Opinion
No. 75-2081.
October 20, 1976.
Court of Common Pleas of Ohio, Montgomery County.
Plaintiffs in medical malpractice suit challenged constitutionality of certain sections of the Medical Malpractice Act. The Court of Common Pleas, Montgomery County, Walter H. Rice, J., held that pleading requirements of the Act are in conflict with the Civil Rules and, hence, are an unconstitutional infringement by the legislature on a judicial function, that limitation on amount of general damages recoverable is violative of equal protection guarantee of the State and Federal Constitutions and that the compulsory arbitration requirement violates the right to trial by jury as guaranteed by the State Constitution and is also violative of fundamental due process and equal protection, that the Act is prospective legislation and does not apply to causes of action which have accrued before effective date of the Act, notwithstanding that suit is brought after such date and that Act would not be upheld on basis of alleged crisis situation existing in health care and medical malpractice insurance fields.
Order accordingly.
Dwight D. Brannon, Dayton, for plaintiff.
David C. Greer, Dayton, in behalf of Dr. Nicholas F. Pancol.
William H. Selva, Jerome G. Menz, Dayton, for defendant Hospital.
DECISION ENTRY DECLARING CERTAIN PORTIONS OF OHIO MEDICAL MALPRACTICE ACT UNCONSTITUTIONAL; DATE FOR PRE TRIAL CONFERENCE IN CHAMBERS ESTABLISHED.
The Plaintiff has challenged the constitutionality of certain sections of Ohio's Medical Malpractice Act on basically three grounds:
1. The pleading requirements under the Act (R.C. Section 2307.42) are in conflict with the Civil Rules and are, therefore, an unconstitutional infringement by the Legislature upon a Judicial function as established by Article IV, Section 5(B) of the Ohio Constitution.
2. The limitation on the amount of general damages recoverable under the Act (R.C. Section 2307.43) is violative of equal protection under the laws pursuant to the Fourteenth Amendment of the Federal Constitution and Article I, Section 2 of the Ohio Constitution.
3. The compulsory arbitration required under the Act (R.C. Section 2711.21) violates the right to trial by jury guaranteed by Article I, Section 5 of the Ohio Constitution and is also violative of fundamental due process and equal protection under the laws.
The Plaintiff is also contending that the Medical Malpractice Act is not retrospective legislation and does not, therefore, apply to causes of action, such as the instant case, which accrued before the effective date of the Act.
[1-4] For reasons which will be set forth, it is the opinion of this Court that all three of the aforementioned Code Sections (R.C. Sections 2307.42, 2307.43 and 2711.21), as they apply in the Ohio Medical Malpractice Act, are violative of equal protection under the laws as provided for by the Fourteenth Amendment of the Federal Constitution, and Article I, Section 2 of the Ohio Constitution. In addition, this Court is of the opinion that the pleading requirements of R.C. Section 2307.42 are violative of Article IV, Section 5(B) of the Ohio Constitution, stating that the Supreme Court shall prescribe rules governing practice and procedure in all courts of the state, and that the compulsory arbitration provisions of R.C. Section 2711.21 are violative of the right to trial by jury as guaranteed by Article I, Section 5 of the Ohio Constitution. Further, this Court concludes that the Medical Malpractice Act is not retrospective legislation and, therefore, does not apply to causes of action, such as the instant case, which accrued before the effective date of the Act.
Although the Plaintiff has asserted the unconstitutionality of the Ohio Medical Malpractice Act by contending, inter alia, that the limitation on the amount of general damages recoverable under the Act (R.C. Section 2307.43) is violative of equal protection, since the Plaintiff has not prayed for damages in excess of $200,000.00 general damages, this Court concludes that this Plaintiff has no standing or cause to complain with reference to the constitutionality of R.C. Section 2307.43. However, purely as dicta and in the interests of fully exploring the constitutional ramifications of various portions of the Ohio Medical Mal practice Act, this contention of the Plaintiff will be discussed as though it applied to the facts of the instant case.
A. MEDICAL MALPRACTICE PLEADING REQUIREMENTS (R.C. SECTION 2307.42) ARE IN CONFLICT WITH THE LIBERAL PLEADING PROVISIONS UNDER THE CIVIL RULES.
