Limits on Defendants' Physical ExaminationsLimitations on Defendant’s Physical Examinations
By Robert S. Kelner and Gail S. Kelner
Plaintiffs in personal injury actions must submit to physical examinations with respect to their injuries by physicians chosen by the defendants Although these examinations are often referred to as “IMEs ” or independent medical examinations, there is nothing “independent” about them. They are clearly part of the adversarial process and should more accurately be called insurance medical examinations.
CPLR §3121 provides that when the mental or physical condition of a party is in controversy, any other party may serve notice and direct that the former submit to a physical or mental examination by a designated provider. It provides in pertinent part:
“(a) Notice of examination. After commencement of an action in which the mental or physical condition or the blood relationship of a party, or of an agent, employee or person in the custody or under the legal control of a party, is in controversy, any party may serve notice on another party to submit to a physical, mental or blood examination by a designated physician, or to produce for such examination his agent, employee or the person in his custody or under his legal control.”
These examinations may be one of a defendant’s most potent discovery devices. They must be conducted in a timely fashion and be germane to a condition in controversy.
Very recently, in Bazakos v. Lewis, 2009 WL 1765980, the Court of Appeals held that the relationship between a doctor performing a litigation-related physical examination, which the court actually referred to as an IME, and the party, may be called a “limited physician -patient relationship.” As such, a claim for an injury sustained during such an examination should be analyzed under malpractice rather than negligence criteria.
Nothing in this decision changes the immutable fact that these examinations are a litigation tool. The result of Bazakos was to limit a plaintiff injured during such an examination to the two and one half year statute of limitations for a medical malpractice claim rather than a three year statute for a negligence claim.
The Court held that, although a physician acting at the request of a third-party is not liable for damages resulting from the conclusions which he reaches or reports, the examination should be conducted in a manner which does not cause harm. There is therefore a limited relationship between physician and patient. The determination that recourse for an injury caused by the examination was malpractice, and not a negligence claim precluded the lawsuit at issue. The suit was started within three years of the event but after the expiration of the shorter medical malpractice statute.
There was a vehement dissent by Chief Judge Jonathan Lippman who opined that conduct should only be deemed malpractice rather than negligence when it constitutes medical treatment or bears a relationship to medical treatment. In Bazakos, although medical techniques were employed, no medical treatment was intended or provided. He recognized that the exam was conducted “ simply as a disclosure device in litigation.” In expressing his disagreement with the majority’s determination that the physician may have committed malpractice rather than simple negligence, he astutely observed:
The duty here implicated does not arise from what is reasonably susceptible of characterization as a doctor-patient relationship, i.e. a treatment relationship; it is simply an instance of the general obligation, frequently enforceable in tort, to refrain from causing foreseeable harm. That is ordinary negligence. It is today denominated “medical malpractice” only by dint of an exercise in judicial artifice untethered to any law or to the actual nature of the transaction known euphemistically as an “independent” medical examination. These exams, far from being independent in any ordinary sense of the word, are paid for and frequently controlled in their scope and conduct by legal adversaries of the examinee. They are emphatically not occasions for treatment, but are most often utilized to contest the examinee's claimed injury and to dispute the need for any treatment at all. (Emphasis added)
Whether injury caused during such an examination is characterized as medical malpractice or negligence, it is clear that the examination is for litigation purposes and not for treatment. As such, plaintiff’s counsel must approach these examinations with vigilance as an advocate for the client.
Plaintiff is entitled to have an attorney or representative of his or her counsel’s office present during the exam provided that the attorney or other representative does not unduly interfere with the examination. In Ramsey v. New York University Hosp. Center, 14 A.D.3d 349, 789 N.Y.S.2d 104 (1st Dept.2005), the court held that this rule included a psychiatric evaluation.
In A.W. v. County of Oneida, 34 A.D.3d 1236,827 N.Y.S.2d790 (4th Dept. 2006), the court found that plaintiff was similarly entitled to have an attorney or representative present at a neuropsychological examination provided there was no interference. The onus was on the defendant to establish that the presence of a legal representative would “impair the validity and effectiveness of the particular examination.” In this case, defendant failed to make that showing.
