I would affirm the judgment appealed from.
Subdivision 8 of section 148-a of the Judiciary Law provides in part with respect to recommendations of medi*323cal malpractice panels: “If the recommendation is read to the jury or by the trial court, the doctor member or attorney member of the panel, or both of them, may be called as a witness by any party with reference to the recommendation of the panel only.”
“[BJoth the clear language of the statute and the evident legislative intent supporting its enactment are an unmistakable direction that either party may call the physician member of the panel as a witness with reference to the recommendation. The extent and duration of the examination of the witness will, of course, be subject to the discretion of the court, which should be properly exercised.” (Curtis v Brookdale Hosp. Center, 62 AD2d 749, 755.) In Bernstein v Bodean (53 NY2d 520) the Court of Appeals said: “[TJhe doctor panel members called as witnesses may be examined, subject to the customary oversight of the Trial Judge, on any matter, which will reasonably assist the triers of fact in assessing the probative worth of the panel recommendation” (at p 523). “Subject to limitations imposed by the adverb ‘only’, examination is authorized 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. Thus, by way of illustration but not of limitation, such examination might extend to the recommendation itself, the procedures followed by the panel, the materials (documentary and testimonial) considered by the panel, the opportunities for deliberation, the extent of deliberation, the interim and final votes or statements of position of the individual panel members, the education, training and experience of the panel members with respect to the particular issues involved, the factual predicates and the medical bases on which and the reasoning processes by which the panel and its individual members reached tentative and final conclusions. In short, any line of inquiry should be permitted which is found by the Trial Judge in the circumstances of the particular case not to be otherwise inadmissible and to be relevant and material to the assessment by the triers of fact of the evidential persuasiveness of the recommendation” (at pp 528-529). “[TJhe scope of examination of panel *324members when called as witnesses was not to be tightly confined” (at p 528, n 4).
Here the panel had rendered a finding of liability. Under the statute defendant clearly had the right to call the physician member and examine him with a view to showing the possible defects and flaws in the panel’s recommendation. In that connection defendant had the right to and did bring out what was before the panel when it made its recommendation and what material facts were not before the panel, and that such omitted facts would have resulted in a different opinion, at least by the physician. That is the purpose of giving the attorneys a right to call the panel member “whether the recommendation is favorable or unfavorable”. (Curtis v Brookdale Hosp. Center, supra, at p 755.)
There was no impropriety in the defendant’s attorney conferring with the witness before they called him; that is normal practice with respect to any witness called by a party. There is no showing in the particular case that any impropriety occurred.
It may be that the examination of the physician panel member was somewhat more extensive than some of us might have permitted. But as to that, I note that the plaintiff’s cross-examination of the witness contributed in large part to the broadening of the scope of the testimony. In any event, the scope of such examination and cross-examination is a matter “properly left to the sound discretion of the Trial Judge subject to limited appellate review.” (Bernstein v Bodean, 53 NY2d, at p 529.) I see nothing in the way the Trial Judge exercised his discretion that would justify appellate interference with it.
Kupferman, J. P., Ross and Carro, JJ., concur with Asch, J.; Silverman, J., dissents in an opinion.
Judgment, Supreme Court, New York County, entered on December 24, 1981, reversed, on the law and facts, and the matter remanded for a new trial with costs to abide the event.