AMERICAN BANK TRUST CO v. COMMUNITY HOSPITAL OF LOS GATOS SARATOGA INC (1980)

In this action for medical malpractice, defendant Community Hospital appeals from a judgment entered upon a jury verdict in the amount of $198,069.68 in favor of plaintiff Mary T. English, and from the court's order denying defendant's motion for periodic payments.

The appeal turns in large part upon a constitutional question of first impression in California. The trial judge (sitting pro tem.) expressly held that section 667.7 of the Code of Civil Procedure, an integral part of the 1975 Medical Injury Compensation Reform Act (hereafter “MICRA”), is unconstitutional and violates the federal and state guarantees of “equal protection” and “due process.” Additionally, defendant hospital contends the damages were excessive and the court erred in failing to reduce the verdict in accordance with the stipulation of the parties to that effect.

The following facts are viewed in a light most favorable to the plaintiff as prevailing party. Mary English, a 49 year old woman, was admitted to Community Hospital for brain surgery on December 18, 1976. On December 20, 1976, the evening prior to her scheduled surgery, she fainted or fell in a shower stall in the hospital, sustaining a variety of burns to her thigh, hip and groin. The burns were caused by overheated shower water. Immediately after the accident, Mrs. English's burns were dressed and treated by Dr. Vernal, her neurosurgeon.

Despite this accident, Mrs. English's brain surgery by Dr. Vernal was performed as scheduled the following day. The brain tumor was found to be malignant and was diagnosed as glioblastome multiforme. Though not invariably fatal, this disease has a marked effect in shortening life expectancy. On a statistical basis, approximately 95 percent of all patients with this disease die within one year following detection.

Mrs. English remained at Community Hospital until her discharge on January 1, 1977. Although she suffered great pain from her burns, the patient's hospital stay was not prolonged in any way by reason of her burn injuries. After discharge, Mrs. English remained under the care of Dr. Vernal for her brain tumor, and she received radiation and chemotherapy for that condition through a team of surgeons and oncologists at Santa Clara Valley Medical Center.

Treatment for Mrs. English's burn injuries was undertaken by Dr. Pardoe, a plastic surgeon, on January 5, 1977. The early treatment consisted of numerous and frequent dressing changes, application of topical antibacterial ointments, and Hubbard tank therapy on a daily basis from January 25 to February 25, 1977. Dr. Pardoe suggested a split-thickness skin graft for the uppermost burn area, but this surgical treatment was rejected by the patient. English's burns healed steadily, but gradually. Dr. Pardoe testified that Mrs. English was totally disabled for four months and partially disabled for another two months. Active treatment for the burns terminated on March 25, 1977.

Thereafter, Mrs. English continued to experience intermittent breakdown and blistering of the healed burn tissues. For these problems she used a Jobst stocking to support the tissues, continuing in its use until December, 1977.

In March 1978, at the time of trial, there was still residual disability. Dr. Pardoe testified that Mrs. English had a permanent cosmetic deformity. He also stated that continued friction and irritation upon the raised areas of the scars might cause future breakdowns of the tissue, requiring future surgical intervention. At least one surgical process would be required in an attempt to replace the thin wrinkled atrophic skin with a better quality skin. Such surgery would require a minimum of one and a maximum of two weeks in the hospital and the patient would be completely disabled for about four weeks and partially disabled for a period up to six months. Pardoe estimated the cost of the surgery to be from $5,000 to $10,000.

Mrs. English testified that because of her burn injuries she was not able to work during 1977. Since she still was not able to drive a car at the time of trial, she did not anticipate being able to return to her job at I.B.M. during 1978. Her salary at I.B.M. was $875 per month. She also stated that if Dr. Pardoe recommended future surgery she would certainly do it.

On March 13, 1978, the jury brought in a verdict in favor of Mary English for $198,069.68. Thereafter, defendant moved for a new trial and/or remittitur of the amount; sought a reduction of the verdict by at least $2,023.04, in accordance with the stipulation of the parties to that effect; and sought the entry of a “periodic payments” judgment, as provided by section 667.7 of the Code of Civil Procedure. The motions were denied.

