DocketNumber： 76-596-OA
Judges： Connor T. Hansen
Filed Date： 1/3/1978
Status： Precedential
Modified Date： 10/19/2024
The petitioners, all alleged to have sustained damages as a result of medical malpractice, petitioned this court for a writ of certiorari. We granted leave to commence an original action.
The petitioners seek a declaration that Chapter 655, Stats., violates constitutional guarantees of equal protec
The parties stipulated to the facts. St. Clare Hospital and St. Mary’s Hospital, respondents in two of the malpractice claims, were added as party respondents on stipulation.
Briefs amicus curiae have been filed by the Board of Governors of the Insurance Fund, State Medical Society of Wisconsin, Medical Malpractice Committee of the State Bar of Wisconsin, Wisconsin Hospital Association, and Wisconsin Academy of Trial Lawyers. Each has been considered.
Chapter 655, Stats., enacted by ch. 37, Laws of 1975, effective July 24, 1975, established an exclusive procedure for the prosecution of malpractice claims against a “ [h] ealth care provider,” as defined by sec. 655.001 (8).
Under Chapter 655, Stats., no court action may be maintained for injuries arising from medical malpractice until the matter has been reviewed by a patients’ compensation panel. These panels are convened by the Administrator. Proceedings before a panel are initiated by filing a “submission of controversy” which briefly states the claim. Sec. 655.04.
Claims under $10,000 are heard by a three-member informal panel unless the parties stipulate to a hearing before a formal panel; claims over $10,000 are heard by an informal panel unless one party requests a formal panel in writing. A formal panel is defined as “a 5-member patients compensation panel established under s. 655.03(1).” Sec. 655.001(6), Stats. The composition of these formal panels is governed by sec. 655.03(1), the meaning of which is at issue.
A court action may be commenced within 120 days after the panel’s decision. The findings of a formal panel with regard to causation and negligence are admissible at trial; the damage award may be admitted in the judge’s discretion. Sec. 655.19(1), Stats. No panel member may appear at the trial as counsel or as a witness. Sec. 655.19. If no action is commenced within 120 days, judgment may be rendered in accordance with the panel’s order. Sec. 655.20.
The Patients Compensation Fund, created by sec. 655.-27, Stats., pays that portion of medical malpractice awards above certain limits. Sec. 655.27(1). It is financed by assessments against health care providers. The fund is managed by a board of governors and “held in trust for the benefit of insureds and other proper claimants.” Sec. 655.27(7). Malpractice claimants seeking damages in excess of $200,000 must name the fund as a defendant, and the fund may appear and defend against the action. Sec. 655.27 (5).
Chapter 655, Stats., also imposes certain limitations upon the payment of malpractice awards. Awards for future medical payments in excess of $25,000 are paid to a medical expenses fund and are disbursed as future medical expenses are incurred. These payments continue until the amount is exhausted or the patient dies. Sec. 655.015. Claims in excess of $1,000,000 are paid in annual installments of not more than $500,000. Sec. 655.27 (5) (d). After July 1,1979, awards will be automatically limited to $500,000 per incident if the fund falls below certain levels. Sec. 655.27 (6).
In addition, Chapter 655, Stats., requires health care providers to maintain insurance with specified minimum
The instant case concerns three petitions on unrelated causes of action arising from three separate incidents of alleged medical malpractice. In each case a submission of controversy was filed, pursuant to sec. 655.04, Stats., requesting a hearing before a formal panel, as authorized by sec. 655.04(2) (b). The three cases are consolidated in this proceeding.
Each claim involved both physician and nonphysician respondents and therefore resulted in a need for the construction of the ambiguous language of sec. 655.03 (1), Stats., which governs panel composition when correspondents represent different health care professions. In each case the Administrator convened a six-member panel. Petitioners’ motions to limit the panels to five members were denied. Petitioners challenge the establishment of six-member panels on both statutory and constitutional grounds.
The claim of petitioner Strykowski further involves a possible cause of action against the designer or manufacturer of a vacuum extractor employed in the delivery of the Strykowskis’ infant son, who died shortly after birth. The designer and manufacturer are not subject to the Chapter 655 panel review process, however, and were not named as respondents in the Strykowski submission of controversy. Counsel for the Strykowskis argues that their inability to join these possible tort-feasors in the panel’s proceedings denies them due process of law. Additional facts will appear in the discussion of the issues.
Initially we observe that the Administrator contends that the petitioners’ constitutional argument should not
While it can appropriately be argued that these two contentions are meritorious, we believe the issues advanced are of considerable public importance and significance. The issues presented are publici juris because they are vital to the functioning of the health care liability and patients’ compensation plan prescribed by the enactment of Chapter 655, Stats.
We therefore consider the merits of the following issues:
1. Does sec. 655.03 (1), Stats., permit the appointment of six-member patients’ compensation panels?
2. Does Chapter 655, Stats., violate the principle of equal protection of the laws ?
3. Does Chapter 655, Stats., deny medical malpractice victims due process of law?
4. Does the creation of mandatory patients’ compensation panels constitute an unlawful delegation of judicial authority?
5. Does Chapter 655, Stats., impair malpractice claimants’ right of trial by jury?
PANEL COMPOSITION.
