For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Schettino, J.
The issue before us is whether plaintiff, who agreed to submit his malpractice claim to a medical subpanel and to be bound by its determination, may revoke his consent after the subpanel has decided against him. The Law Division dismissed plaintiff's complaint with prejudice on the ground that the agreement to be bound was specifically enforceable under R.R. 4:25B-7 (now R. 4:21-7),*fn1 which provided:
(a) The claimant may (but need not) agree in writing in advance not to institute legal proceedings or to dismiss any proceedings that may be pending in the event the subpanel is of the opinion that there is no reasonable basis for the claim.
(b) If the claimant does agree in writing, as provided in paragraph (a) of this rule, and if the subpanel is of the opinion that there is a reasonable basis for the claim, the Administrative Director of the Courts will supply the names of three expert medical witnesses from a list compiled by The Medical Society of New Jersey, all or any to serve at a reasonable fee to be paid by the claimant.
Plaintiff has asserted several grounds for reversal, all of which focus upon his principal contention that his consent to be bound by the decision of the subpanel was given under duress, occasioned by the coercive effects of R. 4:21. Accordingly, he reasons that his consent was involuntary and is therefore void. We disagree.
In Marsello v. Barnett, 50 N.J. 577 (1967), Judge Goldmann (temporarily assigned), writing for this Court, considered the nature and operation of R. 4:21. After reviewing the history of R. 4:21 and comparing it to various other rules, Judge Goldmann concluded that the rule was purely voluntary on both sides. Id. at 583-85.
We reaffirm that conclusion. In our view, R. 4:21 is not a rule in the traditional sense, since there is no compulsion involved. Rather, we believe that R. 4:21 is similar to a voluntary service which both parties may utilize if they so desire.
Consistent with our view, we allowed the complainant in Marsello, who had already agreed to be bound by the subpanel's finding, to revoke his consent prior to the hearing. Judge Goldmann explained that:
To make a claimant's consent binding in a situation like the present one may increase hostility toward the rule, decrease any willingness to resort to its provisions and thus defeat its very purpose, which is to encourage an informal and voluntary submission to the end that claims will either be dismissed or settled. (50 N.J. at 586).
However, to allow plaintiff to revoke his consent after the subpanel has reached its decision would permit plaintiff to breach a fully executed agreement that he entered into knowingly and voluntarily and would render the rule a nullity since there would be no inducement for a doctor to consent to a hearing.
After pretrial discovery, plaintiff and his counsel requested in writing that the medical subpanel be convened pursuant to R. 4:21 to determine whether there was a reasonable basis for plaintiff's ...