¶1concurring in part and dissenting in part:
¶2I concur with the majority opinion, except that I believe the fact that the judge member of the review panel shares the fact-finding function with the two nonjudge members does not render the panel provisions of the act unconstitutional. There are, however, other provisions relating to the review panel which pose serious constitutional questions.
¶3The provisions for review panels in the present act, sections 2 — 1012 through 2 — 1020 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, pars. 2 — 1012 through 2 — 1020), in my opinion, do not contain the same constitutional problems as did similar provisions in “An Act to revise the law in relation to medical practice” (Public Act 79 — 960, approved Sept. 12, 1975, eff. Nov. 11, 1975). Section 1 of that act added sections 58.2 through 58.10 to the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, pars. 58.2 through 58.10). These sections provided for review panels in medical malpractice actions on which the nonjudge members of the panel were vested with authority equal to that of the judge member of the panel in determining and applying substantive law. This court held that these provisions empowered the nonjudge members of the panel to exercise judicial functions in violation of sections 1 and 9 of article VI of the Illinois Constitution of 1970. Wright v. Central Du Page Hospital Association (1976), 63 Ill. 2d 313, 322.
¶4In the present act, the fact that the nonjudge members of the review panel share the fact-finding function with the judge member does not, in my opinion, vest the judicial powers in nonjudicial personnel. In fact, the provisions of our present act clearly separate the judicial and nonjudicial functions of the panel. In jury trials the fact-finding function has long been vested completely in nonjudicial personnel. I therefore do not view the participation of the nonjudicial members of the panel in the fact-finding process as invading the province of the judiciary. In Wright, this court stated, “[W]e do not imply that a valid pretrial panel procedure cannot be devised.” (Wright v. Central Du Page Hospital Association (1976), 63 Ill. 2d 313, 324.) Also, in Anderson v. Wagner (1979), 79 Ill. 2d 295, 304, this court restated that observation of Wright, and said that in Wright we did not hold that all statutory provisions creating panels for the review of malpractice claims were unconstitutional. I believe that a valid panel of three individuals, including one judge, can be created as long as the judicial functions are clearly separated from the nonjudicial functions and are vested in the judicial member of the panel. I am of the opinion that this has been clearly accomplished by the present act. See Comment, Illinois’ Medical Malpractice Review Panel Provision: A Constitutional Analysis, 17 Loy. U. Chi. L.J. 275, 286 (1986).
¶5In Eastin v. Broomfield (1977), 116 Ariz. 576, 570 P.2d 744, the Supreme Court of Arizona distinguished its statute from our 1975 medical malpractice act and declined to follow this court’s decision in Wright. The Arizona court in Eastin upheld the provisions of the Arizona statute which provided that a judge, a lawyer and a health-care provider sit as a medical malpractice review panel. The court found that the operation of such a panel would not invade the judicial function of the court.
¶6Thus I believe that a medical review panel which includes one judicial member may constitutionally operate in the manner provided in our act, and I disagree with the conclusion of the majority opinion to the contrary. However, I also believe that the provision of section 2— 1019(c) of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1019(c)) which provides for the assessment of costs and attorney fees is constitutionally defective. That section states that when a party who has rejected a determination of the review panel does not prevail on the issue of liability at trial, “the trial court on motion of any prevailing party shall summarily tax to the rejecting party the costs, reasonable attorneys’ fees and expenses of the prevailing party incurred in connection with the review panel and the trial.” (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1019(c)). There is no limit placed on the costs and attorney fees that may be assessed. Considering that these costs and attorney fees include those incurred in both the proceeding before the panel and at trial, the amount of the potential assessment may easily be so large as to dissuade a party from proceeding to trial with a meritorious claim. (See Comment, Illinois’ Medical Malpractice Review Panel Provision: A Constitutional Analysis, 17 Loy. U. Chi. L.J. 275, 291-94 (1986).) This provision places too heavy a burden on the right to jury trial to pass constitutional muster.
¶7Another troublesome provision of our act is found in section 2 — 1018(d) of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1018(d)), which provides that “any judge who served on a review panel in the case may not preside at the trial.” Such a restriction on the judge may appear to be logical and justified. However, a recent decision of this court casts doubt on the validity of such a legislative enactment as being a violation of powers expressly conferred upon the court by our constitution. See People v. Joseph (1986), 113 Ill. 2d 36.
¶8For the above reasons, I would uphold the medical review panel but would invalidate the other objectionable provisions discussed, which I consider to be severable.