Formal panels ordinarily consist of five members, only two of whom represent medical professions. Whenever a submission of controversy names both a physician and a nonphysician respondent, however, the Administrator
Accordingly, he convened six-member panels to hear each of the claims involved in this action. Each panel consisted of an attorney, two public members, a tenured physician, a physician from the same field of medicine as a physician respondent and a member from the same health care field as a nonphysician respondent. Petitioners argue that the Administrator has misinterpreted the statute, and that the panels should be limited to five members.
Sec. 655.001(6), Stats., defines a “[f] ormal panel” as a “5-member patients compensation panel established under s. 655.03(1).” Subsections (a), (d) and (e) of sec. 655.03(1) provide that formal panels shall include a physician appointed for a six month term, an attorney and two lay members. These provisions are unambiguous and are not in question. Subsections (b) and (c) of sec. 655.03(1) govern the selection of the remainder of the panel. They provide:
“ (b) If any respondent in a panel hearing is a physician, one additional physician licensed to practice medicine in this state and who is engaged in the practice of medicine similar to that of the respondent and appointed at random by the administrator from a list submitted by the medical examining board.
“(c) If any respondent in a panel hearing is not a physician, then one person from the same field of health care as that of the respondent who is licensed in this state and appointed at random by the administrator from a list supplied by the appropriate state licensing board or by the department of health and social services. In the event that a claim involves more than one respondent, and that the respondents are specialists in different areas of medical practice, the administrator shall determine the specialty to be represented on the panel.” (Emphasis supplied.)
The meaning of the emphasized language is in dispute. When a claim is asserted against both a physician and
The Administrator has adopted the latter interpretation. This court has sometimes deferred to the practical construction accorded an ambiguous statute by the administering agency, where the legislature has acquiesced in that construction. The argument has much less weight when the construction is of recent origin, however. General D. & H. Union v. Wisconsin E. R. Board, 21 Wis.2d 242, 248, 249, 124 N.W.2d 123 (1963). The construction in question was first applied on April 11, 1976.
Nor can it be said that the legislature has acquiesced in the administrative construction of the statute. This is particularly apparent in the instant case because since this case Was argued the legislature has enacted ch. 131, Laws of 1977, published October 31, 1977. Sections 10 and 14 of this enactment, effective November 1, 1977, amend secs. 655.03(1) (b) and 655.03(2) (a) (3), (b) and (c), Stats. Any ambiguity as to the legislative intent in the original enactment has now vanished. The 1977 amendments make it clear that the legislature intended that the formal panels consist of five members and the informal panels of three members.
We are satisfied the legislature intended to require the appointment of five-member formal panels. This construction of the statutes is supported by materials in the Wisconsin Legislative Reference Bureau, which materials are properly subject to judicial notice. Nekoosa-
These materials show that the disputed language of sec. 655.003(1) (c), Stats., is derived from an amendment drafted on June 27, 1975. The drafting attorney’s notes include the following instructions: “Multiple suits — only 1 additional M D — sec’y of reg & lie. chooses specialty.”
The Bill drafting file also includes the drafting attorney’s notes of the deliberations of the conference committee which prepared the final version of the Bill. These notes show the following:
“Panel composition
it
“Formal— ... 5 people on these panels
“Formal — ct. admin, appoints 4 panels & chooses specialty if more than 1 rep.”4
In enacting the statute, the legislature had before it the advice of the legislative reference bureau that:
“. . . These panels each have 5 members; a physician, an attorney (who is chairperson), a health care provider of the same type or specialty as the respondent (who serves for one case only), and 2 public members. . . .”5
The statutory language was capable of more than one reasonable interpretation. However, the legislative back
EQUAL PROTECTION.
One who challenges a statute’s constitutionality carries a heavy burden of persuasion. He must overcome the presumption of constitutionality described in State ex rel. Hammermill Paper Co. v. La Plante, 58 Wis.2d 32, 46, 205 N.W.2d 784 (1973):
“. . : It is not enough that respondent establish doubt as to the act’s constitutionality nor is it sufficient that respondent establish the unconstitutionality of the act as a probability. Unconstitutionality of the act must be demonstrated beyond a reasonable doubt. Every presumption must be indulged to sustain the law if at all possible and, wherever doubt exists as to a legislative enactment’s constitutionality, it must be resolved in favor of constitutionality. This court has often affirmed the well-established presumption of constitutionality that attaches itself to all legislative acts. . . .”
The court cannot reweigh the facts as found by the legislature. If the court can conceive any facts on which the legislation could reasonably be based, it must hold the legislation constitutional. State ex rel. Carnation M. P. Co. v. Emery, 178 Wis. 147, 160, 189 N.W. 564 (1922).
At the outset, it is necessary to consider petitioners’ argument that Chapter 655 is subject to strict judicial scrutiny and, therefore, must be overturned unless supported by a compelling state interest. The “strict scrutiny” standard applies only to classifications involving a “suspect” category or a fundamental right. Town of Vanden Broek v. Reitz, 53 Wis.2d 87, 93, 191 N.W.2d
Petitioners urge that the statutory classifications are based on “economic conditions” which should he considered suspect. This apparently refers to the fact that the statute (1) affects only those tort claims involving medical malpractice and (2) distinguishes claims over $10,000 from smaller claims. Such distinctions have not been recognized as suspect criteria. Unlike the criteria traditionally considered suspect, these classifications do not involve immutable personal characteristics or historical patterns of discrimination and political powerlessness. See: San Antonio School District v. Rodriguez, 411 U.S. 1, 93 Sup. Ct. 1278, 36 L. Ed.2d 16 (1973), rehearing denied, 411 U.S. 959, 93 Sup. Ct. 1919, 36 L. Ed.2d 418.
