On appeal from the Superior Court, Appellate Division, whose opinion is reported at 177 N.J. Super. 319 (1981).
For modification and affirmance -- Chief Justice Wilentz and Justices Pashman, Clifford, Schreiber, Handler, Pollock and O'Hern. For reversal -- None. The opinion of the Court was delivered by Clifford, J.
The issue, here because of a dissent in the Appellate Division, R. 2:2-1(a)(2), is whether a party in a medical malpractice action may amend answers to interrogatories pursuant to R. 4:17-7 to name an additional expert after the matter has been presented to a R. 4:21 medical malpractice panel (hereafter "panel") and after the panel has rendered a unanimous decision. Whereas we allow the amendment under the facts before us, as did the Appellate Division, Goddard v. Orthopedic Consultant Assoc., 177 N.J. Super. 319 (1981), we hold that in the future no amendment to answers to interrogatories for the purpose of adding an additional medical expert will be allowed after the panel has given a unanimous decision.
The rule requiring that medical malpractice cases be submitted to pretrial panels became effective on September 11, 1978. The rule's purpose is stated in R. 4:21-1:
The procedure set forth in R. 4:21 is for the common interest of the public, the medical and legal professions in the processing of medical malpractice actions with the view toward discouraging baseless actions and encouraging 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.
The subsections of the rules seek to promote this purpose in two ways. First, the procedures adopted, where they are conscientiously adhered to, encourage the cases to proceed more quickly to a conclusion than would otherwise be the case. The rules call for pretrial conference of the matter not more than one year after suit is instituted. R. 4:21-2(c). At the pretrial, the panel hearing is scheduled. Id. All documents upon which the parties intend to rely at the panel hearing must be submitted no later than ten days prior to the hearing. R. 4:21-5(b).
The second way that the rule's purpose is promoted is by the use of the panel to identify both those actions that are baseless and those presenting a reasonable medical probability of malpractice.
These categories are identified by means of a unanimous vote of the panel. Once a unanimous vote has been rendered, the rule contemplates that the parties in such actions will be motivated to come to some settlement before trial because the unanimous vote is admissible as evidence at any trial. Thus if the panel unanimously finds no malpractice, the plaintiff is encouraged to settle lest at trial a jury be informed that a panel consisting of a judge and a neutral physician and attorney have found no malpractice. A unanimous vote that malpractice was probable would have the same tendency to encourage defendants to be more amenable to settlement.*fn1
It is against the background of this arrangement that we examine the effect of permitting a new expert to be named after the panel has rendered a unanimous decision. It becomes immediately apparent that to permit new experts at that point would completely undermine the efficacy of R. 4:21. In the unanimous panel situation, as a general rule permitting of very few exceptions (e.g., the death of an expert who testified before the panel), the case that goes to the panel is "frozen": it is that case that goes to trial.
The practice of bringing in new experts after a unanimous panel decision undoubtedly would cause delay in concluding the matter. The adversary of the party who is seeking to introduce the new expert would likely demand further discovery. The ...