Appeal from the Circuit Court of Cook County; the Hon. David
A. Canel, Judge, presiding.
MR. JUSTICE GOLDENHERSH DELIVERED THE OPINION OF THE COURT:
In separate actions filed in the circuit court of Cook County, Hartford Casualty Insurance Company (hereafter Hartford) and The Medical Protective Company (hereafter Medical Protective) sought declaratory judgments holding invalid section 401a of the Illinois Insurance Code (Ill. Rev. Stat. 1975, ch. 73, par. 1013a). The cases were consolidated, and the circuit court entered a declaratory judgment holding the statute unconstitutional. Robert B. Wilcox, Director of Insurance (hereafter Director), named as a party defendant in both cases, and the Illinois State Medical Society and Jerry M. Ingalls, described as a physician, president of the Illinois State Medical Society and as representative of a class of Hartford policyholders, named as parties defendant in the Hartford suit, appealed. Rule 302(a) (58 Ill.2d R. 302(a)).
In an action filed in the circuit court of Cook County plaintiff Jean Mary Wright (hereafter plaintiff) sought to recover damages from defendants Central Du Page Hospital Association, Dr. John Heitzler, American Hospital Supply Corporation and V. Mueller & Company for personal injuries suffered while confined to the defendant hospital as a patient of the defendant Dr. Heitzler. In her complaint, as amended, she sought a declaratory judgment that sections 58.2 through 58.10 of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, pars. 58.2 through 58.10), section 21.1 of the Limitations Act (Ill. Rev. Stat. 1975, ch. 83, par. 22.1), and section 4 of Public Act 79-960 (Ill. Rev. Stat. 1975, ch. 70, par. 101) were unconstitutional. The circuit court entered a declaratory judgment holding sections 58.2 through 58.10 of the Civil Practice Act and section 4 of Public Act 79-960 (Ill. Rev. Stat. 1975, ch. 70, par. 101) invalid and found that there was no just reason to delay enforcement or appeal. Defendants Central Du Page Hospital Association and Dr. Heitzler appealed. (Rule 302(a).) The circuit court ordered this case consolidated with the previously consolidated cases filed by Hartford and Medical Protective and the matter came to this court as a single appeal.
The statutory sections declared unconstitutional are contained in "An Act to revise the law in relation to medical practice." (Pub. Act 79-960, approved September 12, 1975, effective November 11, 1975.) Section 1 of the Act added sections 58.2 through 58.10 to the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, pars. 58.2 through 58.10); section 2 amended section 21.1 of "An Act in regard to limitations" (Ill. Rev. Stat. 1975, ch. 83, par. 22.1); section 3 added section 401a to the Illinois Insurance Code (Ill. Rev. Stat. 1975, ch. 73, par. 1013a), and section 4 limited the maximum amount recoverable "on account of injuries by reason of medical, hospital or other healing art malpractice" (Ill. Rev. Stat. 1975, ch. 70, par. 101).
We consider first the contentions of the parties with respect to the sections added to the Civil Practice Act. Section 58.2 provides that sections 58.3 through 58.10 shall apply to all cases in which the "plaintiff seeks damages on account of injuries sustained by reason of medical, hospital or other healing art malpractice" and "shall not apply to any other cases." Section 58.3 requires the circuit court, "no sooner than 120 days nor later than one year after the parties are at issue on the pleadings" to order the convening of "a medical review panel to which the case shall be assigned for hearing and determination." The medical review panel is to consist of one circuit judge, one practicing physician and one practicing attorney.
Section 58.4 provides that the panels shall be chosen from rosters maintained by the chief judge of each judicial circuit. The rosters are to include at least five circuit judges, at least 20 practicing physicians licensed to practice in Illinois who are willing to serve on panels and are recommended by a recognized medical society, and at least 20 practicing attorneys licensed to practice in Illinois who are willing to serve on medical review panels and whose names have been provided by a bar association having membership in the circuit. It provides for assignment to panels on a rotation basis from these rosters. Section 58.5 permits selection of panels, by unanimous agreement of the parties, from physicians and attorneys who may or may not be on the roster and provides for the selection, by unanimous agreement of the parties, of a circuit judge to serve on the panel. (Ill. Rev. Stat. 1975, ch. 110, par. 58.5(1).) Section 58.5 also provides the method of selection of the panel other than by unanimous agreement of the parties, the method and reasons for disqualification of a panel member, and the acceptance of the assignment and disclosure of any conflict of interest by the panel members.
Section 58.6 is concerned with procedure. Proceedings before the panel are to be "adversary, and each party may call and cross examine witnesses and introduce evidence as at a trial in the circuit court." The panel has the power of subpoena, "to be exercised as in the circuit court," and it "may call witnesses, examine evidence, call for additional or particular evidence, and may examine or cross examine witnesses as it may determine to be appropriate." The circuit judge is to preside over the proceedings and decide procedural and evidentiary issues, and the proceedings may be conducted in any county in the judicial circuit, as determined by the panel. Section 58.7 provides that the panel shall make a "determination on the issue of liability and, if liability is found, on the issue of fair and just compensation for damages." The determinations of the panel are to be made in a written opinion stating its conclusions of fact and conclusions of law, and a dissenting member may file a written dissent.
