Attorney General v. Johnson

Digges, J., delivered the opinion of the Court. In 1976 the Maryland General Assembly passed legislation, as have many other state legislatures, substantially altering the manner in which claims of medical malpractice by patients against physicians, hospitals, and other “health care providers” may be judicially resolved. 1 In general terms, the effect of this State’s Health Care Malpractice Claims statute, Md. Code (1974,1977 Cum. Supp.), §§ 3-2A01 to 3-2A09 of the Courts Article (the Act), is to require the submission of certain of such claims to an arbitration panel for initial ascertainment of liability and damages before resort may be had to a court of law for final determination. The plaintiffs in this declaratory judgment action asserted that the Act is constitutionally infirm as impermissibly vesting judicial power in a nonjudicial body in violation of separation of powers principles, as abridging the rights of access to the courts and of trial by jury, and as denying to malpractice claimants the equal protection of the laws.

Our careful assessment of these assertions reveals that the statute is in each respect constitutionally sound. The suit arose when James and Sheila Johnson, claiming that their minor daughter had died as a result of the negligence of unnamed physicians employed by The Johns Hopkins Hospital, and distressed by the fact that they were prevented by the 1976 enactment from immediately instituting a malpractice action in a court of law, sought a ²⁷⁸ declaratory judgment to the effect that the Act violated federal and state constitutional provisions and that they should therefore be permitted to file their law suit without first complying with the new statute. Originally named as defendants were Francis B. Burch, Attorney General of the State of Maryland, and Ronald Schreiber, Deputy Legislative Officer for the Governor and Acting Director of the Health Claims Arbitration Office created by the statute. The Johnsons amended their petition to include The Johns Hopkins Hospital as a party defendant, and the trial court permitted intervention as parties defendant by the Medical Mutual Liability Insurance Society of Maryland, a physician-controlled insurance company created by statute, and the Medical and Chirurgical Faculty of the State of Maryland, a voluntary professional organization of Maryland physicians; the Bar Association of Montgomery County was also permitted to intervene as a party plaintiff. 2 With the forces thus arrayed for battle, trial was had in the Baltimore City Court during the period April 25 to May 6, 1977; on June 6 judgment was entered declaring the Act invalid, the court holding that the statute unconstitutionally vested judicial powerifTan administrative agency and that 1 it imposed procedural and monetary impediments substantial enough to deny claimants reasonable access to the courts and the attendant right Jo. trialJb^ury.'The "defendants' noted a timely appeal, and the plaintiffs cross-appealed from the trial court’s holding that the Act did not violate the equal protection clause of the United States Constitution or the corollary due process requirements of the Maryland Declaration of Rights.

We granted certiorari prior to consideration of the matter by the Court of Special Appeals and now reverse the judgment entered in the Baltimore City Court. We have already noted the general thrust of the Act—that medical malpractice claims be submitted to arbitration as a ²⁷⁹ precondition to court action — and we now outline in greater detail the mode envisioned by the statute for the accomplishment of the arbitration process and any subsequent court litigation. All malpractice claims against health care providers 3 seeking damages of more than $5,000 are subject to the provisions of the Act, § 3-2A02 (a), and must be initially filed, as must the responses to them, with the Health Claims Arbitration Office, § 3-2A04 (a), created by the statute “as a unit in the Executive Department.” § 3-2A03 (a). The office, acting through its director, see § 3-2A03 (a), refers all issues raised to a three-member arbitration panel, § 3-2A05 (a), chosen at random from lists of qualified persons prepared and maintained by the director, §§ 3-2A03 (c) & 3-2A04 (b); the panel for each claim is to be composed of an attorney, a health care provider, and a member of the general-public. 4 §§ 3-2A03 (c) & 3-2A04 (d).

The arbitration panel determines whether the health care provider is liable to the claimant and if so the extent of the damages, and incorporates in its award an assessment of costs, including arbitrators’ fees, § 3-2A05 (d) & (e); if no party rejects the award, it becomes final and binding, is filed by the director with the appropriate circuit court, and when confirmed by that court constitutes a final judgment. § 3-2A05 (h). 5 Neither party, however, is in any way boumi to accept the award; it may be rejected for any reason within ²⁸⁰ ninety days. § 3-2A06 (a). If a party desires to contest the decision of the panel, he must file an action in the appropriate court during the ninety-day period to nullify the award, § 3-2A06 (b) & (f), 6 and jury trial may be elected by either party. § 3-2A06 (b). Any contention that an award should be vacated on the ground of corruption, fraud, partiality or the like, see Md. Code (1974), § 3-224 (b) (l)-(4) of the Courts Article, is to be decided by the court prior to trial. § 3-2A06 (c). JJnless the award is thus vacated, it is admissible as evidence~'at-thg~Trial and presumed~to be correct, with the bur3eiTbfproving thecontrary falling on the party rejecting it, § 3:2A06 (d); should the award be vacated, “trial of the case stall proceed as if there had been no award.” § 3-2A06 (c).

