Amicus Brief — Liggett v. Kansas ex rel. Schneider

IN THE

Supreme Court of the United States

OCTOBER TERM, 1977

NO. 77-1621

BYRON TIMOTHY LIGGETT,M.D............... 4 ppellant

vs.

STATE OF KANSAS EX REL.. CURT T. SCHNEIDER

ATTORNEY GENERAL OF THE STATE OF KANSAS. KANSAS

HOSPITAL ASSOCIATION, THE KANSAS MEDICAL SOCIETY.

THE KANSAS HEALTH CARE PROVIDER INSURANCE

AVAILABILITY PLAN ...........0..00000 00 cece Appellees

APPEAL FROM THE SUPREME COURT

OF THE STATE OF KANSAS

MOTION FOR LEAVE TO FILE BRIEF AS

AMICUS CURIAE AND BRIEF OF

AMICUS CURIAE ASSOCIATION OF

AMERICAN PHYSICIANS AND SURGEONS

INC. INSUPPORT OF

JURISDICTIONAL STATEMENT

KENT MASTERSON BROWN

201 West Vine Street

Lexington, Kentucky 40507

Counsel for Amicus Curiae

Association of American

Physicians and Surgeons, Inc

ROBERTS PRINTING CO FRANKFORT KY

=

IN THE

Supreme Court of the United States

OCTOBER TERM, 1977

NO. 77-1621

BYRON TIMOTHY LIGGETT, M.D.............. Appellant

vs.

STATE OF KANSAS EX REL., CURT T. SCHNEIDER,

ATTORNEY GENERAL OF THE STATE OF KANSAS, KANSAS

HOSPITAL ASSOCIATION, THE KANSAS MEDICAL SOCIETY,

THE KANSAS HEALTH CARE PROVIDER INSURANCE

RVAMAETES FAR oo cccsscvcstscecseseses Appellees

APPEAL FROM THE SUPREME COURT

OF THE STATE OF KANSAS

MOTION OF ASSOCIATION OF AMERICAN

PHYSICIANS AND SURGEONS, INC.

FOR LEAVE TO FILE BRIEF

AMICUS CURIAE IN SUPPORT OF

JURISDICTIONAL STATEMENT

Pursuant to Rule 42 of the Rules of this Court, the

Association of American Physicians and Surgeons, Inc.,

respectfully moves this Court for leave to file a brief amicus

curtae in support of the Jurisdictional Statement in the

“i

above-entitled case. Counsel for movant has, as of the date

the within motion and brief is filed, received consent from

counsel for the Appellant for the filing of same.

In support of the motion of the Association of

American Physicians and Surgeons, Inc., for leave to file a

brief amicus curiae, the Association states that it is a

voluntary association formed by private, practicing

physicians and surgeons in 1943. The Association is

incorporated as a non-stock, non-profit corporation under

and by virtue of the laws of the State of Illinois, and has its

principle offices located in Oak Brook, Illinois. It is the

largest association with nationwide membership in the

United States devoted exclusively to representing the

physician in the practice of private medicine. The

Association has members in every state and territory in the

United States, and in the District of Columbia. One of the

primary objectives of the Association in recent years has

been the safeguarding of the private practitioner's “right” to

engage in his or her calling free from such arbitrary controls

as found in compulsory medical malpractice insurance

legislation.

In Kentucky, members of the Association successfully

overturned that Commonwealth's compulsory medical

malpractice insurance statute. McGuffey, etc., et. al. v.

Hall, et. al., 557 S.W. 2d 401 (Ky., 1977). The disposition

of the Supreme Court of Kentucky has enabled the

Association and its members to appeal to courts and state

legislative assemblies that, in terms of a state's “police

powers,” the frontiers of legal thinking have been advanced.

Though not discussed in the opinion of the Supreme Court

of the State of Kansas hereinbelow, the case of McGuffey,

etc., et. al. us. Hall, et. al., supra, was vigorously argued.

The accompanying brief amicus curiae espouses a

fundamental philosophy of the Association and_ its

m”

individual members, and presents an argument unique to

the instant case. Of importance to the Association is the

argument that a conflict does exist within the jurisdictions

as to the Constitutionality of compulsory medical

malpractice insurance legislation, and that a standard is

necessary by which the several jurisdictions may be guided.

The Association, additionally, presents the argument,

based upon the Fourteenth Amendment, that compulsory

medical malpractice insurance legislation, such as K.S.A.

1976 Supp. 40-3042, is violative of the State's “powers of

police,” and, its compulsory nature bears no “reasonable

relationship” to the purpose therefor. Upon the

aforementioned arguments the Association of American

Physicians and Surgeons, Inc., and its members prevailed in

McGuffey, etc., et. al., v. Hall, et. al., supra.

The accompanying brief amicus curiae in support of

the Jurisdictional Statciuent presents a diverse perspective

not presently represented which will assist in obtaining full

consideration of issues critical to all segments of the public.

CONCLUSION

For the above-stated reasons, the Association of

American Physicians and Surgeons, Inc., respectfully urges

this Honorable Court to grant this motion for leave to file

the accompanying brief amicus curiae in support of the

jurisdictional statement.

