dissenting.
I respect the search of the legal and medical professions for an adequate and *142effective mechanism to resolve malpractice actions outside the judicial system. However, the Pennsylvania Health Care Act (Act) as it presently functions and is structured is neither adequate nor effective and I am constrained to conclude that it does not relieve a federal court from the duty to entertain a medical malpractice claim under the diversity statute. Therefore, I respectfully dissent.1
The Health Care Arbitration Act provides:
The arbitration panel shall have original exclusive jurisdiction to hear and decide any claim brought by a patient or his representative for loss or damages resulting from the furnishing of medical services which were or which should have been provided.
40 P.S. § 1301.309. The appellants argue that the Act does not deprive the federal courts of diversity jurisdiction. The majority concedes that “appellants have mounted an argument that is superficially persuasive and appealing,” but concludes “that should be more properly addressed to the Pennsylvania executive and legislative authorities.” Maj. op. at 141. Plaintiffs, non-residents of Pennsylvania, have no recourse to the state legislative or executive authorities. Their sole remedy lies in their quest for an independent federal judicial forum. “Congress adopted the policy of opening the doors of the federal courts to all diversity cases involving the jurisdictional amount to assure suitors from a foreign state of an impartial and neutral forum.” Baltimore Bank for Cooperative v. Farmers Cheese Cooperative, 583 F.2d 104, 112 (3d Cir. 1978). I believe this court has a duty to provide that independent forum.2
The principal reason why I believe there is diversity jurisdiction in this case concerns the nature and function of the arbitration panel. The panel is not an administrative body reviewing claims prior to judicial action but its functions, powers and procedures are those of a judicial entity artfully draped in non-judicial garb.3 The label attached to it has no real significance. Pennsylvania may not by this device deprive a federal court of diversity jurisdiction.
In Tool & Die Makers Lodge Number 78 v. General Electric Company, 170 F.Supp. 945 (E.D.Wis.1959), a Wisconsin district court dealt with a similar issue holding that a case before the Wisconsin Employment Relations Board was an action in state court for purposes of diversity jurisdiction.
In the construction of Federal statutes dealing with proceedings in State courts, it is clear that the Supreme Court of the United States has adopted a functional rather than a literal test Thus the question of whether a proceeding may be regarded as an action in a State Court within the meaning of the statute is determined by reference to the procedures and functions of the State tribunal rather than the name by which the tribunal is designated. Upshur County v. Rich, 1890, 135 U.S. 467, 10 S.Ct. 651, 34 L.Ed. 196; Prentis v. Atlantic Coast Line Co., 1908, 211 U.S. 210, 29 S.Ct. 67, 53 L.Ed. 150. It appears to this court that the proceeding before the Wisconsin Employment Relations Board meets the test of a judicial proceeding within the meaning of the Federal Judicial Code. In respect to subject matter, we repeat again that although the matter is described as an unfair labor practice the action in reality is *143a simple suit based on alleged breach of contract. .
In respect of the procedures employable before the Board, a review of the statutory language reveals its judicial character. The action is commenced by a complaint alleging the violations of the contract, the person complained of has the right to file an answer, and the Board sets the time for the hearing of the complaint. . Any person failing or refusing to testify or produce books and records may upon application to a circuit court be punished for contempt. . . . Witnesses before the Board receive the same fees and mileage as witnesses in court actions. . A record is kept of all proceedings before the Board and such proceedings are governed by the rules of evidence prevailing in courts of equity. . The Board makes findings and enters an order stating its determination as to the rights of the parties .
170 F.Supp. at 950 (emphasis supplied).
Likewise, in Floeter v. C. W. Transport, Inc., 597 F.2d 1100 (7th Cir. 1979), the court adopted the functional test to determine the availability of diversity jurisdiction.
We agree with and adopt the First Circuit’s analysis in Volkswagen de Puer-to Rico. We hold that the title given a state tribunal is not determinative; it is necessary to evaluate the functions, powers, and procedures of the state tribunal and consider those factors along with the respective state and federal interests in the subject matter and in the provision of a forum. Volkswagen de Puerto Rico, Inc. v. Puerto Rico Labor Relations Board, 454 F.2d [38] at 44.
