Independent Medical Evaluations
During the course of a personal injury lawsuit, a plaintiff is asked to submit to what is called an “independent medical exam” or “independent medical evaluation”. This is an exam conducted by a doctor hired by the defendant to perform a physical examination and review the plaintiff’s records. This doctor acts as an expert witness for the defendant. These doctors play a critical role in the course of a case. Often, a plaintiff’s attorney will have someone appear with the plaintiff at this exam to make a record. On March 19, the New York State Supreme Court, Appellate Division – First Department was called upon to consider whether an Independent Medical Evaluation “watchdog’s” notes and other materials were immune from disclosure.
In Markel v. Pure Power Boot Camp, Inc., the plaintiff sued a boot camp style gym for the injuries she sustained while participating in an exercise drill. The plaintiff’s attorney hired an individual from an IME watchdog company, who attended the plaintiff’s IME and took notes on the conduct of the exam. Sending an IME watchdog the court noted, is permissible so long as the observer does not interfere or prevent the defendant’s doctor from conducting the evaluation.
The defendant’s then sought to obtain the observer’s notes and other materials and the plaintiff’s moved for a protective order to resist disclosure. The court found that, as an agent of the plaintiff’s attorney, the observer’s notes and other materials constituted “materials prepared for trial bringing them within the conditional or qualified privilege protections of CPLR 3101(d)(2)”. The court held that the defendant could not access the observer’s notes and materials because the defendant could not demonstrate a “substantial need” for them and the existence of “undue hardship” without them.
The Grandelli Firm understands the importance of Independent Medical Evaluations and works to ensure that our clients are evaluated fairly and honestly. If you or a loved one were recently injured in an accident, please call our office today for a free consultation.