After the “lump sum” judgment was entered for the entire verdict, Mary English died of an ovarian cancer, and for causes unrelated to the accident in question.^[FN1]

Excessiveness of Damages

Appellant hospital contends that the damages awarded were excessive as a matter of law and could only have been engendered by passion, prejudice and sympathy. The contention is without merit.

The standard to be used on review of damages is that there is a presumption in favor of the correctness of the award and it should only be set aside after a consideration of the entire record reveals that the award resulted from passion or prejudice by the jury. (Fletcher v. Western National Life Insurance Co. (1970) 10 Cal.App.3d 376, 408, 89 Cal.Rptr. 78.) As our Supreme Court stated in Seffert v. Los Angeles Transit Lines (1961) 56 Cal.2d 498, 508, 15 Cal.Rptr. 161, 167, 364 P.2d 337, 343: “There are no fixed or absolute standards by which an appellate court can measure in monetary terms the extent of the damages suffered by a plaintiff as a result of the wrongful act of the defendant. The duty of an appellate court is to uphold the jury and trial judge whenever possible. (Citation.) The amount to be awarded is ‘a matter on which there legitimately may be a wide difference of opinion.’ (Citation.) In considering the contention that the damages are excessive the appellate court must determine every conflict in the evidence in respondent's favor, and must give him the benefit of every inference reasonably to be drawn from the record. (Citation.)”

As appellant points out in its statement of facts, the trial of this action occurred about 15 months after the accident. During that time, Mrs. English incurred $2,569.68 in medical expenses solely as a result of her burn injuries. Prior to the discovery of her brain tumor, Mrs. English had been employed at I.B.M. at a salary of $875 per month. Appellant concedes that taking into account all special damages for past medical expenses and past income loss, total compensation to Mrs. English could have amounted to $15,000 in “special damages.” Counsel for Mrs. English also urged the jury to award $30,000 for past “general damages.” Thus, the amount of the jury's award attributable to past (general and special) damages would have been close to $45,000. Additionally, with regard to future damages, Dr. Pardoe testified that at least one surgical procedure would be required at a cost of from $5,000 to $10,000. Such surgery would leave Mrs. English at least partially disabled for approximately six months. Given this evidence of both past and future damages, the award of $198,068.68 does not appear excessive.

The record reveals and respondent concedes that the parties stipulated to a $2,500 reduction of any judgment because of Medi-Cal involvement.

Constitutionality of Code of Civil Procedure section 667.7

The lower court denied appellant hospital's motion for periodic payments, concluding that section 667.7 violates the equal protection clause of the Fourteenth Amendment of the Federal Constitution and article I, section 7(b) of the California Constitution. Additionally, the court found that since California law provides that an award of damages for personal injuries constitutes community property, Mr. English had a vested interest in his wife's award and to deprive him of such vested interest in the event of his wife's death would be violative of the due process clauses of the federal and state Constitutions. Application of the relevant constitutional principles compels the conclusion that the lower court's decision must be affirmed.

Our analysis properly begins with a discussion of the appropriate standard of review. California courts have traditionally adhered to the two-tiered standard of review whenever statutes are subjected to “equal protection” attack. (D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 16-17, 112 Cal.Rptr. 786, 520 P.2d 10; Serrano v. Priest (1971) 5 Cal.3d 584, 596-597, 96 Cal.Rptr. 601, 487 P.2d 1241.) Under this two-tiered analysis, “strict scrutiny” is applied to statutes enacting a “suspect classification” or touching upon a “fundamental interest.” (Hawkins v. Superior Court (1978) 22 Cal.3d 584, 592, 150 Cal.Rptr. 435, 586 P.2d 916; Serrano v. Priest, supra, at p. 597, 96 Cal.Rptr. 601, 487 P.2d 1241.)