597 F.2d at 1102.
Unless otherwise directed by the Act, the arbitration panel under review here is bound by the common and statutory law of Pennsylvania as well as the Pennsylvania Rules of Civil Procedure and the Pennsylvania rules of evidence. 40 P.S. § 1301.506. Other powers of the panel are enumerated under section 1301.508 as follows:
(a) The arbitration panel [inter alia] is authorized and empowered to:
(2) make findings of fact;
(3) take depositions and testimony;
(6) subpoena witnesses, and administer oaths;
(7) apply to the court of common pleas to enforce the attendance and testimony of witnesses and the production and examination of books, papers and records;
(8) consider and approve offers of settlement involving fiduciaries, minors and incompetent parties;
(9) make determinations as to the liability and award of damages; and
(10) exercise all other powers and duties conferred upon it by law.
The determinations of the arbitration panel may be appealed by a “trial de novo in the court of common pleas in accordance with the rules regarding appeals in compulsory civil arbitration and the Pennsylvania Rules of Civil Procedure.” 40 P.S. § 1301.509. The findings of the panel are evidence in the de novo appeal. Judgment of the arbitration panel may be enforced on motion of the prevailing party by transfer of the action to the court of common pleas for execution. 40 P.S. § 1301.511. The panel has powers of fact-finding, subpoena and, upon application to the Court of Common Pleas, may enforce attendance and testimony of witnesses and production and examination of records. It may determine liability and award damages. In sum, the medical arbitration panel functions as a judicial entity.
The appellees place great reliance on the Pennsylvania Supreme Court’s decision in Parker v. Children’s Hospital, 483 Pa. 106, 394 A.2d 932 (1978), which held that the arbitration panel did not unconstitutionally usurp a judicial function. I find Parker unconvincing for several reasons. First, in Mattos v. Thompson, E.D.Misc. Docket No. 79-124 (Pa., filed September 27, 1979), the Pennsylvania Supreme Court agreed to reexamine the issues in Parker in light of the dismal performance of the Health Care Arbitration Act. Thus, the holding in Parker is of questionable validity. Second, the is*144sue of judicial function for diversity purposes is a question of federal, not state, law. The Parker court was concerned with the unconstitutional delegation of judicial authority under the Pennsylvania Constitution, not whether the panel functioned as a judicial body under federal law. Third, the Parker court concluded “there is no usurpation of judicial authority here because not only are the petitioners afforded a judicial review of the determination of the panel, they are entitled to a trial de novo in a court.” 483 Pa. at 126-127, 394 A.2d at 943, quoting State ex rel. Strykowski v. Wilkie, 81 Wis.2d 491, 261 N.W.2d 434, 448 (1978). Thus, the court found no judicial usurpation in the panel because there was an opportunity for judicial review. Obviously, the availability of de novo appeal is not relevant to a determination of whether the panel is, in reality, another judicial tribunal.
This case is similar to Wheeler v. Shoemaker, 78 F.R.D. 218 (D.R.I.1978), where the district court found a medical malpractice scheme similar to Pennsylvania’s did not oust the federal court of jurisdiction. Under the Rhode Island statute at issue in Wheeler, the panel was appointed by the presiding justice of the superior court. State rules of evidence and procedure applied. The determination of the panel could be admitted at a subsequent trial de novo. The court held that the malpractice panel was an adjunct of the state court under the following logic:
The statute at bar denies the federal court initial jurisdiction. The first trial of the action for all practical purposes occurs before a state tribunal according to state rules of evidence and procedure. With respect to both settlement and the subsequent jury verdict, the hearing before the panel is likely to be the decisive battle between the litigants. After all the evidence has been initially weighed by the panel, the parties are likely to accept the liability and damages determinations of the panel to avoid the additional cost and uncertainty of a subsequent trial. Even at subsequent trial, the panel determinations, admitted as evidence, are likely to influence, if not determine, the jury verdict. The danger of local bias against the out-of-state plaintiff at the crucial panel proceedings is particularly real when the reviewing panel is not composed of judges who are selected for, sworn to and practiced in impartiality.
78 F.R.D. at 222—23 (citations omitted).
Other cases from other courts have found malpractice panels not tantamount to state courts where the arbitration procedures were of a less formal character. See, e. g., Woods v. Holy Cross Hospital, 591 F.2d 1164 (5th Cir. 1979) (no formal rules of evidence or procedure); Hines v. Elkhart General Hospital, 465 F.Supp. 421 (N.D.Ind.1979) (“drastic variation” between Rhode Island statute and Indiana statute). See generally Davison v. Sinai Hospital of Baltimore, Inc., 462 F.Supp. 778 (D.Md.1978); Wells v. McCarthy, 432 F.Supp. 688 (E.D.Mo.1977); Flotemersch v. Bedford County Hospital, 69 F.R.D. 556 (E.D.Tenn.1975).