In addition, attorneys’ fees are subjected to the approval respectively of the arbitration panel and the court. § 3-2A07. Before beginning our analysis of the several challenges to the statute, we refer briefly to the circumstances, as developed at trial, which spurred the passage of this legislation. The appellees sought to show that the malpractice insurance “crisis” sweeping the nation, see note one supra, had avoided the State of Maryland, and that the General Assembly had imposed a draconian solution to a minor problem; as they put it, surgery has been performed when the patient could have been cured with aspirin. It is clear that although the dominant insurer in Maryland received a dramatic rate increase in 1974, it nonetheless decided to cease writing medical malpractice insurance in this State when it was refused its request for an additional substantial increase later that year. 7 The General Assembly at its 1975 session responded to this withdrawal notice by creating, effective in June of that year, the Medical Mutual Liability Insurance Society of Maryland, seeMd.

Code (1957,1972 Repl. Vol., 1977 Cum. Supp.), Art. 48A, §§ 548-556, an insurance company initially funded by a tax on Maryland physicians, and which ²⁸¹ now insures ninety percent of the State’s doctors; availability of coverage was thereby assured. 8 In July of that year, the presiding officers of both houses of the General Assembly jointly appointed a Medical Malpractice Insurance Study Committee, which in its subsequent report to the legislature indicated that the creation of Medical Mutual represented only temporary relief for the “myriad problems of medical malpractice insurance,” and recommended legislation similar to the present Act. At trial the appellees attempted to show that the appellant Medical and Chirurgical Faculty, upon the withdrawal of the dominant insurer, frustrated new carriers from entering the market and thus itself precipitated the crisis; the trial court, however, rejected this suggestion as not being factually supported by the evidence.

A great deal of testimony was also adduced during the course of the trial respecting the cost of prosecuting malpractice claims and the effect on those costs of the newly-created arbitration proceedings, the trial court concluding that a claimant’s costs would be substantially increased if the case were brought to court after arbitration, and reduced if the arbitration award were accepted. With this background, and bearing in mind that before a statute may be declared unconstitutional “its repugnancy to the provisions or necessary implications of the Constitution should be manifest and free from all reasonable doubt,” Baltimore v. State, 15 Md. 376, 475 (1860) (concurring opinion); see Lucky Stores v. Bd. of Appeals, 270 Md. 513, 526 , 312 A. 2d 758, 765 (1973), we pause before addressing the particular constitutional issues to point out two basic tenets which are helpful to recall in an analysis of a statute of the character here presented. The first was well stated by Judge O’Donnell for this Court in Salisbury Beauty Schools v. St. Bd., 268 Md. 32, 48-49 , 300 A. 2d 367, 378 (1973): The wisdom or expediency of a law adopted in the exercise of the police power of the state is not subject to judicial review and such a statute will not be held ²⁸² void if there are any considerations relating to the public welfare by which it can be supported. Such a statute is presumed to be valid and one attacking its validity has the burden of affirmatively and clearly establishing its invalidity; every intendment is in favor of the validity of the statute where there is a substantial relationship between its object and the means employed to attain that object. [Citations omitted.] See also Westchester West No. 2 v. Mont.

Co., 276 Md. 448, 455 , 348 A. 2d 856, 860 (1975); We can thus pass no judgment on disputed questions of social policy. The second principle to be borne in mind is that, except as circumscribed by the documents themselves, neither the Federal Constitution nor that of our State forbids the creation of new rights or the abolition of old ones recognized by the common law. “The common law, like our Acts of Assembly, [is] subject to the control and modification of the Legislature, and may be abrogated or changed as the General Assembly may think most conducive to the general welfare____” The State v. Buchanan et al., 5 H. & J. 317, 366 (1821) (Chase, C. J., concurring); see State ex rel. Sonner v. Shearin, 272 Md. 502, 510 , 325 A. 2d 573, 578 (1974); Heath v. State, 198 Md. 455, 464 , 85 A. 2d 43, 47 (1951). A person has no property, no vested interest, in any rule of the common law____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. [Munn v. Illinois, 94 U. S.

(4 Otto) 113, 134, 24 L. Ed. 77 (1877).] See Silver v. Silver, 280 U. S. 117, 122 , 50 S. Ct. 57 , 74 L. Ed. 221 (1929). Clearly, then, there can be no question but that the legislature has the power to impose, within constitutional limits, rational conditions upon the right to turn to the courts for redress of grievances. Neither the fourteenth amendment nor our Constitution “prevent[s the General Assembly] from ²⁸³ prescribing a reasonable and appropriate condition precedent to the bringing of a suit of a specified kind or class so long as the basis of distinction is real, and the condition imposed has reasonable relation to a legitimate object.” Jones v. Union Guano Co., 264 U. S. 171, 181 , 44 S. Ct. 280 , 68 L. Ed. 623 (1924) (upholding state statute providing that no suit for damages to crops resulting from use of fertilizer may be brought except after chemical analysis showing deficiency of ingredients). 9 Of course the conditions imposed upon the bringing of a suit may not independently violate any rights secured by the Constitution. With this in mind, we turn to an analysis of the constitutional objections lodged by the appellees against the Act.

