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decided: September 14, 1978.


Appeal from the Order of the State Board of Medical Education and Licensure in case of In the Matter of the Suspension or Revocation of the License of Orlo G. McCoy, M.D., to Practice as a Physician, License No. E 1845.


Fred Speaker, with him Pepper, Hamilton & Scheetz, for petitioner.

Donald J. Murphy, Deputy Attorney General, and Guy J. DePasquale, Deputy Attorney General, with them, Paul J. Carey, Jr., Deputy Attorney General, and Robert P. Kane, Attorney General, for respondent.

Angelo Skarlatos, for amicus curiae, The Keystone Podiatry Society of Pennsylvania.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers, Blatt and DiSalle. Opinion by Judge Wilkinson, Jr. Dissenting Opinion by Judge Mencer. Judge Crumlish, Jr., joins in this dissent. Dissenting Opinion by Judge Crumlish, Jr.

Author: Wilkinson

[ 37 Pa. Commw. Page 533]

The issue before us is the constitutionality of the mandatory insurance provisions of the Health Care Services Malpractice Act (Act)*fn1 under the due process and equal protection clauses of the Fourteenth Amendment of the United States Constitution and Article III, Section 32, of the Pennsylvania Constitution. At issue is an order of the State Board of Medical Education and Licensure (Board) which suspended the license of petitioner, a practicing physician, pursuant to Section 701(a) of the Act, until such time as he has complied with the provisions of the Act. For the reasons set forth herein we find Section 701(a) constitutional and therefore affirm the action of the Board.

[ 37 Pa. Commw. Page 534]

In 1974, jurisdictions throughout the United States were confronted with what was popularly referred to as a "medical malpractice crisis" evidenced by precipitous increases in malpractice claims and awards, concurrent and equally precipitous increases in the cost of malpractice insurance and the threatened unavailability of such insurance at any cost.*fn2 The Pennsylvania General Assembly responded to this "crisis" by enacting the Act. Its stated purpose is "to make available professional liability insurance at a reasonable

[ 37 Pa. Commw. Page 535]

    cost and to establish a system through which a person who has sustained injury or death as a result of tort or breach of contract by a health care provider can obtain a prompt determination and adjudication of his claim and the determination of fair and reasonable compensation."*fn3 It implements this policy by establishing an arbitration system whereby claims against health care providers*fn4 are initially heard*fn5 and by limiting the dollar amount of liability of insurers on individual awards.*fn6 This limitation on liability is achieved by the creation of a "Medical Professional Liability Catastrophe Loss Fund" [hereinafter referred to as the Fund], established by a surcharge on insurance premiums or direct assessment by self-insurers.*fn7 The Fund is guaranteed by requiring that all health care providers as defined by the Act either purchase insurance or develop a plan of self-insurance*fn8 and by making insurance available to high risk health care providers through a Joint Underwriting Association.*fn9 The state licensure boards are required to suspend or revoke the license of a health care provider upon a failure to comply with the mandatory insurance provisions or to participate in the Fund.*fn10

Petitioner, a practicing physician in Canton, Pennsylvania, licensed to practice medicine in this state since 1941, was cited by the Board on November 30, 1976 for failure to comply with the provisions of the

[ 37 Pa. Commw. Page 536]

Act in (1) failing to secure professional liability insurance or to submit an approved self-insurance plan and (2) failing to pay the 10 per cent surcharge into the Fund. At a hearing held on December 9, 1976, petitioner told the Board that he did not have and did not intend to acquire professional liability insurance and that he had not and did not intend to contribute to the Fund. His sole defense to the Board's citation was the unconstitutionality of the Act.*fn11 Accordingly, the Board on April 28, 1977 ordered petitioner's license suspended. On May 4, 1977, the Board issued a stay pending a determination by this Court.*fn12

Preliminarily, we must note the parameters of our review where a state statute is attacked on allegations of substantive constitutional infirmities.

'It is the province of the legislature, not the judiciary . . . to determine the means necessary to combat' public problems, for with means as with ends, 'the legislature, which is more responsive to the people and has more adequate facilities for gathering and assembling the requisite data, is in a better position to evaluate and determine' alternative approaches. Basehore [ v. Hampden Industrial Development Authority,

[ 37 Pa. Commw. Page 537433]

Pa. 40,] at 49, 248 A.2d [212,] at 217 [(1968)]; see also Johnson v. Pennsylvania Housing Finance Agency, 453 Pa. 329, 337-38, 309 A.2d 528, 533 (1973). Our inquiry is limited to a determination of whether the means selected are so 'demonstrably irrelevant to the policy the legislature is free to adopt' as to be arbitrary and irrational. (Footnote omitted.)