Respectfully submitted,

KENT MASTERSON BROWN

201 West Vine Street

Lexington, Kentucky 40507

Telephone: (606) 233-7879

Counsel for Amicus Curiae

Association of American

Physicians and Surgeons, Inc.

iv

INDEX

PAGE

INTEREST OF THE ASSOCIATION OF AMERICAN

PHYSICANS AND SURGEONS, INC. ......... 1-2

SUMMARY OF ARGUMENT .............ssee008: 2-5

TUT TT TTT CTT TTT TUTTE TTT 5-17

I. A DECISION BY THIS COURT WOULD

ESTABLISH VALUABLE PRECEDENT AND

RESOLVE A CLEAR CONFLICT AMONG

pi TT TT Tee 5-7

Il. K.S.A. 1976 SUPP. 40-3402(a) IS REPUGNANT

TO THE FOURTEENTH AMENDMENT TO

THE CONSTITUTION OF THE

SOP ooo cutacenennsnnecees 7-17

A. K.S.A. 976 SUPP. 40-3402(a) EXTENDS

BEYOND THE SCOPE OF THE “POLICE

POWER“ OF THE STATE

er I 666 606-66 660 06000045 7-12

B. THE REQUIREMENTS OF PURCHASE

OF MINIMUM AMOUNTS OF MEDICAL

MALPRACTICE INSURANCE AS A

CONDITION OF THE CONTINUED

PRACTICE OF MEDICINE IS UNREA.-

SONABLE AND IRRATIONAL ..13- 15

C. K.S.A. 1976 SUPP. 40-3402(a) IS REPUG-

NANT TO THE FOURTEENTH AMEND.-

MENT TO THE CONSTITUTION OF

THE UNITED STATES IN THAT IT

AMOUNTS TO A TAKING OF PRO.

PERTY WITHOUT DUE PROCESS

OFLAW...............0e00e. 15-17

PCP ET CTT TT Tre eT er eer 17 - 18

TABLE OF AUTHORITIES CITED

CASES PAGE

Association of American Physicians and Surgeons,

Inc., et. al. v. Weinberger, 395 F. Supp.

125 (D.C. Ill., 1975), affm'd.

Ss SCL Dern ehhs eRtndedcoescces 2

Atkins v. Kansas, 191 U.S. 207 (1903) ................ 10

Barsky v. Board of Regents of the University of

the State of New York, 347 U.S. 442 (1954). .... 12,15

Bibb v. Navajo Freight Lines, 359 U.S. 520(1950)...... 13

Breard v. City of Alexandria, 341 U.S. 622(1951)...... 13

Broadnax v. Missouri, 219 U.S. 285(1911)............. 9

Brown v. Maryland, 12 Wheat, [25 U.S. 419 (1827)] ..... 7

Chicago, B. & Q. Ry. v. Illinots, 200 U.S.

cc FE eis CREE EEs PU PECEE OO See sberecees 9

Chicago, etc., R.R. v. McQuire, 219 U.S.

|: OPT TTT TITEL TET 9

Colorado Springs Amusements, Ltd. v. Rizzo,

428 U.S. 913 (Opinion of Mr. Justice Brenna),

Cet ees Gh ed eae RAReSOhEAbadeeresenes 7

Commonwealth v. Alger, 7 Cush. (61 Mass.) 53

Pics chiedtedeneapaodaeeseoevsccocases 8

Cooley v. Board of Wardens of the Port of

Philadelphia, 12 How. (53 U.S.) 299(1851) ........ 8

Davidson v. New Orleans, 96 U.S. 97 (1878)........... 14

Dent v. West Virginia, 129 U.S. 114(1889)....... 6, 12, 16

Douglas v. Noble, 261 U.S. 165 (1923)............64.. 12

Fairmont Creamery Co. v. Minnesota, 274 U.S. 1 (1927). 10

German Alliance Ins. Co. v. Kansas, 233 U.S.

EEG SSU Us sh ubbaduhewes ese rurdseckees 9

Gibbons v. Ogden, 9 Wheat. (22 U.S.) 1 (1824) ....... 7,8

Griswold v. Connecticut, 381 U.S. 479 (1965).......... 10

Hannibal ® St. J. R. Co. v. Husun, 95

ee Aine ha buh enéns sc cdduscensesdes 9

Holmes v. Hoemako Hospital, 573 P. 2d 477 (1978)...... 6

Jones v. State Board of Medicine, 97 Idaho 859, 555

P. 2d 399 (1976), cert. den. 431 U.S. 914(1976)..... 5

Louts K. Liggett Co. v. Baldridge, 278 U.S.

SR CL eee te tnd ens diney ser bepets es 15

McGuffey, etc., et. al. v. Hall, et. al., 557

> Ps SOE doce vcccccck eocveedé ii, 2,5

Meyer v. Nebraska, 262 U.S. 390 (1923)......... 7, 10, 16

Muller v. Oregon, 208 U.S. 412 (1908) ............. 9,14

Munn v. Illinots, 94 U.S. 77 (1876) at 83-84 ........... 10

Mutual Loan Co. v. Martell, 222 U.S. 225(1911)..... 9, 16

Nebbia v. New York, 291 U.S. 502, 89

ae diode ae eed 64 b0es eee ones 13

New Jersey Chiropractice Assn'n. v. State Board of

Medical Examiners of N.Y., 79 F. Supp. 327

SG TEE Sh ebohe went stoeccvenvcucccces 12

Patterson v. Kentucky, 97 U.S. 501 (1878).............. 9

Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922). ..17

Pierce v. New Hampshire [The License Cases],

5 How. (46 U.S.) 504 (1846) at 583................. 8,10

Pierce v. Society of Sisters, 268 U.S. 510(1925)......... 10

Polhemus v. American Medical Ass'n., 146 F. 2d

ead, a eeu udeweé ll

vil

Pollock v. Methodist Hospital, 392 F. Supp.

