter v. Sparkman, 335 So.2d 802, 808 (Fla. 1976) (concurring opinion), cert. denied, 429
U.S. 1041 (1977).
   116. Id. at 807.
   117. Id.
   118. Id.
   119. Id.
   120. See notes 113-14 & accompanying text supra.
   121. ILL. REv. STAT. ch. 110, § 58.7(1) (Supp. 1975) (declared unconstitutional, see note 18
supra).
   122. Id.§ 58.8(2), (3).
   123. FLA. STAT. ANN. § 768.44(8) (West Supp. 1977).
   124. Id. § 768.44(4).
19771                        MALPRACTICE SCREENING PANELS


   Another reason for the differing treatments may be found in the state
courts' attitude toward the judicial power, as expressed in prior decisions.
In Illinois, the courts have taken a rather restrictive view of innovative
procedures; both a small claims mediation procedure, required as a pre-
requisite to filing suit, 1 25 and a procedure permitting judicial involvement
in pre-trial counselling in divorce actions 126 were declared unconstitu-
tional. Florida, on the other hand, takes a less restricted view of the
                 7
judicial role. 12
   Whether the screening panel unconstitutionally encroaches on the judi-
cial function ultimately will depend upon what type of judicial proceeding
it is determined to be-a trial substitute or a type of pre-trial settlement
conference. The distinction is a fine one and will turn on the manner in
which a particular statute is drafted and upon the state court's attitude
toward the judicial power.

              IV.     ADMISSIBILITY OF THE SCREENING PANEL OPINION

   In twelve of the states which have mandatory medical malpractice
screening panels, there is a statutory provision for admitting, under cer-
tain conditions, some form of the screening panel's opinion into evi-
dence. 128 The admissible portion of the opinion is the panel's findings
as to liability, 1 29 and the statute may or may not allow the attorney or the
physician member to be called to testify concerning the panel's opin-
ion.' 30 Where the screening panel opinion is admissible, the statutes
require the jury to be instructed that the panel's findings are not binding
                                                                 13 1
and should be given whatever weight the jury may choose.

    125. Grace v. Howlett, 51 111. 2d 478, 283 N.E.2d 474 (1972).
    126. People ex rel. Christiansen v. Connell, 2 Ill. 2d 332, 118 N.E.2d 262 (1954).
    127. Carter v. Sparkman, 335 So. 2d 802, 808 (Fla. 1976) (concurring opinion), cert. denied, 429
 U.S. 1041 (1977).
    128, ALASKA STAT. § 09.55.536 (Supp. 1976); ARIZ. REV. STAT. § 12-567(m) (Supp. 1976); IND.
CODE § 16-9.5-9-9 (1976); LA. REV. STAT. ANN. § 40:1299.47(I) (West Supp. 1977); MD. CrS. &
JUD, PROC. CODE ANN. § 3-2A06(d) (Cum. Supp. 1976); MASS. GEN. LAWS ANN. ch. 231, § 60B
 (West Supp. 1977); NEB. REV. STAT. § 44-2844(2) (Supp. 1976); N.Y. JUD. LAW § 148-a(8)
(McKinney Supp. 1976); OHIo REV. CODE ANN. § 2711.21(c) (Page Supp. 1976); PA. STAT. ANN.
tit. 40, § 1301.510 (Purdon Supp. 1977); R.I. GEN. LAWS § 10-19-8 (Supp. 1976); TENN. CODE
ANN. § 23-3409 (Supp. 1976). The condition for admissibility varies among the states. In New York
the panel's decision must be unanimous. N.Y. JUD. LAW § 148-a(8) (McKinney Supp. 1976). In
Florida, unanimity is not required. FLA. STAT. ANN. § 768.47(2) (West Supp. 1977).
    129. See, e.g., FLA. STAT. ANN. § 768.47(2) (West Supp. 1977); N.Y. JUD. LAWS § 148-a(8)
 (McKinney Supp. 1976).
    130. Compare N.Y. JUD. LAW § 148-a(8) (McKinney Supp. 1976) with FLA. STAT. ANN. §
768.47(2) (West Supp. 1977).
    131. See, e.g., FLA. STAT. ANN. § 768.47(2) (West Supp. 1977); N.Y. JUD. LAW § 148-a(8)
 (McKinney Supp. 1976).
                         THE AMERICAN UNIVERSITY LAW REVIEW                          [Vol. 27:161

