Prendergast v. Nelson , 199 Neb. 97 ( 1977 )

Boslaugh, J.,

dissenting in part.

I agree with Judge C. Thomas White that it is difficult to sustain the separate classification of malpractice claims upon the basis of the evidence which is available. The provisions in the act in regard to an election by a claimant are unrealistic and illusory, and the requirement that nonrefundable medical reimbursement insurance be applied as a credit against a judgment against a negligent health care provider is invalid.

I do not agree that the defendant lacked standing to question the constitutionality of the act. The issue of standing was never raised in the District Court.

The law is not clear as to when an administrative officer may refuse to implement a legislative act on the ground it is unconstitutional. See, Van Horn v. State ex rel. Abbott, 46 Neb. 62, 64 N. W. 365; 16 C. J. S., Constitutional Law, § 82b, p. 252. Where the act in question involves the expenditure of public funds and affects the rights of all the citizens of the state, it is in the public interest that a determination of constitutionality be obtained as soon as possible. Here the defendant acted in good faith and upon the advice of the Attorney General. See State ex rel. Meyer v. Peters, 188 Neb. 817, 199 N. W. 2d 738.

Although this court, in the exercise of its discretion, may refuse to decide issues tendered in a declaratory judgment action, the issues raised in this case were of great public interest. This court would have been guilty of a disservice to the public if it had refused to decide the issues presented.