If was a dumb argument when I first heard about it: That a defendant in a personal injury case had a right to “independent medical exams” of the bodies of injured plaintiffs before they were operated on. And if they didn’t get it, they demanded a sanction for “spoliation” of the evidence — the evidence being the body of the injured person.
Back in late 2021, that argument was dumped on its head by the Appellate Division (First Department), as was the argument that the defense medical exam was somehow independent (The “Independent” Medical Exam is Dead).
And now the Second Department has likewise dumped on the idea, citing to the First Department’s holding in Gilliam v. UNC Holdings:
While the Court ignored the issue of calling such an exam “independent,” it unequivocally held that injured plaintiffs had every right to undergo surgery without first giving defendants access to their bodies for an exam. Citing from the First Department holding in Gilliam, that Court said that the:
“state of one’s body is fundamentally different from inanimate evidence, and medical treatment, including surgery, is entirely distinct from the destruction of documents or tangible evidence which spoliation sanctions attempt to ameliorate. To find that a person has an ‘obligation,’ to preserve his or her body in an injured state so that a defendant may conduct [a medical examination], is antithetical to our belief in personal liberty and control over our own bodies”
…“[p]laintiffs must be free to determine when to undergo medical treatments based on personal factors such as doctor’s advice and their specific pain and discomfort level. It would be absurd for courts to require a plaintiff to forgo surgery (or other medical treatment) for an injury so as not to potentially compromise a lawsuit against the party(s) alleged to have caused the injury”
And with these following words, the Second Department, joining the First, which will hopefully put a final nail in this stupidity:
It is not reasonable to require a plaintiff to delay medical treatment, and potentially prolong his or her suffering, solely to allow a defendant to examine the plaintiff’s body in a presurgical state. Under these circumstances, the plaintiff has not “refuse[d] to obey an order for disclosure or wilfully fail[ed] to disclose information which . . . ought to have been disclosed”
The case is Fandeau v. Corona Industries, decided June 28th.