Fdcc construction law section

Cameras in the Examination Room? Level the Playing Field with the Use of IME and Surveillance While Keeping the Plaintiff from Turning the Tables on You Presence of a Third Party, Attorney or Physician Many states have a civil procedure rule that permits independent medical examinations with language almost identical to Rule 35 of the Federal Rules of Civil Procedure.

Rule 35(a) provides: a) Order for an Examination.

(1) In General. The court where the action is pending may order a party whose mental or physical condition--including blood group--is in controversy to submit to a physical or mental examination by a suitably licensed or certified examiner. The court has the same authority to order a party to produce for examination a person who is in its custody or under its legal control.

(2) Motion and Notice; Contents of the Order. The order: (A) may be made only on motion for good cause and on notice to all parties and the person to be examined; and (B) must specify the time, place, manner, conditions, and scope of the examination, as well as the person or persons who will perform it.

The statute appears to be silent on whether a representative for the plaintiff or a third party is permitted to be present at the examination. Several states adopting the language of Rule 35(a) have held that questions concerning the presence of the representative or third party are a matter to be resolved by the trial court in exercise of its discretion. See, e.g., Hegwood v.

Montana Fourth Judicial Dist. Court, 75 P.3d 308 (2003); Hayes v. Dist. Court In & For City & Cnty. of Denver, 854 P.2d 1240, 1246 (Colo. 1993).

In Hegwood, the plaintiff was injured in an automobile accident and ordered to submit to an IME. 75 P.3d 308 (2003). The plaintiff opposed the motion and sought a protective order to have (1) a court reporter and video recorder to document the entire examination and (2) plaintiff’s counsel to attend the full examination. Id. at 309. Plaintiff argued that such measures were necessary since the physician who would be conducting the exam no longer practiced

medicine and, instead, conducted IMEs for insurance companies and defense counsel full time.

Id. at 310. The Montana District Court denied the motion to record the examination and allow plaintiff’s attorney to attend the entire examination. Id. at 310. Plaintiff subsequently filed a petition for a writ of supervisory control with the Supreme Court of Montana. Id. at 310. The Court held that it was in the sole discretion of the trial courts to determine whether a protective order should be issued permitting the plaintiff’s representative to attend the IME. Id. at 311. The Court noted that merely demonstrating that an examiner performs exams for the insurance industry does not inherently establish the degree of prejudice or potential for abuse that a protective order necessitates. Id. at 312.

In some cases, such as Hegwood, the plaintiff will seek a protective order prior to the examination. However, in others the plaintiff may attempt to bring his or representative to the examination before they resort to filing a protective order with the court. If the latter situation arises, a defendant may be able to prevent the examination from occurring by having the physician object to the examination in the presence of the representative. Hayes v. Dist. Court In & For City & Cnty. of Denver is illustrative of this strategy. 854 P.2d 1240 (Colo. 1993).

In Hayes, the plaintiff was ordered to submit to an IME, but plaintiff rejected submitting to the examination on grounds that the physician was biased against plaintiffs in personal injury litigation. Plaintiff requested the trial court to enter an order requiring the examination to be conducted by another orthopedic surgeon mutually satisfactory to counsel for all parties. Id. at 1242. The trial court denied plaintiff’s request and ordered the IME to proceed with the physician chosen by the defendant’s counsel. Id. Upon learning of this order, the plaintiff’s counsel directed his paralegal to accompany the plaintiff to the examination and tape-record the examination. Id. Plaintiff’s counsel also

informed defendant’s counsel of his decision. Id.

Defendant’s counsel then notified the

physician’s office that the paralegal would be attending the examination and the physician’s office manager objected, explaining that the physician did not conduct examinations under such circumstances because it hindered his ability to establish a rapport with the examinee. Id. The trial court was notified of these difficulties and subsequently held a hearing to determine the status of a protective order that plaintiff sought in order to have the paralegal attend the examination. Id. The court found that the physician was not biased against the plaintiff or plaintiff’s attorney and that he could conduct an impartial medical examination. Id. at 1243.