R.C. Section 2307.42 is quite obviously at variance with the pleading requirements of Civil Rule 8(A) and 11. A simple comparison of R.C. Section 2307.42 and the Civil Rules clearly demonstrates that there are significant restrictions and additional requirements with respect to the filing of a medical malpractice claim. The case of Graley v. Satayatham, Ohio Com.Pl., 74 O.O.2d 316, 343 N.E.2d 832 (1976) a Court of Common Pleas Decision written jointly by two Judges of the Cuyahoga County Court of Common Pleas, addressed this same issue and concluded that R.C. Section 2307.42, as it sets forth special pleading requirements, was unconstitutional in that, inter alia, R.C. Section 2307.42 conflicts with the pleading rules of the Ohio Rules of Civil Procedure as to affidavit and demand for judgment, and the Civil Rules prevail, pursuant to the Ohio Constitution, Article IV, Section 5(B). The Graley Opinion at 318, 343 N.E.2d 832, correctly identifies the differences between pleading requirements under the Civil Rules as opposed to those under R.C. Section 2307.42.
i. e., in contrast to the liberal pleading requirements of Civil Rule 8(A) and 11, the Ohio Medical Malpractice Act requires, inter alia, in R.C. Section 2307.42, a listing of all "collateral source" benefits, in affidavit form, and a statement of facts constituting the cause of action in ordinary and concise language which, upon its face, requires far more than Civil Rule 8(A), which requires only a statement of the claim for relief containing a short and plain statement of the claim showing that the pleader is entitled to relief.
The Civil Rules were adopted pursuant to Article IV, Section 5(B) of the Ohio Constitution which provides, in effect, that the Civil Rules are to take precedence over any other conflicting laws. Since this Court concludes that the pleading requirements of the Medical Malpractice Act are contrary to those established in the Civil Rules by the Ohio Supreme Court, said requirements are invalid and must give way to the Civil Rules. This is the decision sought by the Plaintiff and the result reached by the Graley Court.
The only potential flaw in the above reasoning which might change the result is found in Civil Rule 1(C) which provides that the Civil Rules "to the extent that specific procedure is provided by law or to the extent that these rules would by their nature be clearly inapplicable, shall not apply to procedure . . . in . . . special statutory proceedings." The question which arises, therefore, is whether R.C. Section 2307.42 may be classified as a "special statutory proceeding" to which the Civil Rules would not apply.
Neither Civil Rule 1(C) nor the Staff Notes explaining the Rule provide an exhaustive list of special statutory procedures. Only a few actions, such as Small Claims, Forcible Entry and Detainer and Commitment of the Mentally Ill are specifically listed. Due to the substantial differences between R.C. Section 2307.42 and the normal pleading procedure under the Civil Rules, one could reasonably conclude that the Legislature did intend R.C. Section 2307.42 to be a statutory exception to the Civil Rules with respect to medical malpractice claims. The Plaintiff states confidently, however, that a medical malpractice action is not a case of a special statutory proceeding but is, rather, a customary case presented before a Court for damages from negligence.
Research has disclosed no case law which specifically addresses the meaning or scope of the phrase "special statutory proceeding" as used in Civil Rule 1(C). Graley did not address Civil Rule 1(C). The following observations have, however, persuaded this Court to conclude that a medical malpractice claim does not fall within the "special statutory proceeding" category. Firstly, a medical malpractice claim, being identical to any other negligence action, with the exception that there is a physician or hospital named as a party defendant, would normally present nothing dramatically unusual as far as procedure is concerned, whereas the actions specifically listed in Civil Rule 1(C) do possess attributes which differentiate them from most civil suits. Secondly, and more importantly, the fact that the Legislature has enacted special pleading requirements does not, in itself, convert what would otherwise be a negligence claim, and what has been traditionally considered a typical cause of action, into a "special statutory proceeding." If such were the case, the Legislature could change the pleading requirements with respect to any type of traditional cause of action, by enacting into statute the smallest change in procedure, with the result that the constitutional mandate of Article IV, Section 5(B) would be meaningless.