I. We address first the appellees' contention, and the trial judge’s conclusion, that the Act vests judicial power in an administrativé agency, .contrary to the mandates of the Maryland Constitution, which provides that the judicial pdwer be vested in enumerated courts, Md. Const., Art. IV, § 1, that the powers of the three departments of government be “forever separate and distinct,” Maryland Declaration of Rights, Art. 8, and that no person exercising the functions of one branch may discharge the duties of another. Id. We think, to the contrary, that this statute, which in essence requires that malpractice disputes be submitted to nonbinding ²⁸⁴ arbitration as a condition precedent to the institution of a court action, does not in any fashion impermissibly transgress the separation of powers doctrine. To conclude otherwise would be to embrace “the erroneous notion that all adjudication is judicial,” Mulhearn v. Federal Shipbuilding & Dry Dock Co., 2 N. J. 356, 66 A. 2d 726, 730 (1949), and to overlook two crucial facts present here relevant to the exercise of judicial power: that the parties are in no way bound by the award of the arbitration panel and that the panel itself cannot enforce its award.

Preliminarily, we note that it is undeniable that the mere performance by a nonjudicial body of a function that would in another context be considered purely judicial — e.g, the determination of facts and the application of legal principles to those facts — cannot alone suffice to support a conclusion that the separation of powers principle has been violated. Were that not so, of course, no administrative agency performing an adjudicatory function could survive constitutional muster. As we observed in Dep’t of Nat. Res. v. Linchester, 274 Md. 211, 222 , 334 A. 2d 514, 522 (1975), while administrative agencies perform activities which are legislative in nature, they also are frequently “called upon to make factual determinations and thus adjudicate”; this dual role has long been accepted as constitutionally permissible.

We have pointed out before, and we reemphasize here, that adjudicatory determinations by such agencies are not judgments or decrees, see Dal Maso v. County Commrs., 182 Md. 200, 205 , 34 A. 2d 464, 466 (1943); that such an agency ascertains questions of fact and applies the law to those facts in a particular case does not alone vest it with judicial power in the constitutional sense. See County Council v. Investors Funding, 270 Md. 403, 429-32 , 312 A. 2d 225, 239-41 (1973); Heaps v. Cobb, 185 Md. 372, 378-79 , 45 A. 2d 73, 76 (1945); Dal Maso v. County Commrs., supra at 205 [466]; Solvuca v. Ryan & Reilly Co., 131 Md. 265, 284 , 101 A. 710, 716 (1917). We have denominated this function of an administrative agency, exercised in the performance of permissibly-delegated duties, quasi-judicial. Dep’t of Nat.

Res. v. Linchester, supra at 222, 223 [522]. ²⁸⁵ While the appellees protest that the statute vests judicial power in an administrative agency, we observe preliminarily that it is clear that such a formulation of the Act’s consequences is inaccurate, for the simple reason that the entity assertedly performing the judicial function — the arbitration panel, and not the Health Claims Arbitration Office — is not an administrative agency in the traditional sense. As earlier described, the malpractice claims statute creates a “unit in the Executive Department” denominated the Health Claims Arbitration Office; the primary function of that office, in addition to providing a mechanism for the service of claims and various other papers on the affected parties and for the filing in court of panel decisions that have not been rejected, is to assist the parties in the selection of a panel of arbitrators in order that the precondition to court litigation imposed by the Act may be met. We summarize our earlier description of that selection procedure: The director of the Arbitration Office delivers to the parties a list of fifteen potential arbitrators (five from each of the three categories) chosen at random from lists which the director prepares and maintains, §§ 3-2A04 (b) & 3-2A03 (c); the latter lists must include those persons on the American Arbitration Association list of arbitrators who are willing to serve. § 3-2A03 (c). The parties have an opportunity to object for cause to the inclusion of any arbitrator on the list of fifteen; 10 the claimant and the health care provider may also each peremptorily strike two names in each category, § 3-2A04 (c), and the director then selects, from the lists returned to him, the first mutually agreeable person in each category. § 3-2A04 (d).

It only remains to add that the parties may, if they choose, agree in writing upon a single arbitrator and so advise the director. § 3-2A04 (e). The arbitration panels so selected are not in any respect a part of the Health Claims Arbitration Office. The office’s director refers the claim to the panel selected — or to a single arbitrator agreed upon by ²⁸⁶ the parties — and the arbitration panel, when it has made an award, delivers it in writing to the director, § 3-2A05 (a) & (f), but there is no other nexus between the panel and the arbitration office. The arbitrators are not a part of the office’s staff; they are paid by the parties themselves, and not by any governmental unit; they serve purely on a voluntary basis; and they meet to consider a single claim and then disband.

They are thus in no sense a typical organ of government. Since the arbitrators are obviously not a part of the executive unit created by the Act, it becomes plain that the unit so created — the Health Claims Arbitration Office — exercises no judicial function whatever. 11 That all this is so is not, as we shall see, the end of the matter. From it one must conclude, however, that it is analytically inaccurate to frame the inquiry in terms of whether the statute has vested judicial power in an administrative agency, thus violating the prohibition against the exercise by one entity of the functions of two departments of government. Properly posed, the question is not one implicating administrative law principles, but is simply whether judicial power has been vested in an entity which is not a court, contrary to the dictates of Article IV, section 1.