Petitioners’ reliance on Shapiro v. Thompson, 394 U.S. 618, 89 Sup. Ct. 1322, 22 L. Ed.2d 600 (1969), is misplaced. This court has had occasion to consider that case and has found it to be based not on economic criteria, but on the right to travel. Town of Vanden Broek v. Reitz, supra, 93. Nor does the statute deny fundamental rights. The right of access to the courts, where petitioners will have an opportunity for jury trials, is expressly preserved. Sec. 655.19, Stats. The equal protection clause therefore requires only that there be a rational basis for the statute.
Petitioners’ equal protection argument has two parts. First, they challenge the fact that the act applies only to victims of medical malpractice and not to all tort victims. Second, they attack a series of “subclassifications” within the statutory scheme. There is no rational basis for treating medical malpractice claims differently from
We believe there is a rational basis upon which the legislature could and did act when enacting Chapter 655.
Some of its reasons are suggested by the findings set forth in sec. 1, eh. 37, Laws of 1975. These findings, while not binding upon the court, carry great weight. West Allis v. Miltvaukee County, 39 Wis.2d 356, 159 N.W.2d 36 (1968), certiorari denied 393 U.S. 1064. The legislature cited a sudden increase in the number of malpractice suits, in the size of awards, and in malpractice insurance premiums, and identified several impending dangers: increased health care costs, the prescription of elaborate “defensive” medical procedures, the unavailability of certain hazardous services and the possibility that physicians would curtail their practices. In addition, resolution of a malpractice claim under the traditional tort litigation process has been found to require an average of nineteen months.
In 1911, this court upheld the Workmen’s Compensation Act against an equal protection challenge. Borgnis v. Falk Co., 147 Wis. 327, 133 N.W. 209 (1911). Workmen’s compensation (now worker’s compensation) hearings under that Act, although elective, represented a greater departure from common law tort actions than do the panels involved here.
Like the Workmen’s Compensation Act, Chapter 655, Stats., was enacted in response to a perceived economic and social crisis. Like the Workmen’s Compensation Act, it applies only to a limited class of injured persons. Both laws modify the common law procedures for redress of personal injuries. The public has an important interest in the quality of health care, and the legislature’s
The petitioners’ equal protection argument also concerns the creation of “subclassifications” within the statutory scheme. Review of “subclassifications” is governed by the same principles applicable to all legislative classifications. State ex rel. La Follette v. Reuter, 36 Wis.2d 96, 109, 153 N.W.2d 49 (1967).
Petitioners challenge a series of subclassifications. First they attack the fact that formal panels are available on the request of a single party if the claim exceeds $10,000, but only on the stipulation of all parties if the claim is less than $10,000. Sec. 655.04(2), Stats. The legislature may reasonably believe that large claims are more likely to involve complex or numerous proofs which would make formal panel proceedings a more appropriate forum. The legislature has established other simplified procedures for small controversies. See Chapter 299 (small claims court); and Chapter 867 (summary settlement of small estates).
Second, petitioners attack the delayed disbursement of future medical expense awards of more than $25,000. Sec. 655.015, Stats. That portion of the award for future medical expenses in excess of $25,000 is to be paid to the future medical expenses fund
Fourth, petitioners challenge the $500,000 recovery limit applicable to acts of malpractice occurring after July 1, 1979. Sec. 655.27 (6), Stats. This ceiling takes effect only if the fund falls below certain levels, and does not apply to medical expenses. There is no conceivable way in which this statutory provision can effect the instant petitioners. We deem it judicially inappropriate to now express judgment on the prospective application of this statute.
Petitioners’ fifth challenge concerns the victims of acts of alleged medical malpractice involving several health care providers. As the statute was applied to the instant petitioners, they were required to present their claims to six-member panels, while victims of a single tort-feasor present their claims to five-member panels. Since we have held that the Administrator erred in appointing six-member panels, and the legislature has adopted remedial legislation to clarify any existing ambiguity, we are not called upon to further discuss this proposition.
Petitioners’ final equal protection argument concerns the exclusion of governmental employees and facilities
Our conclusion is that the enactment does not violate the equal protection rights of the petitioners.
DUE PROCESS.
Petitioners assert that there is a fundamental right of free access to the courts. They identify five aspects of the panel review process which they say impair this right, denying them the due process of law guaranteed by the fourteenth amendment of the United States Constitution and art. I, sec. 1 of the Wisconsin Constitution.
The Administrator contends that there is no right of access to the courts, except in the narrow category of cases involving such fundamental human relationships as marriage and divorce. Boddie v. Connecticut, 401 U.S. 371, 91 Sup. Ct. 780, 28 L. Ed.2d 118 (1971); United States v. Kras, 409 U.S. 434, 93 Sup. Ct. 631, 34 L. Ed.2d 626 (1973).
Whatever the precise status of the right of access to the courts, it is clear that due process is satisfied if the statutory procedures provide an opportunity to be heard in court at a meaningful time and in a meaningful manner. Mathews v. Eldridge, 424 U.S. 319, 333, 96 Sup. Ct. 893, 47 L. Ed.2d 18 (1976). Due process is flexible and requires only such procedural protections as the particular situation demands. Id.
