Johnson v. St. Vincent Hospital, Inc.

In these cases we consider the constitutionality of aspects of the Indiana Medical Malpractice Act. Ind. Code §§ 16-9.5-1-1 through 16-9.5-10-5. Appellants Johnson brought their medical malpractice claim for death of a minor child occurring in the aftermath of a tonsillectomy in the trial court without first submitting it to a medical review panel for an opinion as required by the Act. Ind.Code § 16-9.5-9-2. The complaint included a separate paragraph seeking a declaratory judgment upon the constitutionality of the statute. Upon their summary judgment motion the trial court determined that the statute governed the claim, upheld the statute, and then dismissed their complaint upon motion of ap-pellees.

Appellants Bova brought their claim for medical malpractice in the trial court for wrongful injury to the ureter and kidney of Mrs. Bova occurring as a consequence of a hysterectomy. This complaint was also filed in the trial court without first submitting it to a review panel as required by the Act, and included a paragraph of complaint for declaratory judgment upon the constitutionality of the statute. The trial court found the Act governing, the Act consistent with the Constitution, and the motion of appellees for summary judgment for noncompliance with the Act well taken.

Appellant Mansur brought his claim for wrongful injury and loss of vision to his right eye resulting from the negligence of a physician in examining, treating, and diagnosing him. He also challenged the Act in a paragraph of his complaint on constitutional grounds. The trial court determined that the claim was subject to the Act, that the Act was constitutional, and that the malpractice claim should be dismissed because claimant had not complied with the provisions of the Act.

The Hines case involves a claim seeking damages for the wrongful death of Paula J. Hines on behalf of her husband and dependent children, such death being attributed to the negligence of her physician and the hospital in providing her with treatment and care. The trial court dismissed the complaint, finding that the Act was constitutional, and that appellant had failed to comply with its requirements. This case was previously filed in the Federal District Court and was dismissed for failure to comply with the Indiana Act. That court found the Act constitutional. Hines v. Elkhart General Hospital et a/.., (N.D.Ind. South Bend Div., 1979) 465 F.Supp. 421. The district court’s judgment was affirmed on August 3, 1979.

Pursuant to Ind.R.App.P. 4(A)(10) we have permitted transfer to this Court. These appeals were heretofore consolidated for the purposes of argument and are now consolidated for opinion.

In the Mansur case a great deal of proof descriptive of the conditions in the health care and insurance industries which gave rise to the Act was brought forth and developed at a trial for constitutional purposes. Immediately prior to its enactment seven of the ten insurance companies writing the majority of medical malpractice insurance policies in the State ceased or limited writing such insurance because of unprofitability or an inability to calculate an adequate premium. Premiums had already increased as much as 1200 percent over a period of fifteen years because of the increase in the number and size of claims. Physicians practicing high risk specialties such as anesthesiology were hard pressed or totally unable to purchase insurance coverage. In some rural areas surgery was reported can-celled. Emergency services were discontinued at some hospitals. Health care provid *590 ers had become fearful of the exposure to malpractice claims and at the same time were unable to obtain adequate malpractice insurance coverage at reasonable prices.

According to the Legislature’s appraisal, these conditions implicated the vital interests of the community in the availability of the professional services of physicians and other health care providers. The Legislature responded with this Act in an effort to preserve those services and thereby to protect the public health and wellbeing of the community. It reflects a specific legislative judgment that a causal relationship existed at the time between the settlement and prosecution of malpractice claims against health care providers and the actual and threatened diminuation of health care services. The exceptionally high cost and even unavailability of malpractice insurance were major links in the relational chain. They in turn were connected through the large settlements and judgments being paid to patients. To the extent that these sums were excessive or unjustifiable, they had become so large because the processes by which evidence of negligent conduct was being gathered, evaluated, and used were faulty. Subsidiarily, these sums were being unnecessarily increased because the habitually negligent health care providers were not being identified and dealt with, very large attorney fees were being charged, and the time limitations upon bringing malpractice actions were too long.