   Admitting the panel's opinion as to liability into evidence before a jury
can affect the jury's traditional role as the trier of facts. This procedure
permits an opinion to be submitted to the jury as evidence on the ultimate
issue of liability. Under traditional rules of evidence, the opinion would
not be admissible. 132 The constitutional implications of the change are
first, whether this altered function remains within the definition of trial
by jury as it is guaranteed by state constitutions, and second, whether, by
so transforming the jury's function in medical malpractice cases while
leaving it intact in all other cases, this procedure violates the equal pro-
tection clause of the fourteenth amendment.

                               A.     Right to Trial by Jury
   When a screening panel's opinion is offered into evidence at trial, the
effect is to present to the jury an influential opinion on the ultimate issue
to be decided by the jury. One of the primary purposes of such admissi-
bility provisions in screening panel statutes is to influence the jury and
thus to discourage litigation of medical malpractice claims. 133 The right
to trial by jury, guaranteed by almost every state constitution, has gener-
ally been interpreted to preserve the right as it existed at common law
just prior to enactment of the state's first constitution.1 34 Therefore, the
extent to which the traditional common law jury may be transformed
raises a substantial constitutional question.
   The admissibility provision of New York's screening panel statute 1 35
 has been upheld as a type of expert opinion evidence enacted under the
 legislature's power to amend the rules of evidence.13 6 In Comiskey v.
Arlen, 13 7 the screening panel opinion was considered an expert opinion to
 be evaluated by the jury just as any other expert opinion.' 38 This anal-
 ogy, however, does not account for the substantial differences between
 the traditional rules of evidence on expert opinion and the screening panel


   132. See, e.g., Robelen Piano Co. v. DeFonzo, 169 A.2d 240 (Del. 1961) (expert opinion as to
cause of injury inadmissible because fundamental issue to be resolved by jury); Brown v. Rogers, 19
Md. App. 562, 313 A.2d 547 (1974) (non-expert conclusion as to contributory negligence excluded);
Pierson v. Edstrom, 281 Minn. 102, 16 N.W.2d 563 (1968) (police officer's opinion that driver was
not at fault in automobile accident excluded as improper invasion of jury's province); Shivel v.
Ferguson, 259 So.2d 123 (Miss. 1972) (opinion as to which vehicle had right of way by several
witnesses, including policeman, excluded as invasion of the province of the jury).
   133. Halpern v. Gozan, 85 Misc. 753, 756, 381 N.Y.S.2d 744, 747 (1976).
   134. See note 79 & accompanying text supra.
   135. N.Y. JUD. LAW § 148-a(8) (McKinney Supp. 1976).
   136. Comiskey v. Arlen, 55 App. Div. 2d 304, 390 N.Y.S.2d 122, 126 (1976).
   137. 55 App. Div. 2d 304, 390 N.Y.S.2d 122 (1976).
   138. Id. at 309, 390 N.Y.S.2d at 126.
                              MALPRACTICE SCREENING PANELS


opinion. Generally, the judge and attorney members are not medical ex-
perts and their opinion as to medical issues would not be admissible
under traditional rules. 139 Furthermore, the opinion is not restricted to
medical issues, but rather it is an opinion on the ultimate issue of liabil-
ity. 140 A part of the panel's function is the same as the jury's-to find
the facts, apply the law, and determine the ultimate issue of liability.' 4 '
The evidence presented to the panel is the same as that presented to the
jury, with one exception-the panel's opinion. In effect, the function of
the jury is altered from that of a de novo trier of the facts to a reviewer
of the panel's opinion. This is particularly true in cases in which the
party losing at the screening panel stage attempts at the trial to discredit
the panel decision by calling as witnesses either the attorney or physician
member, or both. The trial de novo can become a trial of the sufficiency
                                                  142
of the screening panel proceedings.
   The court in Comiskey adopts an objective, although somewhat flawed,
analysis by characterizing the admissibility of the panel decision as an
issue of evidence and by focusing on the fact that the jury retains the
ultimate decision in the case.' 4 3 The court derived its authority for this