States are under no constitutional obligation to neutralize the economic disparities which inevitably make resort to the courts different for some plaintiffs than others. Unlike Boddie v. Connecticut, supra, this case does not involve a “fundamental human relationship,” nor is it alleged that petitioners are denied access to the courts because of indigency. Petitioners offer no authority for their economic hardship argument, and we do not find it persuasive.
Next, petitioners attack the pleading process set up by sec. 655.12, Stats. Under this section, respondents are not required to file an answer in response to a submission of controversy. Petitioners argue that this denies them the opportunity to know and meet the arguments of the opposing parties, contrary to fundamental concepts of notice and fair play.
The fourteenth amendment does not give litigants a property right in any particular form of pleading or procedure. See: State v. Coubal, 248 Wis. 247, 255, 21 N.W. 2d 381 (1945). This court recently held that the defendants in two mortgage foreclosure actions were not denied due process by the failure of another defendant to serve them with its answer alleging claims against the mortgaged property. This court held that due process requirements were met because the defendants had received adequate notice of the claims in the complaints,
The petitioners next claim that because two of the five-panel members are health care providers, Chapter 655, Stats., denies them a right to an impartial decision maker. This argument appears to be based upon the presumption that all health care providers are prejudiced. We know of no rule of law or constitutional interpretation to support such a proposition.
As a general rule, it can be stated that the due process requirement of a fair hearing requires that those who have a substantial pecuniary interest in a proceeding should not adjudicate a dispute. Gibson v. Berryhill, 411 U.S. 564, 579, 93 Sup. Ct. 1689, 36 L. Ed.2d 488 (1973); Ward v. Village of Monroeville, 409 U.S. 57, 60, 93 Sup. Ct. 80, 34 L. Ed.2d 267 (1972). Ward was a case involving a mayor who also sat as a judge in certain minor offenses. The mayor was responsible for the village finances, and a substantial portion of the village finances were derived from the fines imposed in the court over which he presided. In Gibson, supra, the Alabama Board of Optometry was composed entirely of private practitioners. The Board had begun efforts to revoke the licenses of all Alabama optometrists employed by corporations — nearly one-half of all optometrists in the
We do not believe that the foregoing cases lead to the conclusion that panels, as constituted by Chapter 655, Stats., deny petitioners an impartial tribunal or that they violate due process.
In Kachian v. Optometry Examining Board, 44 Wis.2d 1, 170 N.W.2d 743 (1969), this court rejected an argument that there was an inescapable and unconstitutional financial interest involved when an optometrist sat in judgment of other optometrists as a member of the state board of examiners in optometry. The court said:
“. . . It cannot be held as a matter of law that a member of a certain profession or occupation is disqualified by that fact from serving on an administrative board dealing with such profession or occupation.” Kachian v. Optometry Examining Board, supra, at 12.
This court has said that to disqualify an adjudicator, a pecuniary interest must be:
“. . . a direct, certain and immediate interest, and not one which is indirect, contingent, incidental or remote.” Goodman v. Wisconsin Electric Power Co., 248 Wis. 52, 58, 20 N.W.2d 553 (1945), quoting 30 Am. Jur., Judges, p. 773, sec. 57.
The petitioners argue that panel members who are health care providers are financially interested in panel decisions because they, along with all other health care providers in the state, pay annual assessments to maintain the patients’ compensation fund. However, any financial interest inherent in the structure of Chapter 655,
Petitioners’ claim is not one of actual bias. There is no suggestion that any panel member bears them ill will or has a financial stake in their' particular claims. It may be assumed that if such actual bias were alleged and demonstrated, panel members would be subject to the common-law duty of disqualification. See: Kachian v. Optometry Examining Board, supra, at 12, 13. Because there is no indication of actual bias, and because the statutory procedure for the selection of the panel does not suggest a probability of systematic bias or prejudice, the requirements of due process are satisfied. Cf. Naus v. Jt. S. D. No. 1 Sheboygan Falls, 76 Wis.2d 104, 114, 250 N.W.2d 725 (1977).
There is an additional consideration. Screening panels are required to consider and decide highly technical medical issues. Without the special expertise of medically-trained panel members, the central purposes of the entire statutory scheme would be frustrated. In holding that professionals could serve on administrative boards dealing with their own professions, this court, in Kaehian, supra, at 12, asked ‘“What are the alternatives?’ . . . Would it be preferable, or even workable, to have the dentists giving bar examinations and optometrists giving pharmacy tests?” The same concern is relevant here.
Therefore, considering the size of the panel, its composition, the method of selection of panel members, the relative shortness of a single member’s service on the panel, the monetary size of the fund and the substantial number of contributors, we cannot hold that the composition of the panel constitutes a denial of due process under either the state or federal constitutions.
An additional objection, only indirectly grounded on the due process clause, concerns the ability of the Patients Compensation Fund to defend against claims in excess of $200,000. See: sec. 655.27(5), Stats. Petitioners argue that this provision makes the interest of the fund adverse to those of the medical malpractice claimant and therefore in violation of the trustee’s duty to hold the res “in trust for the benefit of insureds and other proper claimants.” Sec. 655.27 (7).
Section 178 of the Restatement (2d) of Trmts, (1959), p. 385, states:
“The trustee is under a duty to the beneficiary to defend actions which may result in a loss to the trust estate, unless under all the circumstances it is reasonable not to make such defense.”
At the same time, sec. 183, p. 393, of the Restatement (2d), supra, says:
“When there are two or more beneficiaries of a trust, the trustee is under a duty to deal impartially with them.”