With these judgments as its basis the Act created voluntary state-sponsored liability insurance for doctors and other health care providers, created a patient compensation fund, took measures to prevent injuries to patients through the negligence of health care providers, and subjected negligence claims against health care providers to special controls limiting patient remedies.

The issue in this appeal is whether those special controls and limitations are consistent with the guarantees of the Indiana and Federal Constitutions. Appellants complain of the following features of the Act:

(I)Before filing suit in court, plaintiffs must submit their complaints to the Commissioner for consideration by a medical review panel. The panel renders an opinion which is admissible at trial. Appellants contend these and related provisions violate the (A) jury trial provisions of Art. I, § 20, of the Indiana Constitution; (B) due process and (C) equal protection clauses of the Fourteenth Amendment, and the Indiana Constitution, the rights and privileges clause of Art. I, § 23, of the Indiana Constitution; and (D) the separation of powers doctrine of Art. Ill, § 1, of the Indiana Constitution.

(II) Recovery in malpractice cases is limited to $500,000 when health care provider has elected to come under the Act. Appellants challenge this limitation relying upon the due process and equal protection clauses of the Fourteenth Amendment and the Indiana Constitution, the rights and privileges clause of Art. I, § 23, of the Indiana Constitution, the right to trial by jury guaranteed by Art. I, § 20, of the Indiana Constitution.

(III) Attorney fees to be paid plaintiff’s attorney are limited by the Act. This limitation is challenged as contrary to the due process and equal protection clauses of the Fourteenth Amendment and the Indiana Constitution.

(IV) The time in which a malpractice action may be brought is severely limited by the Act. This limitation is challenged as contrary to the guarantee of the due process and equal protection clauses of the Fourteenth Amendment and the Indiana Constitution.

(V) The plaintiff’s complaint may not ask for a specific amount in the prayer. This limitation is challenged as contrary to the due process and equal protection clauses of the Fourteenth Amendment and the Indiana Constitution, the free speech and writing provision of Art. I, § 9, of the Indiana Constitution, the separation of powers mandate of Art. Ill, § 1, of the Indiana Constitution, and it furthermore conflicts with the trial rules.

(VI) The Act provides for the creation and management of a patient’s compensation fund. This provision is challenged *591 as contrary to the prohibition against special legislation in Art. IV, § 23, of the Indiana Constitution and Art. XI, § 12, of the Indiana Constitution which prohibits the State from giving or loaning its credit in aid of any person.

The records before us amply demonstrate that the four trial courts below were vested with authority to adjudicate the many constitutional claims; that appellants had standing to assert those claims; and that the claims themselves were fully litigated in a suitable adversarial atmosphere and permit of reasonable judicial resolution. Board of Commissioners of Howard Co. v. Kokomo City Plan Commission, (1975) 263 Ind. 282, 330 N.E.2d 92. Plaintiffs below, appellants here, sought to litigate their claims directly in court and were turned away because specific requirements of the statute, not previously imposed by law upon them, had not been followed. No avenue to dispose of these cases on non-constitutional grounds have been suggested by the parties and we perceive of none. Reilly et al. v. Robertson, et al., (1977) 266 Ind. 29, 360 N.E.2d 171; Passwater v. Winn, (1967) 248 Ind. 404, 229 N.E.2d 622.

In considering these constitutional challenges, we accord this Act with every reasonable presumption supporting its validity and place the burden upon the party challenging it to show unconstitutionality. Sidle v. Majors, (1976) 264 Ind. 206, 341 N.E.2d 763; Robertson v. Reilly, supra. Before a statute will be declared repugnant to the Constitutions its fatal constitutional defects must be clearly apparent. Board of Commissioners of Howard Co. v. Kokomo City Plan Commission, supra. A statute is not unconstitutional simply because the court might consider it born of unwise, undesirable, or ineffectual policies. Sidle v. Majors, supra; Reome v. Edwards, (1948) 226 Ind. 229, 79 N.E.2d 389.

