In personal injury litigation it is common for plaintiffs to undergo an independent medical examination with a specialist chosen by the opposing party. The purpose of an independent medical examination or IME is to prevent as much medical uncertainty in the matter as possible. However, plaintiffs and their attorneys should not be fooled by the term independent in IME. The doctor examining your client is hired by the defendant’s lawyer and insurance company to defend their side of the case, so we like to refer to them as defense medical examinations or DMEs. The defense hired doctor knows that he or she may have to go into court one day to tell a jury their medical opinion on whether your client’s injuries, limitations, and residuals were caused by the incident in question, or whether they are degenerative or possibly caused by a prior event. The defense doctor is not your client’s treating doctor and no doctor-patient relationship is established, so he or she can provide any opinion they want without the fear of facing liability if that opinion is incorrect. Because of this, it is important to retain a third-party observer, sometimes referred to as a client advocate, to take detailed notes of the examination in an effort to hold the examiner accountable. As a client advocate that has accompanied plaintiffs on hundreds of defense medical examinations, I will use this article to explore the role of a client advocate at an IME, which party has the burden to exclude said advocate from attendance, and the impact of COVID-19 on IME procedures and policies.

Plaintiff’s Right to an Independent Observer

While the use of independent observers to accompany injured plaintiffs on IMEs is on the rise, the rules regarding their attendance and role has been controversial for several years. In New York, the Second Department ruled in Ponce v. Health Ins. Plan, 100 A.D.2d 963, 964 (2d Dept. 1984) that a plaintiff “is entitled to be examined in the presence of [his or] her attorney or other legal representative, as well as an interpreter, if necessary, so long as they do not interfere with the conduct of the examination.” In Cioi v. S.M. Foods, 2013 NY Slip Op 32579(U) (N.Y. Sup. Aug. 6, 2013), the Second Department went even further by stating that failure to allow plaintiff accompaniment of their choice on an IME “is an infringement upon plaintiff’s right to be assisted by counsel.” Because the plaintiff’s attorney, or a legal representative from their firm will likely be viewed as biased in the eyes of a jury, the use of third-party independent observers or client advocates has become increasingly more common, which has led to some ambiguity as to whether these advocates are permitted to attend and what the extent of their roles ought to be. In 2017, the Second Department extended the opinion set forth in Ponce to include non-legal representatives or 3^rd party observers. Henderson v. Ross, 147 A.D.3d 915, 915 (2017).  In IME Watchdog v. Baker, McEvoy, Morrissey & Moskovits, 145 A.D.3d 464 (1^st Dept. 2016), the First Department set basic rules regarding the role of independent observers at an IME. An independent observer “must identify themselves upon entrance, observe the examination without any interference whatsoever and refrain from bringing surveillance materials into the exam room.”  It is important that the person you retain to accompany your client is aware of these basic rules because failing to comply can have an impact on your client and their lawsuit. For example, in Katz v. 260 Park Ave. South Condominium Associates, 2016 WL 1597770 (N.Y. Sup.), plaintiff had to return for a second IME with the same defense examiner to undergo x-rays after the 3^rd party observer prevented the doctor from doing so during the initial IME. Defendant filed a motion stating that the actions made by the 3^rd party observer rose to the level of “unusual circumstances,” which required the plaintiff to return for a second exam. However, a trained client advocate knows what to look for and can take handwritten notes on all that is said and done during the examination, which is compiled into a time-stamped report for the plaintiff’s counsel. The final report with the advocate’s observations is an attorney privileged work product that does not have to be shared with defense, and it can be used to rebut statements made by the defense medical examiner.

Role of the Independent Observer or Client Advocate

Attorney Privileged Reports

Although the courts have set basic rules to prevent independent observers from interfering with the process of the examination, a report with detailed and time-stamped observations made by a trained client advocate can go a long way in rebutting an incorrect statement made by the defense doctor. I cannot tell you how many times I have read defense medical expert reports indicating that the defense doctor performed a full and complete history interview and physical exam when the entire examination lasted less than ten minutes. Not all, but some defense insurance doctors make their living strictly by working for insurance companies, seeing one patient after another. In other words, they do not have a practice where they treat their own patients, and instead, they cycle through claimants one after the other like an assembly line. With word processing features on today’s computer programs, it is easy for these hired guns to submit the same generalized reports that lead to the same conclusions by simply changing the claimant’s name and other specific information. Thus, it is imperative that you provide your client with an advocate that can accurately record the extent of the evaluation in order to hold the defense doctor accountable. In addition, you will receive the client advocate’s report well before the defense receives their expert’s report, so if something unexpected happens during the evaluation such as the client or doctor stating incorrect information, or either party mentioning information about a prior injury or treatment that was not previously disclosed, you will have the opportunity to address these issues before it’s too late.

Prepare Client Prior to IME

In addition to providing time-stamped reports, a trained client advocate should be able to prepare your client for how they should conduct themselves during the evaluation. A client advocate can prevent your client from completing unnecessary intake forms to prevent misinterpretation of their answers. Instead, the defense doctor may ask the client any questions from the intake form in the presence of an independent observer so that it is accurately recorded. A client advocate can also advise your client beforehand as to the types of questions they can expect to receive from the doctor, as well as the types of questions they should decline to answer. For example, the defense doctor can ask the plaintiff questions about the accident as it relates to how they were injured, but they can’t ask questions about liability such as, “Were you using your phone while driving?” Or, “Didn’t you notice the defect in the sidewalk?” Remember, the purpose of this examination is for the defense doctor to evaluate your client’s medical status as it relates to the harm produced by the injury causing event. It is not the defense’s second bite at the apple to conduct an additional examination before trial. Last but not least, a trained client advocate can guide your client through the basic do’s and don’ts of the behavior expected of them at an IME. Your client will be advised that they should be honest and respectful, avoid guessing or using the terms always and never, and not do anything that causes them pain or discomfort.

Burden of Excluding an Independent Observer

In New York, there has been ambiguity among the courts as to which party bears the burden to prove and justify the exclusion of a 3^rd party observer or client advocate. In a recent decision in September 2020, the Second Department cleared up the confusion in Gonzales v. Red Hook Container Terminal, 128 N.Y.S. 3d 897 (2d Dept. 2020). In Gonzales, plaintiff sustained permanent brain injuries and retained an independent observer to accompany them on their IME with defense’s neuropsychologist. On the date of the scheduled exam, the examiner did not allow plaintiff’s observer to sit in on the exam, and the plaintiff declined to undergo the evaluation. Defendant filed a motion to The Supreme Court to order plaintiff to undergo the examination without the presence of a non-legal representative, but it was denied. Plaintiff eventually underwent the examination with the presence of a 3^rd party observer and the defendant appealed the denial of their motion to the Second Department. In its’ decision, the Second Department echoed the opinions set forth in Ponce and Henderson that a plaintiff undergoing an IME is entitled to be accompanied by his or her attorney, a legal representative, or a non-legal representative, as well as an interpreter. The Second Department ruled in favor of the plaintiff finding that the defendant failed to meet its burden to exclude plaintiff’s third-party observer. While other New York Appellate decisions have paved the way for the Second Department’s recent decision, Gonzales was the first to eliminate any doubt by stating the First, Second, and Fourth Departments were on the same page as it relates to whose burden it was.  Ultimately, it is plaintiff’s right to be accompanied by a representative of their choice, legal or non-legal, so long as they do not interfere with the examination, and it is defendant’s burden to justify their exclusion.