Since the right to any specified amount or method of recovery in a personal injury action has never been recognized as a “fundamental interest” (Brown v. Merlo (1973) 8 Cal.3d 855, 862 fn. 2, 106 Cal.Rptr. 388, 506 P.2d 212) and the legislative distinction between parties to medical malpractice actions and parties to other personal injury actions cannot be characterized as a “suspect classification” (see Sail'er Inn, Inc. v. Kirby (1971) 5 Cal.3d 1, 18, 95 Cal.Rptr. 329, 485 P.2d 529), it cannot be held that the provisions of section 667.7 of the Code of Civil Procedure require “strict scrutiny” review. To the contrary, legislative regulation and ordering of personal injury actions is a matter for more restrained “rationality” review. (Cooper v. Bray (1978) 21 Cal.3d 841, 847, 148 Cal.Rptr. 148, 582 P.2d 604.) Thus, under our state and federal “equal protection” provisions, a statute such as herein challenged may single out a class for distinctive treatment only if such classification bears a rational relation to the purposes of the legislation.

As our Supreme Court stated in Brown v. Merlo, supra, at 8 Cal.3d 861-862, 106 Cal.Rptr. at 392-393, 506 P.2d at 216-217:

“Article I, sections 11 and 21 of the California Constitution guarantee to every person that ‘(a)ll laws of a general application shall have a uniform operation’ and that ‘(n)o citizen, or class of citizens, (shall) be granted privileges or immunities which, upon the same terms, shall not be granted to all citizens'; the Fourteenth Amendment of the United States Constitution frames a similar commitment, mandating that no state may ‘deny to any person within its jurisdiction the equal protection of the laws.’ This principle of ‘equal protection’ preserved by both state and federal Constitutions, of course, ‘does not preclude the state from drawing any distinctions between different groups of individuals' (citation), but it does require that, at a minimum, ‘persons similarly situated with respect to the legitimate purpose of the law received like treatment.’ (Citations.)

“As the United States Supreme Court recently phrased the federal constitutional standard: ‘The Equal Protection Clause . . . den(ies) to States the power to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute. A classification ”must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.“ ‘ (Citations.) Thus, when a statute provides that one class shall receive different treatment from another, our constitutional provisions demand more ‘than nondiscriminatory application within the class . . . establish(ed) . . . (They) also (impose) a requirement of some rationality in the nature of the class singled out.’ (Citations.)

“In determining the scope of the class singled out for special burdens or benefits, a court cannot confine its view to the terms of the specific statute under attack, but must judge the enactment's operation against the background of other legislative, administrative and judicial directives which govern the legal rights of similarly situated persons. As the United States Supreme Court recognized long ago: ‘The question of constitutional validity is not to be determined by artificial standards (confining review ‘within the four corners' of a statute). What is required is that state action, whether through one agency or another, or through one enactment or more than one, shall be consistent with the restrictions of the Federal Constitution.’ (Citations.)” (Emphasis in original.) Proceeding with these basic constitutional principles in mind, we turn to the challenged statute.

Section 667.7^[FN2] provides that, upon request, a tortfeasor health care provider (or in most cases its insurance carrier) may pay awards of future damages that are in excess of $50,000 on a periodic basis. Additionally, all portions of future damages except for a loss of future earnings are subject to deduction in the event of the death of the injured plaintiff anytime during the period of periodic payment. Thus, the statute creates three distinct levels of classification. First, the health care provider tortfeasor is given special privileges or immunities not afforded to other tortfeasors. That is, whereas virtually all other tortfeasors must pay a lump sum upon judgment becoming final, the tortious health care provider need only pay in periodic payments, which payments may terminate upon death of the victim. Second, the statute creates a special class of tort victims which, unlike other tort victims, is deprived of rights to lump sum judgments. Third, the statute creates two classifications of medical malpractice tort victims, i. e., those whose judgments are less than $50,000, and those whose judgments are $50,000 or more. In analyzing the constitutionality of the statute's operation in light of the applicable state and federal protections, we must evaluate the rationality of this tripartite classification scheme in light of the purposes of the legislation. (Brown v. Merlo, supra, at p. 863, 106 Cal.Rptr. 388, 506 P.2d 212.)