The conclusion must be, therefore, that the imposition by the Legislature of special pleading requirements which are contrary to the more liberal provisions of the Civil Rules is invalid and constitutionally impermissible as an infringement upon the authority of the Judiciary to formulate the rules of pleadings.
B. R.C. SECTION 2307.42, RELATING TO THE PLEADING REQUIREMENTS OF MEDICAL MALPRACTICE CLAIMS, R.C. SECTION 2307.43, RELATING TO THE $200,000.00 LIMITATION ON GENERAL DAMAGES IN MEDICAL MALPRACTICE CLAIMS, AND R.C. SECTION 2711.21, RELATING TO COMPULSORY ARBITRATION OF MEDICAL MALPRACTICE CLAIMS, VIO LATE ARTICLE I, SECTION 2 OF THE OHIO CONSTITUTION AND THE FOURTEENTH AMENDMENT OF THE FEDERAL CONSTITUTION WITH RESPECT TO EQUAL PROTECTION UNDER THE LAW.
After reviewing the Graley Opinion, and the case law cited in support thereof, in addition to thoroughly analyzing Plaintiff's contentions and authorities cited in her memoranda, many of which are also cited in Graley, each of the three code sections listed above violate constitutional provisions with respect to equal protection of rights under the law.
With respect to equal protection violation, reference is made to Graley, 74 O.O.2d at 319-320, 343 N.E. 832, where this aspect of the Act is analyzed. Quite frankly, this Court can add nothing of importance to the equal protection analysis of the Graley Opinion, which held that R.C. Sections 2305.25, 2307.42 and 2307.43 are violative of the equal protection clause contained in the Fourteenth Amendment of the United States Constitution, except as applied to claims against the State of Ohio, in that these sections confer benefits on the medical malpractice defendant unavailable to other defendants in tort cases; thus, in effect, depriving Plaintiffs in these cases of benefits available to others. All of the cases cited in Graley, and in Plaintiff's memoranda, are supportive of the positions asserted with respect to the equal protection violations.
Although not presented as an issue in Graley, the compulsory arbitration requirements of R.C. Section 2711.21 discriminate against medical malpractice claimants in the same fashion as do the damages and pleadings limitations and requirements which were addressed by Graley. In this respect, the arbitration provisions suffer from the equal protection infirmities as identified in Graley, with respect to damages and pleadings under the Medical Malpractice Act.
C. REVISED CODE SECTION 2711.21, RELATING TO COMPULSORY ARBITRATION OF MEDICAL MALPRACTICE CLAIMS, IS VIOLATIVE OF ARTICLE I, SECTION 5 OF THE OHIO CONSTITUTION WHICH GUARANTEES THE RIGHT TO TRIAL BY JURY.
With respect to Plaintiff's arguments relating to this issue, the cases provided by the Plaintiff, while somewhat helpful, do not firmly establish the unconstitutionality of R.C. Section 2711.21.
The cases of Dorchy v. Kansas, 264 U.S. 286, 47 S.Ct. 86, 71 L.Ed. 248 (1924), Henderson v. Ugalde, 61 Ariz. 221, 147 P.2d 490 (1944), and Wolff Packing Company v. Court of Industrial Relations, 262 U.S. 522, 43 S.Ct. 630, 67 L.Ed. 1103 (1923) do stand for the principle that when compulsory arbitration, voluntarily imposed upon litigants, prevents them from presenting their dispute to the Courts and makes the decision of the arbitrator final with respect to the rights of the parties, the procedure is unconstitutional as a deprivation of property without due process of law in violation of the Fourteenth Amendment. The Pennsylvania case cited by Plaintiff, Re Smith, 381 Pa. 223, 112 A.2d 625 (1955), does require a de novo appeal where compulsory arbitration has been imposed. This requirement does correct the constitutional infirmity identified in Dorchy, Wolff Packing Company and Henderson, supra. The final case cited by Plaintiff, Christiansen v. Connell, 2 Ill.2d 332, 118 N.E.2d 262 (1954), is an example of a case in which a Court struck down as unconstitutional a procedure which had the effect of dissuading and delaying the filing of a lawsuit in divorce situations.