As we have already dismissed the notion that judicial power in the constitutional sense is necessarily exercised whenever facts are determined and legal principles are applied to the facts found, we must ascertain what qualities imbue such determinations with judicial power. While we have not, until today, explicitly stated the proposition, we agree with those courts which have said that the essence of judicial power is the final authority to render and enforce a judgment, see, e.g., Cedar Rapids, Etc. v. Cedar Rapids Commun. Sch., 222 N.W.2d 391, 396 (Iowa 1974); Underwood v. McDuffee, 15 Mich. 361, 368 (1867); Breimhorst v. Beckman, 227 Minn. 409 , 35 N.W.2d 719, 733 (1949), and we think that conclusion is implicit from our own case law. See County Council v. Investors Funding, 270 Md. 403, 437 , 312 A. 2d 225, 243 (1973) ²⁸⁷ (Commission’s determinations not final, but always open to judicial review; it makes no “ ‘binding judgments’ of the kind that denote strictly judicial power”; it has no power to force compliance with its orders); Dal Maso v. County Commrs., 182 Md. 200, 205 , 34 A. 2d 464, 466 (1943) (decisions of administrative agencies not judgments or decrees).

As we said in Solvuca v. Ryan & Reilly Co., 131 Md. 265, 282 , 101 A. 710, 715 (1917), and have repeated many times, see, e.g., Reyes v. Prince George's County, 281 Md. 279, 297 , 380 A. 2d 12, 22 (1977); Shell Oil Co. v. Supervisor, 276 Md. 36, 45-46 , 343 A. 2d 521, 526 (1975), “It is not enough to make a function judicial that it requires discretion, deliberation, thought, and judgment. It must be the exercise of discretion and judgment within the subdivision of the sovereign power which belongs to the judiciary----” It is elementary that,an entity does not exercise the sovereign power of the State constitutionally assigned to the judiciary if its decision is in no sense final, binding or enforceable; no power of any meaningful kind — to say nothing of sovereign power — inheres in a decision which, as in the Act before us, need not be accepted and which, if accepted, cannot be enforced by the entity which made it. Here the statute merely requires that malpractice claims be submitted to nonbinding arbitration before suit may be filed. 12 The decision of the panel is not — or need not be — in any sense a final determination of the controversy. Either party may reject the panel’s determination, for any reason or no reason, and proceed, as he could have before the statute was enacted, to have the matter determined in an appropriate Article IY court of law.

Even if the parties accept the decision of the arbitrators, the panel which made it cannot enforce it. 13 ²⁸⁸ We think it evident that the panels exercise no portion of the judicial power of this State in the constitutional sense. 14 Authority in other jurisdictions is in accord with the proposition that a statutory requirement that disputes be submitted to a nonjudicial entity for determination prior to court action is not an unconstitutional delegation of judicial power. 15 Eastin v. Broomfield, 116 Ariz. 576 , 570 P. 2d 744 , *? 750 (1977) (statutory requirement that malpractice claims be submitted to medical liability review panel prior to court action); Prendergast v. Nelson, 199 Neb. 97 , 256 N.W.2d 657, 666-67 (1977) (same); State ex rel. Strykowski v. Wilkie, 81 Wis. 2d 491 , 261 N.W.2d 434, 448-49 (1978) (same); Thornbrough v. Williams, 225 Ark. 709 , 284 S.W.2d 641, 644 (1955) (upholding statute allowing employer or employee to require dispute over wages earned to be decided by Commissioner of Labor, with either party having right to refuse to accept the finding and proceed at law); 16 Collier & Wallis v. Astor, 9 Cal. 2d 202 , 70 P. 2d 171, 173-74 (1937) (upholding statute empowering labor commissioner to determine disputes between employment agency and applicants, with right to trial de novo in superior court). But see In re Opinion of the Justices, 87 N. H. 492, 179 A. 344, 357 (1935). Often cases involving the constitutionality of arbitration statutes do not even mention the question of separation of powers.

See, e.g., Application of Smith, 381 Pa. 223 , 112 A. 2d 625 (upholding statute permitting courts to adopt rules providing for compulsory arbitration of civil suits involving $1,000 or less with de novo appeal), appeal dismissed sub nom. Smith v. Wissler, 350 U. S. 858 (1955). The general rule with regard to compulsory arbitration — arbitration to which the consent of at least one of the parties is enforced by statutory provisions, see Wood v. Seattle, 23 ²⁹⁰ Wash. 1, 62 P. 135, 143 (1900) — appears to be that coercive statutes which close the courts to litigants by compelling resort to arbitrators for final determination of rights are invalid, whereas statutes which aid the courts by providing for arbitration but reserving a right to appeal to a court are generally valid. 5 Am.Jur.2d Arbitration and Award % 9, at 526 (1962). See generally Annot., 55 A.L.R.2d 432 (1957).

That, of course, is entirely in accord with our conclusions here. !\ Finally, we would be remiss if we did not mention that the Supreme Court of Illinois has recently concluded, contrary to ( ur determination in this case, that legislation requiring submission of malpractice claims to a medical review panel similar to those created here, but with a circuit judge a member of each panel, prior to trial of the case, /unconstitutionally vested judicial functions in nonjudicial /personnel. Wright v. Central Du Page Hospital Association, 63 Ill. 2d 313 , 347 N.E.2d 736 (1976). The court there, however, said no more than that the application of principles of law is inherently a judicial function, and that the nonjudicial members of the panel were empowered to exercise it. 347 N.E.2d at 739-40 . We find that rationale, in view of all the considerations we have discussed above, singularly unpersuasive.

