January Term, 1977 -- Nos. 709, 710, 628, 711, 712, 627, 713, 714, 624, Appeals from the Order of July 29, 1967, of the Court of Common Pleas of Philadelphia County Civil Trial Division, at Jan., 1977 No. 1424--Sept., 1976 No. 2818--Feb., 1977 No. 1309--Sept., 1976 No. 983--Feb., 1977 No. 1779--Oct. 1976 No. 3593.
Robert P. Kane, Atty. Gen., Gerald Gornish, Deputy Atty. Gen., Harrisburg, for appellant at Nos. 624, 627, 628 and appellees at Nos. 709 to 714.
Stephen M. Feldman, Philadelphia, for appellants at Nos. 709 & 710 and appellees at No. 628.
Albert S. Fein, Philadelphia, for appellants at Nos. 711 & 712 and appellees at No. 627.
Marshall A. Bernstein, Philadelphia, for appellant at Nos. 713 & 714 and appellee at No. 624.
Adrian R. King, Philadelphia, for appellee at No. 624.
White & Williams, John J. Dautrich, Philadelphia, for appellees at Nos. 627 & 628 and Nos. 709 to 712.
Philip M. Gilligan, Philadelphia, for appellees at Nos. 711 & 712.
Barton L. Post, Philadelphia, for appellees at Nos. 712 & 714.
Francis E. Shields, Philadelphia, for amicus curiae at Nos. 624, 627, 628.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Manderino, J., notes his dissent. Larsen, J., filed a dissenting opinion. Roberts, J., did not participate in the decision of this case.
We are here presented with consolidated cases which present the question of the constitutionality of the compulsory arbitration provisions of the Pennsylvania Health Care Services Malpractice Act (hereinafter referred to as the "Act"), Act of October 15, 1975, P.L. 390, No. 111, § 101 et seq., 40 P.S. § 1301.101 et seq. (Supp.1977). This Act provides that all claims for malpractice against doctors of medicine, osteopathy, and podiatry, as well as hospitals, nursing homes, health maintenance organizations and their officers, employees or agents must, in the first instance, be submitted to arbitration before access to the courts is permitted. In an effort to challenge the validity of the Act, appellants, David and Lether Parker, Jorge Garcia and Leonard Bost, Jr. instituted three separate malpractice actions in the Court of Common Pleas of Philadelphia County.*fn1 Preliminary objections raising the jurisdictional question were filed by all defendants. In response thereto, appellants asserted that the arbitration provisions of the Malpractice Act were unconstitutional on several grounds.
Pursuant to Pennsylvania Rule of Civil Procedure 235 notice of appellants' contentions was sent to the Attorney General of Pennsylvania, who then intervened on behalf of the Commonwealth. Thereafter appellants filed three companion Declaratory Judgment Actions raising the same constitutional challenges.*fn2 All six actions were consolidated by
the court below for the taking of testimony, argument and disposition.
The court below in a carefully considered opinion rejected all of the contentions of appellants and sustained all challenged portions of the statute with the exception of Section 510, which permitted the admission of the decision of the arbitration panel and its factual findings at a trial de novo. The appellants appealed to the Commonwealth Court from that part of the order upholding the constitutionality of the Act. Act of July 31, 1970, P.L. 673, No. 223, art. IV, § 402(1), 17 P.S. § 211.402(1) (Supp.1978-79). The Commonwealth filed an appeal in this Court from that portion of the order holding Section 510 to be unconstitutional. See Act of July 31, 1970, P.L. 673 No. 223, art. II, § 202(9), 17 P.S. § 211.202(9) (Supp.1978-79). The appeal lodged in the Commonwealth Court was transferred to this Court and the two matters are now before us for disposition.