While the authorities cited by Plaintiff are supportive of Plaintiff's position and should, therefore, be accorded some weight, the U.S. Supreme, Court cases, in and of themselves, are not determinative, because under R.C. Section 2711.21, a jury trial is provided after arbitration and, therefore, the arbitration award is not final. Plaintiff's failure to provide Ohio case law addressing the constitutionality of compulsory arbitration is understandable in view of the short period of time that the Act has been effective and the near total absence of case law relating to compulsory arbitration generally.
The substance of Plaintiff's position is that the arbitration provision (R.C. Section 2711.21) has the effect of dissuading the filing of a medical malpractice suit, altogether, with the additional impact of coercing settlements once arbitration has been completed. The Plaintiff identifies the unusual burden the party who loses in arbitration must overcome at trial in order to counter the introduction into evidence of the arbitrator's decision and the testimony of the individual arbitrators. While it is true that the findings of the arbitrators are not findings in a subsequent jury trial and, therefore, the right to trial by jury guaranteed by Article I, Section 5 of the Ohio Constitution is not violated in that respect, the fact that an additional burden and additional restrictions are created by the compulsory arbitration procedure of R.C. Section 2711.21, which place added pressure and expense upon a Plaintiff or Defendant who loses at arbitration and which, of course, is entirely unique to medical malpractice claims, does raise, as pointed out above, both equal protection problems and the question of the right guaranteed to all litigants to trial by jury.
Of course, the testimony of the individual arbitrators is admissible only to rebut or counter the introduction of the decision of the Arbitration Board, if said decision is introduced into evidence by the adverse party.
There can be no question that a party would proceed to trial after arbitration much more readily, knowing that any adverse findings by the arbitrators could not be introduced against him at the trial. In such a situation, a party would be able to proceed to trial in the same fashion and with the same degree of confidence as if the arbitration never took place. However, R.C. Section 2711.21, by permitting the decision of the arbitrators to be introduced into evidence, in addition to permitting the individual arbitrators to testify, effectively and substantially reduces a party's ability to prove his case, because that party must persuade a jury that the decision of the arbitrators was incorrect, a task not easily accomplished in view of the added weight which juries have traditionally accorded the testimony of experts. Compulsory Arbitration, as practiced in the Medical Malpractice Act, in effect, puts "strings" upon one's right to trial by jury thus, in reality, making it a far less effective right than would otherwise be the case. The right to trial by jury is thus substantially reduced in terms of the value of that right to a party who desires to challenge the decision of the arbitrators. Article I, Section 5 of the Ohio Constitution provides that the right to jury trial "shall be inviolate", and certainly the arbitration provisions of R.C. Section 2711.-21 significantly infringe upon that right by reducing the strength and persuasiveness of a party's case to a jury which will, under the Statute, be exposed to the extremely prejudicial testimony of the findings of a Board of Arbitrators. As the Plaintiff has effectively pointed out, there may well be an unusual burden at trial which, in many cases, will cause a party to make a decision not to proceed to trial at all — a decision which otherwise would have been different or would not have been necessary were it not for the adverse findings by the Board of Arbitrators, which, pursuant to statute, can be introduced in evidence against that party at trial.
While the right to proceed to a jury trial still exists under R.C. Section 2711.21, it is clearly not a free and unfettered right as was certainly intended by the framers of Article I, Section 5 of the Ohio Constitution.
Therefore, the arbitration provisions under R.C. Section 2711.21, which permit the introduction into evidence and exposure to the jury of the arbitrator's decision, are a violation of the right to trial by jury.
The compulsory arbitration provision contained in the Medical Malpractice Act, together with the provision that the decision of the arbitrators may be presented to a jury in a subsequent "appeal" from an arbitrator's decision, makes it appear that the "ultimate fact in issue" limitation upon expert testimony, reaffirmed by the Ohio Supreme Court in Trebotich v. Broglio, 33 Ohio St.2d 57, 62 O.O.2d 410, 294 N.E.2d 669 (1973), may well be violated by these provisions. Quite obviously, testimony under R.C. Section 2711.21 would often present substantial likelihood of violation of this rule by means of the introduction of the decision of the arbitration panel and, if necessary, by means of the arbitrators' testifying as to their decision on the issue of both liability and damages.