After the protective order was denied, plaintiff filed a motion for reconsideration claiming that the paralegal’s presence was needed because his client suffered from memory loss.

Id. at 1246. The Court held that questions concerning conduct of court-ordered physical examinations of personal injury plaintiffs, including the presence of third parties and tape recorders during such examinations, are to be resolved by the trial court in exercise of its discretion. Id. at 1243.

A defendant’s physician similarly was able to thwart an IME from taking place in the presence of a third party in a West Virginia case. In State ex rel. Hess v. Henry, the plaintiff in a personal injury action appeared at his IME with a legal stenographer. 393 S.E.2d 666, 667 (1990). The physician objected to the stenographer and the plaintiff refused to proceed without the stenographer. Id. Unlike the cases discussed above, the defendant took additional affirmative actions to prevent the examination from occurring in the presence of a third party.

The

defendant filed a motion to compel discovery, which the Court granted, disallowing the stenographer’s presence. Id. A second examination was scheduled, but plaintiff insisted on bringing a tape recorder to document the examination. Id. The physician again objected that this

would be intrusive and unfruitful, a neurological examination being “neither verbal nor auditory, nor otherwise capable of recordation.” Id. The defendants moved to compel discovery without the tape recorder, which motion the court granted. Id. The court refused plaintiff’s request to require the defendants to disclose in advance to plaintiff or his counsel the precise types of tests the physician would conduct or the manner in which they would be conducted. Id. Plaintiff subsequently filed a writ of prohibition with the Supreme Court of Appeals. Id. at 668.

The Court granted the writ and held that the plaintiff was entitled to prior notice of the scope and manner of the examination, but also held that a third party should not be allowed to be present, nor should a tape recorder be allowed, absent a showing of good cause. Id. at 669. The Court noted that good cause should be a circumstance that implies that the truth-finding function of the examination may be threatened absent the requested presence. Id. Defendants also can prevent a physician chosen by the plaintiff from attending the IME by attacking the credentials of the plaintiff’s physician. In Astill v. Clark, the plaintiff sued defendant for personal injuries resulting from an automobile collision. 956 P.2d 1081 (Utah Ct. App. 1998).

Plaintiff requested to have her chiropractor present during her IME with a

neurologist and to videotape the examination. Id. at 1088. The defendant filed a motion to compel plaintiff to submit to the IME without the presence of her chiropractor and without requiring that the examination be videotaped. Id. Plaintiff claimed error in that there was no “appropriate” monitor to ensure that the IME was properly performed. Id.

The Utah Court of

Appeals held that it was within the trial court's discretion to require the plaintiff to be accompanied by a neurologist, rather than her chiropractor, during her IME and that because

chiropractors and neurologists are trained in different fields a chiropractor is not qualified to evaluate a neurologist's performance. Id.

Recording an Independent Medical Examination A few of the cases cited above held that the recording of an IME, like the presence of a third party at an IME, is a matter to be resolved by the trial court in exercise of its discretion.

See, e.g., Hegwood v. Montana Fourth Judicial Dist. Court, 75 P.3d 308 (2003); Hayes v. Dist.

Court In & For City & Cnty. of Denver, 854 P.2d 1240, 1246 (Colo. 1993). In addition, several other state courts have similarly held that the matter is to be determined by the trial court in exercising its discretion. See, e.g., Ratcliff v. Sprint Missouri, Inc., 261 S.W.3d 534 (Mo. Ct. App. 2008); Stone v. Am. Family Mut. Ins. Co., 178 Wis. 2d 589 (Ct. App. 1993) In Ratcliff, the Missouri Court of Appeals held that the trial court acted within its discretion in not granting a protective order allowing a worker to record the independent psychological examination of him in a worker's premises liability action where Missouri’s rule authorizing IME’s was silent on the recording of exams. 261 S.W.3d at 534. Similarly in Stone, the Wisconsin Court of Appeals held in a case where the plaintiff requested that her IME be recorded to alleviate her anxiety, that the determination of whether an IME could be recorded should be made by the trial court on a case-by-case basis. 178 Wis. 2d at 589.