The logic of Wheeler is compelling in this case. The Health Care Arbitration Act is not a “condition precedent to entry into the state judicial system,” Maj. op. at 134, but a substitute for that system. Complex suits based upon medical malpractice differ substantially in proof, medical expertise and expense from the ordinary run of minor litigation involved in Pennsylvania’s compulsory civil arbitration system. What litigant will bear the expense of two full-blown trials with two appearances of expert witnesses, dealing with the same issues twice? What litigant can assure the presence of medical experts not only once but twice? In fact, the entire structure of the Act seems to be founded on the premise that parties will not seek a second trial. Otherwise, the Act could not attain its purported goals of achieving a reasonable cost of professional liability insurance while assuring a prompt determination of each claim. 40 P.S. § 1301.102. Pennsylvania’s experience under the Act bears out my view that the arbitration panel is de facto the sole forum for the adjudication of malpractice claims. The most recent annual report of the newly-appointed administrator of Arbitration Panels for Health Care filed on September 1, 1979, shows that of *145the 2,466 claims filed with the Board, only two cases have reached the Court of Common Pleas.4 I can only conclude that the panel is a surrogate for the state court.
By creating a separate judicial forum, Pennsylvania has attempted to limit the right of access of residents and non-residents, at least in the first instance, to a Pennsylvania court. This issue is not new and was dealt with by the Supreme Court in Railway Company v. Whitton’s Administrator, 80 U.S. (13 Wall.) 270, 20 L.Ed. 571 (1871), an action for wrongful death by an Illinois citizen against a Wisconsin corporation under the Wisconsin Wrongful Death Statute. The statute provided “that such action shall be brought for a death caused in this state, and, in some court established by the constitution and laws of the same.” 80 U.S. at 285. Notwithstanding, the Court determined that it retained diversity jurisdiction, holding:
In all cases where a general right is thus conferred, it can be enforced in any Federal court within the State having jurisdiction of the parties. It cannot be withdrawn from the cognizance of such Federal court by any provisions of State legislation that it shall only be enforced in a State court. The statutes of nearly every State provide for the institution of numerous suits, such as for partition, foreclosure, and the recovery of real property in particular courts and in the counties where the land is situated, yet it never has been pretended that limitations of this character could affect, in any respect the jurisdiction of the Federal court over such suits where the citizenship of one of the parties was otherwise sufficient. Whenever a general rule as to property or personal rights, or injuries to either, is established by State legislation, its enforcement by a Federal court in a case between proper parties is a matter of course, and the jurisdiction of the court, in such a case, is not subject to State limitation.
80 U.S. at 286.
The appellees contend that this case is not analogous to Railway Company but is similar to Woods v. International Realty Co., 337 U.S. 535, 69 S.Ct. 1235, 93 L.Ed. 1524 (1949). In Woods, a Mississippi statute precluded a corporation not qualified to do business in Mississippi from maintaining “any action or suit in any of the courts of this state.” 337 U.S. at 539, 69 S.Ct. at 1237. The plaintiff, a Tennessee corporation not qualified to do business in Mississippi, brought suit in a Mississippi federal district court. The court concluded
that a right which local law creates but which it does not supply with a remedy is no right at all for purposes of enforcement in a federal court in a diversity case; that where in such cases one is barred from recovery in the state court, he should likewise be barred in the federal court.
337 U.S. at 538, 69 S.Ct. at 1237. Woods holds that a state may limit all right to recovery for a substantive cause of action. This is not at all inconsistent with the holding of Railway Company that a state having created a substantive right may not limit the forum for a right to recovery to only state courts.
Pennsylvania has not sought to eliminate the right to recovery but has channeled all plaintiffs to a special state judicial forum thinly disguised as an administrative agency. Under Railway Company, this court is not deprived of its diversity jurisdiction. A similar conclusion was reached in Markham v. City of Newport News, 292 F.2d 711 (4th Cir. 1961). In Markham, Virginia passed a statute providing that no tort action shall be instituted against a city or political subdivision of the Commonwealth of Virginia “except in a Court of the Commonwealth established under or pursuant to the Constitution of Virginia.” 292 F.2d at 712. Plaintiff, a California resident, commenced the action in a Virginia federal district court. Relying on Railway Company, the Fourth Circuit reversed the district court and held that the federal courts could entertain diversity jurisdiction. I believe the rule it enunciated applies to this case:
*146The laws of a state cannot enlarge or restrict the jurisdiction of the federal courts or those of any other state. It necessarily follows that whenever a state provides a substantive right and a remedy for its enforcement in a judicial proceeding in any state court, a judicial controversy involving the right may be adjudicated by a United States District Court if it has jurisdiction under the Constitution and laws of the United States.
