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West Valley Camelback Hospital Inc. v. Superior Court of Arizona3/13/1990
In St. Joseph's Hosp. v. Superior Court, 164 Ariz. 454, 793 P.2d 1121 (Ct.App.1990), we held that House Bill 2123 did not apply retroactively to defeat a litigant's right to convene a medical liability review panel under former A.R.S. § 12-567(A). We now address the narrow question of whether the right to preclude claims not presented to the review panel pursuant to former A.R.S. § 12-567(F) and the right to present findings of the review panel pursuant to former A.R.S. § 12-567(K) were retroactively repealed. Because both of these rights are so intimately linked with the underlying substantive right to convene a review panel, we hold that they can only be prospectively applied.
Background
The consolidated complaints in the underlying matter were referred to a medical liability review panel and on April 22, 1988, the review panel rendered its decision. On June 28, 1989, Governor Mofford signed into law H.B. 2123, which became effective on September 15, 1989. Section 1 of H.B. 2123 repeals A.R.S. § 12-567.
On August 4, 1989, petitioner requested a motion in limine to preclude real parties in interest from raising at trial any claims or issues not presented to the review panel, and to admit into evidence the review panel's decision. Petitioner moved pursuant to A.R.S. § 12-567(F) and (K). Respondent Anna Marie Buckenmaier filed her own motion in limine to preclude the admission of the review panel decision.
By minute entry dated August 25, 1989, the trial court denied petitioner's motion in limine and granted respondent's motion in limine.
Discussion
The legislature did not expressly provide for retroactive application of H.B. 2123.
St. Joseph's Hosp., 164 Ariz. 454, 793 P.2d 1121. Where the legislature fails to provide for retroactive application, we may not so provide unless we determine that the statutes involved are "merely procedural and not affect an earlier established substantive right." Bouldin v. Turek, 125 Ariz. 77, 78, 607 P.2d 954, 955 (1979).
In Daou v. Harris, 139 Ariz. 353, 678 P.2d 934 (1984), our supreme court held that the portion of former A.R.S. § 12-567(A) creating the right to a review panel was substantive. Id. at 358, 678 P.2d at 939. The Daou court also held that the portion of former A.R.S. § 12-567(A) providing that the underlying case be referred to a review panel within ten days was procedural. Id.
The Daou court adopted the United States Supreme Court's distinction between substantive and procedural law.
procedural provision "does not operate to abridge, enlarge or modify the rules by which (the district) court will adjudicate its rights. It relates merely to 'the manner and means by which a right to recover * * * is enforced.'" Mississippi Publishing Corp. v. Murphree, 326 U.S. 438, 446, 66 S.Ct. 242, 246, 90 L.Ed. 185 (1946) (quoting Guaranty Trust Co. v. York, 326 U.S. 99, 109, 65 S.Ct. 1464, 1470, 89 L.Ed. 2079 (1945)).
Id.
The question, then, is whether the right to introduce the review panel's findings and the right to preclude items not presented to the review panel abridges, enlarges, or modifies the underlying substantive right to a review panel, or whether these rights merely relate to the enforcement of the right to a review panel.
In drafting A.R.S. § 12-567 the legislature attempted to "help curb medical malpracti
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