No. 80-19 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

BRUCE LINDER, 

Plaintiff, 

C. W. SMITH, M.D. ; ROGER MURRAY, M.D. ; 

and the MONTANA MEDICAL ASSOCIATION, a 

Montana corporation, 

Defendant. 

ORIGINAL PROCEEDING: 

Counsel of Record: 

For Plaintiff: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Douglas R. Drysdale, Bozeman, Montana 

R. P. Ryan argued, Billings, Montana 

For Defendants: 

Gerald Neely argued, Billings, Montana 

Bruce Toole, Billings, Montana 

For Amicus Curiae: 

Luxan and Murfitt Law Firm, Helena, Montana 

Submitted: March 23, 1981 

Decided : dull 10 

Filed: dpk!$.Oa8l 

rnM,O& 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of the 

Court. 

Plaintiff Linder seeks a determination of the constitutionality of the Montana Medical Malpractice Panel Act, sect ions 

27-6-101 et seq., MCA. This Court accepted original jurisdiction 

of the cause in a declaratory judgment proceeding. We find that 

the act is constitutional with one exception as hereafter noted. 

Plaintiff Linder allegedly suffered an injury while he was 

a patient of Dr. Roger Murray. His claim against the doctor 

constitutes a "malpractice claim" within the definition of sect ion 

27-6-103(2), MCA, and by statutory requirement should have been 

filed with the panel. Section 27-6-105, MCA. Plaintiff ref used 

to submit his claim to the panel, arguing that the Panel Act is 

unconstitutional on its face. 

The panel was created by the 1977 legislature and is composed of three lawyers and three health care providers. The 

articulated purposes of the panel are to screen malpractice 

claims in order to prevent the filing in court of actions which 

do not "permit at least a reasonable inference of malpractice" 

and to promote settlement of meritorious claims. Section 

27-6-102, MCA. A claimant must submit his claim to the panel 

prior to filing in court, section 27-6-301, MCA, but the claimant 

is not bound by the decision of the panel, section 27-6-606, MCA, 

nor is the decision admissible in a subsequent judicial action, 

section 27-6-704, MCA. 

Plaintiff challenges the constitutionality of the act on 

its face, alleging violations of: 

(1) the right to a jury trial; 

(2) the right of access to the courts; 

( 3) substantive and procedural due process; 

( 4) the prohibition against special legislation; 

( 5) equal protection of the laws; 

(6) the principle of separation of powers; 
(7) the taxing powers; 

(8) the right of public participation and the right to 

know; 

(9) freedom of speech and freedom from libel. 

Plaintiff's first contention is that the mandatory submission of claims to the panel unconstitutionally interferes with 

his right to trial by jury, as guaranteed by 1972 Mont. Const., 

Art 11, § 26. Defendants argue that a claimant is free to continue to jury trial no matter what the decision of the panel, and 

the jury remains the final determiner of fact. Further, the 

panel decision is not binding, nor is it admissible at trial. 

Thus, there is no interference with the jury trial process. 

Defendants argue that submission to the panel is merely a permissible delay in the path to the ultimate jury verdict. We 

agree. 

The Montana Constitution guarantees the litigant the right 

to trial by jury. This Court has held that the right to trial by 

jury in this state is the same as that guaranteed by the Seventh 

Amendment. Consolidated Gold & Sapphire Mining Co . v . Struthers 

(1910), 41 Mont. 565, 571, 111 P. 152, 155. In determining the 

extent of this right, the federal courts have focused on preserving the right of trial by jury, rather than the incidents 

involved in carrying out that right; it is a matter of substance, 

rather than form. Colgrove v. Battin (1973), 413 U.S. 149, 

155-156, 93 S.Ct. 2448, 2452, 37 L.Ed.2d 522, 528. 

The purpose of the jury in civil cases is to assure a fair 

and equitable resolution of factual issues. Colgrove , supra, 413 

U.S. at 157, 93 S.Ct. at 2453, 37 L.Ed.2d at 529. Therefore, 

changes which affect the form, but not the substance of the right 

may pass constitutional muster. Justice Brandeis, in approving 

the use of an auditor to narrow the issues of fact for a jury and 

to express an opinion on the facts, noted: 
"The command of the 7th Amendment that 'the right 

of trial by jury shall be preserved' does not require 

that old forms of practice and procedure be retained. 

