Henderson v Ross, 2017 NY Slip Op 01186 (2d Dept. 2016)
For some reason, American Transit (AT) has this inchoate fear of visitors at IMEs that their doctors perform. This fear has materialized into rampant litigation on the issue of whether a Plaintiff’s attorney or paralegal/support staff that is affiliated with a Plaintiff’s attorney is allowed to to attend an IME. I would say that in light of the Dr. Katz and Dr. Israel events of 3-4 years ago (and there is a myriad of interpretations of what really happened that I am not going to opine upon on this blog), one would think that more transparency is better than less.
How many times has a Claimant stated the “IME was 3 minutes”? Do I believe that Claimant? Without proof, who is to say. I know many really awesome IME practitioners who I have referred friends to treat with because their integrity and acumen is second to none. I also know a few IME practitioners that downright scare me and I cringe when I see them in Court (on a PIP or a BI case).
AT disagrees in transparency and the First Department in a prior post on here agreed with AT. The Second Department has now said otherwise, and I think the Second Department got it right.
“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[ ]” (Ponce v Health Ins. Plan of Greater N.Y., 100 AD2d 963, 964; see Guerra v McBean, 127 AD3d 462, 462; A.W. v County of Oneida, 34 AD3d 1236, 1237-1238; see also Bermejo v New York City Health & Hosps. Corp., 135 AD3d 116, 143). Here, the defendant failed to meet his burden of establishing that the plaintiffs’ representative would improperly interfere with the conduct of the injured plaintiff’s physical examination (see Guerra v McBean, 127 AD3d [*2]at 462; Flores v Vescera, 105 AD3d 1340, 1340-1341; A.W. v County of Oneida, 34 AD3d at 1238; see also Lamendola v Slocum, 148 AD2d 781, 781-782; cf. Kattaria v Rosado, _____ AD3d _____, 2017 NY Slip Op 00091 [1st Dept 2017]). Accordingly, the Supreme Court should have denied that branch of the defendant’s motion which was for a protective order precluding any non-attorney from accompanying the injured plaintiff in the examination room during his physical examination.”
Expect this to go to the Court of Appeals.
2 Responses
Considering that the IME doctor has limits as to what he/she can ask the person and that what is said to the doctor can be an admission, it is reasonable to have a representative there to monitor the IME and to have a stop watch in use. In fact, it is good procedure to actually provide the doctor with something in writing listing complaints and how the injury was sustained to avoid any issues
Joel, you miss the point, do not bring reason and sound argument techniques to the table to dispute the issue. We do not want you to go to the IME/EUO. We want a no-show. 4 days notice not enough time, sorry you didn’t object, EUO 2 hours away at my firm’s office, you think I did that so you would show up? Forget the Billion dollar companies, the family owned companies, probably have their brother in laws running the show. So Joel, I understand really I do, but this is no-fault its not your fault.