POPs BOs SOO wh ce ccecevedeswtntetisseness 6

Reynolds v. La. Bd. of Alcholic Beverage Control,

249 La. 127, 185 So. 2d 794 (1965), cert. den.

Fae WEEDS CuP eee doce enegessdenncvece 9

Roe v. Wade, 410 U.S. 113, 155 (1973) ............... 16

Rosner v. Peninsula Hospital District, 224 Cal. App.

3a 115, SS Cal Retv. SEB (IGSE). .. 2 ccc cccccess 6

Slaughter House Cases, 83 U.S. 16 (1872) .............. 9

Standard Oil Co. v. City of Marysville, 279 U.S.

Ss ho cle ceosnd eeeneabbseucctRatacecces 13

State of North Carolina Ex. Rel. Sarah T. Morrow,

etc., et. al. v. Califano, No. 76-0049-Civ-5

(E.D.N.C. September 22, 1977) affm'd.

ee GI Sip Sp once becebdceeticesvcccoess 2

Treigle v. Acme Homestead Assn., 297 U.S. 189,

DORM HEME 6 nbc ced ceasdeverscoseccees 13

Van Oster v. Kansas, 272 U.S. 465 (1926) ............. 10

Watson v. Maryland, 218 U.S. 178(1910)........ 6,11, 12

West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937)... .10

Yick Wo v. Hopkins, 118 U.S. 356 (1886) ............. 14

STATUTES:

K.S.A. 1976 Supp. 40-3402 .......... 4, 12,13, 14, 15,17

UNITED STATES CONSTITUTION:

REL EE 12

Fourteenth Amendment ...................e5: 2, 3,13

MISCELLANEOUS:

Bird, “The Evolution of Due Process of Law in

Decision of the United States Supreme Court,”

PGE, BB Gr nk cc scccccsccccess

Comment, 67 Mich. L. Rev. 360(1968)............

Note, “Summary Disposition of Supreme Court of

Appeals”, 52 B.U.L. 373 (1972)..............

Roettinger, The Supreme Court and State Police

Power (Cambridge, 1957) ..........0cccccees

Swayze, “Judicial Construction of the Fourteenth

Amendment,” 26 Harv. L. Rev. 1(1912).......

Warren, The Supreme Court in United States

FOOT GN, Ts 6 ose ccccescesecccccss

*“_* © «

IN THE

Supreme Court of the Bnited States

OCTOBER TERM, 1977

NO. 77-1621

BYRON TIMOTHY LIGGETT, M.D.............. Appellant

vs.

STATE OF KANSAS EX REL., CURT T. SCHNEIDER,

ATTORNEY GENERAL OF THE STATE OF KANSAS, KANSAS

HOSPITAL ASSOCIATION, THE KANSAS MEDICAL SOCIETY,

THE KANSAS HEALTH CARE PROVIDER INSURANCE

SIUC WOME cess cc cdvcescatccccnces A ppellees

APPEAL FROM THE SUPREME COURT

OF THE STATE OF KANSAS

BRIEF OF AMICUS CURIAE ASSOCIATION

OF AMERICAN PHYSICIANS AND

SURGEONS, INC. IN SUPPORT OF THE

JURISDICTIONAL STATEMENT

MAY IT PLEASE THE COURT:

This brief amicus curiae in support of the Jurisdic-

tional Statement is filed by the Association of American

Physicians and Surgeons, Inc., by Motion, as provided for

in Rule 42 of the Rules of this Court.

INTEREST OF THE ASSOCIATION OF

AMERICAN PHYSICIANS AND SURGEONS, INC.

The Association of American Physicians and Surgeons,

2

Inc., a non-stock, non-profit corporation, was organized for

the purposes of protecting and safeguarding the “right” of

the practitioner of private medicine to engage in such a

calling free from arbitrary and unreasonable controls. The

Association has been active as an amicus or a party in such

cases as State of North Carolina Ex Rel Sarah T. Morrow,

etc., et. al. v. Califano, No. 76-0049-Civ-5 (E.D.N.C.,

Sept. 22, 1977), affm’d. U.S. (April 17, 1978) and

Association of American Physicians and Surgeons, Inc., et.

al., v. Weinberger, 395 F. Supp. 125 (D.C. Ill., 1975),

affm'd. 423 U.S. 975 (1976). Importantly, the Association

and its members successfully challenged the Kentucky

Compulsory Medical Malpractice Insurance Statute in

1977. McGuffey, etc., et. al., v. Hall, et. al., 557 S W. 2d

401 (Ky., 1977). The Association firmly believes that the

interpretation of the Supreme Court of Kentucky in

McGuffey and that of the Supreme Court of the State of

Kansas in the instant case as to considerations of the “police

power” of the State and rationality and relationship of the

compulsory nature of the legislation to the purpose or

purposes for which it was enacted are irreconcileable.

