Appeal from the Circuit Court of Cook County, the Hon. Joseph
M. Wosik, Judge, presiding.
JUSTICE MILLER DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 26, 1986.
The plaintiff, Bernice Bernier, brought this action in the circuit court of Cook County challenging the constitutionality of various provisions of Public Act 84-7. Approved June 25, 1985, and effective August 15, 1985, Public Act 84-7 made a number of significant changes to the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, pars. 1-101 through 19c-101) concerning medical malpractice actions. The circuit judge found that the particular provisions challenged by the plaintiff were unconstitutional, and the defendants have appealed that decision directly to this court (103 Ill.2d R. 302(a)). Numerous amici curiae have submitted briefs in this court in behalf of the parties.
The plaintiff, a resident and taxpayer of Cook County, instituted her action as a taxpayer's suit on July 3, 1985. Named as defendants in the action were various State officials, and the complaint sought to enjoin the disbursement and expenditure of public funds for carrying out the various provisions in Public Act 84-7. By her amended complaint the plaintiff attacked the constitutionality of five parts of the legislation those establishing a system of review panels, providing for the periodic payment of future damages, modifying the collateral-source rule, prohibiting awards of punitive damages, and limiting the amounts of contingent fees. Following an extensive evidentiary hearing, in which both the plaintiff and the defendants presented testimony on the nature and extent of the medical malpractice crisis and the effect that the provisions here may have on litigants, the trial judge found that all five parts challenged by the plaintiff violated a number of State and Federal constitutional guarantees.
Public Act 84-7 amended sections 2-1109, 2-1205, 8-2001, and 8-2003 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, pars. 2-1109, 2-1205, 8-2001, 8-2003) and added to the Code sections 2-114, 2-611.1, 2-622, 2-1010, 2-1012 through 2-1020, 2-1114, 2-1115, 2-1701 through 2-1719, and 8-2501 (Ill. Rev. Stat. 1985, ch. 110, pars. 2-114, 2-611.1, 2-622, 2-1010, 2-1012 through 2-1020, 2-1114, 2-1115, 2-1701 through 2-1719, 8-2501). These provisions in general are applicable to actions for what is termed "healing art" malpractice, a broad category that is not confined to actions against physicians and hospitals but rather, as some of the provisions indicate, may also include actions against other health professionals such as dentists or psychologists. See, e.g., Ill. Rev. Stat. 1985, ch. 110, par. 2-622.
We note at the outset that "[t]here is, as this court has frequently emphasized, a strong presumption that legislative enactments are constitutional (People v. Greene (1983), 96 Ill.2d 334, 338; Cronin v. Lindberg (1976), 66 Ill.2d 47, 58), and one who asserts otherwise has the burden of clearly establishing the constitutional violation (Polyvend, Inc. v. Puckorius (1979), 77 Ill.2d 287, 303; People v. Dale (1950), 406 Ill. 238, 244.)." (Sayles v. Thompson (1983), 99 Ill.2d 122, 124-25.) Because many of the provisions challenged here are attacked on the same grounds, as violating the due process and equal protection guarantees of both the State and Federal constitutions (see U.S. Const., amend. XIV; Ill. Const. 1970, art. I, sec. 2) and the State prohibition of special legislation (see Ill. Const. 1970, art. IV, sec. 13), it may be useful to set out, in a preliminary way, the standards under which those arguments would properly be addressed.
The rational-basis test generally has been applied in testing the constitutionality of medical malpractice legislation under guarantees of due process and equal protection. (See Smith, Battling a Receding Tort Frontier: Constitutional Attacks on Medical Malpractice Laws, 38 Okla. L. Rev. 195, 202-12 (1985).) Two notable exceptions, however, are found in Carson v. Maurer (1980), 120 N.H. 925, 424 A.2d 825, and Arneson v. Olson (N.D. 1978), 270 N.W.2d 125. In Carson the Supreme Court of New Hampshire held, as a matter of State constitutional law, that the appropriate standard to use in assessing the equal-protection challenges there was "whether the challenged classifications are reasonable and have a fair and substantial relation to the object of the legislation." (120 N.H. 925, 932-33, 424 A.2d 825, 831.) Applying that intermediate test, the court invalidated a broad range of provisions, including ones that modified the collateral-source rule, provided for the periodic payment of future damages, and set a scale for determining contingent fees. Similarly, in Arneson the Supreme Court of North Dakota used an intermediate standard of review one that required "a `close correspondence between statutory classification and legislative goals'" (270 N.W.2d 125, 133) in finding that various medical malpractice provisions violated State constitutional guarantees of equal protection and due process.
