State Ex Rel. Strykowski v. Wilkie

*532 ABEAHAMSON, J.

(dissenting in ‘part). I consider this medical malpractice statute within the following context:

Courts should be favorably disposed to extrajudicial methods of settling disputes. The hardships imposed upon litigants by our already over-crowded court dockets need not be belabored. The legislature has broad scope to deal with economic problems and experiment with solutions to economic problems. “The criterion of constitutionality is not whether we [the judges] believe the law to be for the public good.” Adkins v. Children’s Hospital, 261 U.S. 525, 567, 570 (1923) (Holmes, J. dissenting opinion). Our task is to determine whether the statute clearly contravenes a constitutional provision. All legislative acts are presumed constitutional, and any doubts that exist must be resolved in favor of the constitutionality of a statute. Buse v. Smith, 74 Wis.2d 550 , 247 N.W.2d 141 (1976) and cases cited therein (dissenting opinion). This court is not the legislature, and it should not make legislative policy for the state.

I believe that the majority has exceeded the limits of judicial construction in seeking to uphold the constitutionality of sec. 655.19, Stats., which provides:

“No panel member may participate in the trial either as counsel or witness ....

“(1) The findings and order, except for damages awarded, of any formal panel shall be admissible in any circuit or county court, and the amount of damages awarded may, at the court’s discretion, be admissible in such action ....

“(2) The findings and order of any informal panel shall not be admissible in any court action. No statement or expression of opinion made in the course of an informal panel hearing is admissible in evidence either as an admission or otherwise in any court action.”

I.

In its effort to uphold the constitutionality of sec. 655.19, the majority opinion fails to come to grips with *533 the threshold question: does the statute as written deprive the parties of a fair trial? The question raised by the parties is whether a jury can evaluate the panel’s findings and order with objectivity or whether the impact of the panel’s findings and recommendations — which are not subject to challenge by usual adversary procedures — is so overpowering that the trial is infected with prejudicial taint. The court never discusses the question. Instead, it proceeds with a presumed duty to read into the statute those elements which will make it constitutionally valid.

I submit that the majority has not merely followed the cases it cited which require this court to interpret a statute so that its application is valid or which allow the court to impose upon the statutory scheme a well-accepted procedure to assure due process or equal protection of the laws. I believe the majority has written a new statute and has written it as if all the modifications were constitutionally mandated.

The majority opinion says that “few statutes can be written to completely cover all areas of concern.” True. Nevertheless, in an attempt to fill in the gaps, the majority without hesitation borrows provisions from the “medical panel statutes” of other states and adds them to our statute. These are policy choices which should be made by legislators, not by several members of this court.

This court has improperly made legislative policy decisions in constitutional terms without telling the legislature specifically where it went wrong in the statute it wrote. If the statute is defective and needs revision, the court should explain where and why and allow the legislature to make the revisions. Indeed the Wisconsin legislature itself is well aware of the need to revise chapter 655. State Representative Joseph C. Czerwinski, Chairman, Health Committee, Wisconsin Assembly, a legislator intimately involved with Wisconsin’s attempt to cope with the medical malpractice crisis, wrote:

*534 “. . . The Assembly felt that availability of insurance was the issue and that the state should take steps to make insurance directly available if physicians were unable to obtain it. The Senate believed that not only should the state make insurance available if insurance was unavailable privately, but also should undertake fundamental revisions of the tort liability system to insure that the voluntary market would continue to provide medical malpractice insurance.

“Neither House receded from its position, with the result that Assembly Bill 725 bounced back and forth between the two houses. . . .

“. . . I would note that in order to satisfy the strongly divergent views of the two Houses, an extremely complex bill had to be prepared and acted upon in a short time. We have already had two trailer bills to correct inequities created by this hasty enactment. I suspect we will be amending and correcting the bill for many years.” (Wisconsin’s Medical Malpractice Crisis, in A Legislator’s Guide to the Medical Malpractice Issue, The National Conference of State Legislatures (1976), p. 55.)

