Professional Discipline Insufficient to Warrant a Second Independent Medical Examination
August 15, 2013 Posted By Douglas R. Rosenzweig Trial Practice
Personal injury attorneys on both sides of the aisles have become aware of at least two (2) IME doctors have been subject to professional discipline in the past six (6) months. What is particularly alarming is that the professional discipline stems directly from the performance of the independent medical examinations these doctors were entrusted to perform.
Naturally, such evidence is fodder for withering cross-examination by plaintiff’s counsel and could lead a jury to discount all of the evidence presented by the defense medical expert. Thus, defense counsel are left in a very vulnerable position regarding settlement and trial of such cases where a compromised doctor conducted the examinations.
Upon learning of a case in which a compromised doctor was utilized, one avenue to explore is to move for a subsequent IME. CPLR § 3121(a) covers Independent Medical Examinations. While there is no restriction in CPLR 3121(a) on the number of examinations to which a party may be subjected, an additional examination is permissible only where the party seeking the examination demonstrates the necessity for it. In addition, after a note of issue has been filed, as in this case, a defendant must demonstrate that unusual and unanticipated circumstances developed subsequent to the filing of the note of issue to justify an additional examination. Giordano v. Wei Xian Zhen, 103 A.D.3d 774, 959 N.Y.S.2d 545 (2nd Dept. 2013)
The Second Department has held in several cases that professional discipline is insufficient to warrant a subsequent examination of a plaintiff. Schissler v. Brookdale Hosp. Ctr., 289 A.D.2d 469, 470, 735 N.Y.S.2d 412 (2nd Dept. 2001); Giordano supra. In both cases, the Court held that the defendants' concern that the plaintiff may impeach the examining physician's credibility with the information that he was disciplined is not a sufficient basis to direct a second examination. Id.
Accordingly, if seeking to compel a further examination of plaintiff, it would be preferable to argue that a compromised doctor was unavailable, died, or relocated out of state. These excuses have met with better success. See Rosdao v. A&P Food Store, 26 Misc.3d 935, 891 N.Y.S.2d 636 (Sup. Ct. Westchester Cty); Nathanson v. Johnson, 126 A.D.3d 475, 511 N.Y.S.2d 209 (1st Dept. 1987).
Given the unlikelihood of obtaining a further examination (absent a supplemental bill of particulars alleging additional injuries) it is best practice to regularly investigate the doctors used to conduct IME’s and to designate more the one IME (orthopedist, neurologist, radiologist) to act as a certain redundancy against losing an expert for professional misconduct.