II

Having concluded that Article IV of the Maryland Constitution and Article 8 of its Declaration of Rights do not prevent the General Assembly from requiring as a condition precedent to a civil suit that the litigants attempt to resolve their dispute by submitting it to an arbitral panel before , presenting the controversy to a court for resolution, we \ proceed to analyze the contention that such a requirement | nonetheless violates other rights secured by our State and the i federal constitutions. The trial court found that the Act imnoses-pracedural and monetary impediments — substantial . expense in producing expert witnesses before the arbitrators, / significant lengthening of the time necessary to achieve a final judicial resolution of the claim, and the necessity of overcoming the presumption of correctness which attaches to the arbitral decision at the subsequent trial — calculated to ²⁹¹ inhibit a claimant from pursuing court action in the face of an adverse arbitral award, and that these impediments “deny a claimant reasonable access to the courts and his attendant constitutional right to trial by jury.” Two of the appellees, the Johnsons, urge that it is the presumption of correctness which effectively vitiates the right to trial by jury secured by Article XV, section 6 of the Maryland Constitution, and that for many potential litigants the financial burden and delay associated with the arbitration process effectively bar the access to the courts which is guaranteed by Article 19 of the Declaration of Rights. See also Md. Decl. of Rts., Arts. 5 & 23. The remaining appellee, the Bar Association, suggests that the Act deprives a claimant of trial by jury and of access to the courts by virtue of a number of “infringements” which, though if taken singly may not amount to constitutional transgressions, when considered as a composite whole do just that: admissibility of the arbitration panel’s decision together with the presumption that it is correct; failure to allow the claimant to attack the panel decision before the jury on grounds that it was procured by corruption, fraud, undue means, or partiality; failure to allow voir dire of the arbitration panel; costs and delay imposed before access to the courts can be gained; and control of attorney fees.

We perceive, however, no deprivation of either trial by jury or access to the courts on any of these grounds, considered either individually or collectively. The whole here is no more unconstitutional than its individual parts; we therefore treat the challenges to the statute on this aspect of the case seriatim. Maryland’s Constitution, Article XV, section 6, which provides that “[t]he right of trial by Jury of all issues of fact in civil proceedings ... shall be inviolably preserved,” like the seventh amendment to the Constitution of the United States, requires that “enjoyment of the right... be not obstructed, and that the ultimate determination of issues of fact by the jury be not interfered with.” In re Peterson, 253 U. S. 300, 310 , 40 S. Ct. 543 , 64 L. Ed. 919 (1920) (Brandéis, J.). The appellees strenuously urge that, as to the second of these commands, the admissibility of the panel’s award together ²⁹² with its presumption of correctness “virtually deprive the jury of its constitutional function.” To buttress this assertion, the appellees point to only two cases, Comiskey v. Arlen, 45 U.S.L.W. 2019 (N.Y. Sup.

Ct. Queens County July 2, 1976), and Simon v. St. Elizabeth Medical Center, 355 N.E.2d 903 , 907-08 (C.P. Ohio 1976), both involving malpractice statutes permitting the admission of the decisions of screening or arbitral panels at a subsequent trial, both decided by trial courts, both of which cite no authority to support their conclusions, and one of which has been overruled on appeal. See Comiskey v. Arlen, 55 App.Div.2d 304, 390 N.Y.S.2d 122, 125 (1976) (thrust of decision below was unwarranted assumption that “no jury could evaluate a medical malpractice panel’s recommendation with objectivity, or follow a trial court’s instructions regarding the weight to be given it"), aff'd on other grounds, 43 N.Y.2d 696 , 372 N.E.2d 34 , 401 N.Y.S.2d 200 (1977). The law is clearly contrary to the appellees’ contention. For recent cases of our sister states holding that statutory provisions allowing the admissibility into evidence of the findings of medical malpractice review panels are in essence simply rules of evidence and do not violate the right to jury trial, see Eastin v. Broomfield, 116 Ariz. 576 , 570 P. 2d 744, 748-49 (1977); Prendergast v. Nelson, 199 Neb. 97 , 256 N.W.2d 657, 665-66 (1977); State ex rel.

Strykowski v. Wilkie, 81 Wis. 2d 491 , 261 N.W.2d 434, 450-53 (1978). 17 ²⁹³ We begin by pointing out exactly what the statute provides), in this regard: that the award is admissible as evidence, that \ it “shall be presumed to'be correct, and [that] the burden is | on the party rejecting it to prove that it is not correct.” § 3-2A06 (d). The effect of this provision is precisely the same as occurs under the Workmen’s Compensation Act, which provides that the Commission’s decision is “prima facie correct and [that] the burden of proof shall be upon the party attacking the same.” Md. Code (1957, 1964 Repl. Vol.), Art. 101, § 56 (e). We long ago said that the latter provision means that the Commission’s solution of the conflict “is presumed to be correct, and the burden of proof is upon the party attacking it to show that it was erroneous.” Moore v. Clarke, 171 Md. 39, 45 , 187 A. 887, 890 (1936) (emphasis added). “[I]t simply puts the burden of proof upon the party taking the appeal, whether he be plaintiff or defendant.