Walker v. New Mexico & Southern Pacific R. R. Co., 

165 U.S. 593, 596. Compare Twining v. New Jersey, 

211 U.S. 78, 101. It does not prohibit the introduction of new methods for determining what facts are 

actually in issue, nor does it prohibit the introduction of new rules of evidence. Changes in these may 

be made. New devices may be used to adapt the 

ancient institution to present needs and to make of 

it an efficient instrument in the administration of 

justice. Indeed, such changes are essential to the 

preservation of the right. The limitation imposed by 

the Amendment is merely that enjoyment of the right 

of trial by jury be not obstructed, and that the 

ultimate determination of issues of fact by the jury 

be not interfered with." Ex parte Peterson (1920), 

253 U.S. 300, 309-310, 40 S.Ct. 543, 546, 64 L.Ed 

919, 923-924. 

The Montana Court and other courts have approved various 

pretrial procedures which burden the claimant in his efforts to 

get into court. The requirement of a pretrial conference does 

not violate the jury trial right. State ex re1 . Kennedy v. 

District Court (1948), 121 Mont. 320, 194 P.2d 256; submitting a 

case to a master prior to giving it to the jury does not violate 

the Seventh Amendment. Crateo, Inc. v. Intermark, Inc. (9th Cir. 

1976), 536 F.2d 862, 867-868, cert.denied 429 U.S. 896, 97 S.Ct. 

259, 50 L.Ed.2d 180; Rule 53, M.R.Civ.P. 

Several jurisdictions have addressed the problem of 

allowing the panel's findings into evidence in a subsequent 

trial, questioning whether this practice interferes with the 

jury's fact-finding role. A New York Supreme Court determined 

that the jury is still the final arbiter, with the panel's opinion being treated as merely another expert opinion. Comiskey v. 

Arlen (1976), 55 A.D.2d 304, 390 N.Y.S. 122, 127-128. See also 

Woods v. Holy Cross Hospital (5th Cir. 1979), 591 F. 2d 1164, 

1179-1180. In Montana, the panel Is decision is not admissible, 

thus precluding the claim that there is any usurpation of the 

jury function. 

We find no violation of the right to a jury trial. 
Claimant gets a full and final determination of his claim in a 

jury trial setting. Requiring plaintiff to begin the process by 

submitting his claim to the panel is a permissible interference 

with the jury trial right. See North Central Services, Inc. v 

Hafdahl (1981), Mont . , 625 P.2d 56, 58-59, 38 St.Rep. 

372, 374-375. See also Woods, supra; Johnson v. St. Vincent 

Hospital, Inc. (1980), Ind . , 404 N.E.2d 585, 591-593; 

Eastin v. Broomfield (1977), 116 Ariz. 576, 570 P.2d 744, 

748-749; Paro v. Longwood Hospital (1977), Mass. , 369 

N.E.2d 985, 991. 

Plaintiff next contends that the Panel Act denies him his 

right of access to the courts, in violation of 1972 Mont. Const. 

Art. 11 16. Defendants argue that the delays and costs are 

not so substantial so as to deny access, and that the delays and 

costs are imposed for rational reasons. 

Many other jurisdictions have considered this question, 

and with the exception of the Missouri Act, all other panel acts 

have been upheld against this challenge. See Paro, supra, 369 

N.E.2d at 989-990; State ex rel. Strykowski v. Wilkie (1978), 81 

Wis.2d 491, 261 N.W.2d 434, 444; Prendergast v. Nelson (1977), 

199 Neb. 97, 256 N.W.2d 657, 663-664; Woods, supra, 591 F.2d at 

1173, fn. 16; Johnson, supra, 404 N.E.2d at 592, and 593-596; 

Carter v. Sparkman (1976), Fla . - , 335 So.2d 802, 805-806. 

The courts addressing this issue have noted that access to 

the courts is not an independent fundamental right; access is 

only given such a status when another fundamental right--such as 

the right to dissolve the marital relationship--is at issue, and 

M 

no alternative forum exists in which to enforce that right. 

dcx44-e v. Connecticut (1971), 401 U.S. 371, 91 S.Ct. 780, 28 

L.Ed.2d 113. In cases not involving a fundamental right, access 

may be hindered if there exists a rational basis for doing so. 

Woods, supra; Paro, supra; Ortwein v. Schwab (1973), 410 U.S. 
656, 93 S.Ct. 1172, 35 L.Ed.2d 572. Thus the panel acts have 

been upheld against the access challenge, because the courts have 

found find a rational basis for the delays and expense. 

