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Conde v. Brown

Decided: March 31, 1980.

ATILIO CONDE AND SARA CONDE, PLAINTIFFS,
v.
STANLEY L. BROWN, M.D., ET AL., DEFENDANTS



Miller, J.s.c.

Miller

Plaintiffs seek to amend interrogatories in a medical malpractice action to include a new expert subsequent to the panel hearing mandated by R. 4:21. The basis of plaintiffs' claim is that defendant performed an unnecessary back operation. A medical malpractice panel hearing was convened on December 12, 1979. Afterward the addition of a new expert is sought to enforce the theory of plaintiffs' case.

In support of the motion plaintiffs contend that their expert recommended that an opinion from a neurosurgeon be obtained. The present expert submitted a report but was not deposed. Plaintiffs emphasize that the new expert will testify, either by deposition or in person, to the same opinion as previously submitted. Additionally, it is argued that the substitution of an expert will not impede the trial nor surprise defendant.

Defendant objects to the motion on several grounds, namely, the unknown credentials of a new expert, the potential variation in expert testimony and the tactical advantage to plaintiff in enlarging his battery of experts for the time of trial. Defendant also questions the possible effects of new testimony on the issues decided by the malpractice panel and the validity of the panel's order at the trial wherein different testimony may be heard.

Amendments of answers to interrogatories, including the addition of an expert's name, is permitted not later than 20 days prior to the first date fixed for trial. R. 4:17-7, R. 4:17-4(e). The initial listing for trial was the first week of March 1980. Since the requested amendment is untimely, R. 4:17-7 requires that

Normally, great liberality is accorded in permitting the testimony of witnesses whose names are not supplied by timely amendment. See Falcone v. N.J. Bell Tel. Co. , 98 N.J. Super. 138 (App.Div.1967), certif. den. 51 N.J. 190 (1968); Brown v. Mortimer , 100 N.J. Super. 395 (App.Div.1968); Westphal v. Guarino , 163 N.J. Super. 139 (App.Div.1978), aff'd o.b. 78 N.J. 308 (1978). As stated in Brown ,

The objection to adding the expert witnesses is focused upon the elements of surprise and prejudice to defendant. At this juncture these considerations must be tested against the medical malpractice procedure mandated by R. 4:21.

In September 1978 the Supreme Court adopted rules establishing radical new procedures for the conduct of medical malpractice cases. In brief, the new procedure calls for the submission of such cases to a special panel composed of a doctor, a lawyer and a judge. This panel conducts a hearing with a view to determining whether or not malpractice exists. If the panel so finds unanimously either way, this fact is disclosed to the jury at the subsequent trial. See "Medical Malpractice Procedure Under Rule 4:21," 105 N.J.L.J. 17 (1980).

R. 4:21-2(c) mandates a pretrial conference and order, a unique requirement. This conference precedes the panel hearing. The R. 4:21 judge must make sure that everything is in order for a panel determination. Either the pretrial order or the notice of the panel hearing should contain a directive that all

records and pertinent data be supplied directly to the panel members at least ten days before the hearing. The right to ample discovery before the hearing should enable the parties to narrow the issues.

The panel hearing date may be regulated according to the completeness of the discovery since it is not essential that discovery be completed before the pretrial conference is held. In addition, one of the purposes of the requirement that a pretrial conference be held when the case is 12 months old, R. 4:21-2(c), is to check upon and expedite the discovery process. However, it is utterly essential that all discovery be complete ...


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