Hence, the Association, being highly active in this

particular field, and having advanced the law in the field as

a result of McGuffey, etc., et. a., v. Hall, et. al., supra., has

a deep interest in the case at bar. The background of the

Association and other interests are detailed in the preceding

motion for leave to file this brief.

SUMMARY OF ARGUMENT .

The Association submits to this Honorable Court that a

substantial federal question exists with respect to the instant

case, and, that a conflict exists within several jurisdictions

as to the application of considerations embodied in the

Fourteenth Amendment to the Constitution of the United

States and their relation to compulsory medical malpractice

insurance legislation.

The Association firmly believes that the Fourteenth

Amerdment does not admit of an interpretation so

expansive as to permit a State, under the guise of the

“power of police” to require a private, practicing physician

to purchase medical malpractice insurance or forfeit his or

her license to practice or freedom to practice medicine.

Simply, it should be of no concern to the State to guarantee

that anyone who might file a negligence action against a

practitioner of private medicine will find a deep pocket.

Whereas, the Association readily admits that a State may

and should, in the interest of protecting its citizens from

unhealthy conditions or actual harm, regulate certain

aspects of the practice of medicine just as certain aspects of

the practice of law are also regulated, nevertheless, the

outlines for the regulation by the State of both the practice

of medicine and law have been well defined, and cannot

include a requirement that the practitioner purchase a

policy of insurance as a condition of his or her continued

practice.

A policy of insurance does not guarantee competence.

It does not increase the availability of medical care, but,

rather, restricts such availability. And, importantly, what if

the amount of premium a physician (or lawyer or other

professional) must pay eventually equals or exceeds the total

coverage? Is there then a dollar figure one may attach to the

Fourteenth Amendment before it must be invoked? The —

Association submits that this Honorable Court has

addressed the question of the extent of a State's “power of

police” over the professions a number of times, and given

the States very clear and unequivocal standards. The

Association respectfully urges that a substantial federai

question exists, and that jurisdiction be noted. The “police

4

power” of the State cannot be extended as far as the State of

Kansas has so attempted in K.S.A. 1976 Supp. 40-3402 (a).

Compulsory medical malpractice insurance is

inherently unreasonable. To prevent an _ otherwise

competent and capable professional man or woman from

engaging in a lawful calling on account of his or her failure

to secure an insurance policy is to delegate to the insurance

industry an authority over the health, safety and welfare of

the citizens of a State heretofore unknown by any private

institution or person.

The Supreme Court of Kentucky relied upon the

foregoing logic. McGuffey, etc., et. al., v. Hall, et. al.,

supra. The Association submits that unless jurisdiction is

noted, and, on the merits, the Supreme Court of the State

of Kansas is reversed, a serious spiral may well begin which

would undermine that necessary independence of the

professions; result in the delegation to private institutions or

persons of unprecedented authority, and, at the expense of

that traditional and necessary limited State regulation,

open the professions to manipulation and domination,

economically and otherwise, by vested, financial interests.

What public good is served by guaranteeing a market

for liability insurance carriers? What public good is served

by a physician in private practice (or lawyer, or other

professional person) being forced to close his or her office

because insurance premiums have equalled the amount of

coverage? What public good is served by guaranteeing a

“deep pocket” to all litigants? What showing is there that

physicians and surgeons in the State of Kansas or elsewhere

are historically responsible for failing to pay claims against

them, whether or not they are insured? The Association

submits that there has been and could be no such showing.

And, finally, how does such a requirement contribute to

any reduction in the cost of medical care?

Compulsory medical malpractice insurance, simply, is

an arbitrary and abusive exercise of power. The Fourteenth |

Amendment, and the precedents established thereunder by

this Honorable Court, clearly, make such legislation

unlawful.

A substantial tederal question exists. The jurisdictions

are in conflict. Jurisdiction must be noted in order that this

Honorable Court might reaffirm its long-standing position

with respect to the “power of police” of a State over the

protessions.

ARGUMENT

I

A DECISION BY THIS COURT WOULD ESTABLISH

VALUABLE PRECEDENT AND RESOLVE

A CLEAR CONFLICT AMONG THE JURISDICTIONS

In three States medical malpractice insurance legis-

lation requiring the purchase of such insurance subject to

loss of one’s license or loss of one’s practice has been

questioned constitutionally, and, ultimately reached State

Supreme Courts.' Hawaii, which enacted a statute not

unlike that challenged here and the statute successfully

challenged in Kentucky, repealed its medical malpractice

insurance legislation.

There have been challenges filed against similar

legislation in Pennsylvania, Oregon, Illinois and North

Dakota. Where decisions have been reached by Courts ~*

original jurisdiction, they are as diverse in their conclusions

as those published opinions heretofore mentioned.

Likewise, to the detriment of the practice of private

‘Idaho, Jones v. State Board of Medicine, 97 Idaho 859, 555 P. 2d 399 (1976), cert.

den. 431 U.S. 914 (1976); Kentucky, McGuffey, etc., et. al. v. Hall, et. al.. 557 S W. 2d

401 (Ky., 1977); and the instant case.