We decline to follow Carson and Arneson in applying to medical malpractice legislation a standard stricter than rationality review. We do not believe that the provisions in question implicate a suspect or quasi-suspect classification, and accordingly the appropriate standard for determining the plaintiff's equal protection challenges under the Illinois and Federal constitutions is whether the legislation bears a rational relationship to a legitimate governmental interest. (McDonald v. Board of Election Commissioners (1969), 394 U.S. 802, 809, 22 L.Ed.2d 739, 745, 89 S.Ct. 1404, 1408; Illinois Housing Development Authority v. Van Meter (1980), 82 Ill.2d 116, 119-20.) This standard applies as well to the additional argument that the provisions violate the State constitutional prohibition against special legislation (Jenkins v. Wu (1984), 102 Ill.2d 468, 477-78; Anderson v. Wagner (1979), 79 Ill.2d 295, 315), for although the guarantee of equal protection and the prohibition against special legislation are not identical, they are "generally judged by the same standard" (Chicago National League Ball Club, Inc. v. Thompson (1985), 108 Ill.2d 357, 368). Similarly, we do not believe that the provisions here burden a fundamental right, and for our purposes here the appropriate inquiry under due process is whether the legislation bears a rational relationship to a legitimate governmental interest. Williamson v. Lee Optical of Oklahoma, Inc. (1955), 348 U.S. 483, 488, 99 L.Ed. 563, 572, 75 S.Ct. 461, 464; Harris v. Manor Healthcare Corp. (1986), 111 Ill.2d 350, 368.
The history of the legislation amply demonstrates that it was enacted in response to what was perceived to be a crisis in the area of medical malpractice. Whether a malpractice crisis existed at all was disputed by the plaintiff in the circuit court, however, and the trial judge expressly found that there was no crisis and that the provisions challenged here were therefore unnecessary. The plaintiff and several amici urge those points in this court as well. Their argument is similar to the reasoning employed in Boucher v. Sayeed (R.I. 1983), 459 A.2d 87, where the Supreme Court of Rhode Island tested medical malpractice legislation under the rational-basis standard but took judicial notice that no malpractice crisis existed in 1981, when the provisions were enacted. The court therefore held that the provisions violated equal protection, concluding, "Absent a crisis to justify the enactment of such legislation, we can ascertain no satisfactory reason for the separate and unequal treatment that it imposes on medical malpractice litigants." (459 A.2d 87, 93.) The appropriate degree of deference in this regard was explained in Minnesota v. Clover Leaf Creamery Co. (1981), 449 U.S. 456, 464, 66 L.Ed.2d 659, 668-69, 101 S.Ct. 715, 724, where the court said:
"But States are not required to convince the courts of the correctness of their legislative judgments. Rather, `those challenging the legislative judgment must convince the court that the legislative facts on which the classification is apparently based could not reasonably be conceived to be true by the governmental decisionmaker.' Vance v. Bradley [(1979), 440 U.S. 93, 111, 59 L.Ed.2d 171, 184-85, 99 S.Ct. 939, 949-50]. [Citations.]
Although parties challenging legislation under the Equal Protection Clause may introduce evidence supporting their claim that it is irrational, United States v. Carolene Products Co. [(1938), 304 U.S. 144, 153-54, 82 L.Ed. 1234, 1242, 58 S.Ct. 778 784], they cannot prevail so long as `it is evident from all the considerations presented to [the legislature], and those of which we may take judicial notice, that the question is at least debatable.' [304 U.S. 144, 154, 82 L.Ed. 1234, 1243, 58 S.Ct. 778, 784.] Where there was evidence before the legislature reasonably supporting the classification, litigants may not procure invalidation of the legislation merely by tendering evidence in court that the legislature was mistaken."
