Campbell v. Arnold , 121 Ariz. 370 ( 1979 )

CAMERON, Chief Justice.

This is a petition for review of a decision and opinion of the Court of Appeals, No. 2 CA-CIV 2921, filed 23 May 1978. We have jurisdiction pursuant to Rule 47(b), Rules of the Supreme Court, 17A A.R.S.

We need decide only one question on appeal: May parties dissatisfied with a decision of a medical review panel made pursuant to A.R.S. § 12-567, bypass the Superior Court and seek direct relief in the Court of Appeals?

The petitioner, a medical doctor licensed to practice medicine in the State of Arizona, is a “licensed health care provider” as defined by A.R.S. § 12-561. The real parties in interest filed a medical malpractice action against the petitioner in the Superior Court and the matter was referred to a medical liability review panel pursuant to A.R.S. § 12-567(A).

After the hearing, the panel entered the following decision:

“DECISION OF THE PANEL:

“After considering all evidence presented to the panel, the panel votes as follows:

D. Thompson Slutes, Attorney Member, votes in favor of the plaintiff.*

* Thjs member of the panel requests that his vote be explained in that he votes for the plaintiff only on the issue of informed consent.

Dr. Christopher Heller, Medical Member, votes in favor of the defendant.

Jack T. Arnold, Judge, Chairman, votes in favor of the plaintiff.

DATED this 9th day of November, 1977.

/s/ Jack T. Arnold_

JACK T. ARNOLD, JUDGE, Chairman

/s/ Christopher J. Heller, MD._

DR. CHRISTOPHER HELLER, MEDICAL Member

/s/ D. Thompson Slutes__

D. THOMPSON SLUTES, ATTORNEY Member”

A motion to reconsider the form of the decision was made by one defendant. The following minute entry was made:

“MINUTES OF MEDICAL MALPRACTICE PANEL:

“The Panel having reconvened on January 17, 1978, for the purpose of considering Defendants’ Motion for Reconsideration, and the Panel having concluded that their previous form of conclusion as filed on November 4, 1977, was incorrect and not in conformance with A.R.S. 12-557(F).

“The Panel did consider Defendants’ Motion for Reconsideration.

“Therefore, the Panel has stated their decision in conformance with A.R.S. 12-567(F).

/s/ Jack T, Arnold_

JUDGE

And the review panel amended its decision as follows:

“DECISION OF THE PANEL:

“After considering all evidence presented to the panel, the panel finds for the plaintiff, and against all defendants.

DATED this 17th day of January, 1978.

/s/ Jack T- Arnold_

JACK T. ARNOLD, JUDGE, Chairman

/s/ D. Thompson Slutes_

D. THOMPSON SLUTES, ATTORNEY Member

DR. CHRISTOPHER HELLER, MEDICAL Member."

After receiving the decision of the panel dated 17 January 1978, petitioner moved for reconsideration, attaching to his motion the affidavits of panel members D. Thompson Slutes who stated he had determined that the plaintiff should prevail only on the limited issue of informed consent and that he did not find for the plaintiff on any other issue of medical practice, and Christopher Heller, M. D., who stated that he found for the defendant on all the issues presented to the panel. The judicial member declined to state his reasoning, evidently preferring to stand on the decision of the panel. The motion to reconsider was denied.

From that denial of relief, the petitioner brought a special action in the Court of Appeals which accepted jurisdiction because the question was “of public importance requiring prompt resolution.”

Article 6, Sec. 1 provides:

“The judicial power shall be vested in an integrated judicial department consisting of a Supreme Court, such intermediate appellate courts as may be provided by law, a superior court, such courts inferior to the superior court as may be provided by law, and justice courts.”

In creating the Court of Appeals, our legislature has provided for its jurisdiction:

Ҥ 12-120.21. Jurisdiction and venue

“A. The court of appeals shall have:

“1. Appellate jurisdiction in all actions and proceedings originating in or permitted by law to be appealed from the superior court, except criminal actions involving crimes for which a sentence of death or life imprisonment has actually been imposed.

“2. Jurisdiction to issue writs of certiorari to review the lawfulness of awards of the industrial commission and to enter judgment affirming or setting aside the awards.

“3. Jurisdiction to issue injunctions, writs of mandamus, review, prohibition, certiorari and other writs necessary and proper to the complete exercise of its appellate jurisdiction.”

The Court of Appeals is a court of limited jurisdiction and has only jurisdiction specifically given to it by statute. Morgan v. Continental Mortgage Investors, 16 Ariz. App. 86, 491 P.2d 475 (1971); State v. Sheppard, 2 Ariz.App. 242, 407 P.2d 783 (1965).

Nowhere do we find statutory authority for the Court of Appeals to directly review the decisions of the medical liability review panels. The Court of Appeals, of course, may review actions of the Superior Court in which the decisions of the medical review panels have played a part. If the decision of the medical review panel is erroneous and that error has not been corrected by the trial judge, then, on appeal, the Court of Appeals may speak. But jurisdiction to review the decisions of the medical review panels prior to determination by the Superior Court is not “necessary and proper” for the “complete exercise” of the Court of Appeals’ appellate jurisdiction. A.R.S. § 12-120.21(A)(3). We do not find that the Court of Appeals has jurisdiction in this matter pursuant to the “jurisdiction and venue” statute of the legislation.

Neither do we find any authority for direct review of the panel’s action by the Court of Appeals in the statute creating the medical liability review panel. A.R.S. § 12-567. To allow parties in a medical malpractice action to seek appellate review of every decision of the panel prior to trial in the Superior Court would defeat the purpose of the Medical Malpractice Act which is to provide a system whereby meritorious claims can be quickly “separated from * * frivolous ones prior to trial and pretrial settlements [can be] encouraged.” Eastin v. Broomfield, 116 Ariz. 576, 583, 570 P.2d 744, 751 (1977). Review by the Court of Appeals of the panel’s action in the instant case was premature.

The petition for review is granted. The decision and opinion of the Court of Appeals is vacated and the order of the Court of Appeals accepting jurisdiction of the action is set aside.

HAYS and GORDON, JJ., concur.