On appeal from Superior Court of New Jersey, Law Division, Morris County.
Allcorn, Morgan and Francis. The opinion of the court was delivered by Allcorn, P.J.A.D. Morgan, J.A.D. (dissenting).
[173 NJSuper Page 304] Imperative to the fulfillment of the objects and purposes of the relatively newly mandated pretrial panel review program under R. 4:21 is the essential that each of the members of the panel be thoroughly impartial. The rule itself explicitly requires that the doctor member and the lawyer member "disclose any circumstances likely to create a presumption of bias or
which they believe might otherwise disqualify them," R. 4:21-4(b) -- plain recognition that each panel member must be free from the influence of any factor that would affect or that would even create the risk of affecting his impartiality.
As a consequence where, as here, the doctor member of the panel disclosed that he was then a defendant in a pending medical malpractice action, he should have been disqualified from sitting as a member of the panel. Even accepting at face value his representation that such circumstances would in no way affect his impartiality or otherwise impair his judgment, there still remains the risk that such circumstance might have some influence upon his ability to remain detached and disinterested in the performance of his fact finding function, albeit unconsciously and unintentionally. Indeed, the official questionnaire addressed by the Administrative Office of the Courts to every prospective doctor member of a malpractice panel gives tacit cognizance to the proposition. Among other things, that questionnaire makes inquiry of the doctor as follows:
6. Have you ever been sued for malpractice?
What was the nature of the suit(s)?
What was the result of the suit(s)?
The requirement of impartiality of panel members takes on even greater significance when it is observed that the rule enjoins the panel to "make specific findings of fact as to whether there was malpractice and, if so, a specification thereof [and to] then enter and serve upon all parties . . . an appropriate order determining whether the claim is based on reasonable medical probability," R. 4:21-5(e). The use of and reliance upon the order and the findings of the panel by the parties in negotiating a settlement or, failing settlement, by introducing the findings into evidence at the trial (assuming the report to be unanimous) is highly likely. R. 4:21-1, R. 4:21-5(e). The critical effect of any taint of the panel order is obvious.
As earlier indicated, the members of the panel act as factfinders. R. 4:21-5(e). As such, each necessarily must be as free as possible from the influence of any bias, prejudice or partiality in favor of the plaintiff or in favor of the defendant. As in the case of other persons acting as factfinders as part of the judicial process, such as jurors, the panel members "must be carefully selected with an eye towards their ability to determine the controverted issues fairly and impartially; [and] the trial court should see to it that [each] is as nearly impartial 'as the lot of humanity will admit.'" State v. Jackson , 43 N.J. 148, 157-158 (1964), cert. den. 379 U.S. 982, 85 S. Ct. 690, 13 L. Ed. 2d 572 (1965). It is not enough that the affected member of the panel disclaims any partiality, for as the court observed in Jackson , sincere as the disclaimer may be, "it runs counter to human nature," Id. at 160.
Likely prejudice to the rights of plaintiffs in this case to a fair and impartial panel hearing, report and order inhered in the failure of the trial judge to heed these elementary principles and to disqualify the doctor as a member of the panel. Wright v. Bernstein , 23 N.J. 284 (1957); compare McNabb v. Green Real Estate Co. , 62 Mich.App. 500, 233 N.W. 2d 811 (Ct.App.1975). See, State v. Singletary , 80 N.J. 55 (1979).*fn1
Accordingly, the action of the Law Division denying the application to disqualify the doctor member of the panel is reversed; the order of said ...