In other words it establishes no new rule when the plaintiff happens to be the party appealing, as the burden was always upon the plaintiff to prove his case.” Stewart & Co. v. Howell, 136 Md. 423, 434 , 110 A. 899, 902 (1920) (emphasis added). 18 We have further explained that the provision “means nothing more than that, if the mind of the trier of facts is in equal balance on the evidence in the record, the finding of the Commission should be affirmed.” Blake Construction v. Wells, 245 Md. 282, 286 , 225 A. 2d 857, 860 (1967). When the malpractice ²⁹⁴ claimant is the party appealing, the statutory provision thus has no effect whatever on his burden of proof in respect to primary negligence. That the legislature may, in any event, pass rules affecting the burden of proof without infringing the right to jury trial is not to be doubted, as is evident from both our own case law and decisions of the Supreme Court of the United States. In Bonaparte v. M. & C. C. of Balto., 131 Md. 80, 86 , 101 A. 594, 596 (1917), we assessed the validity of a provision of a city charter making a monetary award to a property owner by the Commissioners for Opening Streets prima facie evidence at a subsequent condemnation trial of the correctness of the amount of damages awarded, and placing the burden of proof on the party asserting that the amount should be more or less than that awarded by the Commissioners.

We rejected the suggestion that this provision violated section 40 of Article III of the Maryland Constitution requiring the payment of just compensation, if not agreed upon by the parties, to be awarded by a jury: The appellant’s right to a jury trial, upon the question as to the compensation to be awarded him for the property condemned ... is not prejudiced by the [charter provision]. The purpose of [that provision] is simply to attach the presumption of correctness to the report of the Commissioners, as . against an appeal by either the city or the property owner. This regulation is entirely consistent with the right afforded the owner to prove, and with the duty imposed upon the jury to determine, the true amount of the just compensation to be awarded. [Id.] And in Meeker v. Lehigh Valley R. Co., 236 U. S. 412, 430 , 35 S. Ct. 328 , 59 L. Ed. 644 (1915), the Supreme Court concluded that a statutory provision making the “findings and order of the [Interstate Commerce] Commission... prima facie evidence of the facts therein stated” in a subsequent civil suit to enforce payment as directed in the Commission’s order did not infringe the right of trial by jury. The Court said: This provision only establishes a rebuttable presumption.

It cuts off no defense, interposes no ²⁹⁵ obstacle to a full contestation of all the issues, and takes no question of fact from either court or jury. At most, therefore, it is merely a rule of evidence. It does not abridge the right of trial by jury, or take away any of its incidents. Nor does it in anywise work a denial of due process of law____ An instructive case upon the subject is Holmes v. Hunt, 122 Mass. 505 , 23 Am.

Rep. 381 [(1877)], where, in an elaborate opinion by Chief Justice Gray, a statute making the report of an auditor prima facie evidence at the trial before a jury was held to be a legitimate exercise of legislative power over rules of evidence, and in nowise inconsistent with the constitutional right of trial by jury. [Id.} See In re Peterson, 253 U. S. 300, 309-11 , 40 S. Ct. 543 , 64 L. Ed. 919 (1920) (seventh amendment does not prohibit introduction of new rules of evidence, and admission of auditor’s report as prima facie evidence does not modify right of jury trial; an order of a court, “like a statute, is not unconstitutional because it endows an official act or finding with a presumption of regularity or of verity”). See also Montchester v. Honga River, 257 Md. 79 , 262 A. 2d 312 (1970). Despite what the Bar Association concedes to be “substantial authority” for the proposition that no constitutional infirmity ordinarily inheres in according a presumption of correctness to findings introduced at a later de novo trial, it nonetheless insists these authorities are unpersuasive as to the case at bar, asserting that here no “real” de novo trial is permitted. 19 Its position is apparently ²⁹⁶ premised on the fact that the panel’s award may not be attacked before the jury on the basis that (1) it was procured by fraud, corruption, or other undue means, (2) there was partiality, corruption, or misconduct on the part of an arbitrator, (3) the arbitrators exceeded their powers, or (4) the arbitrators conducted the hearing in such a manner as to prejudice substantially the rights of a party. Instead, these bases for rendering the award inadmissible in evidence are presented by preliminary motion and decided by the trial judge.

See § 3-2A06 (c) & (d). How the fact that the trial judge determines the admissibility into evidence of the award deprives the claimant of a de novo trial of his malpractice claim eludes us completely. For an analogous situation where the Court determined in a land boundary dispute whether a commission’s earlier boundary determination conducted pursuant to statute was properly made, so as to permit consideration by the jury in a subsequent judicial proceeding, see Montchester v. Honga River, supra at 85-87 [315-16]. Juries do not normally determine whether evidence is admissible, and we know of no reason why they should do so here.