292 F.2d at 716 (footnote omitted).
I am compelled to conclude that the Health Care Act creates another judicial forum in Pennsylvania’s judicial system and it is not an administrative agency. Therefore, this court’s power' and duty to entertain diversity jurisdiction is not precluded.5 To hold otherwise, as the majority does, is to allow states to abrogate a nonresident’s right to an impartial forum by transferring a cause of action from one court to another and simply labeling the'latter an “arbitration panel.” “Diversity of citizenship jurisdiction was conferred in order to prevent apprehended discrimination in state courts against those not citizens of the State.” Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). There is a grave danger under the majority approach that states will be permitted to encroach on the protections afforded by diversity jurisdiction.6
The majority’s reasoning is that under Guaranty Trust Co. v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079 (1944), as modified by Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965), and Byrd v. Blue Ridge Rural Electric Cooperative, Inc., 356 U.S. 525, 78 S.Ct. 893, 2 L.Ed.2d 953 (1958) the federal courts should not exercise diversity jurisdiction over these claims. It concludes “that Erie, which requires federal courts to treat diversity claims so as to discourage forum shopping and to reach results identical to the state courts, requires us to give effect to this condition precedent,” Maj. op. at 135, by requiring first resort to the panel. I believe this court is not bound by the Health Care Act under the foregoing cases.
The majority correctly states that Guaranty Trust provides an outcome determinative test. The inquiry is thus “whether [the] statute concerns merely the manner and the means ... [or whether it] significantly affect[s] the result of a litigation.” 326 U.S. at 109, 65 S.Ct. at 1470. In Hanna, the Court added that the outcome determinative test must be applied in light of the policies of Erie, to discourage forum shopping and preserve the nature of the litigation. The majority concludes that the statute of limitations, held to be substantive in Guaranty .Trust, is analogous to the arbitration panel here because both regulate the time and means of entry to the courtroom.
I find that analogy puzzling. A statute of limitations controls the parameters of a *147right to a remedy. On the other hand, the Health Care Act, although it no doubt affects the right to a remedy,7 is facially a means of regulating the entry to the courtroom. In that sense the Act is closer to the federal rule governing manner of service held to prevail over the state rule in Hanna. As Professor Ely has observed, Hanna served to expand the reach of federal jurisdiction that had been contracting since Erie and not to restrict federal rights.
It is true that there was some attempt in the Court’s opinion to suggest that Erie might mean different things in different contexts, but that should not be taken too seriously: what Hanna really gave us, whether the Court was fully aware of it or not, was yet another rendition of Erie. And a singularly hard-hearted rendition it is: any federal rule (or at least any Federal Rule) that is even arguably procedural is to be applied in a diversity action, state law to the contrary notwithstanding. This surely does not seem even remotely to capture Erie’s true meaning. But the Supreme Court is the Supreme Court, and seven is a majority of nine even when Justice Harlan is one of the two. Hanna therefore may not be Erie, but it seems to be the law.
Ely, The Irrepressible Myth of Erie, 87 Harv.L.Rev. 693, 697 (1974). Unlike the majority, I do not view Guaranty Trust as mandating a finding that the arbitration panel establishes substantive rights. Rather, I believe the panel is a procedural device for allocating cases within the State of Pennsylvania. As I discussed above, the panel is actually another court of the state. The substantive legal rights of the parties before the panel and the federal court will be the same. Only the forum will differ.
The majority is fearful that the “outcome of a case [will] depend on whether it was brought in a. state or federal court . . ..” Maj. op. at 134, citing Marquez v. Hahne-mann Medical College and Hospital, supra, citing Witherow v. Firestone Tire & Rubber Co., 530 F.2d 160 (3d Cir. 1976). I share these same concerns but believe the majority’s holding will lead to different results in state and federal court. In the state court, i. e., the arbitration panel, a patient can eventually get a hearing. His right to a federal forum, however, becomes more illusory than real. Only if the patient is willing to endure double expense and time delays, and overcome a possible adverse finding of the panel will he be able to obtain federal jurisdiction.