‘

medicine, health care institutions, which receive vast

amounts of public monies, are requiring physicians to

purchase medical malpractice insurance as a condition to

acquiring or maintaining staff privileges. In response

thereto State and federal courts, after determining the

requisite “State action,” have rendered varied and diverse

opinions.*

The Association submits that an air of confusion exists

within the medical community which must be resolved.

That resolution must reaffirm those simple guidelines

established by this Honorable Court in Deni v. West

Virginia, 129 U.S. 114 (1889) and Watson v. Maryland, 218

U.S. 173 (1910). The fundamentai standards which the

Association urges this Honorable Court to reaffirm were

well recognized in the decision of the Supreme Court of

Kentucky. The Court stated:

We therefore hold, as did the trial court, that the

provision for compulsory malpractice insurance has

not been shown to be ‘ustified as an exercise of the

police power, in the absence of which any interference

with the natural right of any individual or group to

pursue a legitimate business or profession is a violation

of (the Constitution]*

McGuffey, etc., et. al., v. Hall, et. al., supra, at 414.

The conflict must be resolved, and that resolution must

weigh in favor of the fundamental “natural right” which

one enjoys to practice a lawful and honorable profession.

* California, Rosner v. Peninsula Hospital District, 224 Cal. App. 24 115, 36 Cal

Rptr. $32 (1964); Louisiana, Pollock v. Methodist Hospital, $92 F. Supp. $93 (E.D. La.,

1975) (note question of judgment in solido peculiar to civil law); Arizona, Holmes v

Hoemako Hospital, 573 P. 24 477 (1978).

* The aforementioned holding was based upon sections 1(5) and 2 of the Kentucky

Constitution. It is important to note, however, that the aforementioned Kentucky

Constitutional prohibitions relate to the use of “absolute and arbitrary power over the

lives, liberties and property of freemen. . .” The law developed under the Fourteenth

Amendment is not inapposite.

7

McGuffey, etc., et. al., v. Hall, supra, at 414, and Holmes

v. Hoemako Hospital, supra, at 479 [the right to follow any

lawful vocation or profession is constitutionally protected,

c.f., Meyer v. Nebraska, 262 U.S. 390 (1923)]}.

A substantial federal question exists. Jurisdiction must

be noted. The decision below dealt with an important

Fourteenth Amendment question in a fashion which has

raised doubts in other jurisdictions. The Association

respectfully suggests that summarily to affirm that decision

could well inhibit the careful and orderly development of

extraordinarily significant constitutional principals.

Colorado Springs Amusements, Lid. v. Rizzo, 428 U.S. 913

(Opinion of Mr. Justice Brennan) (1976); Note, “Summary

Disposition of Supreme Court of Appeals,” 52 B.U.L. Rev.

373 (1972).

II

K.S.A. 1976 SUPP. 40-3402(a)

IS REPUGNANT TO THE

FOURTEENTH AMENDMENT TO THE

CONSTITUTION OF THE UNITED STATES

A.

K.S.A. 1976 SUPP. 40-3402(a)

_ EXTENDS BEYOND THE SCOPE OF THE

“POLICE POWER“ OF THE STATE OF KANSAS

The use of the term “police power” was, originally, derived

from the Opinion of Mr. Chief Justice John Marshall in

Gibbons v. Ogden, 9 Wheat. (22 U.S.) 1 (1824). Again, and

with greater emphasis, the term “police power” emerged in

Marshall’s Opinion in Brown v. Maryland, 12 Wheat. (25

U.S.) 419 (1827)*

4 Some Constitutional law scholars regard Brown v. Maryland, supra., as the

beginning of the use of the term “police power.” R. Roettinger, The Supreme Court and

State Police Power (1957) at 10.

8

The classic definition of “police power” was delivered

by Mr. Chief Justice Shaw in Commonwealth v. Alger, 7

Cush. (61 Mass.) 53 (1851) at 85. Mr. Chief Justice Shaw

stated:

The power we allude to is rather the police power,

the power vested in the legislature by the Constitution,

to make, ordain, and establish all manner of whole-

some and reasonable laws, statutes and ordinances,

either with penalties or without, not repugnant to the

constitution, as they shall judge to be for the good and

welfare of the Commonwealth, and of the subjects

of the same. (Emphasis added).

Early in the judicial history of the United States, the

“police power” was discussed, largely, in response to the

State and National governments’ respective control over

commerce.* Mr. Chief Justice Roger B. Taney defined

“police power” as the

. . . power of sovereignty, the power to govern men

and things within the limits of [the State’s] dominion.

It is by virtue of this power that [the State] legislates;

and its authority to make regulations of commerce is as

absolute as its power to pass health laws, except insofar

as it has been restricted by the Constitution of the

United States. (Emphasis added)

Pierce v. New Hampshire [The License Cases], 5 How. (46

U.S.) 504 (1846) at 583.