The question here is whether, by defending against certain large actions, the fund is fulfilling the first duty or violating the second.
The Board of Governors of the insurance fund in its brief amicus curiae argues that the fund may defend
The rule relied upon by petitioners is ordinarily applied when the trustee stands as a stakeholder for rival claimants to the same trust benefits; the resolution of such disputes has no adverse effect on the trust assets and is properly a matter of indifference to the trustee. This rule does not apply where the trustee reasonably determines that the claim is adverse to the trust. Thus, this court was careful to point out that Cudahy, supra, did not involve “a claim ... so obviously without merit that it is in effect an adverse claim.” Cudahy, supra, 157.
The Supreme Court of Colorado has held that the trustee of a public pension fund has a duty to resist the claims of unqualified pension applicants. That court said:
“. . . It is within the power, and is the duty of a trustee to institute action and proceedings for the protection of the trust estate, . . . and to take all legal steps • • . reasonably necessary with relation to those objectives. . . .” Brisnehan v. Central Bank and Trust Company, 134 Colo. 47, 51, 52, 299 Pac.2d 113 (1956).
We believe this proposition is sound.
On its face, therefore, the fund’s right to defend against certain actions does not violate its trust responsibilities.
This procedure is less harsh than comparable proceedings under worker’s compensation. A single work-related injury may involve products liability, employer liability under worker’s compensation and third party liability in negligence. The percentage of negligence attributable to each party may be sharply contested. Nevertheless, the employee’s exclusive remedy against the employer is in worker’s compensation. The employer cannot be inter-pleaded as a defendant in the employee’s negligence action against the third parties. Albert v. Regal Ware, 6 Wis.2d 519, 95 N.W.2d 240 (1959).
Chapter 655, Stats., proceedings, which delay the opportunity for a consolidated action, are no more objectionable than these well-established worker’s compensation procedures, under which the employee’s cause of action is permanently fragmented.
Petitioners touch upon, but do not develop, the further due process argument that a common-law right of recovery may not be limited without providing a quid pro quo to the party who is thereby disadvantaged. Relying
DELEGATION OF JUDICIAL AUTHORITY.
The petitioners contend that Chapter 655, Stats., contravenes art. VII, sec. 2 of the Wisconsin Constitution, which vests the judicial power of the state in the courts. They argue that because the panels determine causation, negligence and damages, and because they are required to apply the comparative negligence statute, sec. 895.-045, and are generally “bound by the law applicable to civil actions” in the administrative proceeding before them, sec. 655.17(1), they are usurping judicial authority.
Under the worker’s compensation statutes, the Industry, Labor & Human Relations Commission, through its hearing examiners, decides controversies concerning work related injuries and diseases. The commission’s orders are subject to only limited judicial review. Sec. 102.23, Stats. Nevertheless, the system does not invade the province of the courts. In upholding the constitutionality of the Workmen’s Compensation Act, this court said:
. . We do not consider the Industrial Commission a court, nor do we construe the act as vesting in the Commission judicial powers within the meaning of the constitution. It is an administrative body or arm of the government which in the course of its administration of a law is empowered to ascertain some questions of fact and apply the existing law thereto, and in so doing acts quasi-judicially, but it is not thereby vested with judicial power in the constitutional sense.
“There are many such administrative bodies or commissions, and with the increasing complexity of modern government they seem likely to increase rather than diminish. Examples may be easily thought of, — town boards, boards of health, boards of review, boards of equalization, railroad rate commissions, and public utility commissions all come within this class. They perform very important duties in our scheme of government, but they are not legislatures or courts. . . . While acting within the scope of its duty, or its jurisdiction, as it is sometimes called, such a board may lawfully be endowed with very broad powers, and its conclusions may be given great dignity and force, so that courts may not reverse them unless the proof be clear and satisfactory that they*522 are wrong . . .” (Emphasis added.) Borgnis v. Falk Co., supra, 358, 359.
Similarly, patients compensation panels are empowered to ascertain facts and apply the existing law thereto. Petitioners would distinguish Borgnis v. Falk Co., supra, on the ground that worker’s compensation proceedings do not involve determinations of negligence, nor do they ascertain damages, which are fixed by statutory schedules. This argument ignores the fact that a panel’s findings, unlike compensation awards, are subject to a trial de novo. The findings are entitled to no particular weight, and the reviewing court has full opportunity to test the panel’s conclusions.
Administrative boards and commissions are plainly able to exercise giKm-judicial authority. In fact, this court has held that:
“. . . [S]ome duties involving inquiries judicial in their nature may be delegated to administrative officers where the acts of such officers are later subject to judicial review.” Family Finance Corp. v. Sniadach, 37 Wis. 2d 163, 176, 154 N.W.2d 259 (1967), reversed on other grounds, 395 U.S. 337, 89 Sup. Ct. 1820, 23 L. Ed.2d 349 (1969) (Emphasis added.)
For these reasons, we do not believe that the enactment of Chapter 655, Stats., constitutes an unconstitutional exercise of judicial power.
TRIAL BY JURY.
Art. I, sec. 5, of the Wisconsin Constitution provides, in part:
“The right of trial by jury shall remain inviolate, and shall extend to all cases at law without regard to the amount in controversy; . . .”