Nowhere does the Act preclude the parties in the trial of the case from presenting whatever evidence and making whatever arguments on the merits of the claim they might have made had there been no pretrial arbitration. That the jury does not consider whether the panel finding was infected with fraud, partiality, or the like has no relevance whatever to whether the parties receive that to which they are entitled — a de novo jury trial of the malpractice claim. The appellees next assert that claimants aré denied due process by the failure of the statute to provide an opportunity to conduct a voir dire examination of prospective members of the arbitration panel, so as to assure their freedom from bias and partiality. No authority is cited to support this proposition and we know of none; in fact, voir dire examination is not provided for in connection with most, if not all, panels, boards, commissions and the like.

The Act requires the director of the ²⁹⁷ Health Claims Arbitration Office, who is responsible for preparation of a list of qualified persons willing to serve as arbitrators, § 3-2A03 (c), to assure himself that persons on the randomly chosen list delivered to the parties have no personal or economic relationship with either party, § 3-2A04 (b) ; it allows a party to object, and state reasons for doing so, to the inclusion of any arbitrator, and if the director finds there is a reasonable basis for the objection it requires him to replace the name of that arbitrator with another, § 3-2A04 (c) ; it allows a party to strike, without reason, two of the five potential arbitrators in each category (physicians, attorneys, and general public), § 3-2A04 (c); see § 3-2A04 (b); it requires the director to include a biographical statement for each of the potential arbitrators on the list delivered to the parties, § 3-2A04 (b); and finally, it permits the award to be vacated by the trial judge on the ground, among others, of “evident partiality by an arbitrator,” in which event the case is tried as if there had been no award. § 3-2A06 (c); see Md. Code (1974), § 3-224 (b) (2) of the Courts Article. In addition, as we have already pointed out, a party is at liberty to reject the arbitration award for any reason and have the claim tried by a jury. We perceive no denial of due process. See State ex rel.

Strykowski v. Wilkie, 81 Wis. 2d 491 , 261 N.W.2d 434, 446 (1978). With this conclusion of the matters bearing on the question whether the statute violates the right to jury trial by interfering with the jury’s determination of issues of fact, we come to what may be viewed as the determinative question on this branch of the case — whether the additional expense and delay, which are inevitable in every case in which court proceedings are elected after the arbitral decision, unconstitutionally deny malpractice claimants access to the courts as guaranteed by Article 19 of our Declaration of Rights 20 and thus the right to jury trial which accompanies resort to the judicial process in this type of civil case. See Md. Const., Art. XV, § 6. One commentator has suggested that ²⁹⁸ this is the most serious constitutional difficulty posed by screening panels: that requiring a plaintiff “to proceed through an expensive and prolonged screening process prior to an actual judicial hearing effectively denies him the right of access to the courts guaranteed by many state constitutions.” Redish, Legislative Response to the Medical Malpractice Insurance Crisis: Constitutional Implications, 55 Tex.

L. Rev. 759 , 795-96 (1977). The few appellate courts which have considered the question in terms of expense have concluded that reasonable restrictions on the right of access may be prescribed by law, and that the exercise of the police power for the benefit of public health by an effort to reduce the cost of malpractice insurance, and ultimately medical expenses, is constitutional. Carter v. Sparkman, 335 So. 2d 802, 805-06 (Fla. 1976), cert. denied, 429 U. S. 1041 , 97 S. Ct. 740 (1977); State ex rel. Strykowski v. Wilkie, 81 Wis. 2d 491 , 261 N.W.2d 434, 444 (1978).

In reaching this conclusion, the Supreme Court of Wisconsin observed: “States are under no constitutional obligation to neutralize the economic disparities which inevitably make resort to the courts different for some plaintiffs than, others.” Id. A concurring opinion in Carter , noting that it was troublesome that malpractice plaintiffs may be put to the expense of two full trials on their claims and that the inequity was harsh for the category of claimants with limited resources, concluded that the statute could not be invalidated on that basis, since “[a] disparity of resources has always been an imbalance in litigation which the courts are relatively powerless to adjust.” 335 So. 2d at 807-08 . See Prendergast v. Nelson, 199 Neb. 97 , 256 N.W.2d 657, 663-64 (1977) (requirement of submission to medical review panel in no way precludes access to the courts for a final determination). 21 We find ourselves bound to agree with the assessment made by the Wilkie court and by the concurring justice in Carter . The “law of the land” in Article 19 is the same due process of law required by the fourteenth amendment, Matter ²⁹⁹ of Easton, Incompetent, 214 Md. 176, 187 , 133 A. 2d 441, 447 (1957), and we simply cannot conclude that the additional 1 expense and delay mandated by this malpractice claims statute is so unreasonable in relation to its legitimate goal -j that it contravenes due process.