In all instances, the articulated basis for the panel 

acts has been the malpractice crisis existing in many states, 

with this legislation intended as a means to limit malpractice 

filings to those which are clearly meritorious. We find that the 

Montana Act was enacted by the legislature for the same reason. 

Because of the complexity of this case, and in view of the 

fact that we accepted original jurisdiction, we appointed a 

Master to act as fact-finder for this Court. He heard testimony 

and accepted exhibits, and issued findings which were subsequently adopted by this Court. His report shows that a medical 

malpractice crisis exists in the State of Montana, noting that 

Montana's insurance rate is cited as 17th highest in the United 

States, and that there is an enormous increase in physicians 

carrying no insurance. He determined that the legislation was 

enacted in response to this crisis and to guarantee quality 

health care to Montanans. Additionally, we note that in 1976 the 

legislature authorized an interim legislative committee to report 

to the 1977 legislature on the medical situation in Montana. 

That committee compiled a report indicating that although the 

medical situation in Montana "appears to be less critical than in 

many other states," yet premium costs are ever increasing and the 

availability of coverage is of "pressing concern." The hearings 

of the 1977 legislature indicate that the panel act was enacted 

in response to this situation. 

The findings of the Master and the evidence presented to 

the legislature convinces us that the Panel Act is a reasonable 

response to the medical situation in Montana. Because the delays 

and expense are not unreasonable in light of the aims of the statute we find no impermissible burden on access. 
This Court has upheld various other legislative enactments 

which delay or burden the right of access. Without defining the 

status of the right of access, nor specifically setting out the 

permissible legislative reasons for restricting access, this 

Court approved the requirement of a pretrial conference. 

Carlin v. District Court (1945), 118 Mont. 127, 164 P.2d 

155. See also Souders v. District Court (1932), 92 Mont. 

272, 12 P.2d 852, in which this Court approved the statute 

requiring plaintiff to make a deposit with the court before prosecuting a tax deed action. Other states have noted that it is 

reasonable to require parties to seek administrative resolutions 

before going to court, Strykowski, supra, 261 N.W.2d at 444, and 

that a bond may be constitutionally required before a claimant 

takes a malpractice claim to court. Paro, supra 369 N.E. 2d at 

989-990. The Florida court determined in Carter, supra, that the 

costs and delays involved in the panel procedure are primarily 

related to discovery and would be necessary in preparing to go to 

court anyway, and thus are reasonable. 

The plaintiff urges this Court to follow Madison v. Yunker 

(1978)1 Mont . , 589 P.2d 126, 35 St.Rep. 1311, in 

which we found an unconstitutional denial of access in the 

requirement that a plaintiff demand a retraction from an alleged 

libeler before filing suit. We find that case to be distinguishable from the instant case in that the Montana Constitution provides every person with an independent right of expression subject to being responsible for all abuses of that liberty. The 

statute in Madison also changed the remedy for libel which was 

provided elsewhere in the Constitution. 1972 Mont. Const., Art. 

11, S$ 7 and 16. The Malpractice Panel Act does not of fend such 

constitutional provisions. 

One court has struck down its statute finding that the 

requirements of the act imposed "useless and arbitrary delay." 
The Missouri court determined that the delay could destroy the 

plaintiff's remedies by abridging the right to file suit immediately, which could result in loss of personal service over 

defendants. See State ex re1 . Cardinal Glennon Memorial 

Hospital v. Gaertner (1979), Mo . , 583 S.W.2d 107, 

110. Plaintiff here also argues that there could be problems 

with the statute of limitations because of the necessity of 

filing with the panel before going to court. 

We are not unmindful of these problems. However, we do 

not find that the statutes in Montana would necessarily bring 

about these unfortunate results. Section 27-6-702, MCA, states 

that the statute of limitations is tolled upon receipt of the 

application to the panel and does not begin again until entry of 

and service on the parties of the panel's decision. We construe 

that statute to apply to defendants both known and unknown at the 

time the application is filed with the panel. 

Additionally, the Montana Rules of Civil Procedure allow 

the deposition of a potential witness to be taken prior to filing 

suit in court. Rule 27, M.R.Civ.P. A plaintiff, fearing that a 

defendant may leave the jurisdiction, can petition the court for 

an order allowing him to preserve such testimony. 

