Opinion
Argued October 11, 1977
Decided November 17, 1977
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, WILLIAM G. GIACCIO, J.
Bernard Turkewitz and Norman E. Frowley for appellants.
John L.A. Lyddane, Steven De Maggio and Raymond W. Murphy for Myron Arlen, respondent.
Barbara Pilo and Thomas R. Newman for Brooklyn Jewish Hospital, respondent.
Louis J. Lefkowitz, Attorney-General (Daniel M. Cohen and Samuel A. Hirshowitz of counsel), in his statutory capacity under section 71 of the Executive Law.
MEMORANDUM.
Order affirmed, with costs. The formal written recommendation of the medical malpractice panel should not be suppressed on pretrial application. 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. Moreover, issues of constitutionality should not be reached unnecessarily (cf., e.g., Matter of Peters v New York City Housing Auth., 307 N.Y. 519, 527-528). If after trial, and despite the panel's recommendation of no liability, plaintiff recovers a large judgment, it might no longer matter whether section 148-a of the Judiciary Law establishing the panels deprives a plaintiff of any constitutional rights, or, constitutionality aside, whether the panel made an improper determination on an inadequate basis.
Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER and COOKE concur; Judge FUCHSBERG taking no part.
Order affirmed, with costs, in a memorandum. Question certified answered in the affirmative.