It is true that the Legislature does have the power to prescribe rules of evidence which the Court must follow, 21 O.Jur.2d, Evidence, Section 9, but this power is limited by constitutional guarantees respecting due process of law and vested rights, 10 O.Jur.2d Constitutional Law, Section 253. Therefore, the constitutional rights to trial by jury and equal protection would, in this Court's opinion, preclude testimony on the ultimate fact in issue in medical malpractice cases, even if R.C. Section 2711.21 was construed as creating an exception to the "ultimate fact in issue" rule.
Lest there be a feeling that the instant decision has the effect of invalidating the newly enacted Montgomery County Court of Common Pleas Rule of Court setting up a compulsory arbitration procedure for the trial of civil cases not exceeding $10,000.00 in demand, this Court would hasten to remind the reader that the local arbitration procedure provides for a complete de novo trial, without either the introduction of the decision of the arbitrators or testimony from them concerning their findings on the issues of liability and damages. As such, the local arbitration procedure would seem to be constitutionally valid.
D. THE OHIO MEDICAL MALPRACTICE ACT IS NOT RETROSPECTIVE IN EFFECT.
In view of the decision in Young v. Alberts, Ohio Com.Pl., 73 O.O.2d 32, 342 N.E.2d 700 (1975), which held that in consideration of R.C. Sections 1.48 and 1.58, Article I, Section 28 of the Ohio Constitution and the silence of the Act itself, the Ohio Medical Malpractice Act will not be held to apply retrospectively, and the analysis thereof rendered in Graley, which, likewise, concluded that the Act was not retrospective in effect, due to the fact that sub stantive legal rights are affected by the Act (see 74 O.O.2d page 321, 343 N.E.2d 832), there is little this Court can offer in addition. The only difference between Young, on the one hand, and Graley and the instant case, on the other, is that in Young both the accrual and the filing of the action occurred prior to the effective date of the Medical Malpractice Act, whereas in Graley, and in the instant case, the action accrued prior to the effective date, but, unlike Young, the lawsuit was filed after the effective date. The Graley Court obviously believed that this distinction was of no apparent importance with the result that the accrual of the action became the crucial date. This Court concludes, as did the Graley Court, that the accrual of the action, being before the effective date of the Ohio Medical Malpractice Act, is crucial with the result that the Medical Malpractice Act in question has no applicability to the facts in the instant case for the reason that, to the extent that the Act withstands constitutional scrutiny, it should be applied only to causes of action which accrued after its effective date of July 28th, 1975. In the captioned suit, the cause of action accrued on October 31st, 1974, some nine months prior to the effective date of the Ohio Medical Malpractice Act.
E. AUTHORITIES FROM STATES OTHER THAN OHIO.
Due to the malpractice "crisis", many states, in addition to Ohio, have enacted legislation similar to the Ohio Statute. Due to the newness of these statutes, decisional case law is just now beginning to trickle into the official reports of the respective states. These decisions, although of interest to one attempting to construe the constitutionality of the Ohio Statute, are not binding authority due to the essential differences between the statutes of the particular state and those of Ohio and, further, due to the differences in case law and constitutional framework between those states and that of Ohio.
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In Wright v. Central DuPage Hospital Association, et al., 63 Ill.2d 313, 347 N.E.2d 736 (1976), the Supreme Court of Illinois held unconstitutional the Illinois Act which, inter alia, did not permit the determination of the medical panel to be admissible at any subsequent trial in the Circuit Court and set an arbitrary five hundred thousand dollar recovery limit for all malpractice actions. This Act was held unconstitutional based upon constitutional reasoning not strictly applicable to Ohio. For example, the medical panel was decreed to be unconstitutional as a violation of the Illinois constitutional provision vesting the entire and exclusive judicial power in the State Courts, which said provision was violated because the nonjudicial panel members were given the same powers and functions as the Judge, thus giving them the ability to determine and apply substantive law, an inherently judicial function. Since this unconstitutional panel scheme is a prerequisite to a jury trial, said medical panel section violates the constitutional right to a jury trial. Such reasoning would not be applicable in Ohio which has, in a variety of Supreme Court decisions, upheld the validity of non-judicial panel members sitting as impartial arbitrators in a variety of classifications of litigation.
