Halpern, Allcorn and Botter. The opinion of the court was delivered by Botter, J.A.D.
[150 NJSuper Page 458] With leave of court (R. 2:2-4) plaintiffs appeal from an order compelling discovery of two letters,*fn1 both dated December 15, 1975, written by Dr. Earl Kanter, plaintiff's prospective expert witness in this medical malpractice case. Plaintiffs contend that the letters are not discoverable because they express their expert's opinion on "hypothetical situations" and contain "mental impressions and advice on trial strategy and and tactics as distinguished from the expert's evaluation of the factual case presented to him by the party who hires him." The amicus curiae brief, filed with leave of the court, asserts: "The statements and thoughts of an expert retained by a party's attorney to aid in trial preparation, which deal with trial strategy and considerations extrinsic to the witness' expert testimony, are privileged and protected by the 'work product' doctrine." Plaintiffs and amicus curiae further contend that the communications
are not discoverable under the terms of R. 4:10-2(d) and that the trial judge misconstrued R. 4:10-2(c).
Defendants contend that the letters are discoverable under R. 4:10-2(d); that R. 4:10-2(c) does not prohibit this discovery; that the letters (which defendants have not seen because the trial judge stayed execution of his order pending appeal) are not "work product," and that defendants have shown substantial need for this information and its unavailability from other sources. They contend that the letters are needed to avoid surprise, to aid in effective cross-examination and rebuttal, and to elicit the full truth.
A brief recitation of pertinent events will sharpen the issues. Plaintiffs and defendants each engaged a board-certified obstetrician and gynecologist to review the case and give their opinions as to the alleged medical malpractice of Dr. Milner. On January 31, 1974 Dr. Milner had performed a laparoscopic tubal ligation upon Mrs. Franklin for sterilization purposes. (We are told that Mrs. Franklin had previously given birth to eight children.) Difficulty in the procedure was encountered. Dr. Milner contends that the right Fallopian tube was ligated normally but that he could not be certain that the left Fallopian tube had been adequately coagulated, and that he so advised Mrs. Franklin, warning her of the possibility of her becoming pregnant. Some months thereafter Mrs. Franklin became pregnant, but ultimately this pregnancy was aborted.
Plaintiffs contend that Dr. Milner deviated from accepted medical practice by failing "to obtain the informed consent of the patient and advising her of the risk, complications and the failure rate of the proposed procedure," and by failing "to obtain a specimen of the tube to confirm the fact that it had been divided or removed." Plaintiffs also contend that any cautionary information given to Mrs. Franklin was given in the recovery room when she was not fully alert and that confirmatory tests should have been performed in view of the doubtful outcome of the procedure. Moreover, plaintiffs say that Dr. Milner "warranted in his explanation to the
plaintiff that it [the procedure] had been successful; that she could throw away her birth control pills and need not fear pregnancy," although he knew that such assurances were false. These contentions were denied by Dr. Milner. He asserts that he also advised Mrs. Franklin of alternate birth control methods.
Dr. Kanter reviewed the hospital chart and sent plaintiffs' attorneys a letter report dated November 7, 1974. Defendants' expert, Dr. David J. Schwartz, reviewed the case and sent defendants' attorneys a letter report dated November 25, 1975. The attorneys exchanged these reports. R. 4:10-2 (d) (1); R. 4:17-4(a).
Dr. Kanter's report noted that he did not find the operative permit in the chart, and he asked if there was a permit (signed by Mrs. Franklin) and did it contain sufficient information for a reasonably informed consent or did it imply, incorrectly, a warranty of success in the performance of the procedure? Dr. Kanter's report also noted "the failure to obtain a specimen which would have indeed confirmed the fact that the left tube had been divided or removed." He also discussed Dr. Milner's reference to having informed the patient of the problem in the recovery room when she was fully alert. He stated his opinion that "no one recovering from an anesthetic in an operative procedure is fully alert for at least eight to twelve hours," and that Dr. Milner "may be assumed to be negligent because he didn't follow this up" and properly counsel the patient on the chance of failure of the left tube ligation. He also suggested that negligence may be found in the failure to try to discover through a further process, a hysterosalpingogram, "whether the tube was indeed nonpatent" so as to warn the patient to exercise birth control or to elect readmission for surgical exploration. Finally, he discussed the failure rate in all sterilization procedures and the need to fully inform a patient before undertaking the operation. He concluded that there "may be a basis for negligence in this case."
