Appeal from a judgment of the United States District Court for the Eastern District of New York (Weinstein, C.J.) dismissing plaintiffs' 42 U.S.C. § 1983 complaint on the ground that section 148-a of the New York Judiciary Law does not violate the due process or equal protection clauses of the federal constitution. Affirmed.
Before: VAN GRAAFEILAND, WINTER and MINER, Circuit Judges.
William Gronne and Rita Gronne appeal from a judgment of the United States District Court for the Eastern District of New York (Jack B. Weinstein, Chief Judge) dismissing their complaint against the Attorney General and the Chief Administrative Judge of the State of New York. Judge Weinstein held that section 148-a of the New York Judiciary Law, which provides procedures for the submission of medical malpractice claims to pretrial panels, did not violate the due process or equal protection clauses of the fourteenth amendment. Finding no error in Judge Weinstein's decision, we affirm.
William Gronne, who is now eighty-one years of age, commenced a medical malpractice action against several physicians and the Victory Memorial Hospital on May 12, 1980 in the New York Supreme Court, Kings County, alleging that the "defendants' negligent performance of unnecessary surgery and negligent administration of improper drugs into his spinal cord" caused him "many terrible injuries," including the amputation of a leg and chronic fecal impaction. Rita Gronne, William's wife, sought recovery in the same action for loss of consortium.
The Gronnes' medical malpractice action has been on the trial calendar of the Supreme Court in Kings County since October 26, 1983. Their case has not yet gone to trial, however, because medical malpractice actions instituted in New York State Supreme Court must be referred to a malpractice panel for a hearing on liability before proceeding to trial. N.Y. Jud. Law § 148-1 (McKinney 1983). The Gronnes claim that the reason for the delay in their case is that the state court has been unable to locate and assign an appropriate physician to sit on the panel.
According to section 148-a, medical malpractice panels consist of a justice of the supreme court or a retired justice of the supreme court, a physician, and an attorney-at-law. Id. § 148-a(2). The physician is chosen from a list which the presiding justice of each of the appellate division departments prepares "with the assistance of the Medical Society of the State of New York, a county medical society and/or the New York Academy of Science." The list of physicians is subdivided according to the particular specialty of each. Id. § 148-a(2)(a). Prior to the liability hearing, any party may file a written objection to the selection of the panel doctor or attorney; the panel justice then rules of the objection. Id. § 148-a(2)(d).
If the panel reaches a unanimous decision on the question of liability, a formal written recommendation concerning liability is issued and is admissible in evidence at a subsequent trial. Id. § 148-a(8). The statute provides that "the recommendation shall not be binding upon the [trier of facts] . . . but shall be accorded such weight as the [trier of facts] chooses to ascribe to it." Id. If the recommendation is read to the jury, the doctor member or attorney member of the panel may be called as a witness by any party. Id. Following consideration by the panel, whether or not a recommendation as to liability is made, the case is remanded to the trial calendar. Of course, the panel may assist in the settlement of the case before that time. Id. § 148-a(7).
The Gronnes commenced the present action pursuant to 42 U.S.C. § 1983, contending that section 148-a and the regulations promulgated thereunder by the various appellant divisions violate the due process and equal protection clauses of the fourteenth amendment. Their primary due process claim is that they have been denied their right to a jury trial because they cannot get a medical malpractice panel to hold a liability hearing, which is a prerequisite to trial, and, in any event, that the determination of any such panel would unduly interfere with the role of the jury. In attacking the statute as violative of the equal protection clause, they assert that the legislation discriminates generally against all medical malpractice plaintiffs and discriminates in particular against a sub-class of medical malpractice plaintiffs. The latter claim of discrimination relates to a 1985 amendment to section 148-a exempting litigants in Suffolk County and the Fifth Judicial District from participation in medical malpractice panels. According to the Gronnes, plaintiffs whose actions are vendue in Suffolk County and the Fifth Judicial District are not required to "go through the wait, expense, and prejudice of a [medical malpractice] panel proceeding . . . ." The Gronnes also claim that section 148-a is facially unconstitutional because it provides for the panel to include a New York physician, who assertedly will be inherently biased against medical malpractice claimants because of a putative pecuniary interest in the outcome of the litigation. This potential bias, according to the Gronnes, arises because some eighty percent of all physicians in New York State are insured by the same insurance company and all physicians so insured are shareholders in that company.
Chief Judge Weinstein rejected the Gronnes' constitutional claims and granted the Attorney General's motion to dismiss for failure to state a claim upon which relief could be granted. Fed. R. Civ. P. 12(b)(6). For the reasons set forth below, we affirm.
The Gronnes challenge two classifications created by section 148-a as violative of the equal protection clause of the fourteenth amendment. First, they claim the statute unfairly discriminates against all medical malpractice plaintiffs in New York vis-a-vis other tort or professional malpractice plaintiffs. Second, they allege that the statute violates the equal protection clause by abolishing medical malpractice panels in Suffolk County and the Fifth Judicial District. We find that neither of these statutory distinctions amounts to ...