DeLuna v. St. Elizabeth's Hospital

JUSTICE CLARK, dissenting:

I agree with the well-reasoned opinion of the appellate court that section 2 — 622 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 622) is unconstitutional in that it violates the separation of powers clause of the Illinois Constitution (Ill. Const. 1970, art. II, §1). I therefore dissent.

The separation of powers clause of our constitution provides:

“The legislative, executive and judicial branches are separate. No branch shall exercise powers properly belonging to another.” (Ill. Const. 1970, art. II, §1.)

Although “[t]he Constitution does not specifically delineate which powers are legislative, which are executive, and which are judicial” (People v. Bainter (1989), 126 Ill. 2d 292, 302-08 ), section 1 of article VI of the constitution (Ill. Const. 1970, art. VI, §1) does vest “the exclusive and entire judicial power in the courts” (Wright v. Central Du Page Hospital Association (1976), 63 Ill. 2d 313, 322 ).

It is clear that “[t]he application of principles of law is inherently a judicial function.” (Wright, 63 Ill. 2d at 322 ; see also 147 Ill. 2d at 68, quoting Bainter, 126 Ill. 2d at 303 (“ ‘We have construed the concept of judicial power as including the adjudication and application of law’ ”).) Therefore, the legislature is generally prohibited from granting persons, who are not members of the judiciary, authority to apply principles of law to the facts of a case. (See Wright, 63 Ill. 2d at 322 .) The sole exception to this general rule is that the legislature can grant an administrative agency authority to apply or construe legal principles in resolving questions that are before the agency. (See City of Waukegan v. Pollution Control Board (1974), 57 Ill. 2d 170, 181-82 .) However, where such authority is granted, the doctrine of separation of powers requires that the judiciary be given an adequate opportunity to review the agency’s application of legal principles. City of Waukegan, 57 Ill. 2d at 181-82 .

Section 2 — 622 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 622) grants health care professionals authority to apply legal principles in reviewing medical malpractice cases. Under section 2 — 622, a plaintiff who seeks to file an action for damages arising from medical malpractice must first have a health care professional review the facts in his case to determine whether the plaintiff has “a reasonable and meritorious cause for filing” the action. To make such a determination in a medical malpractice case, a health care professional must first determine the applicable standard of conduct, and then decide whether the defendant’s conduct measured up to that standard. The applicable standard of conduct, however, can only be determined by applying the legal test for standard of conduct (i.e., “the standard of conduct *** is that of a reasonable man under like circumstances” (Restatement (Second) of Torts §283, at 12 (1965))) to the facts of the case (Restatement (Second) of Torts §285(d), at 20 (1965)). Therefore, in order to decide whether to certify a cause of action as meritorious, a health care professional must apply legal principles to the facts of the case.

Unlike cases involving an agency’s application of legal principles, a health care professional’s application of legal principles under section 2 — 622 is not subject to judicial review. Rather, if the health care professional finds that there is no “reasonable and meritorious cause for filing” the action, and the plaintiff is unable to find another health care professional who would conclude otherwise, any complaint filed by the plaintiff must be dismissed by the trial court under section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619). (Ill. Rev. Stat. 1987, ch. 110, par. 2— 622(g).) Section 2 — 622 therefore grants health care professionals authority to usurp the judiciary’s role in applying principles of law to the facts of a case. Legislation which allows such usurption of judicial authority, without a possibility for judicial review, violates the doctrine of separation of powers. See Bainter, 126 Ill. 2d at 303 .

The majority does not believe that a health care professional performing the functions specified by section 2 — 622 exercises a judicial power. Instead, according to the majority, a health care professional acting pursuant to section 2 — 622 “simply certifies that in his opinion the action has reasonable merit. Expression of that opinion does not become a judicial power simply because the failure to comply with the statute by submitting the certification of the health professional may result in the dismissal of the action.” 147 Ill. 2d at 69.

I agree that a health care professional’s mere expression of his opinion as to whether a cause of action is meritorious does not constitute a judicial function. However, before a health care professional can develop such an opinion, the health care professional must first review the facts of the case, determine the applicable standard of care, and decide whether that standard of care was met. As I have explained, such a process involves the application of legal principles to the facts of the case, a process which, until this case, had always been recognized as being exclusively a judicial function.

The majority later argues that “the function performed by the health professional under section 2 — 622 *** is essentially no different from the function he is later called upon to perform at trial.” (147 Ill. 2d at 70.) This simply is not true. At trial, it may be necessary for a health care professional to testify as to his opinion of what the applicable standard of care was in a certain case. (See Addison v. Whittenberg (1988), 124 Ill. 2d 287, 297 ; but see Walski v. Tiesenga (1978), 72 Ill. 2d 249, 256-57 (no expert testimony needed to establish standard of care “where the physician’s conduct is so grossly negligent or the treatment so common that a layman could readily appraise it”).) However, the health care professional’s opinion does not conclusively establish the standard of care. Rather, the trier of fact, after applying the appropriate legal principles to the evidence in the case (including the health care professional’s testimony), ultimately determines the applicable standard of care. See Walski, 72 Ill. 2d at 258-62 .

Under section 2 — 622, however, health care professionals do more than merely provide evidence as to standard of care. Instead, they must actually decide themselves the applicable standard of care. Thus, health care professionals acting pursuant to section 2 — 622 must perform the judicial function normally reserved for the trier of fact.

