Wright v. Central Du Page Hospital Ass'n

MR. JUSTICE UNDERWOOD, concurring in part and dissenting in part:

I agree with the court’s holding that the limitation on policy rate increases set forth in section 401a of the Insurance Code (Ill. Rev. Stat. 1975, ch. 73, par. 1013a) is invalid, and that the provisions for a medical review panel are invalidated by the inclusion therein of a circuit judge who is required to act in a manner incompatible with the constitutional provisions referred to in the court’s opinion.

Resolution of the problem presented by section 4 of Public Act 79-960 (Ill. Rev. Stat. 1975, ch. 70, par. 101) as to the validity of the $500,000 maximum limitation upon recoveries in medical malpractice cases is not so easily accomplished. I have finally concluded, however, that it represents a valid exercise of legislative discretion.

There is no question that the legislature has the power, within constitutional limits, to restrict or even eliminate common law rights. As was said in Werner v. Southern California Associated Newspapers (1950), 35 Cal. 2d 121, 125-26 , 216 P.2d 825 , 828:

“ ‘Except as the Constitution otherwise provides, the Legislature has complete power to determine the rights of individuals. (See Delaney v. Lowery, 25 Cal. 2d 561, 568 [ 154 P.2d 674 ].) It may create new rights or provide that rights which have previously existed shall no longer arise, and it has full power to regulate and circumscribe the methods and means of enjoying those rights’, so long as there is no interference with constitutional guaranties.’ (Modern Barber Col. v. California Emp. Stab. Com., 31 Cal. 2d 720, 726 . [ 192 P.2d 916, 920 .] ‘. . . the Constitution does not forbid the creation of new rights, or the abolition of old ones recognized by the common law, to attain a permissible legislative object.’ Silver v. Silver, 280 U.S. 117, 122 [ 50 S. Ct. 57 , 74 L. Ed. 221 ]; Langdon v. Sayre, 74 Cal. App. 2d 41 [ 168 P.2d 57 ].)”

(See also Clarke v. Storchak (1943), 384 Ill. 564 ; Komorowski v. Boston Store (1930), 341 Ill. 126 ; Grand Trunk Western Ry. Co. v. Industrial Com. (1919), 291 Ill. 167 ; 15 Am. Jur. 2d Common Law, sec. 16 (1964).) The troublesome question, however, is not whether common law rights may be limited, but whether, as the court now holds, application of that limitation only to medical malpractice recoveries is without any rational basis.

This court has repeatedly held that the prohibition against special legislation, which the majority holds this limitation to be, “does not mean that a statute must affect everyone in the same way” (Davis v. Commonwealth Edison Co. (1975), 61 Ill.2d 494, 498 ), for “perfect uniformity of treatment of all persons is neither practical nor desirable” (Grasse v. Dealer’s Transport Co. (1952), 412 Ill. 179, 193 ). A statute is presumed valid even though some inequality results (McGowan v. Maryland (1961), 366 U.S. 420 , 6 L. Ed. 2d 393 , 81 S. Ct. 1101 ), and the burden of demonstrating that a classification is unreasonable or arbitrary is upon the person attacking the validity of the classification. (People v. Palkes (1972), 52 Ill.2d 472, 477 .)

“A classification, however, cannot be arbitrary or unreasonable. It must be based on a rational difference of condition or situation existing in the persons or the objects upon which the classification rests. [Illinois Coal Operators Association v. Pollution Control Board, 59 Ill.2d 305, 311 ; Youhas v. Ice, 56 Ill.2d 497, 500 ; Begich v. Industrial Com., 42 Ill.2d 32, 35 ; People ex rel. County of Du Page v. Smith, 21 Ill. 2d 572, 578 .) This was described in People ex rel. County of Du Page v. Smith, 21 Ill.2d 572, 578 , where this court said: ‘If there is a reasonable basis for differentiating between the class to which the law is applicable and the class to which it is not, the General Assembly may constitutionally classify persons and objects for the purpose of legislative regulation or control, and may pass laws applicable only to such persons or objects.’ A differentiation or distinction ‘is not arbitrary if any state of facts can reasonably be conceived that would sustain it.’ Illinois Association of Fire Fighters v. City of Waukegan, 37 Ill.2d 423 , 425, quoting Bagdonas v. Liberty Land & Investment Co., 309 Ill. 103, 110 .” Davis v. Commonwealth Edison Co. (1975), 61 Ill.2d 494, 497 .

Much has been written and said in recent times about the current “crisis” in the area of medical malpractice resulting from substantial increases in the numbers of cases filed and amounts of jury verdicts, enormous increases in malpractice insurance premiums, threatened walkouts and strikes by doctors, etc. The briefs of the defendants in this case maximize the problem and those of the plaintiffs minimize it. Theory, fact and fiction are well-nigh inextricably intermingled. Despite this, it is clear that serious problems do exist (see, e.g., Plant, The Medical Malpractice “Crisis”, vol. 20, No. 2, p. 13, Law Quadrangle Notes, U. of Mich. Law School), to which a majority of the States have responded with legislative action in various forms, including new means of providing malpractice insurance, limitations upon contingency fees of lawyers, screening panels to hear claims, maximum liability limits, etc. (State Government News, January, 1976, vol. 19, Issue No. 1, p. 8). While the trial courts of several States have considered challenges to these legislative products, they do not yet appear to have been passed upon by courts of review.

It is quite true that the $500,000 limitation upon recovery bears most heavily upon the severely injured person. A stronger case for the limitation would exist if it permitted unrestricted recovery of actual expenses, for it is conceivable, as the majority emphasizes, that with today’s inflated costs, total expenses of treatment and care for a seriously and permanently injured person could exceed the allowable recovery. To be weighed against that rather remote possibility, however, is the vital interest, if not the absolute necessity, of society in having adequate health care available at reasonable cost. To the admittedly imprecise extent that the recovery limitation here in question contributes to that goal, far more persons are benefited than in any other area in which similar litigation occurs.

Given the fact that serious problems do exist; that, while not all of them are unique to the medical malpractice area, it is that area in which they appear most acute; that health care costs affect virtually all persons; that “A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it” (McGowan v. Maryland (1961), 366 U.S. 420, 426 , 6 L. Ed. 2d 393, 399 , 81 S. Ct. 1101, 1105 ); that “reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind”; and that “the legislature may select one phase of one field and apply a remedy there, neglecting the others” (Williamson v. Lee Optical of Oklahoma, Inc. (1955), 348 U.S. 483, 489 , 99 L. Ed. 563 , 573, 75 S. Ct. 461, 465 ); and that the $500,000 limitation still affords entirely adequate protection to the vast majority of victims of medical malpractice, I am not prepared to hold it an impermissible exercise of legislative discretion.

MR. JUSTICE RYAN joins in this partial concurrence and partial dissent.