Medical malpractice acts similar in nature and scope to Indiana’s Act have recently been enacted in other states. The vast majority of state and federal appellate level courts have found them consistent with due process, equal protection, and jury trial guarantees. Attorney General of Maryland v. Johnson, (1978) 282 Md. 274, 385 A.2d 57; Carter v. Sparkman, (1976) Fla., 335 So.2d 802; Comiskey et al. v. Arlen et al., (1976) 55 A.D.2d 304, 390 N.Y.S.2d 122; Eastin v. Broomfield, (1977) 116 Ariz. 576, 570 P.2d 744; Everett v. Goldman, (1978) La., 359 So.2d 1256; Parker v. Children’s Hospital of Philadelphia, (1978) 483 Pa. 106, 394 A.2d 932; Paro v. Longwood Hospital, (1977) Mass., 369 N.E.2d 985; Prendergast v. Nelson, (1977) 199 Neb. 97, 256 N.W.2d 657; State ex rel. Strykowski et al. v. Wilkie, (1978) 81 Wis.2d 491, 261 N.W.2d 434; Woods v. Holy Cross Hospital et al., (5th Cir. 1979) 591 F.2d 1164. The highest courts of two states have held such acts unconstitutional. Arneson v. Olson, (1978) N.D., 270 N.W.2d 125; Wright v. Central Dupage Hospital Ass’n, (1976) 63 Ill.2d 313, 347 N.E.2d 736. None of these opinions is, of course, binding upon this Court; however, the reasoning in them has been useful.

I.

A.

Some appellants contend that impermissible delay and expense in getting to jury trial result from the requirement of the Act that the malpractice claim be submitted to a panel for an opinion. Indiana Code § 16-9.5-9-2, provides that:

“No action against a health care provider may be commenced in any court of this state before the claimant’s proposed complaint has been presented to a medical review panel and an opinion is rendered by the panel.”

Indiana Code § 16-9.5-9-3.5(a) provides that:

“The panel shall render its expert opinion within one hundred eighty (180) days of the selection of the last member.”

Compensation of panel members and the chairperson may not exceed an aggregate of $1250 plus reasonable travel expenses and such fees “shall be paid by the side in whose favor the majority opinion is written.” Further costs to the parties will result from the requirement that they submit *592 their evidence to the panel promptly. Ind. Code § 16-9.5-9-4. Appellants invoke Art. I, § 20, of the Indiana Constitution which guarantees that “In all civil cases, the right of trial by jury shall remain inviolate.”

In Hayworth v. Bromwell, (1959) 239 Ind. 430, 158 N.E.2d 285, this Court concluded that former Rule 1-8A of this Court fixing the time within which a request for trial by jury must be made did not violate the right to trial by jury, saying:

“The provision of the Constitution of Indiana that the right to a trial by jury in all civil cases shall remain inviolate means that the substantial elements and incidents, which pertained to a trial by jury at common law, shall not be altered or changed by the Legislature or the courts and are preserved in substance as they existed at common law.” 239 Ind. 437, 158 N.E.2d at 288.

“[I]t is the substance of the right which ‘shall remain inviolate,’ not the manner in which it is exercised or waived.” 239 Ind. at 435, 158 N.E.2d at 287.

That rule imposed a waiver of the right upon the failure to timely request a jury trial. Pursuant to the rule the decision to exercise the right was required to be made at a time certain during the pretrial period. The rule can be harsh in application where events occurring after a waiver create a need for a jury trial as the right could not thereby be resurrected. Nevertheless this waiver rule was held not to be a substantial impairment of the right and to be a reasonable regulation of it. In Warren v. Indiana Telephone Co., (1940) 217 Ind. 93, 26 N.E.2d 399, the claim that the Workmen’s Compensation Act abrogated the right to trial by jury was rejected because the employee voluntarily elected to be bound by the Act and therefore “is in no position to complain that his right to a jury trial is no longer available to him.” Nevertheless, as a practical matter the right of the workman was significantly burdened by the statutory presumption of such election from the failure to give a formal written notice of exemption.

