Court: New Jersey Superior Court Appellate Division; February 23, 1982; New Jersey; State Appellate Court
Defendants in a medical malpractice case involving plaintiff Lydia Koch, who alleges negligent performance of an abdominal hysterectomy by Dr. George Naryshkin in 1978, plan to call a physician panelist from a previously concluded medical malpractice panel as an expert witness at trial. They request clarification on the scope of this panelist's testimony and seek to prevent the plaintiff from deposing him before trial. The medical malpractice panel, convened in 1981, unanimously found that the plaintiff failed to establish her claim against either defendant—Naryshkin or Dr. Robert Connolly, who treated her later—based on reasonable medical probability.
The defendants reference R.4:21-5(d), which allows for the inclusion of an additional expert in the panel's findings, stating that such experts may be called as witnesses in subsequent trials. The plaintiff contends that if the panelist testifies, it should only be to discuss the panel's proceedings and findings. However, the court notes that the rule does not restrict the panelist’s testimony to this scope, and he can provide expert testimony regarding the standard of care and any deviations from it. The court clarifies that the plaintiff's challenge regarding the panelist's inclusion as a witness is unfounded, as the pretrial order limiting expert testimony does not apply to the medical panelist. The plaintiff also wishes to question the panelist on the basis of the panel’s findings that the defendants were not negligent, citing precedent that allows for the panelist's testimony at trial to challenge credibility and bias.
A medical panelist's impartiality can be scrutinized, particularly in light of a pending medical malpractice action against him, as addressed in the Corto case. However, this scrutiny does not permit extensive questioning about the panel's deliberative process or findings. The rule prohibits using any statements made during the panel’s proceedings at trial, thus maintaining confidentiality in the factfinding process. The plaintiff's attempt to depose the medical panelist is acknowledged, with recognition of the potential challenges in securing panelists for future cases. Nonetheless, since the medical panelist may testify at trial, the plaintiff has the right to depose him like any expert. If the panelist plans to use new material not previously disclosed, a written report detailing his findings and conclusions must be provided to the plaintiff within 20 days. Depositions of the panelist should occur within 30 days. Ultimately, the court rules that the defendant can call the medical panelist, with testimony limited to his opinions and the supporting facts.