I recognize that for the present a finding of federal jurisdiction in this case will give out-of-state plaintiffs an advantage over in-state plaintiffs: the ability to get a prompt hearing. Pennsylvania plaintiffs, unless the Pennsylvania Supreme Court reconsiders, will still have to endure long delays before they can obtain a hearing before an arbitration panel. However, Pennsylvania citizens have the ability to reform their procedures through their political processes. Out-of-state residents do not. The very existence of diversity jurisdiction represents a decision by Congress that citizens of another state shall have á right to a fair federal forum, even though there may be a danger of forum shopping.8
The majority’s final reason for finding no federal jurisdiction is under the Supreme Court’s balancing approach in Byrd v. Blue Ridge Electrical Cooperative, Inc., 356 U.S. 525, 78 S.Ct. 893, 2 L.Ed.2d 953 (1958). In Byrd, the Court concluded the determination of whether the plaintiff was an employee under the South Carolina Workmen’s Compensation Act was a jury question in federal court, even though it would be decided by a judge in a South Carolina state court. The Court reached its result by balancing the state interests with the federal interests in light of the outcome determinative test. The majority attempts to distinguish Byrd in several ways. In Byrd the *148Supreme Court found no legitimate state interest in not allowing the jury to decide the employee question. The majority claims in this case Pennsylvania has a legitimate state interest in providing liability insurance at a reasonable cost and in promptly adjudicating claims. I have no doubt that the interest of the legislature in enacting a malpractice adjudicatory scheme is legitimate, indeed commendable. However, I do not believe the scheme at issue in this case accomplishes a legitimate state objective.9 Its characterization by the majority as “a resounding flop” appears well founded. Maj. op. at 136. Thus, I believe the state interest in this plan rises no higher than the interest in Byrd.
The second factor the Supreme Court considered important in Byrd was the federal interest in a jury trial. Although recognizing that “[ajppellants’ most effective legal argument is based on the affirmative countervailing federal considerations,” maj. op. at 138, the majority nonetheless finds no countervailing federal policy. Rather, it claims that the panel’s function is consistent with the policy of arbitration as espoused by the Supreme Court in labor law cases. I believe this analogy is misleading. The arbitration policy in labor law is based on the consent of the parties as expressed in collective bargaining agreements. Arbitration is the terminal point of consensual grievance machinery. The arbitration under the Health Care Act is compulsory. By agreement of the parties, labor arbitration permits judicial economy and an adequate and speedy remedy. On the other hand, the Health Care Act is not consensual and will require two full trials before an injured patient can have his case heard by a jury and it offers a slim chance of a remedy. Moreover, the panel does not involve arbitration at all but is a substitute judicial forum. Thus, I fail to see how the Health Care Act furthers the federal policy manifest in labor arbitration.
The majority further claims the Malpractice Panel does not alter the character of the later federal litigation in a manner inconsistent with that permitted under Rule 53(e)(3) of the Federal Rules of Civil Procedure providing for the findings of fact by a court-appointed master, even though the jury is presented with the panel’s findings. This logic is not compelling because resort to a master is not a favored mechanism, to be used only in complex cases, and “shall be the exception and not the rule.” Fed.R.Civ.P. 53(b). The federal policy against the use of masters in all but the most complex cases is not consistent with the use of a state malpractice panel’s findings in any case, regardless of complexity, concerning medical injury.
The majority also claims the malpractice panel does not countervail federal concerns because Congress has shown confidence “in the jury’s ability to evaluate even the most compelling expert presentations.” Maj. op. at 140. I believe this argument defeats itself. Congressional high regard for a jury’s ability to evaluate the proof is inconsistent with a state policy which shows distrust of juries. In sum, the majority has failed to convince me that the Act is consistent with federal considerations.
Rather, I agree with Wheeler v. Shoemaker, supra, that the Health Care Act, in its present form, offends important federal interests. In Wheeler, the court noted that the requirement of going to the arbitration panel, deferring the parties from incurring the additional expense of going to a second trial, as well as the admissibility of the panel’s determination, would run contrary to the federal interest in allowing the full and fair litigation to be decided by the jury. 78 F.R.D. at 226. Furthermore, the court concluded that the distrust of juries evidenced by the state malpractice scheme and the state’s desire to decrease the number of successful malpractice claims would run against the federal interest of maintaining the appearance of strict neutrality. 78 *149F.R.D. at 225-28. Finally, the Wheeler court held that the requirement of an arbitration panel was at odds with the goals of the federal courts in convenience and the economical administration of justice. 78 F.R.D. at 229. I believe the analysis in Wheeler is directly applicable to the Pennsylvania Act and shows that the state scheme runs contrary to federal concerns.
