dissenting.
I would affirm the judgment of the trial court. I realize that, in taking this position, I must confront the constitutional question not reached by the majority. I would decide that question in favor of the validity of the medical malpractice review procedure.
The plaintiffs acknowledge that the procedure was held constitutional in DiAntonio v. Northampton-Accomack Memorial, 628 F.2d 287 (4th Cir. 1980). The plaintiffs say, however, that the court in DiAntonio ’’did not consider whether the possibility of bias inherent in malpractice review panels was a violation of due process.”
It is true that the plaintiff in DiAntonio did not allege, and the court did not consider, any denial of due process. Rather, the plaintiff contended that the malpractice review procedure (1) works a denial of equal protection, (2) violates the Seventh Amendment right to trial by jury, (3) constitutes special legislation in violation of Art. IV, § 14(3) of the Virginia Constitution, and (4) usurps judicial power in violation of Art. VI, § 1 of the Virginia Constitution.
The court upheld the malpractice review procedure against all these attacks. I agree entirely with the court’s holding, and I *288would also uphold the procedure against the due process attack made here.
The plaintiffs’ due process argument goes like this: A fair trial in a fair tribunal is a basic requirement of due process. Any tribunal trying cases must not only remain impartial but also avoid even the appearance of bias. Half the voting members of a malpractice review panel are health care providers whose interests are diametrically opposed to the interests of claimants in medical malpractice cases. Yet, the malpractice review procedure grants health care providers a substantial measure of adjudicatory control over malpractice claimants, offering the providers a possible temptation to decide cases against claimants. A panel decision reached in these circumstances of temptation and bias is the product of a constitutionally infirm decision-making process.
This argument is interesting, but the plaintiffs offer only speculation to substantiate their claim of inherent bias on the part of health care providers. To say as a matter of law that all health care providers are biased and therefore incapable of rendering fair decisions is to indict whole categories of professionals without any basis.
I would afford all members of malpractice review panels a presumption of honesty and integrity. And I would hold that until a claimant can demonstrate actual, rather than theoretical, bias, the presumption would prevail and the claimant would not be heard to complain about a denial of due process.
This brings me to the majority holding with which I disagree, viz., that “the trial court erred in limiting the scope of the plaintiffs’ questioning of Dr. Stallings pretrial by excluding interrogation about the panel’s deliberative process.” I would hold that the trial court did not err in limiting the discovery of Dr. Stallings’ testimony. Indeed, I would hold that the plaintiffs had no right to discover Dr. Stallings’ testimony at all.
I think two bases, singly or in combination, will support my view that no discovery of the testimony of malpractice review panel members is permissible. First, the panels are creatures of statute, completely and entirely. In creating the panels, the General Assembly was free, as long as it acted within constitutional limits, to use any form and to utilize any substance it saw fit. But the form in which the panels were established and the substance with which they were endowed mark the outer limits of how they and their membership may act and be treated.
*289In Code § 8.01-581.8, the General Assembly provided that any party “shall have the right to call, at his cost, any member of the panel, except the chairman, as a witness.” As used in this context, the language “to call ... as a witness,” is a term of art meaning only one thing — to put a panel member on the witness stand in a trial on the merits of a medical malpractice case.
The General Assembly did not provide, as it could have provided, that a party has a right not only to call a panel member as a witness but also to subject the member to pretrial discovery. By use of the language, “except the chairman,” the General Assembly effectively limited the panel members who may be called as witnesses. By use of the terminology, “call ... as a witness,” the General Assembly just as effectively limited a panel member’s role to that of a witness at a trial on the merits of a medical malpractice case.
Second, Rule Six (j)(l3), Medical Malpractice Rules of Practice, provides that, at the conclusion of a hearing, “the panel will deliberate in executive session.” The obvious purpose of this Rule is to permit free discussion among panel members on the merits of a case in an atmosphere of confidentiality. This salutary purpose would be completely thwarted if, after a panel renders a decision, its members may be subjected to unlimited discovery and required to answer, in the words of the majority, “any question designed to test the probative value or reliability of the panel’s opinion.”
Such unlimited discovery will have detrimental practical effects. It is difficult, even in the best of circumstances, to enlist qualified health care providers and attorneys for service as members of malpractice review panels. With extensive discovery of the testimony of panel members now the order of the day, it will be well-nigh impossible to recruit enough qualified persons to make up panels.
Admittedly, we cannot let practical considerations affect the outcome of this case. But I think it is fair to assume that, when the General Assembly adopted the review panel procedure, it was aware of the danger in permitting discovery questioning of panel members and did not intend that such questioning should be allowed. I would give effect to that intention.
HARRISON, R.J., joins in dissent.