In sum, we find sufficient safeguards within the act to 

protect the plaintiff's right of access to the court. The burdens imposed are rationally related to the aims of the act and 

the act constitutes a reasonable response to the medical 

situation. 

Next, plaintiff challenges the act as being violative of 

plaintiff's rights to substantive and procedural due process. He 

does not specifically set forth his due process claims but he 

appears to dispute that any basis was shown to exist which would 

justify this type of legislation. There is agreement among all 

courts considering this legislation, save North Dakota, that the 
legislation was adopted to meet a crisis in medical care, and 

that the legislation appears to be a rational response to that 

crisis. See Woods, supra, 591 F. 2d at 1175-1176; Prendergast, 

supra, 256 N.W.2d at 667-669. The North Dakota Supreme Court 

found that no such crisis had been shown to exist in North 

Dakota, and invalidated the state statute in part on this basis. 

Arneson v. Olson (1978), N. D. , 270 N.W.2d 125, 136. 

The standard articulated by most courts in considering the 

legislation in light of the substantive due process claim is the 

"rational basis standard," i.e., the legislation will be upheld 

if the laws have a reasonable relation to a proper legislative 

purpose. Woods, supra, 591 F. 2d at 1176; Nebbia v. New York 

(1934), 291 U.S. 502, 536-537, 54 S.Ct. 505, 515-516, 78 L.Ed. 

940, 956-957. But see Arneson, supra, 270 N.W.2d at 132-133, 

utilizing a standard falling somewhere between "strict 

scrutiny" and "rational basis ." We subscribe to the rational 

basis standard and find that the Panel Act meets this test in 

light of the situation existing in Montana, as identified by the 

Master and the legislature. 

As we noted in our discussion above, we are satisfied that 

sufficient evidence was considered by the legislature in determining that there was a near-crisis situation in Montana. We 

will not substitute our judgment for that of the legislature. 

Aside from the access problem which is inherently a procedural due process problem, plaintiff asserts a denial of due process by reason of the existence of doctors on the panel. He 

claims a built-in bias in the system, which prevents a claimant 

from receiving a fair hearing. 

We note at the outset that the Montana Panel Act, unlike 

the legislation in other jurisdictions, precludes the introduction into evidence at a subsequent trial, of the panel Is findings 

or decisions. Thus the only effect of the panel's decision on a 
plaintiff Is case would be to discourage him from taking his claim 

to court. Even in those states in which the decision is 

admissible at a later trial, the courts considering this issue 

have found an insufficient showing of bias or prejudice to amount 

to a denial of due process. And, in order to effectuate the purposes of the panel, it is advisable to have medical personnel on 

the panel. Strykowski, supra, 261 N.W.2d at 446. Additionally, 

it is totally speculative to allege that all health care providers are incapable of rendering an unbiased decision, and a 

claimant has the opportunity to disqualify any member who is in 

fact subject to the charge of bias. Section 27-6-404(2), MCA. 

See also Johnson, supra, 404 N.E.2d at 593; Hines v. Elkhart 

General Hospital (N.D. Ind. 1979), 465 F.Supp. 421, 429. 

We find claimant's due process contentions to be without 

merit, particularly when considered in view of the limited effect 

which the panel's decision can have in Montana in subsequent 

litigation. We do address one issue, though, which was not initially raised by the parties to the litigation, but which came to 

our attention during the hearing in this case. Section 

27-6-704(2), MCA, provides that " [no] statement made by any person 

during a hearing before the panel may be used as impeaching evidence in court ." In order to uphold the constitutionality of the 

panel act, we determine that this section must be severed from 

the act. It is fundamental to our adversarial system that litigants retain the right to impeach the sworn testimony of a witness testifying against them. We are mindful that this provision 

was enacted to aid the fact-finding by the panel and to preserve 

the confidentiality of the proceedings. But we cannot say that a 

litigant will receive a full and fair hearing if he is unable to 

fully cross-examine in court the witnesses that testified in the 

prior hearing . This defect is not fatal to the act. We find that the act 
is still complete in itself and capable of being executed in 

accordance with the legislative intent. 

Claimant's next contention is that the Panel Act constitutes special legislation and that it violates the equal protection 

guarantee of the 1972 Montana Constitution and the Fourteenth 

Amendment. He does not pinpoint the basis of his challenge, but 

apparently he is arguing that the medical profession as a group 

of potential tort defendants is getting special treatment not 

accorded to other tort defendants, and that medically-injured 

plaintiffs are being subjected to barriers to the judicial 

system, not put in the way of other tort plaintiffs. 