It is quite clear that the Malpractice Act does not take away the right to a jury trial. The right is fully accorded after the delay and expense occasioned by the panel submission requirement. We must therefore attempt to assess the import of the requirement upon the right. In the Hayworth and Warren cases the right was subject to being entirely lost due to unknowing inaction by a party. Loss of the right is not within the risk created by the Malpractice Act.

Delay in the commencement of a trial and the expense of investigating and mar-shalling evidence are part and parcel of the preparation of any piece of civil litigation. Delay routinely occurs between the decision to prosecute a claim and the trial. Expenses for investigation and preparation attend the pre-trial preparation of all claims. The panel submission requirement generates evidence admissible at a future trial of the claim. The delay in the trial occasioned by this process and the cost attendant to it are in major part like those to be expected in any case. The participation by the parties in the panel processes will satisfy to a great extent their preparation needs. Such satisfaction will tend to reduce total aggregate time for trial preparation. Thus, the delay complained of will be offset to an appreciable extent. The cost to the party in whose favor the opinion is rendered would be in the range that such party would expect to pay to develop such evidence individually. And the cost to the party against whom the opinion is rendered has been subjected to a cost by the process which would be much the same as he expects to pay to discover his opponent’s evidence. The panel submission requirement does impinge upon the right to trial by jury, but in so doing does not alter or change and does not impair the right contrary to constitutional limitation. The delay and expense complained of does not alter or change the substantial elements and incidents of the jury trial right for either party.

Relying upon the same constitutional right to trial by jury some appellants contend that the panel opinion will by its biased character and special potent proba *593 tive force when presented to the jury as part of the evidence violate the guarantee of the right to trial by jury. Indiana Code § 16-9.5-9-3, provides in part that:

“The medical review panel shall consist of one (1) attorney and three (3) health care providers.”

According to appellants the opinion of the panel will be biased in favor of the health care provider against whom the complaint has been lodged. There is a large degree of speculation here. Each side to the controversy is entitled to select one of the panel members. The attorney chairperson will be committed by reasons of training and professional experience and standing to urge adherence to fair procedures and standards. These structural features will tend to ameliorate any tendency toward bias. And moreover, if there is a risk that the panel opinion will favor the health care provider, as perceived by appellants, simply by reason of the makeup of the panel, the jury can be made aware of it through articulate and imaginative advocacy. We are convinced that the jury drawing upon its collective experience and good sense, and under the oath to well and truly try the cause, will be fully capable of according the panel opinion the weight and credit to which it is justly entitled. The statute insofar as it permits the opinion of the panel of health care providers to be admitted in evidence does not constitute a substantial and impermissible restriction upon the right to trial by jury.

Appellants next argue that the practical effect of the introduction of a panel opinion unfavorable to the plaintiff is to increase the plaintiff’s burden of persuasion before the jury, and is consequently violative of the right to trial by jury. It is fairly to be argued that the verdict of the jury will depend upon the impact of the panel’s “expert opinion”, and that the plaintiff must overcome such impact if he is to win. This effect, however, cannot be separated from the trial as a whole if its impact is to be fairly assessed. No panel opinion unfavorable to a plaintiff can reach the jury unless plaintiff has first presented a prima facie case, i. e., that he has presented evidence from which a reasonable trier of fact could reasonably conclude that the elements of the claim have been shown including the breach of duty by the health care provider defendant. It would be an exceedingly rare case in which expert testimony would not be included in the prima facie case. When after the prima facie case has been made and the panel opinion introduced by defendant, the jury considers its verdict, it will then weigh the competing expert opinions. For our purposes here we do not find this situation significantly different from the situation in which a plaintiff presents but a lone general practitioner witness and the defendant then fields three distinguished specialists. The legal burden of persuasion has remained the same, but the task of the plaintiff to persuade has been increased enormously. The increased expenditure of money and effort required in such circumstances to convince the jury that plaintiff should prevail is consonant with our adversary system and the constitutional guarantee of the right to trial by jury.

