Bernstein v. Bodean, 53 N.Y.2d 520 (1981)

When a medical malpractice panel’s recommendation is admitted into evidence, panel members called as witnesses may be examined on any matter that reasonably assists the jury in assessing the recommendation’s probative value, focusing on their participation in the panel.

Summary

In a medical malpractice case, after a medical malpractice panel recommended no liability, the plaintiff called the panel’s physician members as witnesses but was restricted in questioning them about the basis of their opinions. The New York Court of Appeals held that the trial court’s limitations were too restrictive. The statute allowing panel recommendations into evidence aims to aid the jury in reaching a verdict. Therefore, panel members can be questioned on any matter that helps the jury assess the recommendation’s probative worth, but this examination is limited to their panel participation and cannot turn them into general expert witnesses.

Facts

Deborah Bernstein suffered from a rare malignancy. She underwent extensive treatment from several physicians, including the defendants. A medical malpractice panel was convened before trial. The panel unanimously recommended “there is no liability on the part of said defendants.” This recommendation was read to the jury at trial.

Procedural History

The plaintiff commenced a medical malpractice action. After the medical malpractice panel issued its recommendation, the case proceeded to trial. The trial court limited the scope of questioning of the physician panel members. The jury returned a verdict for the defendants. The Appellate Division affirmed. The New York Court of Appeals reversed and remitted for a new trial, finding the restrictions on questioning the panel physicians were too restrictive.

Issue(s)

Whether, under Section 148-a of the Judiciary Law, specifically subdivision 8, the examination of a medical malpractice panel member called as a witness is limited, and if so, what is the scope of examination contemplated and permitted by the statutory phrase “with reference to the recommendation of the panel only”?

Holding

Yes, the examination is limited, because the examination of panel members can only be comprehended as in furtherance of the legislative objective and thus a means to assist the triers of fact to assess the probative worth of the panel’s recommendation.

Court’s Reasoning

The Court reasoned that the purpose of allowing the panel’s recommendation into evidence was to assist the jury in reaching a verdict, not to supplant its role. The statute explicitly states that the recommendation is not binding on the jury. The examination of panel members is intended to help the jury assess the probative worth of the panel’s recommendation. The statute authorizes examination as to any matter which may reasonably assist the triers of fact in judging the significance and probative worth properly to be accorded the panel’s recommendation. This includes the procedures followed by the panel, materials considered, deliberation processes, and the education, training, and experience of panel members concerning the issues involved. However, the statute contains the restrictive adverb “only.” This means that examination shall not be permitted as to the qualifications of the panel member generally but shall be exclusively focused on his qualifications related to and his participation in the panel recommendation. Nor may he be asked to express opinions on hypotheses other than those before the panel. “In short he is not to be made an expert witness on behalf of any litigant, but may be examined only with respect to the panel recommendation.” The Court also emphasized the Trial Judge’s role in supervising the trial, including the scope and manner of questioning witnesses. The Court noted the constitutional arguments regarding Section 148-a but declined to address them since the case was being remitted for a new trial and the issue might not arise again. Because the trial court impermissibly restricted the scope of the plaintiff’s examination of the physician panel members, the verdicts in favor of the physician defendants were set aside.