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Marsello v. Barnett

Decided: December 21, 1967.

PHYLLIS MARSELLO, AN INFANT, BY HER GUARDIAN AD LITEM, JOHN MARSELLO, AND JOHN MARSELLO, INDIVIDUALLY, PLAINTIFFS-RESPONDENTS,
v.
DR. LESTER BARNETT, DR. HAROLD RUBIN AND DR. GEORGE T. WHITTLE, DEFENDANTS-APPELLANTS



For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Goldmann, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Goldmann, J. (temporarily assigned).

Goldmann

The single question before us is whether plaintiffs, who agreed to submit their medical malpractice claim to an impartial subpanel set up under R.R. 4:25B, the rule dealing with professional liability claims, can revoke their consent prior to a hearing before the panel. The trial court permitted revocation. We granted defendant physicians' motion for certification while their appeal was pending in the Appellate Division. R.R. 1:10-1A.

Plaintiffs Marsello instituted a medical malpractice action against defendant physicians and the Monmouth Medical Center late in 1964. Phyllis Marsello, then an infant, sued by her guardian ad litem; she became 21 in May 1965. As the case neared trial defendants' attorney discussed with plaintiffs' then attorney the possibility of presenting the matter to a professional liability claims subpanel pursuant to R.R. 4:25B. It was verbally agreed that plaintiffs would discontinue their suit if the subpanel found against them. See R.R. 4:25B-7. On June 29, 1966 plaintiffs' attorney wrote his clients enclosing a "Request for Professional Liability (Medical) Subpanel (R.R. 4:25B)" form provided by the Administrative Office of the Courts. Also enclosed was a copy of the governing rules. The letter stated:

"* * * you must understand that if we are unable to convince the panel that you have reasonable grounds for a claim, then you will have to drop this case and your claim will be terminated. I call this to your attention so that you would understand the proceedings which we are undertaking in your behalf.

If you are satisfied, as I understand you are, for us to proceed in that manner, then please sign the enclosed document and return the same to us at an early date."

The executed form, dated August 3, 1966, was signed by both plaintiffs and their attorney, Phyllis Marsello having by that date attained her majority. Each of the defendant physicians thereafter executed consents that the matter be placed before an impartial subpanel.

On October 26, 1966 the Administrative Office of the Courts notified the parties that a subpanel consisting of two doctors, two attorneys, and a former Superior Court judge as chairman, naming them, would be convened the morning of November 15, 1966, at the Riverview Hospital in Red Bank, N.J. See R.R. 4:25B-4 and 4:25B-3(d). Sometime before that date plaintiffs retained their present (substituted) counsel who, on or about November 10, requested the subpanel chairman to adjourn the hearing date. The chairman indicated he had no objection and suggested that counsel get in touch with defendants' attorney. He did so by phone, explained his recent substitution as counsel, and inquired whether the attorney would agree to an adjournment to permit time for examination of the hospital records and preparation for the hearing. The request was refused; nonetheless, plaintiffs obtained an adjournment from the subpanel chairman. Thereafter, about December 2, plaintiffs' attorney discovered that an 80-page section of the hospital records was not included in his file. This section was supplied on request by defense counsel's office.

Plaintiffs' counsel represents that the time gained by the adjournment not only enabled him to fill up the gap in the medical records but permitted him to consult with medical experts as to the merits of the claim. As a result, he was successful in obtaining as expert witness the attending

urologist at a New York Hospital, who agreed to testify that Phyllis' injuries were the result of medical negligence.

The attorney for plaintiffs thereupon wrote the Administrative Office of the Courts on December 6, 1966, copy to defense counsel, withdrawing the consent to submit their claim to the impartial subpanel. He explained that the reason for initially requesting a hearing before a subpanel had now been completely obviated because plaintiffs had been successful in retaining an expert to testify on their behalf.

Defendants at once brought a motion in the Law Division of the Superior Court for an order compelling plaintiffs to submit their claim to the subpanel. The motion was denied after a hearing by Assignment Judge Hetfield who, it may incidentally be noted, was chairman of the New Jersey Supreme Court's Committee on Relations with the Medical Profession ...


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