Carter v. Sparkman

This cause came to us on certificate of questions from the Circuit Court in and for Brevard County. However, since the trial court had already ruled on the questions posited by it, this Court chose ■ to treat the certificate as a petition for writ of certiorari pursuant to Article V. Section 3(b)(3) and Article V, Section 2(a), Constitution of Florida. Cf. Burnsed v. Seaboard Coastline Railroad Company, 290 So. 2d 13 (Fla.1974).

The facts pertinent to the disposition of this cause, contained in the Circuit Court’s certificate, are as follows;

“1. On July 18, 1975, Plaintiff filed suit in this Court against Defendants, JAMES E. GARTER, and ARGONAUT INSURANCE COMPANY, said suit against Defendant CARTER being based on the alleged negligence of said defendant in treating Plaintiff for a fracture of the proximal head of the fifth metatarsal bone of her right foot.

“2. On July 31, 1975, Defendant CARTER moved this Court to dismiss said suit on the grounds that this Court lacked jurisdiction of the subject matter of the suit and of Defendant ARGONAUT, alleging inter alia that Plaintiff had not complied with § 5 and 6 of Chap. 75-9, Fl.Sts. (1975) entitled ‘Medical Malpractice Reform Act’, which became effective on July 1, 1975 creating new § 768.133 of the Florida Statutes, which statute mandatorily requires cases such as the instant case to be filed pursuant to such newly created statute as a Medical Liability Mediation Claim,. to be heard first before a liability mediation panel whose presiding member and judicial referee shall be a circuit judge; that Plaintiff had not complied with such newly created statute by first filing her claim thereunder. Defendant CARTER further indicated his special appearance to contest the jurisdiction of'this court over Defendant ARGONAUT, by alleging that Defendant CARTER’S insurer was in fact EMPLOYERS SURPLUS LINES INSURANCE COMPANY.

“3. On August 8, 1975, Defendant’s Motion to Dismiss was heard before this Court. Plaintiff opposed Defendant’s Motion on the grounds that the newly created statute was unconstitutional under Amendments 5 and 14 of the United States Constitution; Article 1, §§ 2, 9 and 21 of the Florida Constitution, and Article 5, §§ 2 and 13 of. the Florida Constitution specifying that the newly created statute deprived Plaintiff of the due process of the laws, and of the equal protection of the laws, and that the newly created statute expressly and illegally controverts the 1968 holding of the Florida Supreme Court in the case of Shingleton vs. Bussey, 223 So.2d 713. It was Plaintiff’s position that:

“a. The new statute, making it mandatory for a Plaintiff to first submit to mediation before filing a suit for relief in a court of law, while at the same time a defendant physician was allowed the option of submitting his defense to such claim to mediation (§5, Chap. 75-9, Laws of 1975, 4th Legislature of Florida; FI. St. 768.133(2) (emphasis supplied), was a denial of due process and the equal protection of the laws under the United States and Florida Constitutions.

“b. The requirement of the new statute that in any civil medical malpractice action, the trial on the merits shall be conducted without reference to insurance, insurance coverage or joinder in the suit of the insurer as a co-defendant, was likewise unconstitutional under the above cited constitutional references.

“c. The new statute did not treat Plaintiff and Defendant herein equally thereby denying Plaintiff her basic rights under Article 1, § 2 of the Florida Constitution.

“d. The new statute restrained Plaintiff from timely access to the Courts' thereby violating Article 1, § 21 of the Florida Constitution.”

The trial court denied the motion to dismiss, agreed with plaintiff’s contentions, and specifically found that Section 768.133, Florida Statutes (Chapter 75-9, § 5, Laws of Florida) is unconstitutionally violative of Amendments 5 and 14 of the Constitution of the United States, Article I, and Sections 2 and 9 of the Constitution of Florida in that it denies the plaintiff her basic constitutional rights to due process and equal protection of the law; that said section constitutes class legislatiomdesigned solely for the defendant physicians in suits for their malpractice based on negligence by requiring plaintiff to first submit to mediation before filing a suit for damages in a court of law while at the same time the physician is allowed the option of submitting his defense to such claim by not being required to plead to such a claim; that it violates Sections 2 and 13, Article; Y, Constitution of Florida, in that the Legislature in creating .said statute infringed on the constitutional rights of the Supreme Court to regulate practice and procedure in the courts of Florida. Section 768.133 as contained in Chapter 75-9, Section 5, Laws of Florida, with which the trial court is concerned, sub judice, also provided:

“(10) In the event any party rejects the decision of the hearing panel, the claimant may institute litigation based upon the claim in the appropriate court. Furthermore, in any civil medical malpractice action, the trial on the merits shall be conducted without any reference to insurance, insurance coverage or join-der in the suit of the insurer as a co-defendant.”

However, apparently pursuant to Section 11.242(5), the Statutory Revision Division transferred this Section to Section 768.134, Florida Statutes.

Although we find that the several constitutional attacks on the validity of Sections 768.133 and 768.134(1), Florida Statutes, relative to medical liability mediation panels are without merit, we find that the contention that the act violates constitutional equal protection guarantees merits discussion and necessitates an effective construction of the act so as to resolve the doubts of constitutionality in favor of the act.

It is incumbent on this Court when reasonably possible and consistent with constitutional rights to resolve all doubts as to the validity of a statute in favor of its constitutional validity and if possible a statute should be construed in such a manner as would be consistent with the constitution, that is in such a way as to remove it farthest from constitutional infirmity.