Similarly, in Jessica H. v. Spagnolo, 41 A.D.3d 1261, 839 N.Y.S.2d 638 (4th Dept.2007), the court allowed plaintiff's attorney to observe the neuropsychological examination either by being present or with a one/two way mirror.
A plaintiff should never attend these examinations alone. The examination is not an opportunity for an impromptu discussion of liability and the doctor may not probe into liability issues. However, a plaintiff’s medical history is an appropriate area for inquiry if related to the injuries claimed and relevant and necessary for a meaningful examination. It is also important that all of the plaintiff’s current restrictions and complaints of pain be reported to the examining physician.
Plaintiff’s representative at the examination should take notes, which include details as to the time the exam started and stopped as well as any tests which were conducted. Everything that occurs should be recorded. These notes will be useful for the cross-examination of the physician at trial.
The right to conduct litigation examinations is not unrestricted. If a defendant chooses an examining physician that it later regrets, there is no automatic re-do, especially after the note of issue has been filed. The courts have held that a party's mere dissatisfaction with the physician designated to conduct an examination is insufficient to support a request for additional examinations by different physicians. In Massachusetts Bay Insurance Company v. Stamm, 237A.D.145, 654 N.Y.S.2d 752(1st Dept. 1997), the court held:
Appellants’ mere belated dissatisfaction with the likely ineffectiveness as witnesses of the two physicians who they had requested to reexamine the conservatee and had obtained a court order therefor is insufficient reason to now seek recourse to different physicians to conduct the new examinations.
In Frangella v. Sussman, 254 A.D.2d 391,679 N.Y.S.2d 87 (2nd Dept.1998), defendant moved to compel the plaintiff to undergo a second psychiatric examination by a newly designated defense expert. He had been previously examined by a defense expert who essentially concurred that the plaintiff's emotional and mental injuries were causally related to the subject occurrence. Defendant failed to comply with a pretrial conference order which directed disclosure of the expert's report and then, on the eve of trial, sought to have the plaintiff submit to a second examination by a new expert. The court rejected defendant’s application for several reasons:(1) Defendant failed to demonstrate that unusual and unanticipated circumstances developed subsequent to the filing of the note of issue to justify a second examination. ( 2) Defendant's application was made long after he was served with the plaintiffs' bill of particulars, and the plaintiffs never alleged new or additional injuries or that the nature and extent of the existing injuries had changed dramatically. ( 3) Defendant failed to show why the information obtained from the prior examination was inadequate, or that the first doctor was unqualified to render an evaluation. The court determined that defendant's dissatisfaction with his chosen expert's diagnosis of the plaintiff's condition did not warrant a second examination by a new expert.
In Schissler v. Brookdale Hosp. Center 289 A.D.2d 469, 735 N.Y.S.2d 412 (2nd Dept. 2001), the court held that the fact that the examining physician was subjected to professional discipline subsequent to his examination of the plaintiff did not justify an additional examination by another physician. Defendants' concern that the plaintiff might impeach the examining physician's credibility with the information that he was disciplined was not a sufficient basis to direct a second orthopedic examination. See also, Futersak v. Brinen, 265 A.D.2d 452, 697 N.Y.S.2d 89(2nd Dept. 1999) which addressed the same issue.
In Hilts v. Board of Educ. of Gloversville Enlarged School Dist. 50 A.D.3d 1419, 857 N.Y.S.2d 292 ( 3rd Dept.2008), the court held that defendants did not make a requisite showing for a second examination where it was solely for the purpose of rebutting the opinion of plaintiff's expert.
