
    Shontik Lewis, an Infant, by His Mother and Natural Guardian, Stephanie Lewis, et al., Plaintiffs, v St. Mary’s Hospital of Brooklyn et al., Defendants.
    Supreme Court, Kings County,
    May 24, 1989
    APPEARANCES OF COUNSEL
    
      Glaser, Shandell & Blitz (Richard E. Shandell of counsel), for plaintiffs. Costello & Shea (James E. Toner of counsel), for Fred Montas, defendant. Amabile & Erman (John A. Malone of counsel), for Mirahmad Hashemifard, defendant.
   OPINION OF THE COURT

Nicholas A. Clemente, J.

Plaintiffs commenced this action seeking to recover for alleged medical malpractice, inter alia, against physician defendants who are an orthopedist and radiologist, respectively. The action is ready to be presented to a medical malpractice panel and each physician wants the panel to include as its doctor member a physician of his specialty so that there would be two doctors on the panel.

In an attempt to obtain the denial of this request, plaintiffs have moved for an order pursuant to which the court would submit the case to the Kings County Medical Society with a direction for it to designate only one physician as the doctor member of the panel. In my view, the motion should be denied.

Section 148-a of the Judiciary Law originally provided in subdivision (3), paragraph (b) for the Medical Society to designate "the medical specialty involved”. This would, of course, support plaintiffs’ position that only one specialist sit on the panel. Moreover, subdivision (6) of section 148-a, while providing for medical expertise beyond that of the doctor sitting on the panel, does not provide for an additional doctor to sit on the panel but only for eliciting a "report” from such an . additional doctor.

Subdivision (3), paragraph (b) as amended, however, makes clear that panels may have more than one physician member by speaking of specialties rather than specialty. Moreover, court rules explicitly indicate the untenability of plaintiffs’ position. The basis for the court adopting such rules is firmly established by subdivision (1) of Judiciary Law § 148-a which states, "[T]he rules governing the operation [of medical malpractice panels] shall be determined by the respective appellate divisions.”

Examination of the Rules of the Appellate Division, Second Department (22 NYCRR 684.4 [d]) refers to medical society designation of "specialty or specialties”. Similarly Uniform Rules for Trial Courts make reference at 22 NYCRR 202.56 (c) (2) to medical specialities.

I, thus, conclude that contrary to plaintiffs’ assertion, there is a basis for the panel to include more than one physician. Hence, the motion is denied. The parties are directed within 30 days of the date of this memorandum either to stipulate to the specialties to participate in the panel or submit their dispute to the Medical Society for resolution.  