B.

Appellants contend that the delay and expense attendant to the panel submission requirement denies them due process and due course of law and access to the courts guaranteed by Art. I, § 12, of the Indiana Constitution and the Fourteenth Amendment.

This requirement bars the malpractice claimant from commencing his case in court until the review panel has rendered its opinion. To this delay is added the expense to the party in whose favor the opinion goes. Later this opinion can undoubtedly influence the outcome of any subsequent trial if introduced into evidence.

The Supreme Court of the United States has described the manner in which courts consider the authority of legislatures to alter common law rules:

“A person has no property, no vested interest, in any rule of the common law. That is only one of the forms of municipal law, and is no more sacred than any *594 other. Rights of property which have been created by the common law cannot be taken away without due process; but the law itself, as a rule of conduct, may be changed at the will or even at the whim of the legislature, unless prevented by constitutional limitations. Indeed, the great office of statutes is to remedy defects in the common law .as they are developed, and to adapt it to the changes of time and circumstances.” Munn v. Illinois, (1877) 94 U.S. 113, 24 L.Ed. 77, quoted in Hurtado v. State of California, (1884) 110 U.S. 516, 531, 4 S.Ct. 111, 119, 28 L.Ed. 232.

This same basic state legislative authority was addressed in the context of notice statutes and statutes of limitation limiting common law remedies by Justice Shake in Sherfey v. City of Brazil, (1937) 213 Ind. 493, 13 N.E.2d 568, thusly:

“If appellant is entitled, under the Constitution, to the enforcement of his common-law action, free of any legislative restraint, then the General Assembly possesses no power to prescribe any limit within which such actions shall be brought. Such a conclusion is wholly untenable.” 213 Ind. at 508, 13 N.E.2d at 574.

The Medical Malpractice Act deals with the responsibility as between health care provider and patient. The relationship of health care provider and patient imposes on the health care provider a common law legal duty. The nature and extent of that duty may be modified by legislation. Hence, the Legislature may also validly act to restrict the remedy available for a breach of that duty. This challenged provision of the Act may not be regarded as repugnant to due process simply because it alters the standing manner of achieving a remedy in court, or because it restricts a longstanding remedy.

In dealing with the constitutionality of a statute of our State, we do not sit to judge the wisdom or rightness of its underlying policies. When a state legislature enacts a statute such as this which is related to the public health and welfare, such statute in order to be consistent with due process “need not be in every respect logically consistent with its aims to be constitutional. It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it.” Williamson v. Lee Optical of Oklahoma, (1955) 348 U.S. 483, 487-88, 75 S.Ct. 461, 464, 99 L.Ed. 563. Cf. Steup et al. v. Indiana Housing Finance Authority, (1980) Ind., 402 N.E.2d 1215.

The Legislature was undoubtedly moved because of its appraisal that the services of health care providers were being threatened and curtailed contrary to the health interests of the community because of the high cost and unavailability of liability insurance. This cost and unavailability was in turn in part the product of an increase in the number of malpractice claims and large judgments and settlements in connection with them, and that they were in turn in part the result of the fact that medical opinion, as free from influence and prejudice as possible under the circumstances, was not readily available to the parties and to the courts. The requirement of the statute that malpractice claims be first submitted to a medical panel for evaluation is one reasonable means of dealing with the threatened loss to the community of health care services in this situation. Everett v. Goldman, supra; Paro v. Longwood Hospital, supra.

Article I, § 12, of the Indiana Constitution states:

“All courts shall be open; and every man, for injury done to him in his person, property, or reputation, shall have remedy by due course of law. Justice shall be administered freely, and without purchase; completely and without denial; speedily, and without delay.”