   139. The Federal Rules of Evidence also require the exclusion of such evidence. FED. R. EVID.
702.
   140. Cf. id. at 704 (opinion on the ultimate issue not objectionable if otherwise admissible).
   141. In some jurisdictions, the panel also decides damages. See note 36 supra.
   142. See Halpern v. Gozan, 85 Misc. 2d 753, 381 N.Y.S.2d 744 (1976). The court considered
that this ability to retry the screening panel's decision enhanced the position and power of the jury:
"This opportunity offered by the new law to examine and cross-examine into the genesis of the
panel's finding would appear to give the jury an even further overview of the case, should the
panelists be called as witnesses, than they would otherwise have had." Id. at 759, 381 N.Y.S.2d at
748.
   143. 55 App. Div. 2d at 311, 390 N.Y.S.2d at 128. This analysis is objective in that it focuses on
the power of the jury rather than on the influence on the jury. Regarding the validity of the admis-
sion of the screening panel decision into a subsequent trial de novo, any test that turns on the
influence on the jury is subjective, because the effect on the jury is a matter for speculation and
conjecture. No one really knows how juries react to particular evidence, and analysis under such a
subjective test will depend upon the reviewing court's opinion as to the influence exerted on the jury.
This type of subjective review is unsatisfactory, as the issue cannot be resolved in advance of a
particular case. An example of such subjective analysis may be found in Halpern, in which the court
characterized the jury as a resilient institution that could be tinkered with without adverse effect:
          Historically, jurors for the most part have proven their independence. They guard their
       roles with a unique jealousy. They accept with obvious pride the admonitions of the trial
       court that they are the "sole judges of the facts." They show their independence and
       resentment when the "province that is theirs" is threatened by suggestion, device or
       artifice. While they sit in judgment of their peers, they rise to heights of great impor-
        tance during this brief period of their civic lives-a posture brought about by the major
        determinations they are asked to make and by the continuous deference and solicitous
        manner of the advocates who seek their favor.
85 Misc. 2d at 760, 381 N.Y.S.2d at 748-49.
                         THE AMERICAN UNIVERSITY LAW REVIEW           [Vol. 27:161

objective analysis from the United States Supreme Court's decision in In
re Peterson.144 In Peterson, the Court approved, under the seventh
amendment, 145 the admissibility of a report by a court-appointed auditor.
The report contained an opinion as to the amounts owed on certain con-
tracts.' 46 The case involved multiple contract claims and counterclaims,
and the auditor was appointed for the purpose of simplifying the factual
issues for the jury.' 47 His functions were similar to that of a screening
panel-to hear witnesses and examine accounts-and while he was
specifically precluded from making a final determination of fact, he was
required to state an opinion as to the net amount due the plaintiff. 148
The Court upheld the admissibility of the auditor's report on the ground
that the parties retained their rights to present their cases to the jury and
that no "incident" of the jury trial had been taken away. 149 In other
words, because the ultimate decision on the facts remained with the jury,
no constitutional right had been lost.
   The screening panel's opinion is not binding but is to be given what-
ever weight the jury may choose to accord it. 150 The jury retains the
function of resolving the facts and determining liability. Under the objec-
tive test outlined in Peterson, then, the admissibility of the panel opinion
should be upheld.

                                  B.    Equal Protection
   The equal protection issue arises from the fact that the jury in a medi-
cal malpractice case can examine evidence which would be excluded
under the rules of evidence applied in all other tort cases. 15 1 The stan-
dard of review under the fourteenth amendment is whether this disparity
between the treatment of medical malpractice litigants and all other liti-
                                                                     52
gants bears some rational relationship to a valid state objective.'
   As previously discussed, screening panels are a legislative response to
the "malpractice crisis," enacted to protect the general health and wel-
                                                                            53
fare of the citizens by ensuring the availability of adequate health care,'


