Appeal from an order of the District Court for the Eastern District of New York, Thomas C. Platt, Judge, directing abstention in an action seeking a judgment that § 678 of the New York Insurance Law is unconstitutional and that its enforcement be enjoined. Affirmed.
Before Lumbard, Friendly and Mulligan, Circuit Judges.
As part of its no-fault insurance plan for automobile accidents New York determined to regulate the charges that could be made by physicians and other providers of health service in caring for victims covered by the plan. Section 678 of the Insurance Law, which became effective December 1, 1977, provides as follows:
§ 678. Limitations of charges by providers of health services.
1. The charges for services specified in paragraph (a) of subdivision one of section six hundred seventy-one of this article and any further health service charges which are incurred as a result of the injury and which are in excess of basic economic loss, shall not exceed the charges permissible under the schedules prepared and established by the chairman of the workmen's compensation board for industrial accidents, except as otherwise provided in section thirteen-a of the workmen's compensation law.
2. The superintendent, after consulting with the chairman of the workmen's compensation board and the commissioner of health, shall promulgate rules and regulations implementing and coordinating the provisions of this article and the workmen's compensation law with respect to charges for the professional health services specified in paragraph (a) of subdivision one of section six hundred seventy-one of this article, including the establishment of schedules for all such services for which schedules have not been prepared and established by the chairman of the workmen's compensation board.
3. No provider of health services specified in paragraph (a) of subdivision one of section six hundred seventy-one of this article may demand or request any payment in addition to the charges authorized in subdivisions one and two of this section. Insurers shall report to the commissioner of health any patterns of overcharging, excessive treatment or other improper actions by a health provider within thirty days after such insurer has knowledge of such pattern.
Regulation No. 83 (11 NYCRR 68) of the State Insurance Department, promulgated pursuant to Section 678, adopts the existing workmen's compensation fee schedules, establishes maximum permissible charges for professional health services not covered in the workmen's compensation schedules, and provides for the arbitration of certain health provider claims. Section 671 of the Insurance Law provides, in relevant part:
1. "Basic economic loss" means, up to fifty thousand dollars per person: (a) all necessary expenses incurred for: (i) medical, hospital, surgical, nursing, dental, ambulance, x-ray, prescription drug and prosthetic services; (ii) psychiatric, physical and occupational therapy and rehabilitation; (iii) any non-medical remedial care and treatment rendered in accordance with a religious method of healing recognized by the law of this state; and, (iv) any other professional health services; all without limitation as to time, provided that within one year after the date of the accident causing the injury it is ascertainable that further expenses may be incurred as a result of the injury;
The items of basic economic loss in this subdivision are all subject to the limitations and requirements of section six hundred seventy-eight of this article.
For the purpose of determining basic economic loss, the expenses incurred under paragraph (a) of this subdivision shall be in accordance with the limitations of section six hundred seventy-eight of this article.
On December 23, 1977, the Medical Society of the State of New York, five other medical or dental societies, two physicians, two residents who had received injuries not of emergency character which several physicians refused to treat, another resident receiving treatment for injuries unrelated to use of a motor vehicle, and John Doe brought an action in the New York Supreme Court for Albany County, Index No. 97 18/78 . They attacked the statute as violating the Constitutions of the United States and of New York in a multitude of ways. They alleged (1) that the proposed fees were so low as to deprive physicians of their property without due process of law; (2) that § 678 bore no factual relationship to the legislative purpose of controlling insurance premiums; (3) that § 678 is unconstitutionally vague because of its failure to make clear whether physicians may accept payments in excess of the statutory fees voluntarily offered by patients, with physicians and one plaintiff patient claiming that it does not prohibit this, whereas the Insurance Department claims that it does; (4) that the regulation of the fees of health care providers but not of other furnishers of services to automobile accident victims was a denial of equal protection of the laws; (5) that payment of an equal state-wide fee denied equal protection to physicians in localities where costs of rendering service were higher; (6) that interprofessional distinctions in the fee schedule result in lower fees to physicians than to other professionals for performing the same service, again in violation of the equal protection clauses of both Constitutions; (7) and (8) that one patient, by virtue of her chosen physician's having refused to treat non-emergency cases at the stipulated fees or, because of legal doubts, to receive voluntary payments in excess thereof, had been denied equal protection and, having had to submit to the care of a physician not of her choice, and had been denied her right of privacy as guaranteed by the Ninth and Fourteenth Amendments of the Federal Constitution; (9) that the other patient who had been receiving treatment for injuries unrelated to the use or operation of a motor vehicle, had been notified by her physician that he was being forced to raise his fees because of the less-than-cost reimbursement under no-fault, in violation of the equal protection clauses; (10) that some plaintiffs had paid premiums for health insurance entitling them to benefits in excess of those allowed by § 678, with consequent violation of the contracts clause, Art. I, § 10, of the Federal Constitution; (11) that plaintiffs had been deprived of their right freely to enter lawful contracts in violation of the 14th Amendment and of a provision of the State Constitution; and (12) that a plaintiff had been injured after December 1, 1977, had been unable to obtain the services of the physician of her choice because of his withdrawal of treatment of victims of automobile accidents save in emergency cases, and had been forced to accept alternate services "to her great mental and physical pain and anguish" in violation of numerous provisions of the Federal and State Constitutions. The court was asked to declare the statute unconstitutional and permanently to enjoin its enforcement. A state judge denied a temporary injunction on December 30, 1977 in part upon the ground that:
In this Court's opinion, plaintiffs have not sufficiently demonstrated that they are entitled to the relief demanded in the complaint or that they have demonstrated they would suffer irreparable injury barring the granting of a preliminary ...