Other states require the plaintiff to demonstrate good cause warranting the recording of the IME. See, e.g., Muci v. State Farm Mut. Auto. Ins. Co., 478 Mich. 178, 193 (2007); State ex rel. Hess v. Henry, 183 W. Va. 28, 31(1990). For example, in Muci the Supreme Court of Michigan held that it was proper for the trial court to impose conditions on an IME which

included videotaping where the plaintiff proffered evidence that the doctor previously engaged in inappropriate questioning. 478 Mich. At 193.

Some states similarly require the plaintiff to present special circumstances that necessitate the recording of the examination. See, e.g., Henry v. Barlow, 948 So. 2d 895 (La. App. 3 Cir. 2006); Lamendola v. Slocum, 538 N.Y.S.2d 116 (1989). In Henry, the plaintiff requested for its attorney to be present at the IME to prevent a “swearing match”. Id. The Court held that the plaintiff was not permitted to have his attorney present at the examination and noted that Louisiana Code of Civil Procedure Article 1464 does not afford plaintiffs an absolute right to have their attorneys present at the examination and therefore a plaintiff must present special circumstances that warrant the presence of counsel and videotaping at his examination. Id. at 897.

The leading case in New York on the issue is Lamendola v. Slocum. 538 N.Y.S.2d 116.

In Lamendola, the Third Department Appellate Division held that a plaintiff was not permitted to videotape his IME because the plaintiff failed to show that “special or unusual circumstances” existed that warranted the videotaping of the examination. Id. at 118. In an article for the New York Law Journal entitled “Law Does Not Support Videotaping IMEs”, Alice Spitz noted that many New York cases have not permitted the videotaping of IMEs. She stated, “three out of the four Appellate Divisions as well as several lower courts have ruled that the videotaping of an IME was appropriately prohibited.”

In addition, Spitz noted that the burden of proving special or highly unusual circumstances is extremely high and stated that the limited examples where the burden was met included where the party being examined was incompetent or comatose and “unable to review the examination with his attorney or testify at trial as to the manner in which the examination

was conducted”. Alice Spitz, Law Does Not Support Videotaping IMEs, NEW YORK LAW JOURNAL, Nov. 20, 2013 (Citing Mosel v. Brookhaven Mem. Hosp., 134 Misc.2d 73 (Sup. Ct. Suffolk County 1986).

Other states have explicit statutory provisions that permit the recording of IMEs. Cal. Civ. Proc. Code § 2032.510 (West). Wash. Super. Ct. Civ. R. 35. For example the California Civil Procedure Code provides that “The attorney for the examinee or for a party producing the examinee, or that attorney's representative, shall be permitted to attend and observe any physical examination conducted for discovery purposes, and to record stenographically or by audio technology any words spoken to or by the examinee during any phase of the examination.”. Cal. Civ. Proc. Code § 2032.510(a) (West).

Similarly Washington’s Superior Court Civil Rules provide that “Unless otherwise ordered by the court, the party being examined or that party's representative may make an audiotape recording of the examination which shall be made in an unobtrusive manner. A videotape recording of the examination may be made on agreement of the parties or by order of the court.”. Wash. Super. Ct. Civ. R. 35(3).

Recently, the issue of recording an IME was front and center in New York State. In Bermejo v. New York City Health and Hospital Corporation, 2015 NY Slip Op 08374 (Nov. 18, 2015 App. Div. 2d Dept.), plaintiff was examined by Dr. Michael Katz, an orthopedist, on two occasions. Unbeknownst to the defendants, plaintiff’s counsel, who was present at the second IME, secretly taped the exam.

During the trial, Dr. Katz was asked by plaintiff’s counsel how long his second examination took. The doctor responded that he was “uncertain.” In response to another question from counsel, he further testified that he could not recall how long the examination took

and when asked, if in his experience, would it take less than fifteen minutes, he replied “quite frankly, I don’t know.”