The majority also gives a number of other reasons in support of its conclusion that section 2 — 622 is consistent with the doctrine of separation of powers. The majority notes that “ ‘statutory provisions governing procedure are not uncommon.’ Those legislative measures range from pleading requirements to statutes of limitations; some of the provisions may operate as conditions precedent to maintaining a particular cause of action.” (147 Ill. 2d at 69, quoting Strukoff v. Strukoff (1979), 76 Ill. 2d 53, 61 .) This statement suggests that section 2 — 622 is constitutional because it is simply a statutory provision governing procedure.

It is certainly true that the legislature shares concurrent jurisdiction with this court to regulate procedural aspects of judicial practice. (See O’Connell v. St. Francis Hospital (1986), 112 Ill. 2d 273, 281 .) However, under the doctrine of separation of powers, legislative attempts at regulating judicial practice which “unduly infringe upon the inherent powers of the judiciary” are unconstitutional. (Agran v. Checker Taxi Co. (1952), 412 Ill. 145, 149 .) Section 2 — 622, in allowing health care professionals authority to usurp the inherently judicial function of applying legal principles to the facts of a case, unduly infringes upon the judiciary’s inherent powers. Furthermore, the majority is incorrect in characterizing section 2 — 622 as being a statute that merely governs procedure.

Procedural requirements, by definition, govern procedural aspects of a case; they do not involve questions concerning the substantive merits of a case. Section 2— 622, on the other hand, explicitly requires that a health care professional review the facts of a case to determine whether there is a “reasonable and meritorious” cause of action. (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 622.) Because section 2 — 622 requires a determination as to the merits of a case, it cannot properly be characterized as being a statute that merely governs procedure.

Another reason given by the majority for its decision is that section 2 — 622 serves the same purpose as Supreme Court Rule 137 (134 Ill. 2d R. 137) in that section 2 — 622 is intended to curtail or eliminate frivolous suits. (147 Ill. 2d at 70-71.) According to the majority, “the burdens imposed by the two provisions are similar *** [and] [i]t would be inconsistent to require parties in all instances to undertake reasonable investigation of the grounds for their actions [as required by Rule 137], yet invalidate what would only be a reasonable step in that process in cases involving healing art malpractice.” 147 Ill. 2d at 71.

The majority improperly focuses upon the effects that section 2 — 622 may have upon plaintiffs. In assessing legislation under the doctrine of separation of powers, however, the only relevant inquiry is whether the legislation has any effect upon the judiciary’s exercise of its inherent powers. Legislation which unduly infringes upon the judiciary’s exercise of its inherent judicial powers violates the doctrine of separation of powers, whether the legislation has any effect upon litigants or not. See People ex rel. Stamos v. Jones (1968), 40 Ill. 2d 62, 66 .

The majority also fails to recognize several key distinctions between Rule 137 and section 2 — 622. Rule 137 is a requirement imposed upon the judiciary by this court under this court’s constitutionally authorized rulemaking authority (see Ill. Const. 1970, art. VI, §16), while section 2 — 622 is a requirement imposed upon the judiciary by the legislature. Furthermore, under Rule 137, it is the trial court that reviews the facts and the law pertaining to a case to determine whether a pleading is so lacking in merit as to necessitate sanctions. Under section 2 — 622, however, a health care professional assesses the merits of a case. Finally, Rule 137 imposes no requirement upon the judiciary, but rather leaves to the discretion of the trial judge the question of whether sanctions should be imposed. Section 2 — 622, on the other hand, mandates that trial judges must dismiss medical malpractice complaints if a health care professional has not first certified that the complaint contains a meritorious cause of action.

In sum, Rule 137 is a judicially promulgated rule which does not take away trial judges’ exclusive authority to apply principles of law in determining whether a cause of action is meritorious. Thus, Rule 137 attempts to curtail the filing of frivolous lawsuits in a manner that is entirely consistent with the doctrine of separation of powers. Section 2 — 622, on the other hand, is a legislatively imposed requirement on the judiciary which requires the usurption of judicial power by health care professionals. Section 2 — 622, therefore, attempts to achieve the same goals as Rule 137, but in a manner which violates the doctrine of separation of powers. I see nothing that would be inconsistent about this court’s enforcing the constitutional requirements of Rule 137, while at the same time invalidating the unconstitutional requirements of section 2 — 622.

A final reason given by the majority in support of its conclusion is that “the statute permits the plaintiff to select his own health professional in obtaining the required certification.” (147 Ill. 2d at 69.) Although this statement is true, the fact remains that section 2 — 622 requires the application of legal principles by someone who is not a member of the judiciary. Such a statutory requirement violates the doctrine of separation of powers.

This court long ago recognized that “[i]t is the undisputed duty of the court to protect its judicial powers from encroachment by legislative enactments, and thus preservé an independent judicial department.” (.Agran v. Checker Taxi Co. (1952), 412 Ill. 145, 149 .) The majority, in holding that the legislature has a right to grant health care professionals the unreviewable power to decide whether medical malpractice actions should be allowed to be brought before the courts, has failed to fulfill its duty. If such a right exists in the medical malpractice context, what will prevent the legislature from enacting similar statutes in other areas of law? Could the legislature require, for example, that persons seeking to challenge the constitutionality of a statute first obtain the approval of an expert in constitutional law, or that persons seeking a dissolution of marriage first obtain approval of a marriage counsellor?

Because I believe that section 2 — 622 is unconstitutional under the doctrine of separation of powers, I respectfully dissent.