This Court has indicated that reasonable classifications 

of persons will be upheld against a "special legislation" 

challenge, or against an equal protection challenge. State ex 

rel. Sparling v. Hitsman (1935), 99 Mont. 521, 532, 44 P.2d 747, 

752; State v. Craig (1976), 169 Mont. 150, 156, 545 P.2d 649, 

652-653. A law which operates in the same manner upon all persons in like circumstances is not "special" in the constitutional 

sense. Sparling, supra. Other courts considering this challenge 

have determined that this type of legislation is not special 

legislation, nor is it violative of equal protection, because it 

operates uniformly on a given class which has been distinguished 

for rational reasons. Eastin, supra, 570 P.2d at 752; Johnson, 

supra, 404 N.E.2d at 596-597. 

Those courts considering these questions in relation to 

the panel acts have dealt with the special legislation and equal 

protection arguments on a similar basis--looking for a rational 

basis for the classifications which rests on a ground of difference having a fair and substantial relation to the object of 

the legislation. Leuthold v. Brandjord et al. (1935), 100 Mont. 

96, 105, 47 P.2d 41, 45; Paro, supra, 369 N.E.2d at 987-89 and 

footnote 6; Eastin, supra, 570 P.2d at 750-751; Johnson, supra, 
404 N.E.2d at 596-597, citing Royster Guano Co. v. Virginia (1920), 

253 U.S. 412, 40 S.Ct. 560, 64 L.Ed. 989. We agree that this is 

the proper test to apply in this case. There is no allegation of 

a fundamental right at stake, nor is there a suspect classification involved. Therefore we need only determine whether the 

discrimination is rationally related to a legitimate state 

interest. State v. Craig, supra, 169 Mont. at 155-157, 545 P.2d 

at 652-653. 

The burden is on the party challenging the legislation to 

show that the facts do not support the legislative enactment. 

State v. Craig, supra. We will presume a statute's validity, 

unless the constitutional violation is "clear and palpable ." 

No11 & Kenneady v. Bozeman (1975), 166 Mont. 504, 507, 534 P.2d 880, 

881. See also Paro, supra, 369 N.E.2d at 988. We conclude here 

that the claimant did not sustain his burden of proof. Our previous discussion of the findings of the Master and of the evidence presented to the legislature convinces us that the legislature responded to a medical situation in a rational manner. We 

find that the classifications rest on distinctions between the 

groups of tort plaintiffs and tort defendants involved which have 

a fair and rational relationship to the object of the legislation. 

The most persuasive equal protection arguments have been 

challenges to the limitations on recovery--a provision not 

included in the Montana law. The Illinois court struck down a 

$500,000 limitation, while Nebraska upheld the same limit against 

a special legislation and equal protection challenge, again 

finding a rational basis for this limit. See Wright v. Central 

Du Page Hospital Association (1976), 63 111.2d 313, 347 N.E.2d 

13L 

Prendergast, supra, 256 N.W.2d at 668-69. The objection to 

such a limitation is the possibility that the most seriously 

injured plaintiffs are those who are being prevented from full 

recovery. 
No such discrimination is present in the Montana law. All 

plaintiffs may pursue their remedies to the fullest, conditional 

only on submitting the claim to the panel. And, again, because 

the panel decision is not binding nor even admissible in a subsequent court proceeding, there is no possibility of any 

influence on the jury. Health care providers remain subject to 

suit, and gain no advantage over any other group of defendants. 

A jury will never be aware of any decision for or against these 

defendants by the panel. Any discrimination comes only from the 

possibility of discouraging suit, a result which is reasonable in 

light of the medical situation. We find no violation of equal 

protection or the prohibition against special legislation. 

One additional argument advanced by plaintiff is that the 

Panel Act violates the prohibitions in the Montana Constitution 

against unlawful delegation of judicial and legislative power 

and infringes on the doctrine of separation of powers. 1972 

Mont. Const. Art. 111, § 1, Art. V, § 1, Art. VII, § 1. 