It may fairly be said that whether a malpractice crisis existed was a question "at least debatable." Our task, therefore, is limited to determining whether the legislation in question is constitutional, not whether it is wise as well. See In re J.S. (1984), 103 Ill.2d 395, 407.
The plaintiff first challenges the provisions for review panels in cases of healing-art malpractice; these are set out in sections 2-1012 through 2-1020 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, pars. 2-1012 through 2-1020). The circuit judge found that the panel provisions violated a number of constitutional guarantees.
The legislation in question provides, as a prerequisite to trial in a case for healing-art malpractice, that a panel composed of a circuit judge, a practicing attorney, and a health-care professional must convene and make a determination regarding liability and, if liability is found, damages. Procedures are set out for maintaining rosters of judges, attorneys, and health-care professionals from which the parties select the panel members. (See Ill. Rev. Stat. 1985, ch. 110, pars. 2-1014, 2-1015.) The panel must be formed and must convene and render a decision within certain time limits (see Ill. Rev. Stat. 1985, ch. 110, par. 2-1013), and provision is made for compensating the two non-judicial members of the panel (see Ill. Rev. Stat. 1985, ch. 110, pars. 2-1019(a), (b)). The parties may unanimously agree to forgo the panels and proceed directly to trial. See Ill. Rev. Stat. 1985, ch. 110, par. 2-1012.
Proceedings before the panel are to be conducted in an adversary manner, and the parties and the panel may call and examine witnesses (see Ill. Rev. Stat. 1985, ch. 110, par. 2-1016(b)). The judicial member of the panel is to preside over the proceedings and is to "determine all questions of law, including matters of evidence" (see Ill. Rev. Stat. 1985, ch. 110, par. 2-1016(a)). Following the hearing, the panel is to render a written decision, with questions of law determined by the judge and questions of fact determined by the panel as a whole. (See Ill. Rev. Stat. 1985, ch. 110, par. 2-1017(a).) At any time the parties may unanimously agree to be bound by the panel's decision, and in that event the decision of the panel is conclusive and judgment may be entered on it. (See Ill. Rev. Stat. 1985, ch. 110, par. 2-1018(a).) Otherwise, if the panel's decision is unanimous, a party must make a written acceptance or rejection of it; failure to reject the decision within 28 days is deemed to be an acceptance of it, and, if the decision is accepted by all the parties, judgment may be entered on it (see Ill. Rev. Stat. 1985, ch. 110, par. 2-1018(b)). If the parties have not agreed to be bound by the panel's decision or have not unanimously accepted it, then the panel judge is to conduct a pretrial conference; following that, the matter is to proceed to trial, as in any other case. The judge who presided over the panel may not preside at trial, and the panel's decision is not admissible at trial. (See Ill. Rev. Stat. 1985, ch. 110, par. 2-1018(d).) A party who rejects a unanimous decision by the review panel and who does not prevail on the issue of liability at trial is liable for "the costs, reasonable attorneys' fees and expenses" of the prevailing party. Ill. Rev. Stat. 1985, ch. 110, par. 2-1019(c).
In Wright v. Central Du Page Hospital Association (1976), 63 Ill.2d 313, this court invalidated a system of screening panels for medical malpractice cases. The provisions considered in Wright, sections 58.2 through 58.10 of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, pars. 58.2 through 58.10), similarly provided for three-member panels, composed of a circuit judge, an attorney, and a physician, to consider evidence and render a decision in actions for medical malpractice. Wright found that the panel procedures violated provisions in the Illinois Constitution concerning the source of the judicial power and the jurisdiction of the circuit courts (see Ill. Const. 1970, art. VI, secs. 1, 9). Wright also held that because the panel procedures violated those provisions, they were an unconstitutional burden on the right to a jury trial (see Ill. Const. 1970, art. I, sec. 13).