Section 58.8 governs the effect of a decision of the panel. If the parties agree in writing to be bound by the determination of the panel, its decision is binding and conclusive, and judgment may be entered thereon. If the parties do not agree to be bound by the panel's determination and the panel's decision is unanimous, a party must reject the decision in writing within 28 days of receipt of service of the written opinion or be deemed to have accepted it. Whenever the parties have not unanimously agreed to be bound by the determination of the panel and have not unanimously accepted the determination, the panel judge is to conduct a pretrial conference and the case is to proceed to trial as in any other civil case. The determination of the panel is not admissible at any subsequent trial in the circuit court.
Section 58.9 provides that the expenses of the panel shall be apportioned among the parties equally, except that a party who rejects a unanimous decision of the panel and who fails to prevail on a trial of the case may, pursuant to section 41 of the Civil Practice Act, on motion and hearing, be taxed with the reasonable attorney's fees of the prevailing party, the costs of the panel and the costs of the trial. Section 58.10 authorizes this court to adopt supervisory rules not inconsistent with the statutory provisions.
The parties have briefed and argued a number of questions, and briefs, urging reversal of the judgment, have been filed by amici curiae Illinois State Medical Society and its president, and by an amicus calling itself the Protective Medical Association of Illinois, but not otherwise described or identified. In a section of their brief, headed "Interest of the Amici Curiae: The Health Care Crisis," amici Illinois State Medical Society and its president describe the "rapid and disproportionate rise in malpractice claims and high dollar awards and settlements" and argue that "While concededly, it is an initial move and hardly the last, nor should it be, Public Act 79-960 represents a reasonable response to a problem confronting the vast majority of the people of the State of Illinois."
Although the circuit court found the legislation concerning the medical review panels constitutionally defective for a number of reasons, we need consider only whether it correctly held that it was violative of article VI, sections 1 and 9, of the Illinois Constitution for the reason that it "vests essentially judicial functions in non-judicial personnel" and of article I, section 13, for the reason that its provisions "impair and violate plaintiff's constitutionally protected interests in trial by jury."
Article VI of the Constitution, in pertinent part, provides that "The judicial power is vested in a Supreme Court, an Appellate Court and Circuit Courts" (section 1), and that the circuit court shall have "original jurisdiction of all justiciable matters * * * [and] shall have such power to review administrative action as provided by law" (section 9). Under section 58.6 of the Civil Practice Act proceedings before the panel are to be adversary and witnesses are to be examined and evidence introduced "as at a trial in the circuit court." Section 58.6 also provides that the circuit judge member of the medical review panel "shall preside over all proceedings of the panel and shall determine all procedural issues, including matters of evidence." But as to other issues, both legal and factual, the power and function of the lawyer and physician member of the panel are the same as that of the judge. Furthermore, the powers of the judge concerning the determination of "matters of evidence" are diluted by the provision that "The law of evidence shall be followed, except as the panel in its discretion may determine otherwise." (Par. 58.6.) Section 58.7 provides that "The panel shall make its determination according to the applicable substantive law," and by its terms, the lawyer and physician member are vested with authority, equal to that of the judge, to determine and apply the "substantive law."
The application of principles of law is inherently a judicial function (People v. Bruner (1931), 343 Ill. 146) and article VI, section 1, of the Constitution vests the exclusive and entire judicial power in the courts. (Agran v. Checker Taxi Co. (1952), 412 Ill. 145.) Under these statutory provisions the physician and lawyer member of the medical review panel are empowered to make conclusions of law and fact "according to the applicable substantive law" (par. 58.7) over the dissent of the circuit judge. This, we hold, empowers the non-judicial members of the medical review panel to exercise a judicial function in violation of sections 1 and 9 of article VI of the Constitution.
We consider next whether the circuit court correctly held that these statutes violate article I, section 13, of the Constitution, which provides that "The right of trial by jury as heretofore enjoyed shall remain inviolate." Defendants argue that "The right to trial by jury remains untrammelled" and that "the requirement for prior submission to the medical review board does not violate either litigant's constitutional guarantee to a jury trial."
The report of the Constitutional Convention Committee on the Bill of Rights stated that the Committee voted to submit a proposal in the form of section 13 of article I and went on to say:
"After considering numerous proposed exceptions to the right of trial by jury the Committee concluded that all were inappropriate. One proposal would have authorized the General Assembly to modify the right to trial by jury `in suits between private persons for damages for death or injury to persons or property.' The Committee adopted such language on its initial vote, for the purpose of giving the General Assembly authority to prescribe new methods of determining facts in civil cases in order to combat congestion and other problems in the courts. Upon reconsideration the Committee concluded that such an exception was unjustified because these objectives could be sought by administrative and legislative reforms without diluting fundamental jury trial guarantees." 6 Record of Proceedings, Sixth Illinois Constitutional Convention 27 (hereafter Proceedings).
An amendment was approved (3 Proceedings 1432) and Proposal No. 4 of the Committee on Style, Drafting and Submission (6 ...