On appeal from the Superior Court of New Jersey, Law Division, Monmouth County.
Botter, King and McElroy. The opinion of the court was delivered by King, J.A.D. McElroy, J.A.D. (dissenting).
This case presents the question whether R. 4:21, providing for the mandatory pretrial submission of medical malpractice cases to special arbitration panels, should be interpreted to preclude amendment of interrogatories pursuant to R. 4:17-7 subsequent to the rendering of the panel's decision. R. 4:21 was adopted in its present mandatory form effective September 11, 1978. The history of the rule and its antecedents has been reviewed in Judge Pressler's annotations, Pressler, Current N.J. Court Rules , Comment R. 4:21, and elsewhere, see Miller, "Medical Malpractice Under R. 4:21," 105 N.J.L.J. 17 (1980); "Report on the Supreme Court's Committee on Relations with the Medical Profession," 101 N.J.L.J. 45 (1978); see, also Vasily v. Cole , 173 N.J. Super. 152 (App.Div.1980); Suchit v. Baxt , 176 N.J. Super. 407 (Law Div.1980); Conde v. Brown , 174 N.J. Super. 351 (Law Div.1980).
Plaintiffs instituted this malpractice suit on October 6, 1977, before R. 4:21 in its existing form was in effect. This case was pretried on December 4, 1978. A panel hearing was held in May 1979. A panel decision adverse to plaintiffs was entered on July 26, 1979 by written order which stated in full, "unanimously determined that there is no basis for the claim of reasonable medical probability to adhere to proper medical standard of care required."*fn1 A motion for a panel rehearing was filed on September 24 and denied on December 19.
Plaintiff Joan Goddard's malpractice claim had been based on the contention that there was improper operative and postoperative management of the surgical site leading to serious infection and ultimately to excision of the head of the right femur and to total hip replacement. At the panel hearing plaintiffs relied
solely on a written report by a Dr. Rubacky dated October 5, 1978 in support of this theory.
On February 25, 1980 plaintiffs sought to amend their answers to interrogatories by forwarding to defense counsel the report dated February 20, 1980 of a Dr. Richard Ball, an additional orthopedic expert on the malpractice issue. Dr. Ball's report also was critical of the postoperative management of infection at the operative site and was essentially similar in theory to Dr. Rubacky's report. On March 14 defense counsel moved to strike the purported amendment as violative of the spirit of R. 4:21. Thereafter, at a call of the list the matter was scheduled for trial on April 21. Following a hearing on April 3 the R. 4:21 judge granted defendants' motion to preclude Dr. Ball's testimony. The motion judge found a conflict between R. 4:21 and R. 4:17 respecting discovery and amendments to interrogatories stating:
I think that there is a conflict between Rule 4:21 and Rule 4:17. It seems to me this conflict has to be resolved at some point, but at this level, the trial level, I believe that the intent of Rule 4:21-1, et seq., would be subverted if I were to permit the substitution at this late date -- I shouldn't say substitution -- the supplementing of answers to interrogatories at this late date for the production of a new witness.
I mentioned during the course of argument and discussion colloquy with Mr. O'Connor, certainly it cannot be a hard and fast rule. If the expert, for one side or the other, becomes unavailable for good and sufficient reason, and the example we use is if that expert were to die, certainly the party should be given the opportunity to produce an expert and I don't quarrel with that. I think that makes sense. I think that we are confronted now with a conflict between two rules. This Court has been assigned responsibility for the handling of all cases under R. 4:21 up to the point of trial and to attempt to fulfill the intent of Rule 4:21 and I believe that Rule 4:21 should govern and I will grant the motion to bar the testimony of Dr. Ball.
Interestingly, on April 10, 1980 defense counsel sought by letter to supplement his case and name Dr. Reilly, the medical member of the panel, as a witness for the defense at the forthcoming April 21 trial. See R. 4:21-5(d). The propriety of this latter application is not before us.
We granted plaintiffs' motion for leave to appeal from the pretrial ruling of April 3, 1980 precluding use of Dr. Ball as ...