IME issues

Independent Medical Examinations (IMEs) represent one of the most contested procedural battlegrounds in New York no-fault insurance law. Under CPLR 3121 and 22 NYCRR 202.17, insurance carriers possess the statutory right to require medical examinations when the mental or physical condition of a party is in controversy. However, the exercise of this right is not unlimited. Courts must balance the legitimate interests of insurers in verifying claims against the fundamental rights of injured parties to privacy, dignity, and legal representation.

The parameters governing IME conduct have evolved through decades of appellate litigation. Insurance companies frequently seek to control examination conditions through videotaping, attorney exclusion, and other restrictions that purportedly enhance examination validity. Plaintiffs, conversely, argue that such restrictions create intimidating environments that may skew results and deprive them of procedural safeguards. The tension between these competing interests requires courts to carefully delineate the boundaries of permissible IME procedures.

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. This Fourth Department decision reinforces the principle that departures from standard IME protocols require substantial justification rather than mere assertion. In the absence of demonstrated necessity, courts will protect the traditional rights that attend medical examinations in litigation contexts.

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.

Case Background

The Flores v Vescera case arose from a personal injury action in which the defendant sought to impose specific conditions on the neutral physician examination (NPE). The defendant made two principal requests: first, to videotape the examination, and second, to exclude the plaintiff’s attorney or representative from the examination room. Both requests were challenged by the plaintiff, who moved to preclude these conditions.

The Supreme Court denied the defendant’s requests, and the defendant appealed to the Fourth Department. The appellate court faced the recurring question of how much control a party may exert over the conditions under which an IME is conducted. While defendants routinely argue that special examination conditions are necessary to obtain accurate medical assessments, courts have consistently required more than generalized assertions to justify departures from standard procedures that may disadvantage the examinee.

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”

Legal Significance

The Flores decision reinforces the longstanding New York principle that IME procedures must conform to established statutory and regulatory frameworks unless exceptional circumstances warrant deviation. The court’s videotaping holding traces back to Lamendola v Slocum and reflects judicial skepticism toward technological intrusions that may alter the character of medical examinations. Videotaping potentially transforms a clinical assessment into a recorded performance, raising concerns about examiner and examinee behavior modification that could compromise diagnostic accuracy.

The attorney exclusion component of the decision imposes a demanding evidentiary burden on parties seeking to exclude counsel. The “positive showing of necessity” standard requires concrete evidence that attorney presence would materially impair examination validity, not mere speculation or generalized assertions. This protection serves multiple purposes: it provides a deterrent against improper examination conduct, ensures a witness to examination procedures, and offers reassurance to plaintiffs who may feel vulnerable during medical assessments conducted by opposing parties’ selected physicians.

Practical Implications

For insurance carriers and defense counsel, Flores establishes clear limitations on IME procedural control. Requests for videotaping or attorney exclusion must be supported by detailed factual showings demonstrating how standard examination conditions would compromise medical assessment accuracy. Generic claims about examination integrity or physician preference will not suffice. Defense practitioners must document specific circumstances justifying non-standard procedures before seeking court authorization.

For plaintiffs and their representatives, this decision affirms important procedural protections during the IME process. Attorneys should advise clients of their right to legal representation at examinations and should resist efforts to exclude them absent compelling justification. When faced with videotaping requests, counsel should invoke Flores and demand demonstration of the “special and unusual circumstances” required to overcome the presumption against recording. These protections help ensure that IMEs serve their legitimate function without becoming instruments of intimidation or procedural advantage.

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.

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