(dissenting).
I disagree with the majority in this case. This interlocutory appeal presents only one question of law — whether the Medical Malpractice Act [§ 41-5-1 to 41-5-28, N.M.S.A. 1978] establishes a “privilege for members of the Medical Review Commission that would generally exempt them from discovery procedures during the pendency of a lawsuit.”
In my opinion, the Act, when read as a whole [§ 41-5-1 to 41-5-28, N.M.S.A.1978] supports this conclusion. The Act specifically delineates the duties of the panel selected by the Medical Review Commission when called upon to review malpractice claims.1 The panel shall decide only two questions:
1. Whether there is substantial evidence that the acts complained of occurred and that they constitute malpractice; and
2. Whether there is a reasonable medical probability that the patient was injured thereby. Section 41-5-20.
Section 41-5-20(C) further defines the manner in which a panel shall decide each case and specifies the form of the decision. This legislatively established procedure, as well as the fact that even the report of the panel is not admissible as evidence in any subsequent legal action demonstrates legislative intent that the hearings be and remain confidential.
One provision of the Act, alone, creates confusion in what is otherwise a clear grid unambiguous law wherein the Medical Review Commission and its members are provided with immunities and privileges.2
Section 41-5-19(C) states that the hearing “will be informal and no official transcript shall be made.” However, the section further allows the parties to take “testimony ... at their own expense.” Obviously, as appellant argues, it can be implied from this clause, that no confidentiality exists for such testimony, nor is a privilege created for such testimony, where the law expressly allows for preservation of the testimony. Whether or not such an argument has merit is not before us in this case. The plaintiff-appellant failed to take testimony during the hearing. Her failure to avail herself of this provision in the law, however, is not material to the real issue in this case. The question is not one of suppression of admissions but one of privilege for a panel member. The fact that plaintiff had the statutory right to record the proceedings gave her an opportunity to preserve admissions, if any, which might have been made. Certainly it is inconsistent to permit the hearing procedures to be transcribed while at the same time granting a privilege to panel members, see Herrera v. Doctor’s Hospital, 360 So.2d 1092 (Fla.App.1978), but the Medical Malpractice Act is explicit in protecting the confidentiality of the Medical Review Commission.3 The overwhelming tenor of the New Mexico Act is in favor of such a privilege for members of the statutorily established panel.
Where the “panel has determined that the acts complained of were or reasonably might constitute malpractice and that the patient was or may have been injured by the act, the panel, its members, the director and the professional association concerned will cooperate fully with the patient in retaining a physician . . . who will . . . testify on behalf of the patient.” Section 41-5-23. Through this means, the panel assists the patient in a malpractice action brought to trial. There is no need to go further and require a panel member to testify as to matters he heard at the Medical Review Commission hearing.
The policy reasons which support this view are clear. The confidential nature of the proceedings and the protection afforded the panel protects both this process,4 as well as the fairness of any subsequent action. Cf. Simon v. St. Elizabeth Medical Center, 355 N.E.2d 903 (Ohio Com.Pl.1976). (Where the court noted the excessive weight such testimony would have, and the probable interference with a fair trial.)
The Medical Malpractice Act was carefully drafted. To disregard the clear legislative intent is to do great injustice to the purpose of the Act. The trial court should be affirmed.
. The majority is correct in holding that whether or not the defendants here are “health care providers” as defined in § 41-5-3 is irrelevant. All parties subjected themselves to the jurisdiction of the Commission and the issue of jurisdiction was not presented to either the panel or the trial court so it is not a matter for this court to consider.
. See § 41-5-20(E).
. Clearly this would not be true if the statute specifically did make mention of the privilege. See Curtis v. Brookdale Hospital Center, 62 A.D.2d 749, 406 N.Y.S.2d 494 (1978).
. The statute contains requirements that there be no official transcript, that the deliberations be confidential, that the report is not admissible in any subsequent action, and that the brief summary of the evidence presented cannot be made public or the subject of subpoena.