Tosto v. Pennsylvania Nursing Home Loan Agency, 460 Pa. 1, 9, 331 A.2d 198, 202 (1975).

And, in distinguishing due process and equal protection standards under the United States Constitution, we begin with the general observation that in considering the due process clause we are concerned with the fundamental fairness of the State's dealing with an individual while in considering the equal protection clause we evaluate the disparity of treatment by the state between classes of individuals whose situations are arguably indistinguishable. Ross v. Moffitt, 417 U.S. 600 (1974).

Due Process

Petitioner contends that the statutory requirement of mandatory insurance is unreasonable and unrelated to the objectives sought to be achieved by the Act and therefore violates his right to substantive due process guaranteed by the Fourteenth Amendment. Further, he argues, assuming the validity of the mandatory insurance provision, that enforcement by suspension or revocation of his license to practice medicine is likewise violative of due process as unreasonable and unrelated to the object of the legislation.

It is well established that a state may regulate professions, consistent with the substantive due process right of an individual to pursue the occupation of his choosing, so long as the matters regulated affect the public interest. Pirillo v. Takiff, 462 Pa. 511, 341 A.2d 896 (1975), cert. denied, 423 U.S. 1083

[ 37 Pa. Commw. Page 538]

(1976); Adler v. Montefiore Hospital Association, 453 Pa. 60, 311 A.2d 634 (1973), cert. denied, 414 U.S. 1131 (1974); State Board of Podiatry Examiners v. Lerner, 213 Pa. Superior Ct. 63, 245 A.2d 669 (1968). Where such regulations are attacked, substantive due process requires:

[A] law which purports to be an exercise of the police power must not be unreasonable, unduly oppressive or patently beyond the necessities of the case, and the means which it employs must have a real and substantial relation to the objects sought to be attained. Under the guise of protecting the public interests the legislature may not arbitrarily interfere with private business or impose unusual and unnecessary restrictions upon lawful occupations.

Gambone v. Commonwealth, 375 Pa. 547, 551, 101 A.2d 634, 637 (1954).

Certainly it cannot be gainsaid that health care providers, in particular the medical profession, stand in the forefront of guardians of the public health and welfare.

Thus, we do not doubt the authority of the state to recognize the problem of malpractice insurance availability and to deal with it. It is no answer to say the petitioner had no claims made against him during the course of his career. In framing its policy the legislature was not bound to provide for determinations of the relative proficiency of particular health care providers. The legislature was entitled to consider the general effects of the unavailability of malpractice insurance and, if these effects were injurious, to counteract them by a general rule, even though as applied to particular practitioners there might be no evidence of need for the legislative regulation. See Semler v. Oregon State Board of Dental Examiners, 294 U.S. 608 (1935).

[ 37 Pa. Commw. Page 539]

Testing Section 701(a) of the Act against these principles of substantive due process, we cannot conclude that requiring professional liability insurance is wholly unreasonable and arbitrary and bears no rational relation to the public's interest in assuring the compensability of malpractice claims. Petitioner's holistic approach to the statute as aimed simply at making malpractice insurance available, glosses over the myriad and complex factors that gave rise to the malpractice crisis that confronted the legislature and which petitioner candidly admits was the reason for the legislation. This view also ignores the interrelated nature of the entire statute, a full reading of which discloses that mandatory insurance is inextricably tied to the creation and maintenance of the Catastrophe Loss Fund, the legislative quid pro quo to insurance companies' continuing to provide malpractice insurance coverage in Pennsylvania. Moreover, the 10 per cent surcharge on insurance premiums by which the health care provider's contribution is determined roughly relates to the degree of risk (and thus the health care provider's direct interest in the maintenance of the Fund). If health care providers could elect not to participate in contributing to the Fund, it takes no special knowledge of logic or human nature to conclude that "low risk" health care providers would withdraw, leaving the Fund to be financed by "high risk" insureds and almost inevitably assuring its depletion. Without the Fund which allows insurers to establish an actuarial basis for anticipation of needed reserves, insurers might again find malpractice an uninsurable risk and either drastically curtail or withdraw totally from participating in the market, in short, creating conditions for precisely the same "crisis" the legislation was designed to obviate. Therefore, we find, within the words of the statute itself, a real and demonstrable relation between the

[ 37 Pa. Commw. Page 540]

    requirement of insurance, or proof of financial responsibility, and the object of the legislation to make malpractice insurance available to all health care providers. Similarly, we find the public has an interest in providing that malpractice insurance be available not only to assure compensability for claims but also to protect those who provide medical services in the state from the threat of financial ruin.

We do not understand petitioner's due process argument that the penalty of suspension of his license to practice medicine is too harsh. If it is proper to require him to obtain ...

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