On appeal from the Superior Court, Appellate Division, whose opinion is reported at 173 N.J. Super. 302 (1980).
For affirmance -- Chief Justice Wilentz and Justices Sullivan, Pashman, Schreiber, Handler and Pollock. For reversal -- None. The opinion of the Court was delivered by Pashman, J.
In this appeal we must decide whether a physician should be disqualified from serving on a R. 4:21 medical malpractice panel if he is the defendant in a pending malpractice action. The Appellate Division, 173 N.J. Super. 302, held that such a physician is automatically disqualified and ordered that the case be remanded for a hearing before a new panel. Although we agree that a new panel must be convened in this case, we believe that, when challenged, the impartiality of such a physician should be reviewed in each case by the presiding judge and no per se rule of disqualification should be applied.
In 1978, this Court adopted the present R. 4:21 based on the recommendation of the Committee on Relations with the Medical
Profession.*fn1 This rule requires the pretrial screening of all medical malpractice actions, except those where the sole factual issue is one of witness credibility, before a three-member panel composed of a judge of the superior court, an attorney and a physician. The purpose of the rule, as is explained in its first section, is to
discourag[e] baseless actions and encourag[e] settlement of those actions based on reasonable medical probability; to monitor efficiently these cases through the court; and, to assist in the early disposition of medical malpractice actions. [ R. 4:21-1]
The judge, who presides over the panel and who may not participate in any subsequent trial of the case, is designated by the Assignment Judge to head all such panels in the vicinage. R. 4:21-2(b). The attorney is selected by the Administrative Director of the Courts from a panel of attorneys with trial experience designated by the Supreme Court. R. 4:21-3, R. 4:21-4(a)(3). The Administrative Director also chooses the physician from a panel of doctors designated by the Medical Society of New Jersey or a similar panel proposed by the New Jersey Society of Osteopathic Physicians and Surgeons, depending upon the discipline of the defendant doctor. R. 4:21-4(a)(2).
The rule also requires that at the time the attorney and the doctor are notified of their selection for membership on the panel,
they disclose any circumstances likely to create a presumption of bias or which they believe might otherwise disqualify them.
The information so disclosed is forwarded to all parties at the time they are notified of the panel membership, following which the parties have 15 days to "file and serve written objection to the designation of the doctor or attorney, with supporting reasons therefor." Such objections are to be ruled upon by the presiding judge. R. 4:21-4(b).
In this case, plaintiffs made a timely objection to the designation of Dr. John P. Mullen, the physician panelist selected by the Administrative Director of the Courts. The basis for this objection was that Dr. Mullen had a malpractice suit pending against him, a fact revealed in a questionnaire completed by him and sent to the parties along with notification of his designation as panelist. Dr. Mullen was not disqualified because of the objection,*fn2 and the panel met on December 11, 1979. Plaintiffs repeated their objection at this session before the panel began hearing evidence. Pursuant to this hearing, the panel found that "the defendant did not deviate from the accepted medical standard." Because this determination was unanimous, the panel's findings were admissible into evidence at a subsequent trial of the case. R. 4:21-5(e).
No trial has yet been held, however. Plaintiffs moved in the Appellate Division for leave to appeal the panel's order. The basis of this motion was that it was error for the presiding judge to overrule plaintiffs' objection to the designation of a physician panelist who had a malpractice suit pending against him at the time of his selection. Plaintiffs' motion was granted and a divided court ruled in plaintiffs' favor.
Based on its belief that it is "[i]mperative to the fulfillment of the objects and purposes" of mandatory pretrial screening of malpractice actions pursuant to R. 4:21 "that each of the members of the panel be thoroughly ...