Andrea M. Alonso and Kevin G. Faley, New York Law Journal
October 27, 2017
New York CPLR §3121 allows for an opposing party to require plaintiff to submit to an examination by a designated physician. This examination, also referred to as an independent Medical Examination (IME), serves an important function in our legal system. The courts have noted that “[p]hysical examinations [narrow], if possible, areas of medical dispute through the assistance of the medical profession, and [eliminate] most of the medical controversy in a personal injury case,” Jakubowski v. Lengen, 86 A.D.2d 398, 400 (4th Dep’t 1982). Many attorneys will disagree that these physical examinations narrow any dispute.
Due to the examination’s potential impact, New York has traditionally allowed attorneys to accompany their clients to examinations. While attorneys have the right to prevent overreaching by a doctor, such as an interrogation of the plaintiff as to liability, barring highly unusual circumstances, counsel may not interfere with the conduct of the examination itself. Plaintiff attorneys have recently resorted to hiring an outside person to sit in on the examinations. Either called “patient advocates” or “watchdogs,” these groups have caused the courts to re-address the rules governing these exams.
Role of a Patient Advocate
The courts apply the same rules which govern an attorney’s role at an examination to the role of patient advocate. When patient advocates attend examinations, the courts have set basic guidelines regarding their behavior during the examinations: advocates “must identify themselves upon entrance, observe the examination without any interference whatsoever and refrain from bringing surveillance materials into the exam room.” IME Watchdog v. Baker, McEvoy, Morrissey & Moskovits, 145 A.D.3d 46 (1st Dep’t 2016). The patient advocate is allowed to sit silently and take handwritten notes based upon their observations, which may be used for litigation purposes. Interference with the IME will most likely cause the patient advocates presence to rise to a level of “unusual circumstance” that necessitates a second examination.
An example of such interference is demonstrated in Katz v. 260 Park Ave. South Condominium Associates, 2016 WL 1597770 (N.Y. Sup.), in which a patient advocate improperly interrupted the examination in order o prevent the doctor from taking additional X-rays of the patient. Thereafter, the opposing party demanded that the patient return to the doctor to undergo the requested X-rays. While the court did not specifically admonish the advocate for their interruption, it did order that the patient return to the doctor for the X-rays.
Advocate’s Work Product
Courts have limited the role of patient advocates to note takers recording observations. This has resulted in the opposing party requesting those notes in order to avoid being surprised at trial by the advocate’s testimony. When this request has been refused and subsequently litigated, the notes have been deemed subject to the attorney work produce privilege. Zuleika Pair v. Caprice Thompson, Juanita Pair, Anna L. Brown, 2014 WL 10186593 (N.Y. Sup.). In support of this stance, courts have placed the burden upon the defendants to show that they have a “substantial need” to obtain the notes. See Katz, 2016 WL 159770 (N.Y. Sup.). The logic governing this rule is that essentially the same information can be obtained by reading through the examining doctor’s report. See Pair, 2014 WL 10186593 (N.Y. Sup.).
However, in Grange v. Sweet, 4 Misc. 3d 470 (N.Y. Sup. 2004), the court applied a different line of logic to determine that a recording of an IME should be given to the party employing the doctor. Specifically, the court rejected the plaintiff’s argument that the tape was considered material prepared for litigation, and found that the “defendant is entitled to a copy since she has substantial need for the tape and cannot obtain its substantial equivalent by other means . . . [The doctor], as defendant’s paid expert, could be considered an employee or agent of defendant, thus requiring disclosure of the audiotape . . . “. Due to the similarities in usage between an audiotape and handwritten notes, it is submitted that the same evidentiary principles should apply to both and these notes should be discoverable.
