On appeal from the Superior Court, Appellate Division.
For affirmance -- Chief Justice Wilentz and Justices Pashman, Clifford, Handler, Pollock and O'Hern. For reversal -- None. The opinion of the Court was delivered by Clifford, J.
This case, like Goddard v. Orthopedic Consultant Associates, 90 N.J. 437 (1982) (hereafter Goddard), decided this day, presents the issue of under what circumstances answers to interrogatories may be amended in cases involving R. 4:21 medical malpractice panels.
Plaintiffs allege that the defendants' care and treatment of William Belle, III in the weeks immediately following his birth did not conform to accepted medical standards in that defendants failed properly to diagnose and treat the osteomyelitis from which William suffered.
After the usual period of discovery, the case was presented to a R. 4:21 panel on November 16, 1980. On December 5, 1980, before the panel had rendered a decision, plaintiff's attorney sent a letter to the attorneys for the other parties in which he named an additional expert witness, Dr. Edwin Geyer Brown, and gave a brief summary of Dr. Brown's opinion. On December 19, 1980, plaintiffs moved to have the report of Dr. Brown submitted to the panel. In a letter opinion dated December 23, 1980, the panel judge denied that motion.
On February 17, 1981, the Appellate Division granted plaintiffs' motion for leave to appeal and summarily ordered that Dr. Brown's report be received by the panel, whose decision was to be stayed until that report and any of defendants' responding reports had been submitted. Thereafter, we granted defendants' motion for leave to appeal from the order of the Appellate Division.
At the outset it is important to note the difference between this case and Goddard. In Goddard there was an attempt to name a new expert after the panel had issued a unanimous decision, which was admissible at trial. R. 4:21-5(e). In the instant matter the attempt to name a new expert occurred after the panel hearing but before its decision.
As we stated in Goddard, R. 4:21 seeks to accomplish two objectives: to expedite the progress of medical malpractice cases
through the courts, and to identify those cases that are candidates for early settlement. A unanimous panel finding encourages early settlement, since such a finding is admissible at a subsequent trial. Goddard, supra, 90 N.J. at 440. We held in Goddard that both of those objectives would be thwarted by permitting a new expert to be named after a unanimous panel finding and that therefore R. 4:21 should be read to proscribe naming a new expert after a unanimous panel decision. Id. at 440.
In this case we cannot say, as we did in Goddard, that the second objective -- encouraging settlement through the admissibility of a unanimous panel decision at trial -- would be adversely affected since no panel decision has yet been rendered. Hence, our decision on the issue presented here comes down to a determination of whether achieving the objective of resolving medical malpractice cases expeditiously requires that R. 4:21 be interpreted to preclude the naming of a new expert after the panel hearing has been conducted but before its decision is forthcoming. We conclude that it does.
It cannot be disputed that one of the principal problems that the current R. 4:21 was intended to solve was the long delay in completing discovery. The 1978 Report of the Supreme Court's Committee on Relations with the Medical Profession made reference to this objective when it recommended adoption of the current rule, referring particularly to the delay caused by "late experts." 101 N.J.L.J. 451 (1978). If there is one theme that runs through the ...