Giuliano, J.s.c. (temporarily assigned).
The defendant, Dr. Allen B. Crunden, Jr., makes this motion for a determination as to the extent to which he might participate in the trial of the pending action. He urges that this court grant him leave to participate to the extent of cross-examining the plaintiffs and their witnesses on all issues and that he be afforded the opportunity of presenting opening and closing statements to the jury. The action was instituted by the plaintiffs, Valerie Perry and Robert Perry, her husband, on March 14, 1961 by the filing of a complaint, with demand for jury trial, charging Dr. Crunden and the Mountainside Hospital with negligence and seeking to recover damages for personal injuries, expenses incurred and loss of society.
Mountainside Hospital filed an answer to the complaint on April 6, 1961. Dr. Crunden failed to file an answer, and on September 15, 1961 a default was entered against him by order of the court. The complaint, pretrial order and depositions filed in this action indicate that Dr. Crunden was Mrs. Perry's obstetrician and rendered her prenatal and postnatal care and delivered her child at the Mountainside Hospital. The negligence complained of in the complaint charges both Dr. Crunden and the hospital with failure to use reasonable care during the delivery of the child and during her postnatal
period of confinement at the hospital. More specifically, the pretrial order dated March 29, 1963 states the following:
"As to Crunden -- On or about January 19, 1960, the female Plf. was admitted to the Mountainside Hospital at the direction of the Deft. physician for the delivery of her first child. On that date, and prior thereto, the female plf. placed herself under the care of and employed the physician in connection with said delivery and post delivery care, and the physician undertook to care for the Plf. Valerie Perry, and undertook to exercise that special degree of skill and care normally possessed by the average physician who devotes special study and attention to obstetrics. During or after delivery, the physician cut a certain vein which began to bleed. The Physician told Plf., Robert Perry, of this occurrence on January 20, and said it was a perfectly natural accident, and that no harm would result from it. The physician failed to warn or notify the Hospital or its agents, servants, or employees, of the bleeding, either verbally or in the hospital report. At such times as the Physician did visit the Plaintiff, he failed to examine the female Plf. so as to keep himself apprised of her condition. At such times as the Deft. Physician visited the hospital, he failed to require such tests and examinations which would inform him of the female Plfs. condition, and he failed to employ and utilize those facts which were available to him to properly diagnose the continued bleeding which was taking place. As a result of the Physician's negligence aforementioned, the female Plf. has sustained painful and permanent injuries."
The court permitted Dr. Crunden to state his factual contentions as to nonliability solely for the purposes of the record. These contentions appear in the pretrial order as follows:
"This Deft. [Dr. Crunden] denies any act of negligence of either commission or omission in the care and treatment rendered by him to the female Plf. which in any was resulted directly or proximately in the injuries and damages alleged to have been sustained by the Plfs. as set forth in the complaint. This Deft. further contends that by reason of his care and treatment the female Plf. delivered a healthy, normal baby and that her recovery thereafter was normal and complete."
Similar allegations were lodged against the hospital, and in addition it was alleged that the agents of the hospital failed to warn or notify the physician relative to the plaintiff's bleeding, fainting and weakness.
On September 15, 1961, by order of this court, a default was entered against Dr. Crunden for failure to file an answer. Thereafter, on October 19, 1961, pursuant to an ex parte application by Dr. Crunden, the court entered an order which provided as follows:
"1. Plaintiffs' attorney shall not nor shall anyone acting on his behalf proceed to prove damages on behalf of the plaintiffs and against the defendant, Allen B. Crunden, Jr.
2. The defendant Allen B. Crunden, Jr., shall have until Friday, November 10, 1961, to bring on before the Court a motion supported by affidavits to set aside the default previously entered in favor of the plaintiffs and against him."
Subsequently, a motion to set aside the default was filed by Dr. Crunden pursuant to R.R. 4:56-3. On January 21, 1963 this court denied the motion. On January 29, 1963 a motion was filed with the Superior Court, Appellate Division, for leave to appeal from that order. The Appellate Division, by order dated March 14, 1963, denied both Dr. Crunden's application for leave to appeal at that time and his alternative application for a determination as to the extent to which he would be permitted to participate at the trial in cross-examination of the plaintiffs' witnesses. The alternative application was denied without prejudice to defendant's right of the defendant to seek such limited participation at the trial by an appropriate motion before the trial court.
On March 29, 1963 a pretrial was held before this court, and the pretrial order directed Dr. Crunden to file a motion seeking "limited participation" pursuant to the order of the Appellate Division. He then filed a motion returnable on ...