Petitioners contend that the panel review process is incompatible with this guarantee in two respects. First,
The petitioners argue that the need to produce expert testimony makes medical malpractice actions unusually costly even in the absence of the screening panel, and that the procedures created by Chapter 655, Stats., unfairly force a claimant to put in his proof twice — once before the panel and a second time at trial. We view this as a strong argument in favor of the legislative enactment of procedures such as those here involved. They encourage settlements, “weed out” frivolous claims and provide a means whereby those justly entitled to compensation can secure early disposition of their claims.
Our attention has been directed to La Bowe v. Balthazar, 180 Wis. 419, 193 N.W. 244 (1923), and State v. Graf, 72 Wis.2d 179, 240 N.W.2d 387 (1976). While these cases underline the importance of the right to a trial by jury, they do not suggest that the particular forms of procedure familiar to common law must be preserved inviolate. The legislature may modify old procedures, or create new ones, if the substantive right to jury trial is preserved. Thus in State ex rel. Sowle v. Brittich, 7 Wis.2d 353, 96 N.W.2d 337 (1959), this court upheld a statute which modified the standard for waiver of jury trial in paternity cases. The court said at 360:
“While the defendant has a right to a trial by jury, he has no vested right under the Wisconsin constitution to the manner or time in which that right may be exercised or waived. Those are procedural matters expressly left for determination by law . . .”
Nor does the constitution protect a plaintiff against the costs implicit in bringing his action before a jury.
“ ‘The Constitution does not guarantee to the citizen the right to litigate without expense, but simply protects him from imposition of such terms as unreasonably and injuriously interfere with his right to a remedy in the law, or impede the due administration of justice.’ ”
Whether Chapter 655 imposes unreasonable or injurious costs should be determined in light of its purposes. In La Bowe v. Balthazor, supra, 423, the court found that “it was quite clearly the intention of the legislature to impose the high jury fee in order to discourage trials by jury.” In contrast, there is no indication that Chapter 655 is intended to discourage trials. Indeed, by identifying and focusing complex issues, the panels aid jury determination of those cases which do go to trial.
The introduction of proceedings preliminary to trial is not in itself objectionable. Proceedings before an administrative agency may involve varying degrees of expense and delay. Even where those costs are substantial, however, would-be litigants are generally required, under the exhaustion-of-remedies requirement, to avail themselves of the administrative proceedings before coming to court. In some instances, including worker’s compensation proceedings, their opportunity for jury trial is completely foreclosed. The panel review procedure imposes no greater burden than these administrative proceedings and is therefore constitutionally valid.
Petitioners next argue that the admissibility of panel findings is likely to have an undue influence on the jury. They rely on Simon v. St. Elizabeth Medical Center, supra, 908, in which an Ohio trial court found that the admissibility of the decision of medical malpractice arbitrators :
*525 “. . . effectively and substantially reduces a party’s ability to prove his case, because that party must persuade a jury that the decision of the arbitrators was incorrect, a task not easily accomplished in view of the added weight which juries have traditionally accorded the testimony of experts . . .”
The procedure under review in Simon, however, permitted the arbitrators to testify at trial, a practice which would be likely to increase the influence on a jury and which is forbidden under Chapter 655, Stat. Sec. 655.19. Furthermore, the court in Simon indicated that the right to trial by jury precludes expert testimony on the ultimate fact in issue in malpractice cases, a conclusion which is contrary to the established rule in this state. Rabata v. Dohner, 45 Wis.2d 111, 172 N.W.2d 409 (1969); sec. 907.04, Stats.
The Illinois- Supreme Court has also held that the Illinois malpractice statute denied the right of jury trial. The court’s discussion of this issue was purely conelu-sory, however,
Sec. 655.19, Stats., provides in part that:
*526 “(1) ... The findings and order, except for damages awarded, of any formal panel shall be admissible in any action in circuit or county court, and the amount of damages awarded may, at the court’s discretion, be admissible in such action . . . .”
Petitioners argue that the jury will be unable to evaluate the panel’s findings and order with objectivity, and that the right of trial by jury will therefore be infringed upon. We disagree. The medical review panel does not decide the case; the ultimate arbiter of all questions of fact is the jury.
Given a choice of reasonable interpretations of a statute, this court must select the construction which results in constitutionality. State ex rel. Lynch v. Conta, 71 Wis.2d 662, 689, 289 N.W.2d 313 (1976); Feest v. Allis-Chalmers Corp., 68 Wis.2d 760, 767, 229 N.W.2d 651 (1975). This court has construed deficient statutes to include constitutionally required provisions. State ex rel. Farrell v. Stovall, 59 Wis.2d 148, 207 N.W.2d 809 (1973) ; State ex rel. Matalik v. Schubert, 57 Wis.2d 315, 204 N.W.2d 13 (1973); Huebner v. State, 33 Wis.2d 505, 147 N.W.2d 646 (1967). In State ex rel. Chobot v. Circuit Court, 61 Wis.2d 354, 212 N.W.2d 690 (1973), we interpreted sec. 944.21(1) (a), Stats., by changing this court’s previously mandated definition of obscenity to comport with the constitutional definition of obscenity as set forth in Miller v. California, 413 U.S. 15, 93 Sup. Ct. 2607, 37 L. Ed.2d 419 (1973). There we said:
"... [T]his court has the duty to uphold the statute if it can and in the past has supplied deficiencies to save a statute . . .” Chobot, supra, at 367. We conclude that the statutes under review, as we construe them, do not interfere with the constitutional right of trial by jury.