In the last half of the nineteenth century a formula,

after voluminous legislation began to take shape identifying

the nature of the State's “police power”. The formula

generally appears to be as follows: that a law purported to

be enacted for the protection of the public will not be

declared invalid, unless it shall be made clear to the Court

that it was not open to the State legislature to find that it

* See Gibbons v. Ogden, supra.; Brown v. Maryland, supra.; and Cooley v. Board of

Wardens of the Port of Philadelphia, 12 How. (53 U.S.) 299 (1851).

ew

9

had a real or substantial relation to the protection of the

public health, safety, morals or welfare, or unless it is so

clearly arbitrary or oppressive, or (as Mr. Justice Oliver W. .

Holmes, Jr., stated) “so unreasonable and so far beyond the

necessities of the case as to be deemed a purely arbitrary

interference with lawful business transactions.” Muller v.

Oregon, 208 U.S. 412 (1908). See also: German Alliance

Ins. Co. v. Kansas, 233 U.S. 389 (1914); Broadnax v.

Missourt, 219 U.S. 285 (1911); Chicago, etc., R.R. v. Mc

Quire, 219 U.S. 549 (1911); Swayze, “Judicial Construction

of the Fourteenth Amendment,” 26 Harv. L. Rev. 1 (1912);

Bird, “The Evolution of Due Process of Law in Decisions

of the United States Supreme Court,” 13 Col. L. Rev. 37

(1913); and, Warren, The Supreme Court in United States

History, Vol. 11 (Boston, 1926) at 745.

Every exercise of “police power” is subject to

fundamental Fourteenth Amendment requirements of

being reasonable, and of not being arbitrary. Reynolds v.

La. Bd. of Alcoholic Beverage Control, 249 La. 127, 185

So. 2d 794 (1965), cert. den. 385 U.S. 946 (1966); Mutual

Loan Co. v. Martell, 222 U.S. 225 (1911); Chicago, B® Q

Ry. v. Illinots, 200 U.S. 561 (1906).

A State’s “police power” has, most frequently, been

described as “. . extending to making regulations

promotive of domestic order, morals, health and safety.”

Hannibal & St. J. R. Co. v. Husun, 95 U.S. 465 (1877). The

power embraces the “protection of lives, health, and

property of citizens, the maintenance of good order, and

the preservation of good morals.” Patterson v. Kentucky, 97

U.S. 501 (1878).

The “police power,” the Association submits, is,

fundamentally, a “protective” device. It “protects” or

“extends to the protection of lives, limbs, health, comfort

and quiet of all persons, and protection of all property

within the State.” Slaughter House Cases, 83 U.S. 16

10

(1872). However, such power is strongly qualified. Stated

this Honorable Court in Munn v. Illinois, 94 U.S. 77 (1876)

at 83-84:

“A body politic,” as aptly defined in the preamble

of the Constitution of Massachusetts, “is a social com-

pact by which the whole people covenants with each

citizen, and each citizen with the whole people, that

all shall be governed by certain laws for the common

good.” This does not confer power upon the whole

people to control rights which are purely and exclusive-

ly private. . . but it does authorize the establishment

of laws requiring each citizen to conduct himself, and

so use his property as not unnecessarily to injure

another.

Again, the “police power” is a “protective” device.

And, that “protection” will be deemed constitutional only if

it does not interfere with some right which is purely and

exclusively private. Munn v. Illinois, supra. A State's

“police power” can be properly exercised only when there is

a reasonable relationship to the public health, safety,

morals or welfare. West Coast Hotel Co. v. Parrish, 300

U.S. 379 (1937); Van Oster v. Kansas, 272 U.S. 465 (1926).

If, in a given act of a State legislature, there is no

benefit flowing to the public from the enforcement of said

act, and that act restricts a fundamental right or individual

freedom, the limits of the “police power” have been passed

and the act must fall. Fazrmont Creamery Co. v. Minnesota,

274 U.S. 1 (1927) Atkins us. Kansas, 191 U.S. 207 (1903);

Comment, 67 Mich. L. Rev. 360, 362 (1968). Certainly, if

the Court can Iocate no relationships between the act in

question and the public health, safety, morals or welfare,

the act is unconstitutional. Griswold v. Connecticut, 381

U.S. 479 (1965); Pierce v. Society of Sisters, 268 U.S. 510

(1925); Meyer v. Nebraska, 262 U.S. 390 (1923).

The practice of medicine has always been one area of

endeavor which States have deemed within their power to

17

regulate. Insofar as the practice of medicine affects the

health and safety of the citizens of the State, it has been held

to be an area of public concern, and such regulation is

consistent with the Fourteenth Amendment. Watson v.

Maryland, supra; and Polhemus v. American Medical

Ass’n., 146 F. 2d 357 (9th Cir., 1944).

The regulation of the practice of medicine, like all

exercises of “police power”, is not without limits. This

Honorable Court established general outlines for the

regulation of the practice of medicine in Watson v.

Maryland, supra., at 176:

It is too well settled to require discussion at this

day that the police power of the States extends to the

regulation of certain trades and callings, particularly

those which closely concern the public health. There is

perhaps no profession more —_— open to such

regulation than that which embraces the practitioners

of medicine. Dealing, as its followers do, with the lives

and health of the people,and requiring for its successful

practice general education and technical skill, as well

good character, it is obviously one of those vocations

which may be regulated to see that only properly

ualified persons shall undertake its responsible and

ifficult duties. To this end many States of the union

have enacted statutes which require the practitioner of

medicine to submit to an examination by a competent

board of physicians and surgeons, and to receive duly

authenticated certificates showing that they are

deemed to possess the necessary qualifications of

learning, skill and character essential to their calling.