Current Developments
Ponce v. Health Ins. Plan, 100 A.D.2d 963, 964 (2d Dep’t 1984), established that a plaintiff undergoing an IME is entitled to the presence of a legal representative hired by their attorney. This concept was reinforced by a ruling that “[f]or a court to deny plaintiff accompaniment of his choice, an attorney or a representative sent by the attorney is an infringement upon plaintiff’s right to be assisted by counsel.” Cioffi v. S.M. Foods, 2013 NY Slip Op 32579(U), (N.Y. Sup. Aug 6, 2013). However, the requirement that representatives refrain from interference has been consistently enforced.
Since Ponce, a marked increase in patient advocate use has lead to various attempts by defense attorneys to exclude them from IMEs. Recently, in Steinbok v. City of N.Y., 246 N.Y.S.3d 477 (N.Y. Sup. 2016), the trial court ruled that the defendants’ attempt to block the plaintiffs’ patient advocate from attending the defendants IME “bordered on frivolity” and was “meritless.” The ruling was enforced by stripping the defendants of their ability to require plaintiff to undergo an IME, since the motion caused the new IME to be untimely under the Case Management Order. (An Order to Show Cause with a stay of the IME until the issue could be resolved would have been a better strategy.)
However, in Kattaria v. Rosado, 146 A.D.3d 457 (1st Dep’t 2017), the trial court directed plaintiff to resubmit to a medical examination and issued a protective order to exclude non-attorneys from the exam. In resolving the case, the First Department applied a two-factor test to determine whether an advocate should be allowed at an IME. The court stated that a non-legal representation may b barred from an IME if (1) plaintiff does not timely object to defendant’s notice of physical examination pursuant to CPLR 3121 and 3122; and (2) fails to demonstrate any special and unusual circumstances. When plaintiff failed to meet these criteria, the court ordered a new IME with defendant’s designated physician and prohibited non-attorneys from attending. Obviously, defense attorneys must include this prohibitive language in their initial discovery demands to plaintiff’s counsel.
Conversely, in Henderson v. Ross, 147 A.D.3d 915 (2d Dep’t 2017), the Second Department disagreed with the First Department and held that the burden to show special and unusual circumstances should lie with the defendant and not the plaintiff. In this case, the lower court granted defendant’s motion for a protective order precluding any non-attorney from accompanying the plaintiff at his physical examination.
However, the Second Department reversed, holding that the defendant failed to meet his burden establishing that the advocate would improperly interfere with plaintiff’s examination and allowing the presence of the patient advocate.
These two Appellate Division departments differ on what party bears the burden of proof on whether an IME watchdog should be present at an examination. The First Department requires the plaintiff to prove why a non-attorney should attend an IME, while the Second Department places the burden on the defendant to show that the preclusion of plaintiff’s representative is necessary.
This difference is meaningful. Either department offers a difficult standard to reach. In the First Department, a plaintiff will not be able to show a necessity for a non-attorney witness without direct evidence that the doctor performing the IME has a history of improper behavior at his exams. This ruling will act as an almost outright ban on watchdogs in the First Department. On the other hand, in the Second Department, without direct evidence of a watchdog’s impropriety, it will be impossible to show that the circumstances are “special” or “unusual” enough to warrant preclusion of an advocate. Based on this disagreement between the departments, it will only be a matter of time before the Court of Appeals steps in to address this issue.
Conclusion
Attorneys should be mindful of the role that a patient advocate has in the examination room and ensure that these representatives do not engage in improper conduct while attending an IME. Attorneys should also be aware of the difference between the First and Second Departments. In the First Department, for now at least, a patient advocate should be barred from attending the IME unless the plaintiff’s attorney can demonstrate special circumstances. In the Second Department, defendants will not be able to exclude an advocate. Within the next year, the Court of Appeals will address this issue and their decision will spawn a new column.
Andrea M. Alonso and Kevin G. Faley are partners in the firm of Morris Duffy Alonso & Faley. Patrick Prager, an associate, assisted in the preparation of this article.
Reprinted with permission from the October 27, 2017 edition of the New York Law Journal © 2017 ALM Media Properties, LLC. All rights reserved.
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