Bernstein v. Bodean
| Decision Date | 03 September 1981 |
| Citation | 53 N.Y.2d 520,426 N.E.2d 741,443 N.Y.S.2d 49 |
| Parties | , 426 N.E.2d 741 Isidor BERNSTEIN, as Administrator of the Estate of Deborah Bernstein, Deceased, Appellant, v. Eugene BODEAN et al., Respondents, et al., Defendants. |
| Court | New York Court of Appeals Court of Appeals |
Following introduction in evidence of the recommendation of a medical malpractice panel concerning the question of liability, pursuant to section 148-a of the Judiciary Law, the doctor panel members called as witnesses may be examined, subject to the customary oversight of the Trial Judge, on any matter which will reasonably assist the triers of fact in assessing the probative worth of the panel recommendation.
Deborah Bernstein was the victim of a rare malignancy which originated as a small growth on the left thumb and metastasized first to her arm and then to her lungs, eventually causing her death. During her illness she underwent an extensive course of treatment in which each of the defendant physicians played some part.
This action for medical malpractice was commenced on March 25, 1976. At the completion of discovery and all other preliminary proceedings, but prior to trial, a medical malpractice panel consisting of a Supreme Court Justice, a surgeon, a pathologist and an attorney, was convened pursuant to subdivision 2 of section 148-a of the Judiciary Law. Based on their findings, the panel members unanimously recommended that "there is no liability on the part of said defendants", a recommendation which was subsequently read to the jury in accordance with the statute.
At the trial plaintiff called the panel's two physicians, Dr. Di Benetto, a surgeon, and Dr. Palladino, a pathologist, as witnesses. Neither was allowed to answer questions put to him by plaintiff's counsel relating to the basis of his opinions. Indeed, the Trial Judge repeatedly sustained objections to those inquiries which sought to educe either the factual or medical predicate for the conclusions of the individual panel members. In effect, the trial court ruled that the panel physicians could testify on direct only as to the data made available to the panel and the procedures followed by the panel and not as to either their individual opinions or the basis for their participation in the panel's recommendation.
Thus, when counsel inquired: "On what is the medical basis for your opinion in this case?", the court directed the witness not to answer and instructed the jury: 1
Following presentation of evidence, the jury returned a verdict in favor of all defendants except one, concerning whom they could not reach a decision; his case accordingly was severed. On appeal the Appellate Division, one Justice dissenting, affirmed. We now reverse, and remit the case for a new trial. We are of the opinion that the limitations imposed by the trial court on the questioning of the physician members of the panel were too restrictive.
Section 148-a of the Judiciary Law makes provision for the establishment of a panel to facilitate the disposition of medical malpractice claims. In essence, as originally enacted in 1974, the statute provides for the following procedures:
All hearings are held before a panel of three members, consisting of a Justice of the Supreme Court, a physician and an attorney (subd. 2). 2 The panel doctor and attorney are selected from a list prepared by the Presiding Justice of each respective Appellate Division (subd. 2, pars. The listing of doctors is by specialty as is determined and communicated to the court by the Medical Society of the State of New York, a county medical society and/or the New York Academy of Medicine; attorneys selected are required to have trial experience, not confined, however, to the field of medical malpractice (subd. 2, pars. Prior to the date set for the hearing any party may object to the doctor or attorney who has been designated, which objection is to be decided by the Justice presiding as a member of the panel (subd. 2, par. The panel hearings are informal and without stenographic records (subd. 4). As initially enacted section 148-a provided that no statement or expression of opinion made in the course of the hearing would be admissible in evidence either as an admission or otherwise in any trial of the action (subd. 4) and contained no provision for introduction of the panel's recommendation at any subsequent trial.
Subdivision 8, which was added by amendment in 1975 (L.1975, ch. 109, § 16), and that is the portion of section 148-a which is pertinent to the issues posed on this appeal, provides:
The paramount issue is to what extent section 148-a, and most particularly subdivision 8, authorizes either party in a malpractice action to question a panel member who has been called as a witness. To be more precise, what is the scope of examination contemplated and permitted by the statutory phrase--"with reference to the recommendation of the panel only"?
None of the parties has offered and independent research has not uncovered anything in the legislative history of the 1975 amendment to indicate the purpose or objective of the amendment or to assist in the interpretation of the statutory diction. Nor do the legal writers provide any assistance, however speculative or indirect. Thus, there is nothing to suggest that the Legislature envisioned the restrictive interpretation imposed by the trial court in this case and advocated by defendants in our court.
Section 148-a of the Judiciary Law was enacted because of what the Legislature perceived as an urgent need to develop a reasonable procedure for addressing the critical problem of increasing malpractice insurance rates. Its purpose was to bring to the pretrial stage of litigation participatory consideration and evaluation by representatives of the court, the legal profession and the medical profession of the underlying claim, apparently on the theory that the parties would be better equipped to negotiate a settlement, and under greater pressure to settle, if given a preliminary view of the merits of the case.
The Legislature for undoubtedly similar objectives amended section 148-a by the addition of subdivision 8 on the view that...
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...in order to control cumulative evidence. Jo Ann Harris et al., New York Evidence with Objections 4 (2d ed. 2002); Bernstein v. Bodean, 53 N.Y.2d 520, 443 N.Y.S.2d 49 (1981).. In general, repeating a question on direct or cross examination, whether to elicit favorable testimony or to emphasi......
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Witness examination
...in order to control cumulative evidence. Jo Ann Harris et al., New York Evidence with Objections 4 (2d ed. 2002); Bernstein v. Bodean, 53 N.Y.2d 520, 443 N.Y.S.2d 49 (1981).. In general, repeating a question on direct or cross examination, whether to elicit favorable testimony or to emphasi......
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Witness examination
...in order to control cumulative evidence. Jo Ann Harris et al., New York Evidence with Objections 4 (2d ed. 2002); Bernstein v. Bodean, 53 N.Y.2d 520, 443 N.Y.S.2d 49 (1981).. In general, repeating a question on direct or cross examination, whether to elicit favorable testimony or to emphasi......
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Witness examination
...in order to control cumulative evidence. Jo Ann Harris et al., New York Evidence with Objections 4 (2d ed. 2002); Bernstein v. Bodean, 53 N.Y.2d 520, 443 N.Y.S.2d 49 (1981).. In general, repeating a question on direct or cross examination, whether to elicit favorable testimony or to emphasi......