  144.   253 U.S. 300 (1920).
  145.   U.S. CONsT. amend. VII.
  146.   253 U.S. at 305.
  147.   Id. at 304.
  148.   Id. at 304-05.
  149.   Id. at 310-11.
  150.   See, e.g., N.Y. JUD. LAW § 148-a(8) (McKinney Supp. 1976).
  151.   See note 132 & accompanying text supra.
  152.   See notes 59-76 & accompanying text supra.
  153.   See text accompanying note 70 supra.
19771                         MALPRACTICE SCREENING PANELS


and they are defended as a valid exercise of the state's police power. 154
Their intended purpose is to reduce medical malpractice insurance costs
by eliminating clearly meritorious and clearly frivolous claims from the
courts, 155 by reducing delays and litigation costs, 15 6 and by removing the
 "vagaries of a jury trial with its uncertain and often times alarming ver-
dicts." 157 By requiring parties to submit their case to a screening panel
and by allowing the screening panel's decision to be presented to the
jury, the legislature has provided a most effective disincentive for the
party losing at the screening panel stage to continue to trial. 158 The ef-
 fect of admitting the panel's opinion into evidence at trial is to encourage
 the finality of the screening panel's decision and thereby reduce the
 number of medical malpractice cases in court.
    Stated conversely, the purpose of admitting the panel determinations
 into evidence is to discourage parties from proceeding to trial only in
 medical malpractice cases. Under the rational relationship test, only a
reasonable relationship need exist between the state action- admitting
 screening panel decisions into evidence at trial-and the legislature's
                                                                           1 9
                                                                           5
 stated objective-to ensure the availaility of adequate health care.
 Whether the reviewing court considers the program unwise or articulates
 alternatives which, in its opinion, would be more effective is not rele-
 vant.""' This traditional equal protection review requires no probe into
possible discriminatory purposes of the state classification; rather, it as-
 sumes a posture of judicial deference, accepting the state's proffered ob-
jective. 16 1 Although the admission of the screening panel decisions may
 have a discriminatory purpose, the legislature's stated objective is valid
 under the state's police power. Therefore, the issue becomes whether the
                                                                   12
 device used to effect this objective is arbitrary or capricious.


   154. Id.
   155. See text accompanying note 71 supra.
   156. Id.
   157. Halpern v. Gozan, 85 Misc. 2d 753, 756, 381 N.Y.S.2d 744, 747 (1976).
   158. If only the panel's finding of liability is admissible, this disincentive will not operate as to
the issue of damages.
   159. See note 61 & accompanying text supra.
   160. Id.
   161. See cases cited note 69 supra.
   162. See Lindsey v. Normet, 405 U.S. 56, 76-77 (1972), in which the Supreme Court invalidated
a provision in an Oregon statute that required tenants to post, as a prerequisite to appealing an
eviction order, a bond equal to twice the fair rental of the property for the term of the expected
appeal. The Court held that the provision not only discriminated against one group of litigants (ten-
ants), but that it also arbitrarily and irrationally carried out its purpose-to insure that the landlord
received a fair rental during the appeal-by providing that the landlord could receive damages he
had not proved. Id. at 65-66.
                           THE AMERICAN UNIVERSITY LAW REVIEW                              [Vol. 27:161


   It would be difficult to conclude that legislatures have arbitrarily im-
posed the admission of screening panel decisions on medical malpractice
litigants. The statutes only discriminate against these litigants, both
plaintiffs and defendants, by allowing the panel's opinion to be presented
to the jury. The opinion, however, arrived at after a hearing in which
both parties have a right to participate, is that of a duly constituted body
with at least some expertise as to the issue. Thus, the admissibility of the
panel decision is not an arbitrary device.
   The ultimate issue is, essentially, whether this type of litigant has been
denied access to the courts. 1 63 Under the fourteenth amendment, states
have wide latitude to place restrictions, even to the point of exclusion, 164
on access to their courts. 1 65 Therefore, since the admissibility of
screening panel opinions appears to bear some rational relationship to the
permissible end as stated, the issue should be resolved in favor of con-
stitutionality under the equal protection clause. 1 66

                                            CONCLUSION

   Medical malpractice screening panels are a legislative attempt to deal
with the "malpractice crisis." They are essentially a mechanism to re-
lieve the burden on the courts by expediting the settlement of malpractice
cases at pre-litigation stages. Screening panels are too recent an innova-
tion to forecast their success in removing medical malpractice litigation
from the courts. They do add to litigation, however, a procedural step,
the innovative character of which has broad constitutional implications.
Constitutional challenges to these panels have just begun in the state
courts and probably will continue during the next few years as half of the
states have already adopted some form of the pre-trial screening panel for
medical malpractice cases.



