Conklin v. Montefiore Hospital & Medical Center , 74 A.D.2d 792 ( 1980 )

Appeal from order, Supreme Court, Bronx County, dated September 13, 1979 and entered September 16,1979, denying appellant Ethicon, Inc.’s motion to participate in all respects at the medical malpractice mediation panel hearing, is dismissed, with costs, and without prejudice to any contention that may be made on appeal from a judgment herein after trial. Appellant, a defendant in this action for wrongful death based on alleged medical malpractice and products liability, is sued on the theories of negligence, breach of warranty, and strict products liability, appellant having furnished allegedly defective suture materials. The Trial Term Justice refused to permit appellant to participate in the medical malpractice panel hearing under section 148-a of the Judiciary Law, except to the extent of permitting appellant’s representative to be present thereat. The Court of Appeals has indicated its disapproval of direct appeals from pretrial orders in relation to medical malpractice panels saying with respect to a motion to suppress the recommendation of such a panel: "It was premature prior to trial, which might never take place, and which, if it does, might not give rise to considering the issue. And even if the issue arises, it might not result in prejudice to plaintiff.” (Comiskey v Arlen, 43 NY2d 696, 697-698.) In the present case, the recommendation of the medical malpractice panel in fact did "not result in prejudice to” appellant. The panel made no recommendation with respect to either the appellant’s liability or the liability of the physician who it is alleged contended in his own defense that the suture material was defective. The Appellate Divisions have made different determinations as to whether appeals from rulings with respect to medical malpractice panels should be dismissed as nonappealable (Marrico v Misericordia Hosp., 59 AD2d 680); or not appealable as of right but only by permission (Kletnieks v Brookhaven Mem. Assn., 53 AD2d 169; see Kletnieks v Brookhaven Mem. Assn., 63 AD2d 994); or whether the orders should be reviewed on the merits by affirmance or reversal (see, e.g., Schwartz v Marcove, 72 AD2d 709). In the present case, we are informed that at the time of oral argument the trial was already in its fifth week and that defendants’ cases had already begun and the medical malpractice mediation panel’s report received in evidence. Since then we have been informed that the jury has rendered its verdict finding appellant and certain other defendants liable. The practical effect of a ruling on the present appeal would be to determine whether the report of the medical malpractice mediation panel should or should not have been received at the trial—a question which will presumably come up on the appeal from the judgment, if there is one. The present appeal is thus somewhat analogous to an attempted appeal from a ruling made during the course of a trial; such appeals are uniformly dismissed. (See 7 Weinstein-Korn-Miller, NY Civ Prac, par 5701.04; Matter of Skyliner Diner v Board of Assessors of County of Nassau, 45 AD2d 712.) In the circumstances, we think dismissal of the appeal is the preferable course, without prejudice to any contention that may be made on the appeal from the judgment after trial. Concur—Sandler, J. P., Sullivan, Silverman and Carro, JJ.