Appellants have also contended that Ind.Code § 16-9.5-9-2, which provides that “No action against a health care provider may be commenced in any court of this state before the claimant’s proposed complaint has been presented to a medical review panel . . and an opinion is rendered by the panel” is contrary to the *595 guarantee of Art. I, § 12, that they should have access to the courts. As appellants construe this part of the statute no personal jurisdiction over the health care provider may be acquired in a tribunal having authority to adjudicate the merits of their claims before the panel produces its opinion. We agree with this construction. The medical review panel does not adjudicate the merits of the claim. The filing of a proposed complaint with the commissioner pursuant to Ind.Code § 16-9.5-9-1, and the delivery of copies thereof to the health care providers named in the complaint would not give any court personal jurisdiction over the named defendants. Appellants point out that during the period of time in which the medical review panel is engaged in its functions, the claimant is subjected to the loss of his entire case if the defendant should become unamenable to service of process from a court. Given the maintenance by the Legislature of the malpractice claim and the remedy through the adjudicative process in court, a justification for the imposition of this blanket prohibition must exist if the provision is to be upheld.

As previously concluded the dominant aim of this Act as a whole is to preserve health care services for the community. The delay in instituting suit required by this challenged provision must be reasonable in light of this aim if it is to pass constitutional muster. The delay accommodates the discernment of facts by the medical review panel and the forming of its expert opinion. The participation of the claimant, the insurer, and the health care provider in the panel processes results. Their knowledge and experience so gained will encourage the mediation and settlement of claims and discourage the filing of unreasonably speculative lawsuits. The mental, financial and time-consuming burdens imposed upon health care providers by lawsuits which should have been settled by their insurers or which should not have been instituted will be lessened, and the disruption of and impairment to their continued vital services reduced. Several factors also are present which would support the general proposition that health care providers are likely to be amenable to process after the panel opinion has been made. Each is licensed or legally authorized by the State to provide health care services, or alternatively, is an agent of the same. Most will be permanent fixtures in the communities where they are located, or maintain a practice or are employed. Individual health care providers will have made significant investments in acquiring their skills and will be dependent upon those skills for their livelihood. Moreover, health care providers and their insurers will have been in contact and will have been present and actively engaged in the panel processes up to the point when the panel is prepared to reach its opinion. Furthermore, we note that the prohibition against filing suit is subject to the right of the patient to seek limited discovery in court. Ind.Code § 16-9.5-10-1. This right tends to ameliorate a part of the risk attendant to the prohibition against filing in that it permits the preservation of evidence.

It cannot be doubted that the long standing rule has been that a plaintiff may bring suit as soon as his right of action accrues. Gallup, Executor v. Schmidt, Treasurer, (1899) 154 Ind. 196, 56 N.E. 443. It is also true, however, that conditions have long been imposed by law which must be satisfied before a suit may be filed. They carry with them the same danger as this provision of the Act that the potential defendant will leave the jurisdiction or disappear in the meantime and the remedy by court proceedings will be lost. Yet they are not considered as constituting an impermissible restriction upon access to courts. The requirement of prepayment of court costs or proof of indigency at the time of filing suit is one such requirement. Cf. Thompson v. Thompson, (1972) 259 Ind. 266, 286 N.E.2d 657. Indiana R.Tr.P. 3 and 4 compel the plaintiff to have a written complaint and prepared summonses at the time of filing suit. The law encourages and even requires that the decision to file suit in most instances be preceded by lawyer-client conferences, investigations, legal study, demands for payment, or settlement attempts. All are *596 time-consuming events during which the potential defendant may disappear or die.

The restriction upon the access to courts for patients under the Act is severe, yet based upon the above appraisal for constitutional purposes, it is not so restrictive as to violate the right to access to courts guaranteed by Art. I, § 12, of our Constitution. Accord: Everett v. Goldman, supra; Carter v. Sparkman, supra; Comisky v. Arlen, supra; Paro v. Longwood Hospital, supra.

