No. 85-481 IN THE SUPREME COURT OF THE STATE OF MONTANA 1986

THE STATEOF MONTANA, ex rel., SARA BETH HUFFORD, aminor child, and JIM and JUDYHUFFORD, her parents, Petitionersand Respondents,

THEMONTANA MEDICAL-LEGAL PANEL, G. BRIAN ZINS, Panel Director, et al., Respondentsand Appellants.

APPEAL FROM: District Court of the FirstJudicialDistrict, In and for the County of Lewis & Clark, The Honorable Gordon Bennett, Judgepresiding.

COUNSEL OF RECORD:

ForAppellant: Gerald J. Neely argued, Billings,Montana Poore,Roth & Robinson; Donald Robinson,Butte, Montana

ForRespondent: Huntley & Eakin; Ira Eakin argued, Baker,Montana

-- Submitted: June 3, 1996 Decided: August 26, 1986Mr. Justice William E. Hunt, Sr., delivered the Opinion of the Court.

The Montana Medical-Legal Panel and its director appeal the declaratory judgmentof the FirstJudicial District Court holding that the Panelmust allow an unofficial transcript to be made of itsproceedings when requested. We reverse the declaratory judgment. Judy and Jim Hufford for themselves and their minor daughter, SaraBeth Hufford, filed a claim in October of 1983 with the Medical-Legal Panel alleging medical malpractice against two doctors who had treated their daughter. At a prehearing conference Huffords requestedpermission tohave a stenographic record of the upcoming hearing made. The doctors opposed Huffords

### ' request for a transcript. The Panel chairman therefore ruled that no transcript would be made. This ruling complies with F.ule 15(c), Panel Rules of Procedure: The hearing will be confidential and informal, and the Panel shall not make, pay for or retain any transcript; with the consentof the chairman of the Panel and all parties to the claim,the partiesmay provide for the making, payment and retention of a transcript. Huffords then applied to the District Court for a Writ of Mandamus. By stipulation of counsel and approval of the court, the petition was considered as a complaint seeking declaratory relief. TheDistrictCourt concluded that denial of the requested transcript violated due process of law guaranteed by the 1972 Montana Constitution,Art. 11, S 17 and the Fourteenth Amendment of the United States Constitution. The issue before us is whether the DistrictCourt erred in ruling that a transcriptmust be provided. The appellants contend that a transcript is not statutorily or constitutionally mandated. Respondents answer thatdenialofa transcript denies them the full right to cross-examine witnesses at trial and is so arbitrary as to deny due process. Respondents further contend that the Panelexceeded its authority in adopting Rule 15(c)which is inconsistent with theMontana Administrative ProcedureAct (MAPA). We cannot agreewith those contentions. We need not reach the issue of whether the Panel is an "agency" within the meaning of MAPA. The enabling legislation for the Panel states: "The hearing wil.1 be informal and no official transcript may be made." Section 27-6-502(3)

## , MCA. This j.s clear evidence of legislative intent that theMAPA provisions concerning transcriptsdo not apply This same enabling legislation gives the Panel authority to make rules necessary for its operations. Section 27-6-204, MCA. Therefore, there is no statutory requirement that any form of transcript be provided and the Panel has full authority to promulgate its operating rules. Next, we turn to the constitutional argument that Rule 15(c) offends due process and the rights to confront witnesses at trial. The Montana Medical-Legal Panel is a purely advisory body. Although it has the power to approve binding settlement agreements, it cannot render any binding judgments. Section 27-6-606,MCA. The Panelproceedings are confidential in nature and its records are not subject to subpoena. Section 27-6-703,MCA. No member of the Panelmay be compelled to testify concerning the proceedings of the Panel and the decision of the Panel is not admissible as evidence in subsequent court action. Section 27-6-704(1) and (2),MCA. Clearly, the very nature of the purpose of the Panel is advisory and therefore confidential. It's dualpurposes are to prevent court actions against health care providers unless



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## -the facts permit at least a reasonable inference of malpractice and to effect a fair and equitable dispositionof such claims. Section 27-6-102,MCA. Given the confidentialnature of the Panel, it cannotbe said that Rule 15(c) arbitrarily denies parties before it a transcript. A transcript would destroy the confidentiality of the proceedings and therefore should be available only if no participant objects. Furthermore, denial of a transcriptdoes not destroy the right of a party to ful-lycross-examine witnesses at trial. In Linder v. Smith (Mont. 1981), 629 P.2d 1187, 38 St.Rep. 912,we held a portion of the Panel's enabling legislation unconstitutionalas a violation of the right to cross-examine witnesses. That portion of the statute precluded using statements made at the hearing for impeachment purposes at trial. We held, however, that that "defect [was]not fatal to the act" and upheld the remaining portions of the act. Linder, 629P.2d at 1192, 38 St.Rep. at 918. While a transcript of Panel proceedingswould certainly assist a litigant in cross-examination at trial, it is not essential to exercise that right. Therefore we hold that there are no constitutional infirmities in the workings of Rule 15(c). The judgment of the District Court is reversed.

We Concur:Mr. Justice Frank B. ?4orrison,Jr., dissenting: Idissent. In Linder v. Smith (Mont. 1981), 629 P.2d 1187, 38 St. Rep. 912,this Court struck,as unconstitutional, a statutory provision requiring confidentiality inpanel proceedings. We said:



# . . . Section 27-6-704(2), MCA, provides that: "[nlo statementmade by anyperson during a hearing before the panelmay be used as impeachingevidence in court." In order to uphold the constitutionality of the panel act, we determine that this sectionmust 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. Linder, 629 P.2d at 1192, 38 St.Rep. at 918. The effect of our decision today is that, although you have a constitutional right to impeach with testimony given during the panel hearing, you do not have a right to have a transcript of that testimony. How can you cross-examine effectively at time of trial without transcript of the panel testimony? If Linden is to be overruled then the majority should say so. Unfortunately, the majority's decision is motivated by fear that lack of confidentiality will destroy the effectiveness of the panel proceeding because doctors will not participate. We should not concern ourselves with this issue. Thispanel proceeding was established for thebenefit of doctors. They are given special considerationnot given other defendants in the tort system. If they do not wish to participate, that is theirproblem.I might add that the majority's decision should discourage plaintiff's counsel from participating in the panel proceedings. If plaintiff's counsel extensively cross-examines doctors who are to be defendants, without the aid of a transcript, the doctors will be educated about the flaws in their case andwillbe able to subsequently shore up the lines of defensewithout responsibility for their earlier testimony. Under these circumstances I cannot conceive of plaintiff's counsel participating in the hearing process. I am also disturbedby the suggestion that doctorswill not participate in the panel process with a court reporter present. I canonly assume that thosemaking that suggestion do not want tobe held accountable for the testimony given at hearings. If awitness is not to be accountable forwhat is said what credibility is there and why have a panel hearing at all? I would affirm Judge Bennett's declaratory judgment.