concurring.
I concur in the majority opinion of Don-nelly, J., and I do so for several reasons.
First, I believe the requirement contained in § 538.020 “[bjefore any action seeking damages from a professional alleging malpractice . . can be filed in any court . the plaintiff . . . must have complied with the provisions of sections 538.010 and 538.080” is in conflict with Art. I, § 14, Mo. Const., providing “[tjhat the courts of justice shall be open to every person . . . ” and is a denial of immediate access to the courts of this state. In my opinion any substantial impediment barring access to the judicial system is detrimental and contrary to the provisions of the Missouri Constitution.
In saying this, I do not mean to imply that innovative, flexible and modern efforts and methods to resolve societal disputes outside the judicial arena should be discouraged or are violative of the doctrine relating to access to courts. There are many suggestions these days to resolve disputes outside the judicial arena but so far as I am aware they do not impose substantial impediments barring access to the judicial system. All I say now is that this particular act, in this particular case, is in my opinion, violative of Art. I, § 14, Mo. Const.
The decisions relied upon in the dissenting opinion do not directly address that precise issue and are distinguishable from the present case. For example in Prendergast v. Nelson, 199 Neb. 97, 256 N.W.2d 657 (1977), the Act there, unlike ours, required that a patient’s exclusive remedy was under the act unless the patient elected not to come within the provisions of the act. The Nebraska court did discuss the “access to the courts” issue and stated that the claimants are not denied access to the courts because those who do not elect to come under the Act are merely required to follow a certain procedure before submitting their claims to the courts.
In Parker v. Children’s Hospital, 394 A.2d 932, No. J-238, November 1, 1978, while upholding the constitutionality of the Act the court declared that there was no violation of a trial by jury. A similar result was reached in Comiskey v. Arlen, 55 A.D. 304, 390 N.Y.S.2d 122 (App.Div.1976).
Second, I have grave concern that the Professional Liability Review Board Act in requiring a judge to be a member of the review panel and imposing duties on the Chief Justice is inconsistent with the separation of powers and violates Art. II, § 1, Mo. Const. It imposes nonjudicial functions upon judicial officers outside the realm of judicial matters. Cf. Wright v. Central-DuPage Hospital Association, 63 Ill.2d 313, 347 N.E.2d 736 (1976).
It has always been my understanding that nonjudicial functions cannot be imposed on a constitutional court. Ever since Hayburn’s Case, 2 Dall. 409, 2 U.S. 409, 1 L.Ed. 436 (1792) the principle has been established that nonjudicial or administrative *112functions not related to judicial duties cannot be imposed on a judicial officer. Although the motive may be beneficial, our government is divided into three distinct and independent branches and it is the duty of each to abstain from and to oppose encroachments on either. In the note to Hay-burn’s Case two centuries ago, it was stated that neither the Legislative nor the Executive branches can constitutionally assign to the judiciary duties which are not properly judicial and which are not to be performed in a judicial manner. See discussion in 1 Moore, Federal Practice at 64, note 12.
Third, Chapter 538 has within its confines certain inherent deficiencies which raise a host of problems which, in my opinion, go to the basic principles embodied in the right of access to the courts: (1) While the Board has the power to subpoena records, reports or other evidence, the parties apparently may not do so — § 538.035, subsection 2; (2) the parties rights of discovery are either immediately denied or delayed possibly to the detriment of the parties — in the Gaert-ner Case for example there were certain persons who were unknown and were sued as “John Doe”; (3) the statute of limitations may or may not be tolled as to those unknown persons against whom the plaintiff may have a claim.
These are some of the matters of great concern to me. I realize that the Professional Review Board concept and procedure seeks a worthwhile objective and was designed to address the medical malpractice crisis, to reduce frivolous claims and to attempt to expedite the disposition of cases in this area. I do not say that a review board system and procedure cannot be devised by the General Assembly which would pass constitutional muster.
I concur in the principal opinion because I believe that the particular act with which we deal does not, in my opinion, pass constitutional muster and therefore I would quash our preliminary writ heretofore issued.