At this point the trial judge intervened and told Dr. Katz that he could not accept that answer and “I will have to insist on what your custom and practice would be as to what type of, the length of an exam of this type.” Dr. Katz replied, “I think in the range of between ten and twenty minutes would be appropriate.”

Plaintiff’s paralegal, who was also present at the second examination (must have been a crowded room), then took the stand and testified that the exam took three minutes and that she knew it took three minutes because she “timed it” with her phone. On redirect, plaintiff’s counsel then asked if she had any other information regarding how long the examination took and she stated that she did and said “you [meaning plaintiff’s counsel] took a video of the examination.” The judge cleared the Courtroom and then, after a lengthy argument over the course of several days, declared a mistrial.

As noted in the attached sheet concerning each state’s policy with respect to IMEs, New York CPLR 3121 and case law hold that: “Decisions on requests for permission to videotape IMEs have been made on a case by case basis, and videotaping has not been allowed in the absence of special unusual circumstances”.

The rationale behind these rulings contemplate that a plaintiff would normally be entitled to have his or her attorney present at an IME and therefore there would be no need to tape the exam. In attempting to justify the surreptitious taping of the IME, the plaintiff argued that he did not exchange the video because they were not going to use it on his direct case and would only use it as rebuttal evidence. Plaintiff’s counsel also claimed that the recording constituted work product.

It was also noted that there was a “history” between Dr. Katz and plaintiff’s counsel. In his report of the first IME, Dr. Katz noted that the plaintiff’s counsel refused to allow his client to answer any questions relating to the happening of the accident, the medical treatment he received afterwards and his present complaints. Dr. Katz further noted that plaintiff’s counsel “presented quite a nasty and obstructive front towards getting the proper history…. [Plaintiff’s counsel] just became nastier as questions were asked. It is highly unusual for an individual’s attorney to behave as [plaintiff’s counsel] did in order to mislead the examiner and try to get them to believe that these changes were acute and not chronic.”

Plaintiff’s attorney explained that he was further motivated to record the second IME after Dr. Katz’s first IME report was issued, which contained “untrue accusations” that plaintiff’s counsel had engaged in obstructive behavior.

New York State also has a discovery rule that many other State Courts employ that applies to the exchange of photographs or videotapes. CPLR 3101(a)(i) sets forth that there shall be full disclosure of all material by a party of all photographs, videotapes or audiotapes. While it was noted that this rule was enacted for the primary purpose of preventing unfair surprise in situations where a defendant uses surveillance video, the statute employs broad language, not limited to such a scenario, but instead requires disclosure of “any films, photographs, videotapes or audiotapes” of a party, regardless of who created the recording or for what purpose.”

The Court noted that the case law contemplates that a plaintiff normally will be entitled to have his or her attorney present at an IME, but permission to employ the additional measure of videotaping the examination will be granted only where the plaintiff establishes the existence of special and unusual circumstances. The latter proposition presupposes that a request for the Court’s permission to engage in videotaping will be made. What the law “does not contemplate

is plaintiff’s attorney taking it upon themselves to surreptitiously videotape an IME, without the knowledge of the examining physician, without notice to the defendant’s counsel, without seeking permission to the Court.”

The Court found against the plaintiff and sent attorneys a strong message by finding that the defendant was entitled to recover from plaintiff’s counsel the costs they incurred in participating in the trial on the issue of damages, as well as the costs they incurred in making and litigating the motions at issue on these appeals and then pursuing these appeals.

What these cases show is that there is still a strong sentiment against videotaping of IMEs and that legal skullduggery will be met with intolerance and sanctions. The Appellate Judges in Bermejo were incensed that plaintiff’s counsel never disclosed the existence of the videotape.

How does this play out in the future?

California allows videotaping of IMEs and

California, more often than not, is at the forefront of legal developments that other states eventually adopt. However, there does seem to be an innate unfairness as plaintiff’s attorneys are allowed to tape IMEs while defense attorneys are prevented from gaining access to examinations of the plaintiff by plaintiff’s doctors to see what truly transpires behind the curtain.