Subsection (f) of section 667.7 sets forth the legislative intent of that specific statute. It provides: “It is the intent of the Legislature in enacting this section to authorize the entry of judgments in malpractice actions against health care providers which provide for the payment of future damages through periodic payments rather than lump-sum payments. By authorizing periodic payments judgments, it is the further intent of the Legislature that the courts will utilize such judgments to provide compensation sufficient to meet the needs of an injured plaintiff and those persons who are dependent on the plaintiff for whatever period is necessary while eliminating the potential windfall from a lump-sum recovery which was intended to provide for the care of an injured plaintiff over an extended period who then dies shortly after the judgment is paid, leaving the balance of the judgment award to persons and purposes for which it was not intended. It is also the intent of the Legislature that all elements of the periodic payment program be specified with certainty in the judgment ordering such payments and that the judgment not be subject to modification at some future time which might alter the specifications of the original judgment.”

The specific intent of section 667.7 must be viewed in relationship to the overall legislative intent in enacting MICRA. In his proclamation of May 16, 1975, Governor Brown stated:

“The cost of medical malpractice insurance has risen to levels which many physicians and surgeons find intolerable. The inability of doctors to obtain such insurance at reasonable rates is endangering the health of the people of this State, and threatens the closing of many hospitals. The longer term consequences of such closings could seriously limit the health care provided to hundreds of thousands of our citizens.

“In my judgment, no lasting solution is possible without sacrifice and fundamental reform. It is critical that the Legislature enact laws which will change the relationship between the people and the medical profession, the legal profession and the insurance industry, and thereby reduce the costs which underlie these high insurance premiums.”

Additionally, the Legislature set forth its findings regarding the medical malpractice crisis and expressed the legislative intent behind the measures it was enacting in the preamble to MICRA:

“The Legislature finds and declares that there is a major health care crisis in the State of California attributable to skyrocketing malpractice premium costs and resulting in a potential breakdown of the health delivery system, severe hardships for the medically indigent, a denial of access for the economically marginal, and depletion of physicians such as to substantially worsen the quality of health care available to citizens of this state. The Legislature, acting within the scope of its police powers, finds the statutory remedy herein provided is intended to provide an adequate and reasonable remedy within the limits of what the foregoing public health and safety considerations permit now and into the foreseeable future.” (Amended Stats.2d Ex. Sess.1975 Ch. 2, s 12.5(1)(b).)

Mindful that the judiciary affords challenged legislation a presumption of constitutionality (Cooper v. Bray, supra, 21 Cal.3d at p. 847, 148 Cal.Rptr. 148, 582 P.2d 604), we must still determine whether the above stated legislative intent provides a sufficient or rational basis for the creation of section 667.7's classifications. We are aware that appellate courts in at least eleven states have rejected various constitutional challenges to medical malpractice legislation. (Hines v. Elkhart General Hospital (N.D.Ind.1979) 465 F.Supp. 421, 426.)^[FN3] However, we find the reasoning of certain states which have struck down medical malpractice statutes as unconstitutional more persuasive.