(Emphasis added.)

A State's “police power” over the private practice of

medicine, thus, must be directed to insuring that

practitioners are properly educated and of good moral

character; that medical schools maintain proper

12

standards;* that physicians maintain proper standards of

conduct; and, that they conform to certain fundamental

standards of ethics, i.e., avoidance of advertising (except

where it my be deemed protected by the First Amendment),

solicitation and unlawful criminal behavior. Barsky v.

Board of Regents of the University of the State of New York,

347 U.S. 442 (1954).

To force one to purchase a policy of medical

malpractice insurance or prohibit that individual, who,

otherwise, is wholly competent in his or her field, from

engaging in the practice of medicine simply does not fit

within the aforementioned standards. In fact, the

requirement borders on the ludicrous.

The State has no legitimate interest in guaranteeing

that physicians (or any other professionals) will pay all civil

claims. Such a scheme, as found in K.S.A. 1976 Supp. 40-

3402 (a) cannot be justified on account of a shortage of

insurance carriers in Kansas or the high cost of medical

liability insurance premiums, for, requiring physicians to

purchase such insurance does nothing to make insurance

more readily available or less expensive.

As in the practice of law, a state can require high

standards for qualification such as good moral character

and proficiency before one may be licensed or otherwise

enabled to practice, but those standards must have a

reasonable and rational connection with the individual's

competence and capacity to practice.

See: Douglas v. Noble, 261 U.S. 165 (1928) Dent v. West

Virginia, supra.; Watson v. Maryland, supra.; Nebbia v.

New York, 291 U.S. 502, 89 ALR 1469 (1934). °

This Honorable Court must note jurisdiction, for

K.S.A. 1976 Supp. 40-3402(a) cannot stand constitutional

muster.

* See: New Jersey Chiropractice Ass'n. v. State Board of Medical Examiners of NJ,

79 F. Supp. $27(D.C.N.J., 1948).

\

13

THE REQUIREMENTS OF PURCHASE OF

MINIMUM AMOUNTS OF MEDICA‘.

MALPRACTICE INSURANCE AS A CONDITION

OF THE CONTINUED PRACTICE OF MEDICINE

IS UNREASONABLE AND IRRATIONAL

For a State statute to make the purchase of an

insurance policy a condition of a physician's “right” to

practice medicine is unreasonable and irrational. Certainly,

Fourteenth Amendment questions have always been

scrutinized under the test of reasonableness and rationality

of the given law. Bibb v. Navajo Freight Lines, 359 U.S. 520

(1959); Triegle v. Acme Homestead Ass'n., 297 U.S. 189,

101 ALR 1284 (1936); Nebbia v. New York, supra.;

Standard Oil Co. v. City of Marysville, 279 U.S. 582 (1929).

Reasonableness of any legislation must be found by

examining whether those who must bear the regulation and

surrender a liberty are one and the same as those whose

actions created the problem sought to be corrected. For any

State, conceptually, to enact legislation within its “police

power”, there must be a force within that State’s jurisdiction

which is or will adversely affect the general public, or

certain individuals. If such a force, be it incompetent

individuals practicing medicine or some business fraud,

exists, that State may impose the proper remedy, even if it

be destructive of an entire business enterprise. However,

any limitation or penalty, to be valid within the dictates of

the Fourteenth Amendment to the Constitution of the

United States, must be exercised against that which would

be harmful, or has been doing harm to the public. See:

Nebbia v. New York, supra., at 510; Breard v. City of

Alexandria, 341 U.S. 622 (1951).

The act in question, K.S.A. 1976 Supp. 40-3402 (a),

simply cannot pass the test of reasonableness. The State of

14

Kansas, in enacting the statute, did not refer to physicians

as being inherently negligent or historically negligent.

There is no policy consideration which referred to

physicians as being economically or financially

irresponsible, or historically incapable or unwilling to meet

judgments rendered against them in civil cases. Yet, under

K.S.A. 1976 Supp. 40-3402 (a), the physicians are. those

whose liberties are surrendered, not the authors of the

wrong sought to be remedied. Presumably, K.S.A. 1976

Supp. 40-3402 (a) was enacted to resolve the so-called

“crisis” in medical malpractice insurance which briefly

swept across the nation.

How is the general public served here? If a physician,

such as the Appellant, fails to comply by purchasing an

insurance policy, he or she will be prohibited from

practicing medicine. Such would occur even if the physician

involved was the only practitioner in a small, isolated, rural

community, or, the most heralded neuro-surgeon in the

area. How would requiring either of those persons to

purchase an insurance policy or forcing them out of the

practice of medicine best serve the general public? If there

are or were “victims” of the so-called “crisis” in medical

malpractice insurance, those victims are or were the

physicians themselves. Yet, because of a situation over

which they have no control and, thus, cannot correct, they

stand in a position to forefeit their very livelihood.