Plaintiff contends that the panel has been given hearing and 

decisional powers, but that it cannot render a judicial decision 

or utilize protective discovery procedures. This, he contends, 

impedes his access to the courts, and constitutes an unlawful 

usurpation of power by non j udicial bodies. Defendants contend 

that the panel is at most an advisory body and exercises no true 

judicial functions. Thus there is no separation of powers 

problem and no unlawful delegation of power. 

The Montana Constitution demands that the three branches 

of government remain separate and distinct, 1972 Mont . Cons t . , Art. 

11 , 1, in order to keep each branch accountable to the people, 

and to prevent too much power from being lodged in any one branch 

of government. OINeill v. Yellowstone Irr. Dist. et al. (1912), 

44 Mont. 492, 505, 121 P. 283, 286. A similar provision exists 

in the constitutions of most states, and most states considering 
this question have upheld the panel acts in the face of this 

challenge. Eastin, supra, 570 P.2d at 750; Johnson, supra, 404 

N.E.2d at 597-598; Prendergast, supra, 256 N.W.2d at 666-667. 

But see Arneson, supra, 270 N.W.2d at 131-132, for a contrary 

holding. 

By the terms of most panel acts, the decision of the panel 

is admissible in court, but it is not binding in any way. Thus 

many courts have found no violation of the doctrine of separation 

of powers, because the actions of the panel are at most advisory 

and the panel has no power to render an enforceable decision. 

The result has no more weight than an expert opinion. 

Prendergast, supra; Eastin, supra. The Arizona Supreme Court 

noted in Eastin, supra, that "I [jludicial power is the power of 

the court to decide and pronounce a judgment and carry it into 

effect between persons and parties who bring a case before it for 

decision. " The Montana Court recognizes the same definition of 

judicial power, and has upheld other administrative bodies 

against this challenge, where those bodies are unable to render 

enforceable judgments. Shea v. North-Butte Min. Co. et a1 . (1919), 55 Mont. 522, 536-537, 179 P. 499, 504. 

The decision of the Montana panel is not enforceable, and 

unlike the panel decisions in most states, it is not even 

admissible at trial . Sections 27-6-606, 27-6-704 (2), MCA. 

Consequently, we find no merit in plaintiff's arguments. There 

are no constitutional violations under the Montana Act. 

We need not address the remaining issues raised by 

plaintiff. He contends that the panel act violates 1972 Mont. 

Const., Art 11, S$ 7, 8 and 9, which give to the public a right 

to participate, a right to know, and give every person a right to 

sue for slander or libel. He additionally alleges that the 

legislature has violated 1972 Mont. Const., Art VIII, §§ 1 and 2, 

which require that taxes shall be levied by general laws for 
public purposes, and which forbid the legislature from surrendering or contracting away the power to tax. 

Linder has not appeared before the panel. He has not been 

subjected to the possibility of libel or slander, and he may 

never be. Thus we find that this question is not properly before 

this Court under the facts of this case. Nor can he assert that 

the public is denied the right to participate or the right to 

know. The Master found: 

"Plaintiff Linder has not yet requested and been 

denied any participation in panel proceedings or 

any records of any proceedings, nor has plaintiff Linder yet issued and served upon the panel 

a subpoena for such records, nor has plaintiff 

Linder yet requested that an official transcript 

be made of the sworn testimony of any witness or 

any proceeding before the panel, nor has plainti£ f Linder yet been harmed or injured by any 

failure or refusal of the panel or its administrative officers to so act." Finding No. 14 

He has not been affected by the operation of these statutes and 

therefore he lacks standing to challenge them. Thompson v. 

Tobacco Root Co-op (1948), 121 Mont. 445, 453, 193 P.2d 811, 816. 

Additionally, for purposes of this case , Linder is not a member 

of the excluded public. He is a necessary participant and thus 

is not in a position to assert this right on behalf of the 

general public. 

Finally, with regard to plaintiff's allegations that 

health care providers cannot be taxed in order to fund this 

panel, section 27-6-206, MCA, we note that plaintiff is not a 

health care provider. He is not among those being taxed. The 

statute in question does not apply to him and he is not affected 

by it. He is therefore not in a position to challenge its 

constitutional validity on this ground. Chovanak v. Matthews 

(1948), 120 Mont. 520, 527, 188 P.2d 582, 585. 

We hold the Medical Malpractice Panel Act to be 

constitutional, with the exception of the first sentence of subsection 2, section 27-6-704. After severing that section from the 
act, we find that the act remains complete and is constitutional. 

Chief Justice