Panel findings, orders, and awards may be based upon a majority vote of the panel. Sec. 655.05, Stats. Chapter
Chapter 655 does not expressly provide that the parties may comment upon the panel’s findings and order, nor does it provide that evidence may be introduced to rebut, explain, or support the panel’s findings and order. However, few statutes can be written to completely cover all areas of concern. We do not consider Chapter 655 to preclude either party, in the course of opening or closing arguments, from commenting upon the panel’s report in the same manner as comments may be made on other evidence, or from commenting upon the composition of the panel or the nature of panel proceedings. Nor does the act preclude either party from impeaching the panel’s report by competent evidence. The parties remain free to call, examine, and cross-examine witnesses as if the report had not been made at all; and to show that material evidence was not presented to the panel; or demonstrate that the panel proceedings were less detailed or comprehensive than the jury trial itself. The panel’s findings and order are simply evidence to be weighed by the jury and accepted or rejected, as with any other evidence.
The panel, by majority vote, is to make findings “. . . upon the ultimate facts involved in the case,” and to file an order which “. . . shall state its determination as to the rights of the parties and include any award to be made.” Sec. 655.16, Stats. In its findings, the panel is to determine “. . . [wjhether the actions or omissions of the health care provider were negligent and “. . . [i]f such actions or omissions were negligent, whether the negligence caused injury or death to the patient.” Sec. 655.065.
We believe the statutory admissibility of panel findings and orders is, in essence, a rule of evidence. Comiskey v. Arlen, supra, at 809; See: Meeker & Co. v. Lehigh Valley R. R., 236 U.S. 412, 430, 35 Sup. Ct. 328, 59 L. Ed. 644 (1915); Mills v. Lehigh Valley R. R., 238 U.S. 473, 482, 35 Sup. Ct. 888, 59 L. Ed. 1414 (1915). Similar statutory provisions in other states have been characterized as evidentiary rules allowing a specialized form of expert opinion. Eastin v. Broomfield, supra, at 570 Pac.2d 749; Prendergast v. Nelson, supra, at 256 N.W. 2d 665, 666, Comiskey v. Arlen, supra, at 309. Thus viewed, the admissibility of the panel’s findings is constitutionally unobjectionable because litigants have no vested rights in particular rules of evidence. State ex rel. Sowle v. Brittich, supra, at 360.
The proper application of this rule, as with any rule of evidence, is the responsibility of the trial court. No boiler plate jury instruction can be drafted to cover all factual situations. However, the trial court shall instruct the jury with clarity and simplicity to the end that the
We are of the opinion that, with the safeguards we have outlined, Chapter 655 provides adequate opportunity to challenge the findings and order of the panel, and that there will be no constitutional infirmity to contaminate the exclusive prerogatives of the jury. We are confident that, with proper instructions from the trial court, a jury will be able to evaluate the panel’s findings and order with independence and objectivity.
We believe the requirement of panel review prior to trial is comparable to the compulsory reference of a case to a special master. In Ex parte Peterson, 253 U.S. 300, 40 Sup. Ct. 543, 64 L. Ed. 919 (1920), a federal district court case had been referred to an auditor for factual determinations and for an expression of the auditor’s opinion on the disputed issues. The auditor’s report, if accepted by the trial court, was to be admitted at the trial. The issue before the Supreme Court was whether this procedure impaired the right of trial by jury in federal court, under the seventh amendment of the United States Constitution.
Writing for the court, Justice BRANDEIS said:
“. . . The command of the Seventh Amendment that ‘the right of trial by jury shall be preserved’ does not require that old forms of practice and procedure be re*530 tained. Walker v. New Mexico & Southern Pacific R. R. Co., 165 U.S. 593, 596. Compare Twining v. New Jersey, 211 U.S. 78, 101. It does not prohibit the introduction of new methods for determining what facts are actually in issue, nor does it prohibit the introduction of new rules of evidence. Changes in these may be made. New devices may be used to adapt the ancient institution to present needs and to make of it an efficient instrument in the administration of justice. Indeed, such changes are essential to the preservation of the right. The limitation imposed by the Amendment is merely that enjoyment of the right of trial by jury be not obstructed, and that the ultimate determination of issues of fact by the jury be not interfered with. ((
“Nor can the order he held unconstitutional as unduly interfering with the fury’s determination of issues of fact, because it directs the auditor to form and express an opinion upon facts and items in dispute. The report will, unless rejected by the court, be admitted at the jury trial as evidence of facts and findings embodied therein; . . . The parties will remain as free to call, examine, and cross-examine witnesses as if the report had not been made. No incident of the jury trial is modified or taken away either by the preliminary, tentative hearing before the auditor or by the use to which his report may be put. . . .” (Emphasis added.) Ex parte Peterson, supra, at 309-311.
The auditor’s report in Ex parte Peterson, supra, was subject to the approval or rejection of the trial court, while a medical review panel’s findings and order are necessarily admissible under sec. 655.19, Stats., if restricted in contents to those matters encompassed within the statute as we have construed it. However, in Meeker & Co. v. Lehigh Valley R. R., supra, the Supreme Court considered a statutory provision closely analogous to the statutes in question here. Meeker was a civil action brought under the Act to Regulate Commerce for the purpose of recovering damages sustained as a result of allegedly unreasonable and discriminatory freight rates.
