dissenting.
Initially a suit was brought against Duncan W. Campbell, M. D. for medical malpractice. He brought this special action in mandamus in the Court of Appeals, Division 2, to have respondent amend the decision of the Medical Liability Review Panel to conform to the provisions of A.R.S. § 12-567. Dr. Campbell alleged in his petition that one of the members of the Medical Liability Review Panel, established pursuant to Ch. 5.1, Laws of 1976, First Special Session, A.R.S. § 12-561, et seq., “has acted arbitrarily and capriciously and in an abuse of discretion and has failed to perform a duty required by law, as to which he has no discretion, * *
It is, of course, elementary that an action will lie in mandamus to compel the performance of an act which the law specially imposes as a duty. State Board of Technical Registration v. Bauer, 84 Ariz. 237, 326 P.2d 358 (1958); Adams v. Bolin, 77 Ariz. 316, 271 P.2d 472 (1954). Mandamus is an extraordinary legal remedy which proceeds on the assumption that the applicant has an immediate and complete legal right to the thing demanded. Graham v. Moore, 56 Ariz. 106, 105 P.2d 962 (1940). It is a writ which issues as of right. Campbell v. Hunt, 18 Ariz. 442, 162 P. 882 (1917).
By Ch. 5.1, A.R.S. § 12-567, the Legislature established medical liability review panels consisting of a Superior Court Judge, an attorney licensed to practice law in Arizona, and a physician licensed to practice in Arizona, to whom, upon the filing of a complaint in medical malpractice, the action must be referred and a hearing held at which both parties are entitled to present evidence. It is the obligation of the panel by § 12-567(F) to “determine, with respect to each claim against each defendant, whether the evidence presented to the panel by all parties supports a judgment for the plaintiff or for the defendant.” Ch. 5.1 is an obvious legislative attempt to curb the rising and oppressive cost of medical care.
Two claims were made against Dr. Campbell, one founded on surgical malpractice and a second that he failed to provide the real party in interest, Buel Daniel, with information and warnings necessary to permit the giving by Daniel of informed consent. The medical panel, however, made the general finding: “[t]he panel finds for the plaintiff, and against all defendants.” Therefore, the question which the Court of Appeals decided was whether the decision of the medical panel complied with A.R.S. § 12-567(F). As stated, that section requires the medical panel to decide “with respect to each claim * * * whether the evidence * * * supports a judgment for the plaintiff * * The Court of Appeals in accepting jurisdiction stated as a predicate that the correct interpretation of the statute was a matter of public importance requiring prompt resolution. It also said that the issue was whether § 12-567 is satisfied when the decision of the panel is merely a general finding.
This Court, however, conceives that the dispositive question is: “May parties dissat*373isfied with a decision of a medical review panel made pursuant to A.R.S. § 12-567; bypass the Superior Court and seek direct relief in the Court of Appeals?” This question is foreign to any serious issue in the case up to this time. It is a loaded question, in that it obviously is designed to bring forth a negative answer. The question really is, as the Court of Appeals apprehended, whether a party dissatisfied with the action of a medical review panel can compel it to act as the law directs.
The majority state: “Nowhere do we find statutory authority for the Court of Appeals to directly review the decisions of the medical liability review panels.” Here again the Court’s statement is loaded. This is in no sense a review of the medical board’s decision. It is not a determination whether on the merits the medical review panel was correct. Jurisdiction was only accepted by the Court of Appeals to resolve the question of whether the panel acted pursuant to the mandate of the Legislature.
The Court of Appeals’ action is not without precedent. In Sowell v. Workmen’s Compensation Board, 2 Or.App. 545, 470 P.2d 953 (1970), the Oregon court found that where a medical board of review made a report but did not answer all the questions required by law, mandamus was proper to obtain direct answers to the questions. It said:
“In Riesland v. Bailey, 146 Or. 574, 578, 31 P.2d 183, 185, 92 A.L.R. 1207 (1934), the court said:
‘ * * * The public officer or inferior tribunal may be guilty of * * * such an evasion of positive duty, as to amount to virtual refusal to perform the duty enjoined, or to act at all, in contemplation of law. In such a case mandamus would afford a remedy where there was no other adequate remedy provided by law * * *.’ (Emphasis supplied.)
The cases which we have cited above involved full-time public officers upon which statutory duties are enjoined, but we see no reason why their holdings should not apply as well to a temporary board, such as a medical board, which is constituted under state law and upon which is enjoined a statutory duty. We cannot find any other adequate remedy available for obtaining direct answers to the questions involved.” 470 P.2d at 956.
And see Lawton v. State Accident Insurance Fund, 5 Or.App. 539, 485 P.2d 1104 (1971).
The majority conclude: “We do not find that the Court of Appeals has jurisdiction in this matter pursuant to the ‘jurisdiction and venue’ statute of the legislation.” It is with this that I am in complete disagreement. A.R.S. § 12-120.21 provides that:
“A. The court of appeals shall have:
* * # * a|s *
3. Jurisdiction to issue injunctions, writs of mandamus, review, prohibition, certiorari and other writs necessary and proper to the complete exercise of its appellate jurisdiction.”
This Court is given jurisdiction in mandamus in almost identical language:
“The Supreme Court shall have:
* * * * * *
4. Power to issue injunctions and writs of mandamus, * * * and all other writs necessary and proper to the complete exercise of its appellate and revisory jurisdiction.” Constitution of Arizona, Art. 6, § 5, ¶ 4.
In hundreds of cases we have used this power to compel boards and inferior tribunals to comply with the Legislature’s directions. The Legislature obviously gave the Court of Appeals the same power — that is, to compel boards and inferior tribunals to act in the manner the law directs.
I dissent.