When we recall that there is no vested interest in any rule of the common law, Munn v. Illinois, 94 U. S. (4 Otto) 113, 134, 24 L. Ed. 77 (1877), so that the common law “may be abrogated or changed as the General Assembly may think most conducive to the general welfare,” The State v. Buchanan et al., 5 H. & J. 317, 366 (1821) (concurring opinion), it becomes apparent that there is here no denial of the due process right of access to the courts by the addition of a mode of procedure which merely causes some delay and increases the expense for a litigant who takes his claim to court, since there is no deprivation of any vested property right. See, e.g., Thompson v. Mazo, 245 A. 2d 122, 124 (D.C. 1968) (bond or undertaking as condition precedent to asserting a right may place heavier, and sometimes impossible, burden on one of limited means, but such burdens are valid and reasonable when required to protect rights of public); Montgomery v. Daniels, 38 N.Y.2d 41 , 378 N.Y.S.2d 1, 17-18 , 340 N.E.2d 444, 456 (1975) (“no fault” law denying right to seek recovery for some injuries does not deny federal constitutional right of access to courts, since access for resolution of rights not subject to special constitutional protection may be denied if rational basis therefor); Singer v. Sheppard, 464 Pa. 387 , 346 A. 2d 897, 902-04 (1975) (“no fault” law eliminating tort remedy for certain accident victims does not deny access to courts as guaranteed by state constitution); Behrns v. Burke, S. D., 229 N.W.2d 86, 88 (1975) (guest statute does not deny access to courts since injuries suffered by guest are not recognized as a wrong for which the law affords a remedy). It is thus clear that since the restriction imposed by the Act is reasonable 22 — as will ³⁰⁰ be. even more apparent from our later discussion of reasonableness in the context of the equal protection challenge to the statute — the Act cannot be invalidated simply because it makes access to the courts more expensive.

When access to the courts is regulated or limited in some manner, of course, at the same time that regulation or limitation ipso facto acts upon the right of trial by jury which accompanies resort to the courts, 23 and which is separately guaranteed by Article XV, section 6 of the Maryland Constitution, as well as by Article 5 of the Declaration of Rights. We must therefore also ascertain whether that right can be said to be violated by the precondition imposed here on access to the courts. As we observed earlier, the jury trial guarantee, in addition to requiring that there be no interference with the jury’s determination of issues of fact, commands that the right “be not obstructed.” See In re Peterson, 253 U. S. 300, 310, 40 S. Ct. 543 , 64 L. Ed. 919 (1920). There is no obstruction, however, and appellees do not suggest otherwise, simply because the right is subjected to regulation.

Thus, our predecessors in Knee v. City Pass. Ry. Co., 87 Md. 623, 627 , 40 A. 890, 892 (1898), observed: This common law practice [a stay of proceedings in a second action until the costs of a former action are paid], ante-dating our Constitution and Declaration of Rights, led naturally and almost inevitably... to the enactment of statutes ... having for their object the just regulation of the right of trial by jury____[I]t is gratifying to note with what sound and wise discrimination, in the main, the Courts have dealt with the subject, always ³⁰¹ preserving unimpaired the ultimate historical right as it existed at the time of our separation from the mother country, while sustaining all reasonable regulations of the exercise of that right made in the interest of the general public. We find that our analysis of the reasonableness of this Act’s regulation of the jury trial right — by virtue of its regulation of access to the courts generally — begins and ends with a proposition long ago announced by our predecessors as "fully established”: that “where a law secures the trial by jury upon an appeal, it is no violation of a constitutional provision for guarding that right, although such law may provide for a primary trial without the intervention of a jury.” Steuart v. Baltimore, 7 Md. 500, 512 (1855) (emphasis added), quoted in Bringe v. Collins, 274 Md. 338 , 347 n. 3, 335 A. 2d 670 , 676 n. 3 (1975).

In Knee v. City Pass. Ry. Co., supra at 625 [891], the Court stated that in the primary trial without jury approved in Steuart , “costs are incurred which must abide the final result on appeal, and which to that extent constitute an additional burden affixed to the right of trial by jury, but that does not afford a test of the validity of the Act.” (Emphasis added.) The Knee Court endorsed the view that the guarantee is not violated “where the right of trial by jury is preserved before the final decision, in all cases where it would have existed at the time of the adoption of the Constitution, and where all contested issues of fact are determined by a jury and in no other way; and ... any legislation therefore which merely points out the mode of arriving at this object, but does not rob the right of its essential ingredients, cannot be considered an infringement of the right.” [Id. at 633 [894] (citing Smith v. Times Pub. Co., 178 Pa. 481 , 36 A. 296 (1897)) (emphasis added). 24 ] ³⁰² We think the analogy is compelling.

It is perfectly plain that we could not, without repudiating Steuart and Knee , conclude that a system of compulsory arbitration, which permits trial by jury on rejection of the award, by itself in any way infringes the constitutional right to a jury trial. That is to say, Steuart and Knee compel the conclusion that the mere subjection to the arbitration procedure, analogous to a “primary trial without the intervention of a jury,” is not itself an impermissible burden on the right. 25 We note particularly the language of the Supreme Court of Pennsylvania, upholding a statute permitting courts to adopt rules providing for compulsory arbitration, with de novo appeal, of civil suits involving $1,000 or less: 26 [The right to trial by jury is violated] only where the statute closes the courts to litigants and makes the decision of the arbitrators the final determination of the rights of the parties; therefore there is no denial of the right of trial by jury if the statute preserves that right to each of the parties by the allowance of an appeal from the decision of the arbitrators or other tribunal. In ... Capital Traction Co. [v. Hof, 174 U. S. 1, 23 , 19 S. Ct. 580 , 43 L. Ed. 873