In all “equal protection” cases the crucial question is whether there is an appropriate governmental interest suitably furthered by the differential treatment (Police Department of Chicago v. Mosley (1972) 408 U.S. 92, 95, 92 S.Ct. 2286, 2289, 33 L.Ed.2d 212), and the United States Supreme Court has recognized that legal burdens should bear some relationship to individual responsibility or wrongdoing. (Weber v. Aetna Casualty & Surety Co. (1972) 406 U.S. 164, 175, 92 S.Ct. 1400, 1406, 31 L.Ed.2d 768; see also, Jimenez v. Weinberger (1973) 417 U.S. 628, 632, 94 S.Ct. 2496, 2499, 41 L.Ed.2d 363.) Based on this reasoning, the court in Graley v. Satayatham (Ohio Com.Pl.1976) 343 N.E.2d 832, in considering the classifications created by Ohio's medical malpractice statute, stated: “There is no satisfactory reason for this separate and unequal treatment. There obviously is ‘no compelling governmental interest’^[FN4] unless it be argued that any segment of the public in financial distress be at least partly relieved of financial accountability for its negligence. To articulate the requirement is to demonstrate its absurdity, for at one time or another every type of profession or business undergoes difficult times, and it is not the business of government to manipulate the law so as to provide succor to one class, the medical, by depriving another, the malpracticed patients, of the equal protection mandated by the constitution.” (343 N.E.2d at p. 837.)

Similarly, in Simon v. St. Elizabeth Medical Center (Ohio Com.Pl.1976) 355 N.E.2d 903, 911-912, another Ohio court held that the desire to relieve an alleged “crisis situation” was not a legitimate legislative objective which would permit the diluting of the right to seek redress of grievances. (Cf. Duke Power Co. v. Carolina Environ. Study (1978) 438 U.S. 59, 98 S.Ct. 2620, 57 L.Ed.2d 595; see also, Denicola v. Providence Hospital (1979), 57 Ohio St.2d 115, 387 N.E.2d 231.)

In Wright v. Central Du Page Hospital Association (1976) 63 Ill.2d 318, 347 N.E.2d 736, the Supreme Court of Illinois held that the state's statute which limited recovery only in medical malpractice actions to $500,000 was arbitrary and constituted special legislation in violation of the Illinois Constitution. We feel the same reasoning applies to our state statute.

Although the Legislature may, in the area of economics and social welfare, create reasonable classifications (Agricultural Labor Relations Bd. v. Superior Court (1976) 16 Cal.3d 392, 410, 128 Cal.Rptr. 183, 546 P.2d 687) and may even abrogate traditional, common law causes of action (Werner v. Southern California Associated Newspapers (1950) 35 Cal.2d 121, 125-126, 216 P.2d 825), “a law which confers particular privileges or imposes peculiar disabilities upon an arbitrarily selected class of persons who stand in precisely the same relation to the subject matter of the law as does the larger group from which they are segregated constitutes a special law which is tantamount to a denial of equal protection.” (California Federation of Teachers v. Oxnard Elementary Sch. (1969) 272 Cal.App.2d 514, 527-528, 77 Cal.Rptr. 497, 509.) Even if it is argued that the Legislature had a valid reason for singling out health care providers and their insurance carriers, as opposed to other tortfeasors and their insurers, for special privileges and immunities in the interest of general public health protection, what rational reason is there for imposing the burden of such legislation on a limited group of victims of medical malpractice? If, in fact, there was a statewide major health care crisis resulting in a potential breakdown of the health delivery system, should not all health care recipients, rather than the limited group of seriously injured malpractice victims, share the burden of supporting the medical care industry? Moreover, it is even more unpalpable that the most severely, rather than less severely, injured persons carry the burden.

