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This article is part of our ongoing ime issues coverage, with 149 published articles analyzing ime issues issues across New York State. Attorney Jason Tenenbaum brings 24+ years of hands-on experience to this analysis, drawing from his work on more than 1,000 appeals, over 100,000 no-fault cases, and recovery of over $100 million for clients throughout Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, and the Bronx. For personalized legal advice about how these principles apply to your specific situation, contact our Long Island office at (516) 750-0595 for a free consultation.
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.
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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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Legal Context
Why This Matters for Your Case
New York law is among the most complex and nuanced in the country, with distinct procedural rules, substantive doctrines, and court systems that differ significantly from other jurisdictions. The Civil Practice Law and Rules (CPLR) governs every stage of civil litigation, from service of process through trial and appeal. The Appellate Division, Appellate Term, and Court of Appeals create a rich and ever-evolving body of case law that practitioners must follow.
Attorney Jason Tenenbaum has practiced across these areas for over 24 years, writing more than 1,000 appellate briefs and publishing over 2,600 legal articles that attorneys and clients rely on for guidance. The analysis in this article reflects real courtroom experience — from motion practice in Civil Court and Supreme Court to oral arguments before the Appellate Division — and a deep understanding of how New York courts actually apply the law in practice.
About This Topic
Independent Medical Examination (IME) Issues
Independent Medical Examinations are a central tool insurers use to challenge the medical necessity and causation of treatment in no-fault and personal injury cases. The procedural requirements for scheduling IMEs, the consequences of a claimant's failure to appear, and the evidentiary weight of IME reports are heavily litigated. These articles analyze court decisions on IME scheduling, no-show defenses, the qualifications of examining physicians, and the strategic use of IME testimony at trial and arbitration.
149 published articles in IME issues
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Common Questions About This Topic
5 answers from the firm's New York personal-injury and employment-law practice. Click any question to expand.
What is an Independent Medical Examination (IME)?
An IME is a medical examination by a physician selected by, or acceptable to, the insurer, which the mandatory endorsement requires you to attend "when, and as often as, the Company may reasonably require" (11 NYCRR 65-1.1). Insurers use it to verify the claim, including whether treatment remains necessary. An examination requested as verification must be scheduled within 30 calendar days from receipt of the verification forms, at a place and time reasonably convenient to you, in a properly equipped facility, with lost earnings and transportation reimbursed (11 NYCRR 65-3.5(d), (e)). If the report is the reason for a denial, you may demand a copy (11 NYCRR 65-3.8(b)(4)).
Can I refuse to attend an IME?
No. Attendance at the insurer's medical examinations, when and as often as reasonably required, is a term of the coverage, and full compliance is a condition precedent to suing the insurer (11 NYCRR 65-1.1). The Second Department holds that appearance at an IME at any time is a condition precedent to the insurer's liability, so a no-show can support denial back to the date of loss (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 (2d Dept 2006)). What you can insist on is the regulation's terms: a reasonably convenient place and time, a properly equipped facility, and reimbursement of lost earnings and transportation (11 NYCRR 65-3.5(e)).
How should I prepare for an Independent Medical Examination?
Bring photo identification, the scheduling letter and a list of your treating providers. Describe your symptoms, limits and treatment history accurately and completely; do not minimize and do not exaggerate. Expect a physical examination that may measure range of motion and strength. The examination must be held at a place and time reasonably convenient to you in a properly equipped facility, and the insurer must reimburse lost earnings and reasonable transportation expenses (11 NYCRR 65-3.5(e)). Afterward, request a copy of the report if it is used to deny benefits (11 NYCRR 65-3.8(b)(4)) and give it to your treating provider.
What is maximum medical improvement (MMI) in no-fault cases?
"Maximum medical improvement" is a medical opinion that your condition has plateaued and further treatment is unlikely to help. The term appears nowhere in Insurance Law Article 51 or 11 NYCRR Part 65. Its effect comes from two rules: first-party benefits cover only necessary expenses (Insurance Law § 5102(a)(1)), and an insurer may discontinue benefits when it has information which clearly demonstrates that the applicant is no longer disabled, by issuing the prescribed denial form (11 NYCRR 65-3.8(b)(2)). An MMI finding is not a finding that you recovered. Your treating provider can answer the report in writing, and the dispute goes to arbitration or court (Insurance Law § 5106(b)).
Can I challenge an IME doctor's findings in my no-fault case?*
Yes. First demand the report: when a medical examination is the specific reason for a denial, the insurer must release a copy on written request (11 NYCRR 65-3.8(b)(4)). Your treating provider then answers it in writing, citing the findings, tests and measurements in the chart that the examiner ignored; that rebuttal may be an affirmation under penalty of perjury (CPLR 2106). The dispute is decided in arbitration or court at your option (Insurance Law § 5106(b)). Law changed January 1, 2024: CPLR 2106 lets any person affirm under penalty of perjury instead of swearing an affidavit; before then only New York attorneys and licensed health-care practitioners could.
* The law on this point has changed. The answer states the change, its effective date, and which claims the earlier rule still governs. Answers reviewed against the statutes and decisions in force as of September 2026.
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Disclaimer: This article is published by the Law Office of Jason Tenenbaum, P.C. for informational and educational purposes only. It does not constitute legal advice, and no attorney-client relationship is formed by reading this content. The legal principles discussed may not apply to your specific situation, and the law may have changed since this article was last updated.
New York law varies by jurisdiction — court decisions in one Appellate Division department may not be followed in another, and local court rules in Nassau County Supreme Court differ from those in Suffolk County Supreme Court, Kings County Civil Court, or Queens County Supreme Court. The Appellate Division, Second Department (which covers Long Island, Brooklyn, Queens, and Staten Island) and the Appellate Term (which hears appeals from lower courts) each have distinct procedural requirements and precedents that affect litigation strategy.
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