The Supreme Court rejected this argument and said:
“This provision only establishes a rebuttable presumption. It cuts off no defense, interposes no obstacle to a full contestation of all the issues, and takes no question of fact from either court or jury. At most therefore it is merely a rule of evidence. It does not abridge the right of trial by jury or take away any of its incidents. Nor does it in any wise work a denial of due process of law. . . .” Meeker & Co. v. Lehigh Valley R. R., supra, at 430.
While Ex parte Peterson, supra, and Meeker & Co. v. Lehigh Valley R. R., supra, concerned the federal constitution and a federal statute, respectively, we find their rationale persuasive. As contrasted to Meeker, supra, where the findings were admitted as “prima facie” evidence, under Chapter 655, the findings of the panel are accorded no particular weight, and we have held that the jury shall be so instructed. The provisions of Chapter 655, Stats., as we have construed them, do not abridge the rights of the petitioners to a trial by jury.
We therefore conclude that sec. 655.03(1), Stats., does not authorize the appointment of six-member panels, and as to those challenges advanced by the petitioners, we hold Chapter 655 to be a constitutionally valid enactment.
By the Court. — Rights declared and cause remanded for further proceedings consistent with this opinion.
These provisions have been modified by ch. 131, Laws of 1977, effective November 1,1977.
Mueller v. Jensen, 63 Wis.2d 362, 367, 217 N.W.2d 277 (1974) ; State v. Seymour, 24 Wis.2d 258, 128 N.W.2d 680 (1964).
1975 LRB-5835-1, Amendment 6 to Amendment 6 to Senate Substitute 1 to Assembly Bill 725, in drafting file for Laws of 1975, cb. 37.
Legislative attorney’s notes of July 7, 1975, meeting of Conference Committee, p. 4, in bill file for Laws of 1975, cb. 37.
1975 LRB-5938/2, Analysis by the Legislative Reference Bureau, p. 2, in bill file on Laws of 1975, ch. 37.
At least one court has reached1 the same conclusion, while others have disagreed. Compare: Graley v. Satayatham, Ohio Com. Pl., 74 Ohio Op.2d 316, 343 N.E.2d 832 (1976), with Simon v. St. Elizabeth Medical Center, Ohio Com. Pl., 3 Ohio Op.3d 164, 365 N.E.2d 903 (1976).
Stephen K. Dietz, C. Bruce Baird, Lawrence Berul, THE MEDICAL MALPRACTICE LEGAL SYSTEM, Appendix, Re-port of The Secretary’s Commission On Medical Malpractice, Dept. of Health, Education, and Welfare, Washington, D. C., 1973, p 87, 103.
(1) All classifications must be based upon substantial distinctions which make one class really different from another.
(2) The classification adopted must be germane to the purpose of the law.
(3) The classification must not be based upon existing circumstances only and must not be so constituted as to preclude addition to the numbers included within a class.
(4) To whatever class a law may apply, it must apply equally to each member thereof.
(5) The characteristics of each class should be so far different from those of other classes as to reasonably suggest at least the propriety, having regard to the public good, of substantially different legislation. See: e.g., Dane County v. McManus (1972), 55 Wis.2d 413, 423, 198 N.W.2d 667.
Sec. 655.015, Stats., formerly provided for payment of such awards to the commissioner of insurance. Ch. 29, Laws of 1977, sec. 1579, effective June 30, 1977, amended this section to provide for payment into a “future medical expenses fund.”
The optional form answer prepared by the office of the Administrator merely identifies the parties, states the nature of the claimant’s condition and injury, indicates whether the inj'ury is less than or more than $10,000, and either admits or denies that the claimant (1) was a client, (2) was treated, (3) suffered from an act of malpractice, and (4) is entitled to damages.
In the year preceding February 28, 1977, the fund levied assessments against 5,389 physicians, 147 hospitals and 319 nurse anesthetists. Functional and Progress Report, Wisconsin Patients Compensation Fund, February 28, 1977, pp. 11-12. As a public record, this report is subject to judicial notice. Cf. Dehnart v. Waukesha Brewing Co., 21 Wis.2d 583, 596, 124 N.W.2d 664 (1963).
See: Jones v. State Board of Medicine, 97 Idaho 859, 555 Pac.2d 399, 408, 409 (1976) (rejecting the quid pro quo test), and Comment, A Constitutional Perspective on the Indiana Medical Malpractice Act, 51 Ind. Law Journal, 143, 149-152 (1975).
See: Hunker v. Royal Indemnity Co., 57 Wis.2d 588, 608, 609, 204 N.W.2d 897 (1973), which recognizes the existence of the doctrine in other jurisdictions.
See: Wright v. Central Du Page Hosp. Ass’n., 63 Ill.2d 313, 347 N.E.2d 736 (1976), which held that the medical review panels created by the Illinois statute unconstitutionally exercised judicial power. Under the Illinois statute a member of the judiciary was required to participate in the administrative determination of negligence and damages by the panel, and the vote of the member of the judiciary could be overridden by the lay members of the panel.
“Because we have held that these statutes providing for medical review panels are unconstitional, it follows that the procedure prescribed therein as the prerequisite to jury trial is an impermissible restriction on the right of trial by jury . . . .” Wright v. Central Du Page Hosp. Ass’n., supra, at 324.
We do not intend to prescribe the precise form or contents of such an instruction. We suggest that the subject may be appropriate for consideration by the Civil Jury Instructions Committee of the Wisconsin Board of Circuit Court Judges.