(dissenting).
The problem with the court’s holding is the expandable nature of the “pending suit” criterion for disqualification of the physician panelist. I see no legitimate distinction, for disqualification purposes, between a doctor who is presently a defendant in a malpractice suit and one who has been a defendant in the recent or remote past, or one who is presently threatened with that status. The spectre of a malpractice suit haunting all doctors can itself be viewed as a bias-producing factor. If absolute impartiality is the desideratum, as the majority suggests, then one must question the very inclusion of doctors in the R. 4:21 panel because doctors as a group are aware of the cumulative effect of malpractice awards on their premiums and any sizeable award will have some impact on the insurance premiums the doctor-panelist will have to pay. Hence, although in this matter the court disqualified on a mandatory basis only those doctors whose pending malpractice suits await disposition, I see no basis on which doctors who have been successfully sued in the past can resist disqualification, or even, for that matter, those doctors who have so far been successful in their attempts to avoid liability. Will those doctors who in the recent past have made settlements be regarded as disqualified as a matter of law? Is the trial judge to go into the amount of the settlement in relation to the size of the claim in order to determine whether the settling doctor “won or lost” in order to assess his impartiality? Is any doctor who has ever been a defendant in a malpractice suit or settled such a claim subject to the rule announced in this case? If he is, as panel judges would have every *308reason to conclude, then we must confront the questionable viability of the R. 4:21 procedure.
The pool of doctors available for R. 4:21 service is not inexhaustible. Most recent figures confirm that approximately 1,000 physicians in 34 specialties in all counties are participating in the program on a statewide basis. The numbers available countywide range from 6 in Salem to 121 in Essex. Morris County, where this appeal originates, has but 35 physicians available in all specialties as participants in R. 4:21 proceedings—only 8 qualify in general surgery, 9 in obstetrics and gynecology, 1 in neurosurgery and none in many of the remaining specialties.
Many of these doctors must be disqualified for reasons unrelated to their status as present or past defendants. They may be acquainted with the defendant-physician, not an infrequent occurrence with respect to doctors in less populated specialties, or have been represented by the same lawyer, again a not infrequent occurrence in light of the concentration of malpractice defense work in few law firms. Moreover, there will be cases in which the subject matter of a pending or past malpractice suit against a proposed doctor-panelist, and his alleged role in the matter would, as a matter of law, require his disqualification. To add another basis for mandatory disqualification, participation as a defendant in a pending malpractice case, would undercut the survival of the R. 4:21 program, particularly where, as here, that basis must apply as well to doctor-defendants in past malpractice cases or those presently threatened with future malpractice suits.
One cannot quarrel with the majority’s concern for impartiality. I would have no objection if automatic disqualification of physician-panelists who are being sued would achieve this result. The problem is that the quest for absolute assurances of impartiality may ineluctably lead to the conclusion that physician participation in R. 4:21 proceedings is unworkable. For example, a neurosurgeon-panelist would arguably tend to favor a *309defendant-neurosurgeon on the basis of collegial empathy for his predicament and more practically because a large plaintiff’s recovery would ultimately reflect itself in the size of his own insurance premiums. There can be no doubt that were a neurosurgeon a juror on a malpractice case involving the liability of another neurosurgeon, he would be excused either for cause or peremptorily. In the almost unimaginable circumstance of a practicing neurosurgeon occupying the status of judge, there is no doubt that he would be disqualified on that ground alone without considering any pending or past suits against him.
Clearly, the potential for bias, however small, inheres in the very procedures set up in R. 4:21; I can only conclude that its draftsmen considered that the benefits to be derived from physician participation on R. 4:21 panels offset the risk of biased findings and conclusions arising from that participation particularly in light of the safeguards provided by the two other panelists.
In my view, the preferred ruling is to regard motions for the disqualification of any R. 4:21 panelist as being addressed to the sound discretion of the judge participant on the panel. See State v. Singletary, 80 N.J. 55 (1979). In many cases, the physician-panelist’s role in a malpractice suit may only be peripheral; he may have been joined only out of fear that failing to do so would subject the lawyer to a later malpractice claim. In other cases the pending suit may be so devoid of merit, to the physician’s knowledge, that he is not concerned about its outcome. Or the judge-panelist may be convinced, as apparently was the judge in this case, of the doctor’s sincerity in his affirmations of impartiality despite the pendency of the suit. It must also be borne in mind that the judge will be conferring with the doctor in the disposition of the R. 4:21 proceeding and is therefore in the best position to detect a tendency to decide a fact or reach a conclusion on any basis other than its merits. I have no doubt that the judge’s awareness of bias on the part of *310either of the two panelists, however belated, would result in aborting the hearing and commencing anew with a more impartial panelist. That such did not occur in this case leads me to conclude that no suggestion of bias surfaced.
In any event, the physician-panelist may be called by either party to testify at the trial, and if the plaintiff is concerned about bias, the matter can be brought to the jury’s attention as can the reasons for the result reached by the physician. R. 4:21—5(d).
It may well be that challenges for bias should be determined only after the judge-panelist receives personal responses from the physician concerning his impartiality in face of the pending suit so as to enable him better to judge the sincerity of the responses. See State v. Singletary, supra. I would not, however, require that the present matter be reheard for failure of the judge to have pursued this course because the judge and lawyer-panelist, with knowledge of plaintiffs’ challenge to the doctor-panelist, deliberated with him on the merits of plaintiffs’ claim prior to reaching a unanimous disposition, thus providing both with the best means of detecting any bias. In this case a simple statement by the trial judge concerning his impressions of the doctor-panelist’s impartiality should suffice.
I would affirm the trial court denial of the application to disqualify the doctor-panelist, contingent upon the judge-panelist’s statement.