   163. See notes 43-92 & accompanying text supra.
   164. See Hardware Dealers Mut. Fire Ins. Co. v. Glidden Co., 284 U.S. 151 (1931) (requirement
that fire insurance company, as a prerequisite to doing business in the state, include in all policies an
agreement to submit all claims to binding arbitration on the issue of damages). But see In re Smith,
381 Pa. 223, 112 A.2d 625 (1955), appeal dismissed sub nom. Smith v. Wissler, 350 U.S. 858
(1955).
   165. See, e.g., Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949); Chicago, R.I.&P.
Ry. Co. v. Cole, 251 U.S. 54 (1919).
   166. The answer, however, may not be so certain under state equal protection or special legisla-
tion provisions in this particular area of state concern. See McClure v. Boyle, 3 Ohio Op. 2d 100,
141 N.E.2d 229 (1957), in which an Ohio court noted its disapproval of a Pennsylvania arbitration
statute that required payment of costs as a prerequisite to taking an appeal. The court stated that such
a statute would be in violation of Ohio's public policy of deterring appeals. Id. at 104, 141 N.E.2d
at 234.
1977]                       MALPRACTICE SCREENING PANELS


   The mandatory panels, because they give the claimant no option to go
immediately to court, but require him to submit the claim to a screening
panel, raise complex issues of restriction on access to the courts. The
restriction on the right to a trial by jury presents a more difficult hurdle
for the panels to overcome than the due process and equal protection
challenges. In the latter areas, traditional approaches are appropriate for
analyzing the constitutionality of screening panels. State legislatures trad-
itionally have been given great latitude to establish the procedures gov-
erning access to state courts, and the added burdens of a mandatory
screening panel do not fall within the narrow exceptions where due process
requires the elimination of such a restriction. Under traditional equal
protection analysis, as long as there is a rational basis for the special
classification, states can require medical malpractice claimants to submit
their cases to a screening panel before filing suit, although all other per-
sonal injury claimants are treated differently. The facts of the "malprac-
tice crisis" provide strong support for the state's action and the screening
panels should withstand this equal protection challenge.
   The admissible panels 167 raise issues of the right to a trial by jury and
of equal protection. When the decision of the screening panel is admissi-
ble at trial, the function of the jury is necessarily affected. Whether the
jury's function is so changed as to deprive a party of the constitutionally
protected right to a jury trial is a substantial problem the admissible
panels face. However, the issue has been characterized properly as an
evidentiary matter because the ultimate power of the jury to decide the
case remains unaltered. An equal protection issue in this area, arising
from a difference in the evidentiary rules between malpractice actions and
other tort cases, should be analyzed under the traditional equal protection
approach and resolved in favor of the admissible panels.
   The most difficult challenge, common to all types of screening panels,
arises from the nature of the proceedings themselves. While judges re-
main key figures on the panel, disinterested attorneys and physicians
share the decisionmaking role in the adjudication process. This shared
power between the judge and the other professionals has run afoul of
state constitutional provisions that exclusively vest judicial powers in
judges. Whether this equality among the panel members constitutes an
unconstitutional encroachment on the judicial power will depend upon the
characterization of the panels as either a trial substitute or a pre-trial
settlement conference.
   All the substantial constitutional issues arise from the purpose of
screening panels-to bypass the courts-and their functional effect-to

   167. See text accompanying notes 20-21 supra.
186                THE AMERICAN UNIVERSITY LAW REVIEW           [Vol. 27:161


add an additional layer to the tort system. An assessment of their con-
stitutional validity is complicated not only by the differing attitudes of
state courts toward such a procedure, but also by the variety of ways in
which the statutes have been drafted. The statutory terms vary from strict
analogues with judicial concepts and functions to less precise language
that encourages informality. Both drafting methods have their merits and
their problems. The resulting confusion, however, can only be removed
through usage of the new procedures and by judicial tests of their valid-
ity. More judicial decisions from state supreme courts, and possibly from
the United States Supreme Court, will clarify the final outcome of these
issues.

                                                   REBECCA BEACH SMITH

				
DOCUMENT INFO
Categories:
Tags:
Stats:
views:1
posted:5/18/2012
language:English
pages:26