In oral argument much was said contending that the physician under the Florida Medical Consent Law has the “best of two worlds” in that he has a choice between participating in the administrative hearing or not participating; whereas, the plaintiff who is claiming damages by reason of injury, death, or monetary loss on account of alleged malpractice by any medical or osteopathic physician, hospital, or health maintenance organization against whom he believes there is a reasonable basis for a claim, must submit his claim to an appropriate medical mediation panel before he may file a claim in the state courts. If both plaintiff and physician participate in the mediation proceedings, the result becomes admissible into evidence (Section 768.134(2), Florida Statutes), but the statute is silent as to the admissibility of non-participation by the physician. Contention was made that such an arrangement violates the equal protection clause of the Constitutions of the United States and of Florida. We agree and construe the statute to mean that in the event the physician fails to participate in the administrative hearing after plaintiff has done so, such fact is admissible into evidence in any subsequent civil medical malpractice trial. We realize that certain items of expense in relation to the mediation attempts will be incurred, but it would naturally follow that such expenses to the extent of reasonableness would become a part of the costs of the judicial proceedings, taxable against the losing party.

Although courts are generally opposed to any burden being placed on the rights of aggrieved persons to enter the courts because of the constitutional guaranty of access, there may be reasonable restrictions prescribed by law. Typical examples are the fixing of a time within which suit must be brought, payment of reasonable cost deposits, pursuit of certain administrative relief such as zoning matters or workmen’s compensation claims, or the requirement that newspapers be given the right of retraction before an action for libel may be filed. /

Cases are legend which hold that the police power of the state is available in the area of public health and welfare, and we must, therefore, consider matters pursued under the law sub judice as being separate and distinct from those generally flowing from the marketplace. At the time of enactment of the legislation in question sub judice, there was an imminent danger that a drastic curtailment in the availability of health care services would occur in this state. The Legislature’s recognition of the crisis in the area of medical care and the need for legislation for the benefit of public health in this state is evidenced by the Preamble to Chapter 75-9, Laws of Florida, as follows:

“WHEREAS, the cost of purchasing medical professional liability insurance for doctors and other health care providers has skyrocketed in the past few months; and

“WHEREAS, it is not uncommon to find physicians' in high-risk categories paying premiums in excess of $20,000 annually; and

“WHEREAS, the consumer ultimately must bear the financial burdens created by the high cost of insurance; and

“WHEREAS, without some legislative relief, doctors will be forced to curtail their practices, retire, or practice defensive medicine at increased cost to the citizens of Florida; and

“WHEREAS, the problem has reached crisis proportion in Florida, NOW THEREFORE,”

The Legislature felt it incumbent upon itself to attempt to resolve the crisis through exercise of the police power for the general health and welfare of the citizens of this State and accordingly enacted Chapter 75-9, Laws of Florida, to effectuate that purpose. The statutes involved here deal with matters related directly to public health and obviously have for their purpose an effort^ tp have the parties mediate claims for malpractice thereby reducing the cost of medical malpractice insurance and ulti-\ / mately medical expenses.

Even though the pre-litigation burder cast upon the claimant reaches the outei limits of constitutional tolerance, we do no: deem it sufficient to void the medical malí-practico law. i

By Section 768.133(10) of Chapter 75-9, Laws of Florida, which in relevant part provides:

“Furthermore, in any civil medical malpractice action, the trial on the merits shall be conducted without any reference to insurance, insurance coverage, or join-der of an insurer as a co-defendant in the suit.”

The Legislature intended to bar only “any reference” to the joinder of insurers rather than the joinder itself.

“References” to insurance or insurers during the course of trial is a purely procedural matter having to do with the conduct of trial proceedings. To- the extent the Legislature has attempted to control “references” during the course of trial in this provision, it has acted beyond its power.

In view of the apparent wisdom of continuing the policy expressed in the questionable portion of this statute, we adopt the substance of this portion of Section 768.134(1), Florida Statutes (1975), as a rule of procedure for all medical malpractice trials conducted or in process under the statute.

“Rule 1.450(e)—In any civil medical malpractice action, the trial on the merits shall be conducted without any reference to insurance, to insurance coverage, or to the joinder of an insurer as co-defendant in the suit.”

Having carefully considered all other points on appeal, we find them to be without merit.

Accordingly, we hold that Sections 768.133 and 768.134, Florida Statutes, both being progeny of Chapter 75-9, Laws of Florida, as constructively construed are constitutional. The order of the trial court is reversed and the cause is remanded for proceedings consistent herewith.

It is so ordered.

OVERTON, C. J., and ADKINS, BOYD, SUNDBERG and HATCHETT, JJ., concur.

ENGLAND, J., concurs with an opinion, with which OVERTON, C. J., and SUNDBERG and HATCHETT, JJ., concur.

. This Court in Boyer v. Orlando, 232 So.2d 169 (Fla.1970), declined to answer the question certified because the question certified by the Circuit Court had already been answered by it. This Court said, “Florida Appellate Rule 4.6 is not a substitute for appeal and questions already ruled upon below cannot be certified here.”

. This provision now appears as Section 768.134(1), Florida Statutes (1975).

. Cf. In Re Clarification of Florida Rules of Prac. & Proc., 281 So.2d 204 (Fla.1973).

. Article II, Section 3, Constitution of Florida; Article V, Section 2(a), Constitution of Florida.

. Cf. In Re Transition Rule 21, 316 So.2d 38 (Fla.1975), Rule 1.010, Rules of Civil Procedure, Lasky v. State Farm Insurance Co., 296 So.2d 9 (Fla.1974), Kluger v. White, 281 So.2d 1 (Fla.1973).