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St. Joseph ''S Hospital and Medical Center v. Superior Court of Arizona3/13/1990
Petitioners bring this special action challenging the order of the respondent trial judge denying their request for a medical liability review panel. We accept jurisdiction because the issue is of state-wide importance and has resulted in conflicting decisions in the trial court. See Rules of Procedure for Special Actions, Rules 1 and 3.
The issue is whether House Bill 2123 retroactively eliminates a litigant's right to a review panel under former A.R.S. § 12-567(A), when the request for a review panel was made after the Bill was signed into law but before the effective date. Because H.B. 2123 does not expressly provide for retroactive repeal of former A.R.S. § 12-567 and because the right to a review panel is substantive, we hold that A.R.S. § 12-567(A) was not retroactively repealed and petitioners are entitled to convene a review panel.
Background
On June 28, 1989, Governor Mofford signed into law H.B. 2123, which became effective September 15, 1989. H.B. 2123 contains three sections. Section 1 repeals A.R.S. § 12-567. Section 2 provides a comprehensive statutory scheme for periodic payments of future damages in medical malpractice actions. Section 3 provides for the prospective application of Section 2. Real Parties in Interest (hereinafter called respondents) commenced the underlying medical malpractice action July 19, 1989. In separate answers filed July 26, 1989, and August 11, 1989, petitioners requested assignment of the matter to a review panel pursuant to A.R.S. § 12-567. Former A.R.S. § 12-567(A) provided:
A. Upon the filing of a complaint in any medical malpractice action, the matter shall be referred to a medical liability review panel appointed pursuant to this section. Such action shall be referred to the panel within twenty days after the expiration of the time for the defendant's answer. The plaintiff and any individual defendant may waive the review panel requirement as to that defendant only, upon stipulation of that defendant and all plaintiffs having claims against the defendant.
Petitioners made additional requests for a review panel through motions filed with their answers and a joint motion filed August 24, 1989. In a minute entry dated September 1, 1989, the trial court denied petitioners' request. The trial court held that "the Legislature did expressly state its intention that the repeal of [A.R.S. § 12-567(A)] be applied retroactively."
Discussion
To determine whether H.B. 2123 § 1 should be applied retroactively a two step analysis is required. We must first determine whether the legislature expressly provided for retroactive application of H.B. 2123 § 1. See A.R.S. § 1-244 ("No statute is retroactive unless expressly declared therein."). If it did not, we must determine whether the statute is "merely procedural and does not affect an earlier established substantive right." Bouldin v. Turek, 125 Ariz. 77, 78, 607 P.2d 954, 955 (1979).
The parties strongly contest whether the legislature expressly declared H.B. 2123 § 1 retroactive. Petitioners rely on the lack of any such language in the Bill. Respondents argue that the legislature's inclusion of Section 3, which provides that Section 2 is to be applied prospectively, positively indicates that Section 1, the Section in issue, was to be retroactively applied. Respondents believe any other interpretation makes Section 3 redundant, as the legislature without speaking could guarantee the prospective application sought in Section 3. We disagree.
Generally, retrospect
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