A party's concern that its physician will be unable or unwilling to testify at trial is not a sufficient reason for an additional examination. For example, in Korolyk v. Blagman, 89 A.D.2d 578, 452 N.Y.S.2d 445(2nd Dept. 1982), the court rejected defendant’s application for a second physical examination in New York after the first examination was conducted in Delaware where plaintiff resided. The court held that this was an insufficient justification for a new designation, where there was no showing that the original evaluation was inadequate or unreliable. The court recognized that there were circumstances where further examinations were justified, as, for example, where the report of the original physical examination was no longer reflective of the plaintiff's condition. However, the mere fact that the original examination was held in Delaware was insufficient. The court stated:
Here, however, it is to be noted that the first physical examination was conducted in Wilmington, Delaware, by a physician of the appellant's choice... and in contemplation that the examining physician would provide the necessary expert testimony at the trial. There is no claim or showing here that Dr. Bailey's report is, in any manner, inadequate and not a reliable opinion concerning said plaintiff's physical condition. When a physician is selected to perform a physical examination for the purpose of litigation, such engagement is with the clear understanding and expectation that he will be available to testify on behalf of the party for whom he is conducting the examination.
In Strauss v. New York Ethical Culture Soc., 210 A.D.2d 134, 620 N.Y.S.2d 51 (1st Dept. 1994), plaintiff had been examined by defendant’s designated physician, a plastic surgeon. The court held that the trial court did not abuse its discretion in refusing to direct plaintiff to submit to a second physical examination, a year later, after the note of issue had been filed, this time by an orthopedist. The court held that defendant’s dissatisfaction with the ability of its designated doctor’s ability to report on the full range of injuries alleged by plaintiff did not warrant such relief, where no new or additional injuries were claimed. No showing was made that the first doctor was unqualified to render an orthopedic evaluation and no other special circumstances were shown. Clearly the additional examination was waived by defendant’s delay until after the filing of the note of issue. The fact that two different specialties were involved raises the question as to whether this issue would have been resolved differently if it had been raised during active discovery prior to the filing of the note of issue.
Defendants’ failure to conduct their examinations within the prescribed time limits may result in a waiver of the examination, especially where the delay is lengthy and prejudicial. Although CPLR §3121 does not restrict the number of examinations, the courts have repeatedly held that a party seeking further examinations must demonstrate the necessity for them. As with any discovery device, the scrutiny is greater after the filing of the note of issue. For example, in Schenk v. Maloney, 266 A.D.2d 199, 697 N.Y.S.2d 332 (2nd Dept.1999), defendant was not permitted to conduct a psychiatric examination where he waited almost two years after the note of issue was filed and almost three years after service of plaintiffs' amended bill of particulars and narrative reports of plaintiff's treating psychotherapist to seek the examination. Plaintiff had not alleged new or additional injuries or a drastic change in the nature and extent of the existing injuries. Defendant failed to demonstrate that "unusual and unanticipated circumstances" developed subsequent to the filing of the note of issue to warrant the examination.
Similarly, in James v. New York City Transit Authority , 294 A.D.2d 471, 742 N.Y.S.2d 855 (2nd Dept. 2002), defendants waived their right to conduct physical examinations by waiting over five months after the filing of the note of issue to make their application. See also Manzo v. City of New York, 62 A.D.3d 964, 880 N.Y.S.2d 310 (2nd Dept.2009) where defendant similarly waived its right to additional physical examinations.
However, under certain circumstances and absent a showing of prejudice to the opposing party, the court may exercise its discretion to relieve a party of a waiver of the right to conduct a physical examination. For example, in Jones v. Grand Opal Const. Corp. 2009 WL 1959241 (2nd Dept. 2009), the delay was negligible. Plaintiffs served the note of issue 10 days after the expiration of the time period set forth in the preliminary conference order for conducting physical examinations and five months prior to the date in the order for filing a note of issue. Within seven days after the plaintiffs filed the early note of issue, the defendants designated an orthopedist and a neurologist to examine the plaintiffs. Thereafter, the defendants promptly moved to compel the plaintiffs to submit to physical examinations. The court held that no prejudice to the plaintiffs was shown by reason of the short delay, as the case would be retained on the trial calendar.
Clearly, defendants’ physical examinations are a valid component of the discovery process. However, these examinations must be timely, relevant and in compliance with the CPLR. Plaintiff’s counsel must always take these examinations very seriously, as the testimony of defendant’s “hired gun” physician may be one of the critical moments of the trial.