                                  No. 85-481
               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                      1986




THE STATE OF MONTANA, ex rel.,
SARA BETH HUFFORD, a minor child,
and JIM and JUDY HUFFORD, her
parents,
                Petitioners and Respondents,


THE MONTANA MEDICAL-LEGAL PANEL,
G. BRIAN ZINS, Panel Director,
et al.,
                Respondents and Appellants.




APPEAL FROM:    District Court of the First Judicial District,
                In and for the County of Lewis & Clark,
                The Honorable Gordon Bennett, Judge presiding.

COUNSEL OF RECORD:

       For Appellant:
                Gerald J. Neely argued, Billings, Montana
                Poore, Roth & Robinson; Donald Robinson, Butte,
                Montana

       For Respondent:
                Huntley   &   Eakin; Ira Eakin argued, Baker, Montana



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                                      Submitted:   June 3 , 1996
                                       Decided:    August 2 6 ,   1986
Mr. Justice William E. Hunt, Sr., delivered the Opinion of
the Court.


        The Montana Medical-Legal Panel and its director appeal
the declaratory judgment of the First Judicial District Court
holding that the Panel must allow an unofficial transcript to
be made of its proceedings when requested.
        We reverse the declaratory judgment.
        Judy and Jim Hufford         for themselves and their minor
daughter, Sara Beth Hufford, filed a claim in October of 1983
with the Medical-Legal Panel alleging medical malpractice
against two doctors who had treated their daughter.                     At a
prehearing conference Huffords requested permission to have a
stenographic     record     of    the   upcoming hearing made.           The
doctors opposed Huffords '          request for a transcript.            The
Panel chairman therefore ruled that no transcript would be
made.     This ruling complies with F.ule 15(c), Panel Rules of
Procedure:
        The hearing will be confidential and informal, and
        the Panel shall not make, pay for or retain any
        transcript; with the consent of the chairman of the
        Panel and all parties to the claim, the parties may
        provide for the making, payment and retention of a
        transcript.
        Huffords then applied to the District Court for a Writ
of Mandamus.         By stipulation of counsel and approval of the
court, the petition was considered as a complaint seeking
declaratory relief.        The District Court concluded that denial
of the requested transcript violated due process of law
guaranteed by the 1972 Montana Constitution, Art. 11, S 17
and     the    Fourteenth        Amendment    of    the    United   States
Constitution.
        The issue before us is whether the District Court erred
in ruling that a transcript must be provided.              The appellants
contend       that     a   transcript        is    not    statutorily     or
constitutionally mandated.          Respondents answer that denial of
a transcript denies them the full right to cross-examine
witnesses       at trial and        is     so arbitrary as to deny due
process.       Respondents further contend that the Panel exceeded
its authority in adopting Rule 15 (c) which is inconsistent
with the Montana Administrative Procedure Act (MAPA).
        We cannot agree with those contentions.
        We need not reach the issue of whether the Panel is an
"agency"        within    the     meaning          of    MAPA.       The      enabling
legislation for           the Panel states:               "The hearing wil.1 be
informal and no official transcript may be made."                              Section
27-6-502 (3), MCA.            This j s clear evidence of legislative
                                    .
intent that the MAPA provisions concerning transcripts do not

