Plaintiff alleges that defendants negligently failed to adhere to the requisite standard of medical care required in their treatment of George Suchit. George Suchit is deceased. The action is classically denominated professional malpractice, and is therefore subject to the provisions of R. 4:21. In this matter the rule was followed, a pretrial was conducted and a medical panel hearing held. The panel's determination was unanimous in favor of defendants.
Plaintiff moves to prevent the admission of the panel determination during the course of the scheduled trial, arguing that it is constitutionally defective in several interrelated ways.
Specifically, plaintiff alleges that the rule violates the United States and New Jersey Constitutions by: (1) infringing on her due process right by preventing cross-examination, effectively preventing trial by jury, and imposing a procedure as a precondition to access to the court; (2) violating plaintiff's constitutional
right of equal protection under the law by singling out medical malpractice actions, limiting the admissibility of findings to unanimous panel decisions, and imposing an economic hardship creating a means violation of this right; (3) violating the separation of powers of our government as defined in the New Jersey Const. since our Supreme Court is without power to promulgate a rule which is substantive in nature (R. 4:21-5(e)).
Plaintiff claims that the admissibility of panel findings (R. 4:21-5(e)) at trial denies her the right to cross-examine witnesses. In the realm of "general propositions of law" the court does not take issue with plaintiff's argument concerning her right of cross-examination. The right of confrontation and cross-examination of witnesses is constitutionally guaranteed. State v. Vaccaro , 142 N.J. Super. 167 (App.Div.1976), certif. den. 71 N.J. 518 (1976). To prevent cross-examination on a broad spectrum creates constitutional difficulties. Brogan v. Passaic Daily News , 22 N.J. 139 (1956). The general propositions, however, must be compared with the factual setting of this case. Plaintiff's argument that this lack of cross-examination prevents her from ascertaining the bias of panel members is without merit. R. 4:21-5(b) provides a means to expose bias of panel members before the scheduled panel hearing. All panel members are deemed unbiased, having once passed the screening provisions of the rule. In the present case plaintiff did not object to the panel members or request a hearing on this issue.
The fact that R. 4:21 may provide for the admissibility of a panel finding does not violate the right to cross-examination even though the finding can technically be called hearsay. With proper safeguards the lack of cross-examination hearsay argument does not create a constitutional impediment. The often repeated twin tests of reliability and confrontation are not always constitutionally mandated. Ohio v. Roberts , 448 U.S. 56, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980). Compare Evid. R.
63 and the exceptions contained therein, which are in many ways more significant than those presented in R. 4:21. In addition, the rule provides for the medical panel member to be called as a witness and be cross-examined (R. 4:21-5(d)), which in itself safeguards the constitutional right. There are distinctions and similarities in other cases. See State v. Rojnai , 132 N.J. Super. 530 (App.Div.1975) (refreshing recollection from previously recorded testimony).
Plaintiff's reliance on Davis v. Davis , 103 N.J. Super. 284 (App.Div.1968), is not conclusive on this issue. While one cannot cross-examine a document, in this matter the parties control what is presented to the panel and are given an opportunity to explain, refute and rebut the evidential material of their adversary. R. 4:21-5(b). Greater due process protection is afforded in this rule than in other rules and case law dealing with nontestimonial evidence. See Evid. R. 63.
It is important when considering plaintiff's arguments to consider the import of the rule requiring that the jury be instructed by the judge, or if the judge is the trier of the facts, to consider the limitation placed upon panel findings. R. 4:21-5(e). Additionally, other general trial information is available to the factfinder which will make them aware of the scope of the panel hearing, as compared with the scope of the trial.*fn1
The inability of a party to specifically cross-examine the findings of the panel as to deviation or nondeviation from the acceptable standard of care, when analyzed in the rule setting, does not make R. 4:21 constitutionally defective.
Plaintiff, in this area of lack of cross-examination, alleges that the panel finding is "a net opinion" and therefore inadmissible, citing Parker v. Goldstein , 78 N.J. Super. 472 (App.Div.1963), certif. den. 40 N.J. 225 (1963). This argument must be evaluated, however, from its root source, Evid. R. 56. The
"net opinion" argument is only valid when it can be shown that there is an absence of factual or hypothetical testimony supporting the "net opinion." Under R. 4:21 the panel determination must be based upon findings of fact which are memorialized in writing and filed with the trial judge. R. 4:21-5(e). Furthermore, a litigant in a medical malpractice trial must adduce sufficient facts on which a jury can base its finding(s). It would be absurd to assume that a litigant would fail to produce the same proofs which provided the basis for a unanimous panel finding at a panel hearing at the ultimate trial of the case. Thus the dangers implicit in the "net opinion" could not arise in the context of a medical malpractice trial which follows a proper panel hearing with a unanimous finding. Plaintiff's "net opinion" argument is distinguishable from the procedure required in the rule under consideration.
Plaintiff argues that the admissibility of the panel's finding impairs her right to a jury trial. She does not claim that the right to jury trial is denied but rather that this right is impermissibly eroded by the rule. She points out that the effect of R. 4:21 is to dissuade the plaintiff who receives an unfavorable decision from proceeding to trial, thus resulting in abandonment of a cause of action.
The gravamen of the right to jury trial is that a party asserting a claim is entitled to have a jury be the final arbiter of the facts in dispute. In re Stern , 11 N.J. 584 (1953). Plaintiff asserts that a lay jury, hearing the unanimous decision of a panel (three court-appointed experts), will conclude that it lacks the knowledge and expertise sufficient to enable it to overrule such panel. The resulting jury determination, rather than being the product of an unfettered and unbiased judgment, constitutes an adoption of the panel experts' judgment.
The court is unable to agree with plaintiff's position. Despite a R. 4:21 panel hearing, the jury is still the ultimate
trier of the fact. Once the panel has considered the evidence and a decision has been rendered, plaintiff is free to proceed to trial and present her case to a jury. There is no question that an adverse decision by the panel casts an increased burden upon the claimant. Such burden, however, is not so oppressive as to impair the party's right to a jury trial. See Carter v. Sparkman , 335 So. 2d 802 (Fla.Sup.1976). The clear language of R. 4:21-5(e) seems to foresee this problem: "the recommendation shall not be binding upon the jury or upon a judge sitting as a trier of the facts-but shall be accorded such weight as the jury or the judge sitting as the trier of the facts chooses to ascribe to it in view of all the relevant evidence adduced at trial."
The Supreme Court anticipated this problem and treated it by requiring the court to instruct the factfinder as indicated. Analogies to the admissibility of the panel's determination may be drawn to those instances where administrative findings, and judicial and statutory presumptions, are admissible at trial. In Meeker v. Lehigh Valley R.R. Co. , 236 U.S. 412, 35 S. Ct. 328, 59 L. Ed. 644 (1915), the Supreme Court held that an interstate commerce commission finding could be submitted to the jury as prima facie, though rebuttable, evidence of the facts as determined by the commission. The court upheld the application of the statute:
This position merely establishes a rebuttable presumption. It cuts off no defense, interposes no obstacle to a full determination of all the issues, and takes no question of fact from either the court or jury. At most therefore, it is merely a rule of evidence. It does not abridge the right of ...