In addition, the Illinois Supreme Court struck down that section of the Illinois Malpractice Act which limited recovery of medical malpractice actions to five hundred thousand dollars. This section was held to violate the constitutional prohibition against special legislation, because the arbitrary limit imposed on damages discriminated against very seriously injured medical malpractice victims. The Illinois Court distinguished this action from damage limitations held valid in Wrongful Death and Dramshop statutes, because neither of the latter limited a right to damages existing at common law (Medical Malpractice Actions, existing at common law, the limitation on damages would constitute a limitation of damages on a right existing at common law). The Workmen's Compensation Act of Illinois was held not to serve as precedent for the medical malpractice damage limitation because its limits were established as a result of a quid pro quo — all persons injured at work traded common law rights for more certain payment. The Court found that the Malpractice Act provided no quid pro quo for seriously injured malpractice victims; the Court rejected the suggestion that the legislative scheme offered a proposed societal quid pro quo — some give up their right to damages so that all could have cheaper medical care — because the seriously injured gained nothing.
An analogy with the Ohio law can be made. In short, there is simply no quid pro quo given by the Ohio Medical Malpractice Act for seriously injured malpractice victims in limiting the amount of recoverable damages. This Court rejects, as did the Illinois Supreme Court, the societal quid pro quo argument that some must give up their rights to damages so that all can achieve cheaper medical care. Finally, since medical malpractice or negligence actions were known to the common law, previous to the Act in question, in the State of Ohio, it denies a malpractice Plaintiff equal protection of the laws to impose a dollar limit on such actions.
The Florida Supreme Court has recently upheld the Florida Medical Malpractice Reform Act against constitutional attack in Carter v. Sparkman, 335 So.2d 802 (Fla. 1976). That Act renders the liability conclusion of the Medical Liability Mediation Panel, established by the Act, consisting of a Circuit Court Judge, physician and attorney, admissible at the subsequent trial on the merits. As far as the requirement of compulsory mediation, the majority opinion held that reasonable restrictions may be placed upon access to the Courts, especially where the legislature does so in the exercise of its Police Power. The majority found that the Act was directly related to the legislature's public welfare goal of counteracting the imminent danger that the high cost of medical malpractice insurance would drastically curtail the availability of health care services. Thus, the pre-litigation burden, placed upon the claimant by the Act, "reaches the outer limits of constitutional tolerance", but does not exceed them. The Justices also stated that the need to submit to mediation before bringing a civil action does not violate the "privileges and immunities" cause, because access to a judicial forum in the first instance is not a constitutional "privilege". Nor does the Act deprive plaintiff of due process of law, because in submitting to mediation the plain tiff incurs no loss of substantive rights. The panel, in essence, is similar to a mandatory pre-trial settlement conference, according to the Supreme Court of Florida.
In Helpern v. Gozan, 85 Misc.2d 753, 381 N.Y.S.2d 744 (1976), a New York State trial Court found constitutional a provision of a statute which makes admissible at trial the unanimous written recommendation of a pre-trial medical malpractice panel on the question of liability. The Statute provides that the recommendation is not binding upon a Finder of Fact; and it permits a party to call an attorney or physician panel member as a witness with reference to the recommendation. The trial Judge found that the admissibility section was passed as part of a massive legislative effort to solve a critical health care crisis. The purpose of the admissibility provision was to expedite pre-trial disposition of malpractice cases in order to ease the pressure placed upon insurance premiums by run-away jury verdicts. The Court further held that there was a reasonable basis for the enactment of the Act; that there is a "fair, just and reasonable" connection between the provision and its public welfare goal. The Court also found that the provision did not impermissibly invade the province of the jury. By permitting a party to call a panel member as a witness in a trial, the provision makes it possible for a party to neutralize the panel recommendation by using the witness to reveal the inadequacy of the panel hearing. The Court also found that the panel recommendation will not, in and of itself, over-power the jury if the Court instructs the jury with clarity and simplicity.