The defendants would distinguish the panel procedures at issue here from those that were found unconstitutional in Wright. In Wright the judicial member of the panel was to determine all procedural issues, including matters of evidence, and the law of evidence was to be followed unless the panel in its discretion determined otherwise (see Ill. Rev. Stat. 1975, ch. 110, par. 58.6(1)); under the provisions at issue here, the judge on the panel is to determine all questions of law, including matters of evidence, and the law of evidence is to be followed, as determined by the judge (see Ill. Rev. Stat. 1985, ch. 110, par. 2-1016(a)). Also, the provisions considered in Wright said simply that the panel was to make its decision according to the applicable substantive law and that the written decision was to contain the panel's conclusions of fact and law (see Ill. Rev. Stat. 1975, ch. 110, par. 58.7(1)); the corresponding provision at issue here provides that the panel is to make its decision according to the substantive law as determined by the judge, and that the panel's written decision is to contain the judge's conclusions of law and the panel's conclusions of fact (see Ill. Rev. Stat. 1985, ch. 110, par. 2-1017(a)).
Because the current provisions make the judicial member of the panel the sole authority over legal issues, the defendants believe that the panel procedures here may be distinguished from those in Wright. Although the provisions here are different in several respects from those construed by the court in Wright, we do not believe that the current provisions eliminate entirely the problem that concerned the court in Wright. The problem described in Wright that the judicial member of the panel was forced to share his authority with the non-judicial members did not arise simply because the panel as a whole made legal and factual determinations. Rather, Wright was concerned that the non-judicial members of the panel were given a judicial role, and the court there noted that the non-judicial members of the panel could make determinations, either legal or factual, contrary to those reached by the judge. For that reason, the court found that the non-judicial members of the panel were empowered "to exercise a judicial function in violation of sections 1 and 9 of article VI of the Constitution." Wright v. Central Du Page Hospital Association (1976), 63 Ill.2d 313, 322.
A problem similar to that in Wright inheres in the panel procedures at issue here. Under these provisions, the role of the judicial member of the panel must take one of two forms. Either he serves on the panel in his judicial capacity but is forced to share, with the two non-judicial members, his judicial authority to make factual determinations, or he is denied his judicial authority and has no greater authority than the two other panel members. Neither alternative is suitable. Notably, statutes calling for the creation of three-member panels of circuit judges to carry out various functions have been held unconstitutional on the grounds that the legislature lacks the authority to create a new court and circuit judges do not act jointly or in a group. (See In re Contest for Governor (1983), 93 Ill.2d 463; People ex rel. Rice v. Cunningham (1975), 61 Ill.2d 353.) If a panel of three circuit judges cannot operate constitutionally, it is difficult to see how a panel consisting of one circuit judge and two laymen can. In essence, the panel procedures at issue here do not adequately distinguish between the judicial and non-judicial members; their fact-finding functions are still blended, as they were in Wright, and the circuit judge's fact-finding and decision-making authority is shared between the judge and the non-judicial panel members.
For the reasons indicated, we conclude that the procedures for review panels, set out in sections 2-1012 through 2-1020, are unconstitutional. Given this result, we need not consider the plaintiff's remaining arguments against the provisions.
The plaintiff also challenges the provisions allowing the periodic payment of certain damages, set out in sections 2-1701 through 2-1719 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, pars. 2-1701 through 2-1719). The circuit judge found that they violated a variety of constitutional guarantees.
The provisions, applicable to actions for healing-art malpractice (see Ill. Rev. Stat. 1985, ch. 110, pars. 2-1701, 2-1704), change the traditional rule of lump-sum awards by permitting the payment of large awards of future damages in periodic installments. The provisions do not apply in a particular case, however, unless an effective election has been made by a party. In general terms, this requires that a party make a timely motion for application of the provisions; the election is effective if the parties agree to have the provisions apply or fail to object to them or, once an objection is made, if it appears ...