To rationally and responsibly correct the so-called

“malpractice crisis,” the State must correct the source of the

wrong whatever or whomever it might be. To exercise

power to limit the rights or liberties of others, most of all the

victims of the wrong, is abusive, irrational, irresponsible

and wholly beyond the necessities of the case. Muller v.

Oregon, supra. See also: Davidson v. New Orleans, 96 U.S.

97 (1878) and Yick Wo v. Hopkins 118 U.S. 356 (1886).

1§

The very unreasonableness of the scheme may be found

in the fact that the statute threatens a physician who may be

the most highly competent vascular or neuro surgeon with

loss of ability to practice medicine if he or she fails to

purchase insurance. Even if that physician has never had a

civil lawsuit filed against him or her, it would make no

difference.

Who in society is being protected under K.S.A. 1976

Supp. 40-3402(a). Most likely, only the insurer, and those

civil claimants who would want a “deep pocket”

guaranteed.

This Honorable Court must, the Association urges,

note jurisdiction, and reverse the decision of the Supreme

Court of the State of Kansas.

OF

K.S.A. 1976 SUPP. 40-3402(a) IS REPUGNANT

TO THE FOURTEENTH AMENDMENT TO

THE CONSTITUTION OF THE UNITED STATES

IN THAT IT AMOUNTS TO A TAKING OF

PROPERTY WITHOUT DUE PROCESS OF LAW.

It has long been established in the law that an

individual's pursuit of a lawful occupation is “property”

within the meaning of the Fourteenth Amendment. Louzss

K. Liggett Co. v. Baldridge, 278 U.S. 105 (1928). Insofar as

physicians are concerned, their profession embodies a

variety of rights of a very fundamental nature which arise

out of their relationship with their patients. The physician,

therefore, has a commanding reason, constitutionally, to

practice the profession free from arbitrary interference. An

attorney of law is in a similar position.

Speaking of the practice of medicine being a

“property” right, Mr. Justice Hugo L. Black, dissenting in

Barsky v. Boardof Regents of the University of the State of

16

New York, supra., stated, at 459:

I have no doubt that New York has broad power

to regulate the practice of medicine. But the right to

ractice is. . . a very precious part of the liberty of an

individual physician or surgeon. It may mean more

than any property. Such a right is protected from

arbitrary infringement by our Constitution.

The right to pursue a lawful occupation free of

unreasonable restraints and infringement was given its

greatest security in Meyer v. Nebraska, 262 U.S. 390 (1923),

wherein the Court Stated:

While this Court has not attempted to define with

exactness the liberty thus guaranteed (by the Due

Process Clause of the *ourteenth Amendment), the

term has received much consideration and some of the

included things have been definitely stated. Without

doubt, it denotes not merely freedom from bodily

restraint but also the right of the individual to con-

tract, to engage in any of the common occupations of

life. . . and generally to enjoy those privileges long

recognized at common law essential to the orderly

pursuit of happiness by free men.

Meyer v. Nebraska, supra., at 399. See also: Dent v. West

Virginia, 129 U.S. 114 (1889).

The Supreme Court of the United States has said

repeatedly that “Where certain ‘fundamental rights’ are

involved. . . regulation limiting those rights may be justified

only by a ‘compelling state interest’. . . and. . . legislative

enactments must be narrowly drawn to express only the

legitimate state interests at stake.” Roe v. Wade, 410 U.S.

113, 155 (1973). In addition, the legislative enactment or

regulation must be “reasonable” and not arbitrary or

capricious. Mutual Loan Co. v. Martell, supra., and

Chicago, Burlington & Quincy Ry. v. Illinois, supra.

17

There simply is no reasonable or rational basis for the

State to threaten to deny, or, in fact, deny a physician or

lawyer or other professional person from practicing his or

her calling on account of the refusal to purchase

malpractice insurance. There is no cogent reason for

leaving the professions at the mercy of an industry which

could, potentially, price them into oblivion. Likewise, there

is no cogent reason for placing such an infringement upon

the property of the physician since he or she, alone or in

conjunction with others, cannot correct the wrongs sought

by the Legislature to be corrected.

Unequivocally, private property is not held at the

“mercy of the legislature.” Munn v. Illinots, supra.

Legislation “must have limits or the ‘contract’ and ‘due

process’ clauses are gone.” Pennsylvania Coal Co. v.

Mahon, 260 U.S. 393 (1922). “While property may be

regulated to a certain extent, if regulation goes too far it

will be recognized as a taking.” Pennsylvania Coal Co. v.

Mahon, supra.

To require a physician to purchase medical

malpractice insurance or forego the practice of medicine

exceeds the State's “power of police,” and is a “taking,” a

denial of property, without due process of law.

This Honorable Court must note jurisdiction, and

reverse the Supreme Court of the State of Kansas.

CONCLUSION

For all the foregoing reasons, the Association of

American Physicians and Surgeons, Inc., as Amicus Curiae,

and in the interest of private, practicing physicians,

respectfully requests this Court to note jurisdiction and

declare K.S.A. 1976 Supp. 40-3402(a) unconstitutional.

18

Respectfully submitted,

KENT MASTERSON BROWN

201 West Vine Street

Lexington, Kentucky 40507

Counsel for Amicus Curiae

Association of American

Physicians and Surgeons, Inc.

Se eae