Key Takeaway
Court ruling clarifies IME procedures: no videotaping allowed and plaintiff's attorneys cannot be excluded without special circumstances in New York.
Independent Medical Examinations (IMEs) are a crucial component of New York no-fault insurance law, allowing insurance carriers to assess the extent of injuries and ongoing treatment needs. However, the conduct of these examinations is governed by specific procedural rules that both sides must follow. The case of Flores v Vescera provides important clarification on two frequently disputed aspects of IME procedures: whether examinations can be videotaped and whether plaintiff’s attorneys can be excluded from the examination room.
These rulings have significant implications for how IMEs are conducted in New York, affecting both the rights of injured parties and the procedures insurance companies must follow when scheduling these examinations. Understanding these limitations is essential for anyone involved in IME scheduling and compliance.
Jason Tenenbaum’s Analysis:
Flores v Vescera, 2013 NY Slip Op 02866 (4th Dept. 2013)
(1) You cannot videotape the IME
(2) You cannot keep the plaintiff attorney out.
With respect to plaintiff’s motion, we note that there is no express statutory authority to videotape medical examinations (see CPLR 3121; 22 NYCRR 202.17; Lamendola v Slocum, 148 AD2d 781, 781, lv dismissed 74 NY2d 714), and videotaping has not been allowed in the absence of “special and unusual circumstances”
“With respect to defendant’s cross motion, we conclude that Supreme Court properly determined that defendant failed to make the requisite positive showing of necessity for the exclusion of plaintiff’s counsel or other representative from attending the NPE by establishing that the presence of such an individual would impair the validity and effectiveness of the NPE”
Key Takeaway
The Flores v Vescera decision establishes two important procedural safeguards for IME participants in New York. Insurance carriers cannot routinely videotape medical examinations without demonstrating special circumstances, and they cannot exclude plaintiff’s attorneys from attending unless they can prove that the attorney’s presence would compromise the examination’s validity. These protections help ensure fair and proper conduct during the IME process.
Legal Update (February 2026): Since this 2013 post, New York’s IME regulations and procedures may have been updated through amendments to CPLR 3121, changes to court rules under 22 NYCRR 202.17, or new appellate decisions affecting videotaping and attorney presence requirements. Practitioners should verify current provisions governing IME conduct, as technological advances and evolving case law may have modified the standards established in Flores v Vescera.
