No. 85-481 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

THE STATE OF MONTANA, ex rel., 

SARA BETH HUFFORD, a minor child, 

and JIM and JUDY HUFFORD, her 

parents, 

Petitioners and Respondents, 

THE MONTANA MEDICAL-LEGAL PANEL, 

G. BRIAN ZINS, Panel Director, 

et al., 

Respondents and Appellants. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis & Clark, 

The Honorable Gordon Bennett, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Gerald J. Neely argued, Billings, Montana 

Poore, Roth & Robinson; Donald Robinson, Butte, 

Montana 

For Respondent: 

Huntley & Eakin; Ira Eakin argued, Baker, Montana 

-- 

Submitted: June 3, 1996 

Decided: August 26, 1986 
Mr. Justice William E. Hunt, Sr., delivered the Opinion of 

the Court. 

The Montana Medical-Legal Panel and its director appeal 

the declaratory judgment of the First Judicial District Court 

holding that the Panel must allow an unofficial transcript to 

be made of its proceedings when requested. 

We reverse the declaratory judgment. 

Judy and Jim Hufford for themselves and their minor 

daughter, Sara Beth 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 requested permission to have 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 consent of the chairman of the 

Panel and all parties to the claim, the parties may 

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. The District Court 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 District Court erred 

in ruling that a transcript must be provided. The appellants 

contend that a transcript is not statutorily or 

constitutionally mandated. Respondents answer that denial of 
a 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 Panel exceeded 

its authority in adopting Rule 15 (c) which is inconsistent 

with the Montana Administrative Procedure Act (MAPA). 

We cannot agree with 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 the MAPA provisions concerning transcripts do 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 Panel proceedings are 

confidential in nature and its records are not subject to 

subpoena. Section 27-6-703, MCA. No member of the Panel may 

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 dual purposes 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 disposition of 

such claims. Section 27-6-102, MCA. 

Given the confidential nature of the Panel, it cannot be 

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 transcript does not destroy the 

right of a party to ful-ly cross-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 

unconstitutional as 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, 629 P.2d at 1192, 38 St.Rep. at 918. 

While a transcript of Panel proceedings would 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: 

I dissent. 

In Linder v. Smith (Mont. 1981), 629 P.2d 1187, 38 St. 

Rep. 912, this Court struck, as unconstitutional, a statutory 

provision requiring confidentiality in panel proceedings. We 

said: 

. . . Section 27-6-704 (2), MCA, provides that: 

"[nlo 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. 

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. This panel proceeding was established for the benefit 

of doctors. They are given special consideration not given 

other defendants in the tort system. If they do not wish to 

participate, that is their problem. 
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 and will be able to subsequently shore up 

the lines of defense without responsibility for their earlier 

testimony. Under these circumstances I cannot conceive of 

plaintiff's counsel participating in the hearing process. 

I am also disturbed by the suggestion that doctors will 

not participate in the panel process with a court reporter 

present. I can only assume that those making that suggestion 

do not want to be held accountable for the testimony given at 

hearings. If a witness is not to be accountable for what is 

said what credibility is there and why have a panel hearing 

at all? 

I would affirm Judge Bennett's declaratory judgment.