The fact that I used quotes on two different words/acronyms is, to be fair, a lousy way to start. But this New York appellate decision yesterday is important in any personal injury litigation because it goes to this essential question for plaintiffs’ lawyers: Would you allow your client to have an unrecorded deposition and physical exam with an agent of the defendant?
Regular readers know I’ve written often about medical-legal exams — those exams that defendants are entitled to when claimants place their medical condition at issue in a lawsuit. The courts errantly refer to these as Independent Medical Exams (IME), though they are far from independent. (See: Is the “Independent” Medical Exam Dead?, and Dear Judge Smith — You gotta be kidding me.)
There are a number of frequent flyer doctors that will do 1,000 or more of these per year for insurance companies, with predictable results. They were the source of a series I did in 2013, with many exams lasting little more than a few minutes at best. (See: Premature Evaluations – The Evidence on Quickie Medical-Legal Exams)
And because these exams are anything but independent, and the doctors so heavily dependent on insurance company money, it’s the custom of plaintiffs’ lawyers to send along an observer, a chaperone, a watchdog, of some kind.
The problem of skewed exams became so great that a cottage industry was born with a company, IME Watchdog, being born for the express purpose of sending along an observer to take notes.
As a puppy lawyer I used to attend these with some frequency since I was not going to try the case. If the doctor lied about something obvious — claiming the exam lasted longer than it did, for example, or falsely claiming that the client made some comment about his condition or how a collision occurred — the observer would be able to take the stand in rebuttal and dispute what the doctor claimed happened in that exam room. The person being examined is, after all, quite preoccupied by being probed and tested and can’t sit there and take notes.
With that way-too-long introduction, we turn to the decision of the First Department yesterday in a matter of first impression: Can defense counsel use discovery to gain access to the notes take by the observers’ and take their depositions. Lower courts had mixed answers to that discoverability issue.
But that issue was laid to rest yesterday in a unanimous appellate decision in Markel v. Pure Power Boot Camp. And that answer is emphatically no.
The court first observed that “No special or unusual circumstances need be shown in order for the IME observer to be present during the examination.”
While the “information contained in the IME observer’s notes and other materials are not protected by either the attorney-client or work product privileges” there is still the qualified or conditional privilege of material prepared for litigation under CPLR 3101(d)(2).
The observer is there as an agent of plaintiff’s counsel in order to assist in the preparation of the case for trial, and that includes cross-examination of the hired guns that insurance companies routinely use.
The only way of circumventing this is by showing a “substantial need” for the discovery and that without “undue hardship” the requesting party is unable to obtain the substantial equivalent by other means.
Except that defendants can’t show that because they have doctors in the rooms taking their own notes.
A final note: The court stressed that, “An important consideration in the Court’s analysis is plaintiff’s representation that the IME observer will not be testifying at trial on plaintiff’s affirmative case.”
The representative, of course, is not hired to be there for the affirmative case, but to be available for rebuttal in case the doctor makes up some cock-and-bull story about what happened or what the doctor claimed that the plaintiff.
This is all the more important since the courts barred people from actually recording the exam, which would have done a helluva lot more for keeping the doctors honest that allowing observers.
And to those judges that may be reading this, please stop using the phrase Independent Medical Exam. You’ve got a legitimate choice between Defense Medical Exam or simply medical-legal exam. And former Chief justice Jonathan Lippmann agrees with me. In Bazakos v. Lewis he wrote in a dissent:
“[t]hese 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.