Under-inclusion occurs when a state benefits or burdens persons in a manner that furthers a legitimate public purpose but does not confer the same benefit or place the same burden on others who are similarly situated. In some cases the courts have found the under-inclusion so arbitrary as to deny equal protection. Even before the turn of the century, the United States Supreme Court indicated that certain classifications may be so under-inclusive that they bear no reasonable relation to the act in respect to which the classification is proposed. In Gulf, Colorado & Santa Fe Ry. v. Ellis (1896) 165 U.S. 150, 17 S.Ct. 255, 41 L.Ed. 666, the court struck down a Texas statute that permitted successful tort claimants to recover attorneys' fees, if the suit had been brought against a railroad corporation. The court suggested several possible purposes and resultant classifications for such a statute. Its goal might have been to ensure that tortfeasors would compensate their victims, but then the statute should have applied against all tortfeasors. (Id., at p. 156-157, 17 S.Ct. at p. 257.) Its goal might have been to place a higher duty to pay such obligations on corporations because the government grants corporations special privileges, but then the appropriate category would have been all corporate tortfeasors. The goal might have been to extract a higher duty from quasi-public corporations, but then the appropriate category would have been all quasi-public corporate tortfeasors. (Id., at p. 156-157, 17 S.Ct. at p. 257.) The court concluded that “in all cases it must appear not only that a classification has been made, but also that it is one based upon some reasonable ground, some difference which bears a just and proper relation to the attempted classification, and is not a mere arbitrary selection.” (Id., at p. 165-166, 17 S.Ct. at p. 261.) Utilizing these principles the court held that the statute was unconstitutional.

More recently in Levy v. Louisiana (1967) 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436, the United States Supreme Court found that to deny illegitimate children the right to bring actions for the wrongful death of their mother was to set up an invidious distinction that had no relation to the nature of the wrong allegedly inflicted on the mother.

In the case of the statute which we are here considering, it defies reason why, although the general population purportedly derives the benefits of eliminating the potential windfall from lump-sum judgments, only the victims of medical malpractice must be penalized. Moreover, even if we assume that it is reasonable to burden the medical malpractice victim so that medical malpractice insurance premiums may be lowered, it is incomprehensible why only those victims whose future damages exceed $50,000 are singled out. We can only conclude that the Legislature has taxed an impermissible special class for the purported benefits to be enjoyed by the general public.

Additionally, we find the challenged legislation is unreasonably related to the intended purpose of enacting MICRA. As the court stated in Graley v. Satayatham, supra, at pp. 837-838: “(A)ssuming a valid legislative purpose to enact laws relating to protection of the public's health, this legislation may be counter-productive. The extending of special litigation benefits to the medical profession certainly cannot be considered as relating to protection of the public health. On the contrary, the quality of health care may actually decline. To the extent that in tort actions of the malpractice type, if the medical profession is less accountable than formerly, relaxation of medical standards may occur with the public the victim.” We agree that to find that the protection and special dispensation given to health delivery tortfeasors by the challenged legislation is in the best interest of public health is illogical to the point of irrationality.

In view of the foregoing, we conclude that section 667.7 of the Code of Civil Procedure is unconstitutional.

Judgment is affirmed, with the exception that the amount is reduced by $2,500. Respondents to recover costs on appeal.

FOOTNOTES

1.  This court subsequently ordered that American Bank and Trust Company, as special administrator of the estate of Mary Louise Thompson English, be substituted as party plaintiff and respondent in the action.