If the submission of the panel’s findings to the trier of fact without a direct challenge being permitted is invalid, the legislature has two basic policy choices: (1) it can eliminate the submission of the findings; or (2) it can provide sufficient safeguards to assure that the probative value of the panel’s findings as evidence will outweigh their prejudicial effects. If the legislature were to decide to implement the second choice, it might not choose the same “safeguards” the majority opinion does. Indeed it is unclear if the majority is saying that all or merely some of the “safeguards” it sets forth are constitutionally required. Must the trial court always submit the dissenting report of the panel? Must the trial court always allow the parties to comment on the panel’s report in argument? Must the trial court always allow the parties to present witnesses to impeach the panel’s findings? (What about allowing witnesses in support of or in explanation of the panel’s findings?) Must the *535 panel’s findings always include findings as to ultimate facts and findings of primary or evidentiary facts but not conclusions of law? (This part of the majority’s opinion is especially troublesome. Lawyers and courts have great difficulty in distinguishing between findings of ultimate facts, primary facts, evidentiary facts and conclusions of law. How can we expect the panel to make this distinction? What will be done if the panel’s findings do not fit the majority opinion’s description?) Must the trial court give a cautionary instruction to the jury in each case?

If all of these safeguards are constitutionally required, the likely result is that the focal point of malpractice trials will be the question of whether the panel erred rather than whether the medical care provider erred. I do not believe this is the end result for which the majority or legislature aimed.

II.

Sec. 655.19(1) provides that the submission at trial of the award of the panel — the dollar figure — is within the discretion of the trial court. Nothing in ch. 655 gives the trial court the basis upon which to exercise this discretion. I assume this court can review the trial court’s exercise of discretion for abuse of discretion. We have repeatedly held that the exercise of discretion must depend on facts that are of record or that are reasonably derived by inference from the record and the basis of that exercise of discretion should be set forth. This court will not find an abuse of discretion if the record shows that discretion was in fact exercised and if the record shows that there is reasonable basis for the trial court’s determination.

The only logical basis upon which the trial court can exercise its discretion is that it finds the panel acted on *536 the basis of good and sufficient evidence and that the award represents a reasonable figure. Although this court has permitted the trial court the power of re-mittitur after a jury verdict, we do not permit the trial court to advise the jury as to its view of the reasonable range for awarding damages. Perhaps we should. If so, the issue is squarely presented by sec. 655.19, Stats., and should be decided. The majority fails to do so.

III.

A central element of justice is impartial decision-making. A decision maker who has an interest in the outcome of the litigation cannot fairly adjudicate the case. It is not possible to define with precision the degree or type of pecuniary interest which will disqualify a decision maker. The test set forth in Tumey v. Ohio, 273 U.S. 510, 532 (1927) is whether the personal interest is one which:

“. . . would offer a possible temptation to the average man as a judge to forget the burden of proof required ... or which might lead him not to hold the balance nice, clear and true between the [parties] . . . .”

The financial interest need not be direct; an indirect financial benefit may also be prejudicial. Ward v. Village of Monroeville, 409 U.S. 57 (1972); Gibson v. Berryhill, 411 U.S. 564, 579 (1973). I do not read Gibson as disqualifying members of a profession from passing on the qualifications of applicants for admission to the profession or from reviewing and passing judgment on the conduct of a professional. Thus the presence of health care providers on the panel is not objectionable per se. The majority’s attempt to characterize petitioners’ argument as assuming that all health care providers are prejudiced is unfair and inaccurate.

*537 Gibson involves members of the profession who had more than a remote, speculative financial interest caused by decreasing or increasing potential competition in the profession. The United States Supreme Court relied on the trial court’s view of the facts of the case to conclude that the panel members had a financial interest which made them biased. Under these circumstances, no showing need be made that the particular panel member is less than totally fair. Rather the United States Supreme Court found that the mere possibility of unfairness was sufficient. For a discussion of bias, see McCormack, The Purpose of Due Process: Fair Hearing or Vehicle for Judicial Review, 52 Tex. L. Rev. 1257 (1974); 2 Davis, Administrative Law ch. 12 (1958).

The issue in the instant case is whether the annual assessment against the medical members is the extra element which makes the panel suspect. The dimensions of the financial interest were not set forth in the stipulation or briefs. The majority is thus determining, without any factual support, that “any financial interest inherent in the structure of Chapter 655, Stats., is too remote and speculative to require disqualification.” I do not believe this court, on this record, can reach any conclusion as to the bias of the medical members.

I believe that the majority opinion should be read to allow the “financial bias” of the medical members, if any can be shown, to be commented on by the parties in opening and closing arguments, by presentation of witnesses and in the cautionary instruction.

IV.

Obviously the majority believes that sec. 655.19, Stats., as written by the legislature, permitting the submission of the panel’s findings and order, deprives the parties of a fair trial. If that is the holding of this court, I would *538 strike the offending parts of see. 655.19, Stats., relating to the submission. If there is to be a valid procedure for submitting the panel’s findings and order as evidence, I believe its creation is for the legislature, not this court.

I am authorized to state that Mr. Justice Heffernan joins in this opinion.