The case of Parker v. Children's Hospital of Philadelphia relates to the death of an 18-month-old child resulting from an alleged negligent failure to diagnose meningitis. The parents acting as the administrators of the estate of their deceased child brought death and survival actions seeking damages. Suit was instituted in Garcia v. Kensington Hospital, as the result of the death of a 23-year-old housewife who allegedly received an improper administration of drugs following an unconsented to operation. Bost v. Philadelphia College of Osteopathic Medicine involved an action seeking damages for injuries sustained when a piece of a forcep broke off and became lodged in the patient's throat.
Before turning to the merits of the constitutional contentions raised by the parties, an overview of the statute and the objectives it sought to accomplish is in order. The Act was designed to make available professional insurance at a reasonable cost and to establish a system through which
a victim who has sustained injury or death as a result of a tort or breach of contract by a health care provider can be assured of a prompt adjudication of the claim and a fair recovery for the losses sustained. A compulsory arbitration system was devised in an effort to reduce frivolous claims and to expedite the disposition of cases in this area. While the Act conditioned the right of trial by jury upon first proceeding to arbitration, it also attempted to assure a successful plaintiff that any judgment ultimately entered would be satisfied by the malpractice insurance which the various health care providers were required under the Act to maintain. Additionally, a fund administered by the state was established to pay judgments in excess of the insurance limits. Additionally, the Act addressed the competency of medical services by giving various state health care licensing and regulatory boards additional funds, authority and personnel to investigate and institute license suspension and revocation cases.*fn3
The position of Administrator for Arbitration Panels for Health Care was established within the Department of Justice. The staff of the administrator is funded from fees charged to each health care provider practicing in the Commonwealth.*fn4 The administrator is empowered to promulgate such rules and regulations as are necessary to carry out the arbitration provisions of the Act. The Act provides for compulsory arbitration of malpractice cases in which health care providers are defendants. There may be a joinder of
additional parties who may be necessary and proper for a just determination of a claim, whether or not the additional parties are health care providers. The administrator has been empowered to rule on all preliminary motions and to consider and approve offers of settlement for fiduciaries, minors and incompetents prior to appointment of an arbitration panel chairman.
Arbitration panels are to consist of two attorneys, two health care providers and three lay persons. The administrator has the right to select one of the two attorney members to serve as chairman, who then shall determine all questions of law including evidentiary matters and instructions to the panel after the presentation of the case. Each litigant is provided with a list of five candidates for each category of panel membership with biographical information. A designated number of preemptory challenges are allotted to each litigant and there is an unlimited number of challenges for cause.
As we proceed to consider the various constitutional challenges raised herein it must be remembered that a legislative enactment enjoys a presumption in favor of its constitutionality and will not be declared unconstitutional unless it clearly, palpably and plainly violates the Constitution. All doubts are to be resolved in favor of a finding of constitutionality. Singer v. Sheppard, 464 Pa. 387, 346 A.2d 897 (1975); Glancey v. Casey, 447 Pa. 77, 288 A.2d 812 (1972); Milk Control Commission v. Battista, 413 Pa. 652, 198 A.2d 840 (1964); Daly v. Hemphill, 411 Pa. 263, 191 A.2d 835 (1963). The legislature must be respected in its attempt to exercise the State's police power and the power of judicial review must not be used as a means by which the courts might substitute its judgment as to public policy for that of the legislature. Glancey v. Casey, supra, 447 Pa. 77, 84, 288 A.2d 812, 816 (1972):
"Time and again, we have taken the position that the judiciary does not question the wisdom of the action of a legislative body." (emphasis in original)
The first question to be considered is whether Art. I, section 6 of the Pennsylvania Constitution which provides for the right to trial by jury, is offended by the requirement that the complaining party must first proceed to arbitration as a condition precedent to trial by jury. With the ever increasing demand upon judicial time, one of the accepted solutions in recent years has been the attempt to divert dispute-resolution, where appropriate, to forums other than the court rooms.*fn5 This trend has been motivated by the realization that the traditional trial is not necessarily the exclusive and only effective means by which the disagreements that arise within our society may be resolved. While the salutory benefits of alternative dispute-resolution do not justify a callous disregard of the responsibility to provide trial by jury in instances where that ...