2.  Section 667.7 of the Code of Civil Procedure provides in pertinent part: “(a) In any action for injury or damages against a provider of health care services, a superior court shall, at the request of either party, enter a judgment ordering that money damages or its equivalent for future damages of the judgment creditor be paid in whole or in part by periodic payments rather than by a lump-sum payment if the award equals or exceeds fifty thousand dollars ($50,000) in future damages. In entering a judgment ordering the payment of future damages by periodic payments, the court shall make a specific finding as to the dollar amount of periodic payments which will compensate the judgment creditor for such future damages. As a condition to authorizing periodic payments of future damages, the court shall require the judgment debtor who is not adequately insured to post security adequate to assure full payment of such damages awarded by the judgment. Upon termination of periodic payments of future damages, the court shall order the return of this security, or so much as remains, to the judgment debtor. (P) (b)(1) The judgment ordering the payment of future damages by periodic payments shall specify the recipient or recipients of the payments, the dollar amount of the payments, the interval between payments, and the number of payments or the period of time over which payments shall be made. Such payments shall only be subject to modification in the event of the death of the judgment creditor. (P) (2) In the event that the court finds that the judgment debtor has exhibited a continuing pattern of failing to make the payments, as specified in paragraph (1), the court shall find the judgment debtor in contempt of court and, in addition to the required periodic payments, shall order the judgment debtor to pay the judgment creditor all damages caused by the failure to make such periodic payments, including court costs and attorney's fees. (P) (c) However, money damages awarded for loss of future earnings shall not be reduced or payments terminated by reason of the death of the judgment creditor, but shall be paid to persons to whom the judgment creditor owed a duty of support, as provided by law, immediately prior to his death. In such cases the court which rendered the original judgment, may, upon petition of any party in interest, modify the judgment to award and apportion the unpaid future damages in accordance with this subdivision. (P) (d) Following the occurrence or expiration of all obligations specified in the periodic payment judgment, any obligation of the judgment debtor to make further payments shall cease and any security given, pursuant to subdivision (a) shall revert to the judgment debtor. (P) (e) As used in this section: (P) (1) ‘Future damages' includes damages for future medical treatment, care or custody, loss of future earnings, loss of bodily function, or future pain and suffering of the judgment creditor. (P) (2) ‘Periodic payments' means the payment of money or delivery of other property to the judgment creditor at regular intervals. (P) (3) ‘Health care provider’ means any person licensed or certified pursuant to Division 2 (commencing with Section 500) of the Business and Professions Code, or licensed pursuant to the Osteopathic Initiative Act, or the Chiropractic Initiative Act, or licensed pursuant to Chapter 2.5 (commencing with Section 1440) of Division 2 of the Health and Safety Code; and any clinic, health dispensary, or health facility, licensed pursuant to Division 2 (commencing with Section 1200) of the Health and Safety Code. ‘Health care provider’ includes the legal representatives of a health care provider. (P) (4) ‘Professional negligence’ means a negligent act or omission to act by a health care provider in the rendering of professional services, which act or omission is the proximate cause of a personal injury or wrongful death, * * * provided that such services are within the scope of services for which the provider is licensed and which are not within any restriction imposed by the licensing agency or licensed hospital.”

3.  See: Woods v. Holy Cross Hospital (5th Cir. 1979) 591 F.2d 1164; State ex rel. Cardinal Glennon Mem. Hosp. v. Gaertner (Mo.1979) 583 S.W.2d 107; McCoy v. Commonwealth Board of Medical Education and Licensure (1978) 37 Pa.Cmwlth. 530, 391 A.2d 723; Baldwin v. Knight (Tenn.1978) 569 S.W.2d 450; Parker v. Childrens Hospital (1978) 483 Pa. 106, 394 A.2d 932; Everett v. Goldman (La.1978) 359 So.2d 1256; Atty. Gen. of Maryland v. Johnson et al. (1978) 282 Md. 274, 385 A.2d 57; State ex rel. Strykowski v. Wilkie (1978) 81 Wis.2d 491, 261 N.W.2d 434; State ex rel. Schneider v. Liggett (1978) 223 Kan. 610, 576 P.2d 221; Eastin v. Broomfield (1977) 116 Ariz. 576, 570 P.2d 744; Paro v. Longwood Hospital (1977) 373 Mass. 645, 369 N.E.2d 985; Prendergast v. Nelson (1977) 199 Neb. 97, 256 N.W.2d 657; Carter v. Sparkman (Fla.1976) 335 So.2d 802, cert. den., 429 U.S. 1041, 97 S.Ct. 740, 50 L.Ed.2d 753; Comiskey v. Arlen (1976) 55 A.D.2d 304, 390 N.Y.S.2d 122; Halpern v. Gozan (1976) 85 Misc.2d 753, 381 N.Y.S.2d 744; Jones v. State Bd. of Medicine (1976) 97 Idaho 859, 555 P.2d 399.

4.  Although the Ohio court employed the “strict scrutiny” test, which we do not believe to be the proper standard of review for such legislation, the reasoning is equally applicable to analysis based on the “rational basis” test.

MILLER, Associate Justice.

TAYLOR, P. J., and ROUSE, J., concur.