Marsello v. Barnett
| Decision Date | 21 December 1967 |
| Docket Number | No. A--40,A--40 |
| Citation | 50 N.J. 577,236 A.2d 869 |
| Parties | Phyllis MARSELLO, an infant, by her guardian ad litem, John Marsello, and John Marsello, individually, Plaintiffs-Respondents, v. Dr. Lester BARNETT, Dr. Harold Rubin and Dr. George T. Whittle, Defendants-Appellants. |
| Court | New Jersey Supreme Court |
John I. Lisowski, Jersey City, for appellants (Lamb, Blake, Hutchinson & Dunne, Jersey City, attorneys).
Arthur N. D'Italia, Jr., Jersey City, for respondents (Warren, Chasan, Leyner & Holland, Jersey City, attorneys, Arthur N. D'Italia, Jr., Jersey City, on the brief).
The opinion of the court was delivered by
GOLDMANN, J. (temporarily assigned).
The single question before us is whether plaintiffs, who agreed to submit their medical malpractice claim to an impartial subpanel set up under R.R. 4:25B, the rule dealing with professional liability claims, can revoke their consent prior to a hearing before the panel. The trial court permitted revocation. We granted defendant physicians' motion for certification while their appeal was pending in the Appellate Division. R.R. 1:101A.
Plaintiffs Marsello instituted a medical malpractice action against defendant physicians and the Monmouth Medical Center late in 1964. Phyllis Marsello, then an infant, sued by her guardian Ad litem; she became 21 in May 1965. As the case neared trial, defendants' attorney discussed with plaintiffs' then attorney the possibility of presenting the matter to a professional liability claims subpanel pursuant to R.R. 4:25B. It was verbally agreed that plaintiffs would discontinue their suit if the subpanel found against them. See R.R. 4:25B--7. On June i9, 1966 plaintiffs' attorney wrote his clients enclosing a 'Request for Professional Liability (Medical) Subpanel (R.R. 4:25B)' form provided by the Administrative Office of the Courts. Also enclosed was a copy of the governing rules. The letter stated '* * * you must understand that if we are unable to convince the panel that you have reasonable grounds for a claim, then you will have to drop this case and your claim will be terminated. I call this to your attention so that you would understand the proceedings which we are undertaking in your behalf.
If you are satisfied, as I understand you are, for us to proceed in that manner, then please sign the enclosed document and return the same to us at an early date.'
The executed form, dated August 3, 1966, was signed by both plaintiffs and their attorney, Phyllis Marsello having by that date attained her majority. Each of the defendant physicians thereafter executed consents that the matter be placed before an impartial subpanel.
On October 26, 1966 the Administrative Office of the Courts notified the parties that a subpanel consisting of two doctors, two attorneys, and a former Superior Court judge as chairman, naming them, would be convened the morning of November 15, 1966, at the Riverview Hospital in Red Bank, N.J. See R.R. 4:25B--4 and 4:25B--3(d). Sometime before that date plaintiffs retained their present (substituted) counsel who, on or about November 10, requested the subpanel chairman to adjourn the hearing date. The chairman indicated he had no objection and suggested that counsel get in touch with defendants' attorney. He did so by phone, explained his recent substitution as counsel, and inquired whether the attorney would agree to an adjournment to permit time for examination of the hospital records and preparation for the hearing. The request was refused; nonetheless, plaintiffs obtained an adjournment from the subpanel chairman. Thereafter, about December 2, plaintiffs' attorney discovered that an 80-page section of the hospital records was not included in his file. This section was supplied on request by defense counsel's office.
Plaintiffs' counsel represents that the time gained by the adjournment not only enabled him to fill up the gap in the medical records but permitted him to consult with medical experts as to the merits of the claim. As a result, he was successful in obtaining as expert witness the attending urologist at a New York hospital, who agreed to testify that Phyllis' injuries were the result of medical negligence.
The attorney for plaintiffs thereupon wrote the Administrative Office of the Courts on December 6, 1966, copy to defense counsel, withdrawing the consent to submit their claim to the impartial subpanel. He explained that the reason for initially requesting a hearing before a subpanel had now been completely obviated because plaintiffs had been successful in retaining an expert to testify on their behalf.
Defendants at once brought a motion in the Law Division of the Superior Court for an order compelling plaintiffs to submit their claim to the subpanel. The motion was denied after a hearing by Assignment Judge Hetfield who, it may incidentally be noted, was chairman of the New Jersey Supreme Court's Committee on Relations With the Medical Profession that had studied and reported on the rule in question. In his letter opinion the judge said:
'As this rule was adopted by the Supreme Court with the understanding that submission to the 'Impartial Panel' was strictly on a voluntary basis, the claimant has a right to withdraw his consent at any time prior to the hearing by the panel.'
Defendants contend here, as they did below, that plaintiffs fairly and voluntarily assumed the consequences of their acts, and that the reciprocal consents given by the parties under R.R. 4:25B amounted to a binding contract, analogous to an arbitration agreement, which is subject to specific performance. Plaintiff's substitution of attorney should not affect the result.
The issue before us is not to be resolved by resort to the law of contracts or arbitration agreements. We find neither applicable. Rather, the question is the construction to be given R.R. 4:25B and the application of this court-made rule to the present circumstances.
The purpose of the rule, as set out in R.R. 4:25B--1, is (a) to discourage baseless professional liability cases and (b) to make expert medical testimony available to claimants where there is a reasonable basis for the claim. The rule is not mandatory; its voluntary nature clearly appears from R.R. 4:25B--3(a), which reads:
Any doubt that the rule is fully voluntary, at least up to the point where the impartial subpanel has convened and started its hearings, is laid to rest by recalling the background of events leading up to our adoption of R.R. 4:25B.
The first committee to consider the proposal of professional liability panels in medical malpractice cases was the Committee on Expert Medical Testimony appointed by this court in 1960. Its October 20, 1960 report outlined a plan for the use of such panels, 83 N.J.L.J. 537, Appendix B, at page 543. Paragraph 3 recommends that all persons claiming damages by reason of injury or death resulting from medical malpractice 'be encouraged by every available means to make an informal and voluntary submission of their claim to the panel for evaluation either prior to or after the institution of legal action.' The committee stressed that the suggested plan 'can only operate on a voluntary basis * * *.' The report was briefly discussed at the New Jersey State Bar Association mid-winter meeting held November 18, 1960.
The committee, now designated as the Committee on Impartial Medical Experts, reexplored the problem of professional liability in medical malpractice cases in 1962. Following a meeting with representatives...
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Gould v. Winokur
... ... 4:25B. However, the voluntary nature of that procedure--see Marsello v. Barnett, 50 N.J. 577, 236 A.2d 869 (1967)--makes it clear that plaintiff's failure to use it is not a factor to consider in ruling on the ... ...
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Grove v. Seltzer
... ... 4:21. Accordingly, he reasons that his consent was involuntary and is therefore void. We disagree ... In Marsello v. Barnett, 50 N.J. 577, 236 A.2d 869 (1967), Judge Goldmann (temporarily assigned), writing for this Court, considered the nature and operation of ... ...