The contention is made that the Act should be declared void for vagueness under Art. I, § 12, of the Constitution of Indiana guaranteeing due process and due course of law in that it fails to specify in detail the procedures and practices to be followed before the medical review panel. Appellant raising this issue has admitted inability to cite any firm authority that this constitutional doctrine is applicable in civil cases. He relies upon Cook v. State, (1901) 26 Ind.App. 278, 59 N.E. 489. There the Appellate Court voided a penal statute which barred the use of a narrow tired wagon on gravel roads during wet weather. The statute was invalid as uncertain in that it failed to define “narrow tired wagon”. In the course of retailing cases, the court quoted from another jurisdiction which recognized the application of the doctrine in testing “public and private” statutes. We are not apprised that such statutes in that other jurisdiction carried no penal or like consequences. Given the clear penal nature of the statute considered by the court in Cook, the reliance in it upon the quotation from the foreign jurisdiction does not establish the proposition of law that the void for vagueness doctrine is applicable to testing non-penal statutes.

Were it applicable, we would not void this statute on this basis. The statute contemplates that the panel will function in an informal and reasonable manner. It is guided by a trained lawyer who presumptively will not deny to each party a reasonable opportunity to present its evidence and authorities. The scope of the panel’s function is limited. It does not conduct a hearing or trial and does not render a decision or judgment. There is, therefore, no reason to mandate that the statute relegate burdens of proof or production and to otherwise specify procedures applicable in hearings and trials. The panel is conducting a rational inquiry into the extent and source of the patient’s injuries for the purpose of forming its expert opinion. The absence from the statute of specific procedures is reasonable in light of this limited purpose and function and does not raise a serious constitutional question on the ground of vagueness or indefiniteness.. There is little likelihood that appellant will incorrectly estimate the steps that should be taken in procuring and presenting evidence and authorities to the panel, and should he do so there is little or no risk that he will be harmed thereby.

The contention is made that the compensation of those serving on the panel is so low as to be confiscatory in violation of Art. I, § 21, of the Indiana Constitution, and that such inadequate provision for their compensation serves to deny the injured patient due process of law. We agree that the compensation appears exceptionally modest for most health care providers and lawyers. However, there is no support here for the claim that panel members will, as a consequence of low pay, fail to provide fair treatment to persons appearing before them. Most will undoubtedly view service on the panel as a public duty in the nature of jury service and service as a special judge, and give due regard to public and private interests being served. The Act is not unconstitutional on this basis.

C.

The panel submission requirement is next challenged on the basis that it subjects malpractice tort claimants to burdens not given to other tort claimants and grants corresponding benefits to health care providers in violation of the privileges and immunities clause of the Indiana Constitution in Art. I, § 23, of the Indiana Constitution, the prohibition against special legislation in Art. IV, §§ 22 and 23, and the equal protection clause of the Fourteenth Amend *597 ment. The classification of tort claimants is based upon their status as patients and their injuries having arisen from a breach of duty owed them by a health care provider. The classification of health care providers is based upon the services they render. Neither classification involves a suspect classification such as race, wealth, lineage, alienage or illegitimacy. And a requirement such as this that a party engage in processes for improving the quality of evidence for settlement and litigation purposes does not impinge upon the exercise of a fundamental right such as voting, procreation, interstate travel, or to present a defense in a criminal action. The fair and substantial relation standard is to be applied here. Chaffin v. Nicosia, (1974) 261 Ind. 698, 310 N.E.2d 867. In order for this classification to satisfy the guarantee of equal protection, it “must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.” Royster Guano Co. v. Virginia, (1920) 253 U.S. 412, 40 S.Ct. 560, 64 L.Ed. 989; Reed v. Reed, (1971) 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225; Reilly v. Robertson, supra. The standard to be applied in protecting rights secured by Art. I, § 23, of the Indiana Constitution, is whether the legislative classification is based upon substantial distinctions with reference to the