I recognize that there is little room for disagreement with the well-reasoned legal conclusions set forth in the opinion of the majority. However, if I were to reach the issue of the possible bias of panel members, I would argue that failure to disclose known information to the court prior to trial should - act as a waiver of any objection to qualifications of pahel members (see Virgo v Bonavilla, 49 NY2d 982). As the Court of Appeals observed in Virgo (p 984), “[a] party is not; permitted to speculate upon a favorable verdict before averting a claim”.
Nevertheless, it is my view that this record fails to demonstrate that these doctors violated any of the component duties to their patient that woul^d cast them in liability for medical malpractice. It is abundantly clear that the defendant doctors possessed the requisite knowledge and skill as is possessed by physicians an& surgeons of their expertise in the locality where they practiced, exercised ordinary and reasonable care in the application of that professional knowledge and skill in the care and treatment of this critically ill, premature infant, and employed their best clinical judgment in the application of that knowledge *198and skill (Pike v Honsinger, 155 NY 201, 209-210). Plaintiffs’ experts, with knowledge born of the event and with the advantage of 11 years additional research on the subject, offered what can, at best, be labeled as suggestions as to how they might have proceeded. I find nothing in that expert testimony supporting a method of procedure different from that employed by the defendant doctors. Accordingly, there is no basis upon which a jury could, by any fair interpretation of the evidence, find these doctors guilty of malpractice.
I would affirm.
Yesawich, Jr., and Levine, JJ., concur with Sweeney, J. P.; Kane, J., dissents and votes to affirm in a separate opinion.
Judgment reversed, on the law, with costs, and new trial ordered.