The letter of Dr. Schwartz concluded that Dr. Milner did not deviate from accepted medical procedures, was not negligent and breached no warranty. His letter recited a history which differs somewhat from plaintiffs' contentions. The letter stated that Mrs. Franklin was informed at Dr. Milner's office that "the procedure could be done by laparoscopy but that there was a possibility, because of her obesity, that it might not be completed." He also asserted that Dr. Milner discussed the "alternative to this" at that time, and Dr. Schwartz commented on the reason why sterlization by laparoscopy was preferred in this case. He discussed the difficulty encountered during the operative procedure which created doubt that the left Fallopian tube was adequately coagulated. Reportedly this was discussed with Mrs. Franklin in the recovery room when she was "awake and alert" and she was warned of the possibility that she could become pregnant. This discussion, the report states, was repeated again two weeks later and a second operative procedure was offered, a laparotomy, involving opening the abdomen, at which time the tube could definitely be severed. Dr. Milner said that Mrs. Franklin decided to "take her chances on becoming pregnant" since there was a possibility that the procedure performed may have been successful.
After becoming pregnant Mrs. Franklin again saw Dr. Milner and consulted him also after the pregnancy was aborted. Allegedly, she again declined a permanent sterilization procedure and chose to use birth control pills instead. Dr. Schwartz concluded that the failure of the procedure does not reflect any improper management or lack of skill on Dr. Milner's part. He also referred to "well documented records that the patient was informed * * * of the possibility of her getting pregnant * * *." His report also commented on Dr. Kanter's report of November 7. Dr. Schwartz also was unable to find the operative permit on the chart, but he presumed one must exist. He rejected Dr. Kanter's suggestion that a specimen should have been taken, saying it was not an accepted current requirement. He relied on Dr. Milner's
statement that Mrs. Franklin was alert and able to comprehend what she was told before being discharged from the hospital, noting that this was a case of out-patient surgery. He also rejected the value of a hysterosalpingogram which Dr. Kanter said could have determined if the tube was nonpatent.
We now reach the critical stage upon which the discovery issue will be decided. Plaintiffs' attorneys sent Dr. Schwartz' report to Dr. Kanter for his comment. Dr. Kanter's comments were contained in one letter dated December 15, 1975, and that letter was accompanied by a letter of transmittal, also dated December 15, 1975. In his letter of transmittal Dr. Kanter briefly stated that the enclosed letter contained his comments on the "deposition [report] which Dr. Schwartz gave to you." It also contains two brief sentences which expressed his opinion on the "crux of the" legal issue in the case and the prospects of success in the event defendants can prove that Mrs. Franklin had been adequately warned of the possible failure of the procedure. In describing the contents in this manner we intend to characterize this brief letter as an expression essentially of a legal opinion on the pivotal role that certain proofs will play in the case. For reasons which will be stated below we conclude that this letter is not discoverable by defendants.
Before discussing the two-page letter dated December 15 we should note that plaintiffs' attorneys properly advised opposing counsel of the existence of these letters, R. 4:17-4(a), contending, however, that they were not discoverable. Thereafter, in January 1976, defense counsel took Dr. Kanter's oral deposition and inquired about the December 15 letters. On the instructions of plaintiff's counsel, Dr. Kanter declined to disclose the contents of these letters except to say, "I merely commented on Dr. Schwartz's remarks" and "compared Dr. Schwartz's comments, which are based on his experience, with what I've experienced."
In the deposition Dr. Kanter testified that his report of November 7, 1974 contained his full opinion and criticisms of Dr. Milner's treatment. Some form of written consent for the procedure had been produced at the deposition, and Dr. Kanter testified that the risks involved in the procedure "may be orally given." Also explored was the question of medical judgment involved in the procedures which he discussed in his November 7 report. He also said, "It comes down to credibility, I guess. * * * The crux of the thing is a matter of credibility. I have only the record to go on."
At oral argument we asked plaintiffs' counsel to identify which sentences in the two-page December 15 letter contained medical facts or opinion, advice on trial strategy or legal opinion. Not seeing the letter is some disadvantage to defense counsel and they must rely upon the ...