The third factor in Byrd reaffirms the outcome determinative analysis of Guaranty Trust. The Court in Byrd held that even if the determination of employee status was made by a jury in federal court, a different result from state court was improbable. As discussed supra at 135-136, I do not believe federal jurisdiction in this case will lead to a substantially different result under Guaranty Trust and Hanna. Only the forum, not substantive legal rights, will be different.
I believe that under the Byrd balancing approach this court should exercise jurisdiction over the claims of appellants in these cases. The Health Care Act in its present form advances no legitimate state interest. The Act countervails many important federal considerations. And finally, the exercise of federal jurisdiction will not substantially alter the legal disposition of the substantive rights of the parties.
I recognize that the result of my conclusions will be to give out-of-state plaintiffs some advantage over in-state plaintiffs because they will have a ready, unobstructed forum for the adjudication of their claims. However, as this court has held, “the conceptual basis of diversity jurisdiction itself discriminates in favor of non-citizens on the theory that, otherwise, they may be discriminated against; and it is premised on the assumption that a non-citizen may obtain a different result in federal court than in state court.” Witherow v. Firestone Tire & Rubber Co., 530 F.2d 160, 164 (3d Cir. 1976). This fear of a different result is slight as compared to my fear of discrimination against these non-resident plaintiffs who have no remedy in the Pennsylvania political process. I must respectfully dissent.
. I concur in the majority’s view that the injuries to Mr. McCormick accrued after the effective date of the Health Care Arbitration Act.
. One plaintiff in these consolidated actions, Mrs. McCormick, alleges damages for loss of consortium due to injuries to her husband. The majority sweeps her within the purview of the arbitration Act without disclosing how she is a “patient or his representative” within the language of the statute. I do not believe Mrs. McCormick is required by the Act to submit to primary jurisdiction in the arbitration panel. Rather, she has a common law right to bring suit for her tort claims in a state court or a federal court under diversity jurisdiction. The failure to include the spouse of the injured within the malpractice scheme is but one indication of the shortfalls of that system.
. The majority does not discuss the issue I find controlling: whether the panel really is an arbitration panel as labeled or, as I believe, a judicial body.
. [1979] Ann.Rep. Administrator for Arbitration Panels for Health Care, 17 app.
. The district court and the majority in the instant case find support for their view in Marquez v. Hahnemann Medical College and Hospital, 435 F.Supp. 972 (E.D.Pa.1976), an earlier opinion considering the identical issues, which concluded the federal court does not have diversity jurisdiction. I find Marquez unconvincing because it rests on Woods v. Interstate Realty Co., supra, rather than Railway Co. v. Whitton’s Administrator, supra. My earlier discussion, supra at 134-135, discloses why any reliance on Woods is misplaced. Furthermore, Marquez has failed to consider the proposition that the panel is a judicial forum.
The majority further cites Bernhardt v. Polygraphic Co., 350 U.S. 198, 76 S.Ct. 273, 100 L.Ed. 199 (1950), to support its conclusion. There, the Supreme Court, in dicta, stated that a change of forum from a court of law to an arbitration panel may make a radical difference in the outcome. However, the Supreme Court in Bernhardt made it clear that the arbitration panel it described had the common garden-type arbitration characteristics. Because I believe the Health Care Act actually creates a judicial forum, and not an arbitration panel, reliance on Bernhardt is misplaced. See infra at page 148.
. Congress has been considering legislation to abolish or alter diversity jurisdiction. See generally Rowe, Abolishing Diversity Jurisdiction: Positive Side Effects and Potential for Further Reforms, 92 Harv.L.Rev. 963 (1979). See also Rosenn, Trends in Administration of Justice in the Federal Courts, 39 Ohio St.L.J. 791 (1978). I express no opinion on the merits of diversity jurisdiction but wish to point out that it is up to Congress, not the states on an ad hoc basis, to resolve the issue.
. In its present structure, the Act virtually bars a plaintiffs right to recovery because of the practical difficulty of obtaining a hearing before the panel.
. It has been suggested that the “evils” of forum shopping have been overstated. Redish & Phillips, Erie And The Rules Of Decision Act: In Search Of The Appropriate Dilemma, 91 Harv.L.Rev. 356, 375-77 (1977).
. There is no doubt that the backlog in the arbitration panel will lead to more reasonable insurance rates because patients in fact are denied the opportunity for recovery. However, I decline to ascribe the legislature an intent to lower rates by denying to patients, meritorious as well as frivolous, their day in court.