For the reasons set forth below (see sub-section F, beginning at Page 911, Infra), this Court finds invalid, in the situation existing in the State of Ohio, the "end justifies the means" approach of the Florida and New York Courts which appears to justify "reaching the outer limits of constitutional tolerance" because of the alleged crisis situation existing in the health care and medical malpractice insurance field.
For additional reading on the subject of the constitutionality of Medical Malpractice Legislation, see 15 Cal. Trial Law Journal 17 (Winter, 1976); 50 Tulane Law Review 655 (1976); 1975 Duke Law Journal 1417 (January, 1976); Jones case, 18 ATLA News L. 365 (October, 1975). (Idaho limitation on damages unconstitutional).
F. GENERAL OBSERVATIONS.
Standing alone, the violation of the equal protection provision of the State and Federal Constitution would be sufficient to invalidate the provisions of the Ohio Medical Malpractice Act addressed in this decision. As stated by the Graley Court, 74 O.O.2d at page 320, 343 N.E.2d at page 837:
"There is no satisfactory reason for this separate and unequal treatment. There obviously is `no compelling governmental interest' unless it be argued that any segment of the public in financial distress be at least partly relieved of financial accountability for its negligence. To articulate the requirement is to demonstrate its absurdity, for at one time or another every type of profession or business undergoes difficult times, and it is not the business of government to manipulate the law so as to provide succor to one class, the medical, by depriving another, the malpracticed patients, of the equal protection mandated by the constitution. Even remaining within the area of the professions, it is notable that the special consideration given to the medical profession by these statutes is not given to lawyers or dentists or others who are subject to malpractice suits.
Additionally, assuming a valid legislative purpose to enact laws relating to protection of the public's health, this legislation may be counter-productive. The extending of special litigation benefits to the medical profession certainly cannot be considered as relating to protection of the public health. On the contrary, the quality of health care may actually decline. To the extent that in tort actions of the malpractice type if the medical profession is less accountable than formerly, relaxation of medical standards may occur with the public the victim.
Courts, of course, may not invalidate legislation merely because it is perceived as unwise. Here there is a transgression of a basic constitutional principle forbidding unequal and special treatment for a class with no general beneficent reason apparent."
There is no doubt that the plethora of medical malpractice suits represents a crisis situation, not only to the medical profession but to their insurance carriers as well. However, in this Court's opinion, there is no crisis situation, short of civil insurrection, sufficient to deprive, water down or make less valuable the right to seek redress of grievances, to a dollar amount fully compensating one for his loss, though the medium of a free and unfettered jury trial.
G. SUMMARY.
1. The pleading requirements of the Ohio Medical Malpractice Act, contained in R.C. Section 2307.42, are in conflict with the liberal pleading provisions under the Civil Rules and are, therefore, unconstitutional, void and of no effect.
2. R.C. Sections 2307.42, 2307.43 and 2711.21 violate Article I, Section 2 of the Ohio Constitution and the Fourteenth Amendment of the Federal Constitution with respect to equal protection under the law and are, therefore, unconstitutional, void and of no effect.
This reference to R.C. Section 2307.43 is, strictly speaking, dicta (see pg. 905, Supra).
3. R.C. Section 2711.21, relating to compulsory arbitration of medical malpractice claims, is violative of Article I, Section 5 of the Ohio Constitution which guarantees the right to trial by jury.
4. The Ohio Medical Malpractice Act is not retrospective in effect.
H. PRACTICAL EFFECT OF DECISION.
The Plaintiff will, should she so desire, upon motion duly filed, be granted leave of Court to file an amended complaint raising the dollar amount of her prayer from $200,000.00 to an amount she deems representative of the loss incurred. In so ruling, this Court concludes that the $200,000.00 prayed as general damages was inserted by the Plaintiff in her complaint due to the strictures of the damage limitations of R.C. Section 2307.43. In addition, it will not be necessary for Plaintiff to submit the controversy involved in the captioned cause to an Arbitration Board under R.C. Section 2711.-21.
The counsel listed below will take note that a brief pre-trial conference will be had, in Chambers, to determine further procedures to be taken in the processing of the captioned cause, including the establishment of a discovery timetable and the setting of a trial date at 4:00 P.M. on Thurs day, October 28th, 1976.