apply          This   same    enabling         legislation gives             the Panel
authority       to    make    rules      necessary          for   its    operations.
Section 27-6-204, MCA.                  Therefore, there is no statutory
requirement that any form of transcript be provided and the
Panel has full authority to promulgate its operating rules.
        Next, we turn to the constitutional argument that Rule
15(c)     offends      due    process      and       the    rights      to    confront
witnesses at trial.
        The Montana Medical-Legal Panel is a purely advisory
body.          Although      it   has    the       power    to    approve      binding
settlement        agreements,       it      cannot         render       any    binding
judgments.       Section 27-6-606, MCA.                 The Panel proceedings are
confidential in nature and its records are not subject to
subpoena.       Section 27-6-703, MCA.              No member of the Panel may
be compelled to testify concerning the proceedings of the
Panel and the decision of the Panel is not admissible as
evidence in subsequent court action.                      Section 27-6-704(1) and
(2),    MCA.
        Clearly, the very nature of the purpose of the Panel is
advisory and therefore confidential.                       It's dual purposes are
to prevent court actions against health care providers unless
                                         - 3   -
the   facts    permit   at   least   a   reasonable   inference   of
malpractice and to effect a fair and equitable disposition of
such claims.    Section 27-6-102, MCA.
      Given the confidential nature of the Panel, it cannot be
said that Rule 15(c) arbitrarily denies parties before it a
transcript.     A transcript would destroy the confidentiality
of the proceedings and therefore should be available only if
no participant objects.
      Furthermore, denial of a transcript does not destroy the
right of a party to ful-ly cross-examine witnesses at trial.
In Linder v. Smith (Mont. 1981), 629 P.2d 1187, 38 St.Rep.
912, we held a portion of the Panel's enabling legislation
unconstitutional as a violation of the right to cross-examine
witnesses.     That portion of the statute precluded using
statements made at the hearing for impeachment purposes at
trial.   We held, however, that that "defect [was] not fatal
to the act" and upheld the remaining portions of the act.
Linder, 629 P.2d at 1192, 38 St.Rep. at 918.
      While a transcript of Panel proceedings would certainly
assist a litigant in cross-examination at trial, it is not
essential to exercise that right.          Therefore we hold that
there are no constitutional infirmities in the workings of
Rule 15(c).
      The judgment of the District Court is reversed.




We Concur:
Mr. Justice Frank B. ?4orrison, Jr., dissenting:
        I dissent.
        In Linder v. Smith (Mont. 1981), 629 P.2d 1187, 38 St.
Rep. 912, this Court struck, as unconstitutional, a statutory
provision requiring confidentiality in panel proceedings.        We
said:

        . . .   Section 27-6-704 ( 2 ) , MCA, provides that:
       "[nlo statement made by any person during a hearing
       before the panel may be used as impeaching evidence
       in    court. "     In    order       to  uphold   the
       constitutionality of the panel act, we determine
       that this section must be severed from the act. It
       is fundamental to our adversarial system that
       litigants retain the right to impeach the sworn
       testimony of a witness testifying against them. We
       are mindful that this provision was enacted to aid
       the fact finding by the panel and to preserve the
       confidentiality of the proceedings. But we cannot
       say that a litigant will receive a full and fair
       hearing if he is unable to fully cross-examine in
       court the witnesses that testified in the prior
       hearing.
Linder, 629 P.2d at 1192, 38 St.Rep. at 918.
       The effect of our decision today is that, although you
have a constitutional right to impeach with testimony given
during the panel hearing, you do not have a right to have a
transcript of that testimony.         How can you cross-examine
effectively at time of trial without transcript of the panel
testimony?      If Linden is to be overruled then the majority
should say so.
       Unfortunately, the majority's decision is motivated by
fear     that   lack    of   confidentiality   will   destroy   the
effectiveness of the panel proceeding because doctors will
not participate.       We should not concern ourselves with this
issue.    This panel proceeding was established for the benefit
of doctors.     They are given special consideration not given
other defendants in the tort system.       If they do not wish to
participate, that is their problem.
        I    might    add   that   the   majority's   decision   should
discourage plaintiff's counsel from participating                in the
panel       proceedings.      If   plaintiff's   counsel   extensively
cross-examines doctors who are to be defendants, without the
aid of a transcript, the doctors will be educated about the
flaws in their case and will be able to subsequently shore up
the lines of defense without responsibility for their earlier
testimony.       Under these circumstances I cannot conceive of
plaintiff's      counsel participating in the hearing process.
     I am also disturbed by the suggestion that doctors will
not participate in the panel process with a court reporter
present.      I can only assume that those making that suggestion
do not want to be held accountable for the testimony given at
hearings.       If a witness is not to be accountable for what is
said what credibility is there and why have a panel hearing
at all?
     I would         affirm Judge Bennett's declaratory judgment.
