I could definitely see situations where it might be appropriate for an insurance carrier, as part of an IME, to demand that a claimant undergo a non-invasive diagnostic test at a facility of the insurance carrier’s choosing in order to assist the carrier to determine the medical reasonableness of future surgeries and other potentially invasive procedures. For instance, many of you might remember the piece the New York Times wrote last year regarding outdated MRI machines that are still in use, which are unable to fully and accurately delimit the actual locus and extent of an injury. If you forgot about that article, it is on this blog. I also recall Judge Viscovich’s decision in Complete Medical Care Svs., P.C. v. State Farm Mut. Auto. Ins.Co., 21 Misc.3d 436 (Civ. Ct. Queens Co. 2008) in which he decided that an EMG/NCV test was determined to be medically necessary, notwithstanding the uncontroverted evidence that it was improperly performed.
Clearly, from the standpoint as to whether further surgeries or further invasive treatment is necessary, a properly performed diagnostic test, using a modern and functioning machine, with a competent technician, might very well be helpful in determining a Claimant’s true clinical picture.
Enter the matter of Rosario v BNS Bldgs., LLC 2009 NY Slip Op 08801 (2d Dept. 2009), which tangentially discussed this issue in the context of a third-party action:
“Under the circumstances, where, inter alia, the plaintiff established that the proposed medical testing was potentially dangerous (cf. Lefkowitz v Nassau County Med. Ctr., 94 AD2d 18, 21), the Supreme Court properly denied that branch of the defendants’ motion which was to compel her to submit to the proposed testing (see Santero v Kotwal, 4 AD3d 464, 465; Bobka v Mann, 308 AD2d 497, 498; Marino v Pena, 211 AD2d 668, 668-669).”
Read the bold case, supra, and you will see that under the appropriate circumstances, this type of an IME might be proper.
For those who are unsure what satisfies the “personal knowledge” prong of an IME no-show defense, the Appellate Term in uncharacterstic fashion spelled it out:
Radiology Today v. Geico Ins. Co. 2009 NY Slip Op 52208(u)(App. Term 2d Dept. 2009).
“The affirmations and affidavits of the medical professionals who were to perform the IMEs established that plaintiff’s assignor failed to [*2]appear for said IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 ; Tuncel v Progressive Cas. Ins. Co., 21 Misc 3d 143[A], 2008 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2008]).”