A defendant may require a plaintiff whose physical condition is in controversy to submit to a physical examination. NY CPLR 3121(a). Plaintiffs and their attorneys may be concerned about the objectivity and fairness with which these Independent Medical Examinations (IMEs) will be performed. While plaintiffs and their attorneys may wish to find a way to ensure that the doctor performs the exam properly and accurately reports the results, the Appellate Division, Second Part has recently held that a plaintiff’s attorney may not surreptitiously record the examination.
In Bermejo v. New York City Health & Hosps. Corp., the trial attorney and a paralegal accompanied the plaintiff to the IME. The plaintiff had a second IME with the same doctor following a shoulder surgery. The attorney and paralegal were in the exam room.
The events that occurred during the trial are somewhat complicated, but after the doctor testified about the exam, the plaintiff’s attorney called his paralegal to testify. Her testimony indicated that the exam was much shorter than the doctor said it was. She testified that she timed the exam. On cross-examination, the paralegal admitted that she did not know how long the doctor may have spent reviewing records. On redirect, the plaintiff’s attorney asked if she had any other information regarding the duration of the exam. She testified that there was a video of the exam.
After an objection from the defense, the trial court sent the jurors out. The attorney said he had taken the video. The defendants moved for a mistrial.
The defendants argued that the plaintiff had not provided notice of the recording as required under CPLR 3121, had not sought the court’s permission to film the IME, had failed to disclose the recording as required by the preliminary conference order and CPLR 2102, had violated the rules of professional conduct by making himself a potential witness and engaging in “dishonesty, deceit, fraud, or misrepresentation,” and had created unfair prejudice by eliciting testimony about the video that could not be remedied by an instruction. The plaintiff’s attorney argued he did not intend to use the video until the doctor “lied on the stand….”
The trial court ultimately granted the mistrial. The defendants moved to have the plaintiff examined by another doctor, to require plaintiff’s counsel to pay the costs they incurred for the first trial, to disqualify the plaintiff’s attorney, and to quash subpoenas duces tecum that were served on the doctor after the mistrial was declared.
The defendants argued that the misconduct of the plaintiff’s counsel resulted in the doctor refusing to testify voluntarily and the mistrial. They argued that he should be required to pay their costs. They also argued that the firm and he should be disqualified because he had made himself a potential witness. Plaintiff’s counsel argued that the issues were caused by the doctor’s lying.
Ultimately, the Supreme Court agreed to quash the subpoenas duces tecum, but it denied the re-examination, the costs, and the disqualification of plaintiff’s counsel. The defendants appealed.
The Appellate Division noted that CPLR 3121 does not place a limit on the number of exams. If a note of issue has been filed, a defendant seeking an additional examination must show that unusual and unanticipated circumstances developed after the filing of the note. The Appellate Division found such circumstances were present in this case. The doctor was unavailable as a witness because he refused to appear voluntarily. The Appellate Division found that his refusal was caused by the trial court’s repeated accusations that the doctor had lied. The court further found that the events were the result of the plaintiff’s attorney’s surreptitious recording of the second IME and withholding of the recording.
There is not any express statutory authority that allows video recording of medical exams. Requests to record exams have generally been handled on a case by case basis. The plaintiff’s attorney is allowed to be present at the IME, but New York courts have generally granted permission to video record an IME when there are special and unusual circumstances. In this case, the Appellate Division found that the plaintiff’s failure to seek leave to record the IME was a sufficient reason to prohibit the use of the video. The Appellate Division also found that the plaintiff’s failure to disclose the video was a violation of CPLR 3101, which requires disclosure of all video tapes involving a party. The plaintiff argued that the recording was made of a nonparty, either the doctor or the attorney, and therefore it did not have to be disclosed. The Appellate Division disagreed, noting that the person most prominently depicted in the video was the plaintiff. The video therefore “involved” the plaintiff and should have been disclosed.
The Appellate Court found that there were unusual and unanticipated circumstances in this case. First, the recording was brought to the jury’s attention through the testimony of the paralegal. The Appellate Division also found that the cross-examination and the court’s interaction with the doctor were unusual and unanticipated. The trial court’s repeated accusations that the doctor lied also constituted unusual and unanticipated circumstances.
The Appellate Division found that the circumstances were sufficient to allow an additional IME. It was unlikely the doctor would be willing to testify, regardless of any corrective measures that might be taken. The defendants were not in any way responsible for the events and could not have anticipated them. Even if the defendants subpoenaed the doctor, he would be in an adversarial position to the defendants.
Additionally, 22 NYCRR 130-1.1 allows the imposition of costs for frivolous conduct. The Appellate Division found that the plaintiff’s attorney’s actions in surreptitiously recording the exam and introducing the information in the way he did were in fact frivolous. The Appellate Division found that the defendants were entitled to costs, and it directed the Supreme Court to determine the total amount and the allocation between the attorney and the firm.
Since the Appellate Division found that the video was improperly made, it also found the recording was inadmissible. Thus, the attorney would not be called to authenticate it. The motion for disqualification was properly denied.
The specific and unusual facts of this case may have influenced the Appellate Division’s determination, but the court made clear that it is improper to record video of an IME without court approval. A skilled New York personal injury attorney can help you through the IME process, even if video is not allowed.
The Law Offices of Nicholas Rose, PLLC offers free consultations. Call 1-877-313-7673.
Bermejo v New York City Health & Hosps. Corp., November 18, 2015, Supreme Court of the State of New York, Appellate Division, Second Judicial Department
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